Summaries from: 2025 2024 2023 2022 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004

2025 Developments

2025.05.16 Hearsay in Traffic Court in British Columbia

Section 15.1 of British Columbia's Offence Act permits justices hearing trials of violation tickets to admit hearsay that they consider is relevant, credible and trustworthy.

Cst Tan clocked Mr Thachuk, 2025 BCCA 157 going 97km/h in a 50km/h zone. Excessive speeding. Mr Thachuk contested the ticket.

At the trial, Cst Tan tried to tell a judicial justice justice about the reliability of his hand-held laser speed-gun. When he said "according to the manufacturer...", the lawyer for Mr Thachuk, 2025 BCCA 157 objected. The officer tried to refer the court to the manual. The lawyer objected again. Hearsay. All of it hearsay.

The justice agreed, and therefore treated the speed-gun readings as unreliable. The justice acquitted Mr Thachuk of excessive speeding, but did find him guilty of speeding.

I agree with the lawyer that the information from the manual was hearsay. When you come to court to testify, you are there to talk about what you saw and heard. Cst Tan didn't manufacture the device or test its specifications with other scientific instruments. He didn't write the manual. Therefore what it reported about the device was hearsay. It's what someone else saw and did. Instead of saying it to Cst Tan, they wrote it down. Still hearsay.

There are exceptions to the rule against hearsay. Heaps of exceptions. For example, if you come to trial as an expert witness, then there are kinds of information that you can refer to, including reference textbooks on the subject. Arguably, the officer's training and experience with the speed-gun made him an expert in it.

But set those exceptions aside for a moment. Section 15.1 of the Offence Act made it okay for the justice to accept information from reliable and credible sources. Like manufacturer's specifications.

The Crown appealed. The summary conviction judge ordered a new trial.

For you officers who find yourselves in traffic court, you may find it useful to bring this case citation along with you, especially when the defendant has a lawyer.

That's because most lawyers don't know about s.15.1 of the Offence Act. It seems that some Judicial Justices forget it too. This case will remind them.

It doesn't say that all hearsay is admissible. Only credible and trustworthy hearsay. It won't help you get a justice to admit a statement by an eyewitness to an offence who fails to turn up for trial. But it will help with technical manuals and uncontroversial evidence, such as security video.

2025.05.07 Charter 10(a) - What but not How

Is it possible to record a music video without smoking marijuana? You won't find the answer here. But I would think it should be possible to record a music video without handguns in your possession.

Mr McGowan-Morris, 2025 ONCA 349 and three of his buddies drove around Toronto recording footage for a music video. A police officer saw them and their car, and pulled over to inquire. One of them, smoking a joint on the roadside, explained. When they finished, that guy got into their car, still smoking a joint.

Section 12 of Ontario's Cannabis Control Act prohibits anyone from operating or having care or control of a vehicle with loose marijuana inside. (See the section for exact wording.)

The officers waited until the vehicle started to move, and then pulled it over, with the intention of searching it for marijuana that was loose, or in opened packages.

P.C. Osman told the people in the car that they stopped it because they're not allowed to have cannabis inside; but he didn't mention the officer's plan of searching the vehicle.

The search discovered handguns.

In order to beat the charges, Defence counsel complained that P.C. Osman failed to perform his duty under s.10(a).  Section 10(a) of the Charter requires you to tell everyone that you arrest or detain the reason that you stopped them. The trial judge agreed that P.C. Osman should have told the occupants that they were going to search the car.

The Court of Appeal rejected this idea. "Section 10(a) of the Charter requires that the police only explain what they are investigating, not how they intend to investigate the matter and the steps they might take." (Para 40). P.C. Osman didn't screw up.

That means you can tell people how you're going to investigate an offence, but s.10(a) only requires that you tell them what offence you're investigating.

But wait, there's more.

2025.05.07 Charter s.10(b) - Searching a Vehicle for Insecure Marijuana

The officers described in the story above intended to search a vehicle for open marijuana that they believed was in the vehicle. Section 12 of Ontario's Cannabis Control Act empowered them to do so. (B.C.'s Cannabis Control and Licencing Act does not contain an equivalent section.)

They detained the occupants of the vehicle including Mr McGowan-Morris, 2025 ONCA 349, but didn't immediately inform them about their right to counsel. Did they need to give them access to counsel?

Some judges said "no". The dangers of marijuana in cars resembles the dangers of liquor in drivers. If you can make a driver blow into an alcohol screening device at roadside without giving them access to counsel, then surely you can check their cars for open marijuana.

The Court of Appeal disagreed with those judges.

Although 320.27(1) the Criminal Code provides for screening, it must be demanded and done "immediately". No wasted time. No time to get legal advice.

The Cannabis Control Act does not require the search to be done quickly. It may take a while.

Therefore, when PC Osman detained these folks for the purposes of searching the vehicle for cannabis, he should have told them about their right to counsel.

So he did screw up.

But there was a reason. Things got sketchy fast.

When he first spoke to the occupants of the vehicle, he noticed how tense they were. Two sweated profusely. One stared straight ahead.

P.C. Osman called for backup.

Just as those officers arrived, two guys fled from the car. Osman took one down. Other officers caught the other guy.

So there were some extenuating circumstances.

There was another problem. Someone failed to file a "Form 5.2" report to a justice about the seized guns.

The trial judge excluded all of the evidence, and acquitted Mr McGowan-Morris. The Court of Appeal found that he erred in so doing, and ordered a new trial.

Lessons to learn from this case include:

1. When searching a car for marijuana being transported contrary to provincial legislation, if you detain anyone, you should offer them access to counsel ... unless your legislation authorizes an "immediate" search. (I doubt it does, but I didn't check all of the Cannabis acts in Canada to be sure.)
   
2. File a report to a justice after you seize stuff.
   

2025.05.02 Warrant Drafting - How did the Informant Know?

Drug cops searched the residence of Mr Khamvongsa, 2025 BCCA 33, and busted him for drugs and guns. The trial judge said that their affiant made some mistakes; but he let the evidence in, and convicted the defendant. The Court of Appeal wasn't so generous to the police; they ordered a new trial.

Here are some of the things that the judges didn't like:

• Conclusory statements in the ITO, attributed to the sources, without explanation how the sources knew the information.
• Absence of information explaining why the sources are trustworthy or not, such as whether they have criminal records.
• Absence of information explaining how fresh the information from the sources was.
  
• An assertion that surveillance officers saw something "consistent with a hand-to-hand street-level drug transaction".
  

If your source tells you "Sam is a drug dealer", then you should ask "how do you know?" When the source tells you, ask when these events happened. When writing a report about what your source told you, this kind of information helps the affiant satisfy the judge about the reliability of the information.

When drafting an ITO, you want to include this kind of information for the issuing justice; but for the review in court, you need to summarize or redact the information which tends to identify the source.

Drug investigators observe a lot of hand-to-hand transactions. When watching undercover officers at work, you can confirm after the fact that the transaction involved drugs. When watching a street dealer making the rounds, you may see many transactions that you conclude were drug transactions because after watching they guy for a while, you bust him, and find illegal drugs packaged for sale.

Judges don't observe many drug transactions. For them, the phrase "hand-to-hand transaction" does not automatically mean drug transaction.

Therefore, when drafting an ITO, don't expect the judge to react in the same way as you do. But you can explain why the observation means so much. For example:

"I worked for 8 years investigating drug offences. Over that time, I observed many drug dealers delivering drugs to customers. Typically, they meet in public places, but sometimes at residences. The meetings are very brief, some as short as 10 seconds. Often, I have seen the parties pass things from hand to hand. Because the product and the cash are small things that can be held in the hand, I don't always see what they pass. Sometimes, the product or the cash is packaged in something opaque, to conceal the nature of the transaction.

On this occasion, the source asserted that the target was trafficking drugs at a particular location. A surveillance officer saw a brief interaction at that location in which a man passed a fabric bag or something wrapped in fabric to a female. The brevity of the interaction, and the passing of an object from hand to hand matched my observations of drug transactions in the past. This made me think that the source was correct about drugs being trafficked in that location."

Those of you who draft ITOs may find this decision a useful read. It identifies the kinds of mistakes that officers often make when drafting ITOs.

2025.05.01 Arrest - Taking the Suspect for a Drive - Triggers for a Second Consultation with Counsel

After you arrest your prime target, if you think it would assist your interview of the prime target, you can take him for a drive to a place that might trigger some conversation.

Eduardo Balaquit disappeared from his workplace in Winnipeg. That night, Kyle Pietz, 2025 MBCA 5 used Mr Balaquit's bank cards and PINs at several bank machines to withdraw money from his bank accounts. Cell tower records suggested that on the same night, Mr Pietz's cell phone went for a drive to the town of Arborg, an hour and 20 minutes away.

The investigators figured that Mr Pietz killed Balaquit, and then dumped his body in Arborg.

A year after the disappearance, they arrested Mr Pietz, gave him access to counsel, and then tried interviewing him.

He said nothing about the killing.

They took him to Arborg, where the cell tower records suggested that he went. They asked him to lead them to the body.

Mr Pietz maintained his silence about the homicide.

At trial, defence counsel argued that the drive constituted an "arbitrary detention", and the police lacked the authority to take Mr Pietz away from the police station.

The judges rejected that idea easily. Although you have an obligation under s.503 of the Criminal Code to bring a suspect before a justice without unreasonable delay - and not later than 24 hours - you are entitled to undertake reasonable investigative steps with the suspect. Trying to get him to reveal the location of the body was a reasonable step.

Of course, you know that an arrested person is entitled to one good consultation with a lawyer. But defence counsel correctly pointed out the exceptions to this rule:

• jeopardy changes;
• police embark on an unexpected investigative technique; or
• counsel did not advise the suspect (usually because of language difficulties)

Was taking the suspect for a drive an "unexpected investigative technique"?

At para 62, the court listed some "non-routine" investigative techniques which do trigger a need for further legal advice:

• participation in a live police line-up
• a polygraph test
• swabbing a sexual assault suspect's penis for the victim's DNA
• asking the suspect to provide the password to his cell phone.

A common factor in these techniques is that they "require an accused’s participation and necessarily create or uncover evidence". I note that they arise infrequently.

Interviews are not unexpected investigative techniques.

If you take the suspect for a drive to a scene of the crime for the purpose of encouraging the suspect to talk, it's just an interview in a different place. It does not trigger a right to a second consultation with counsel.

On this drive, the officers did make some unfortunate mistakes. They took Mr Pietz out of the car, and they stood out in the cold. Mr Pietz wore insufficient clothes for the chill. One of the officers said scary things like:

“Your life is going to end here”,
“Do you want to be left out here” and
“You’re looking like a retard. You’re looking stupid now. You’re fucking up your own life, your kids’ lives."

Despite these mistakes, the jury convicted Mr Pietz of manslaughter. The Court of Appeal upheld his conviction.

If you want to find out why those remarks did not blow up this case, read the decision.

If you don't want to blow up your next case, take care of the physical needs of your prisoner, and when interviewing him or her, don't make threatening remarks.

2025.04.30 The Suspect that Runs - Reasonable Grounds to Arrest or Detain

Phillippe Lugela was a jerk.

He wanted to be a gangster. On social media, he bragged of living the lifestyle. He earned a reputation with police as "physically confrontational, hostile and belligerent", habitual criminal, and a flight risk.

He offered to sell a former schoolmate some electronics. When the buddy showed up, Lugela produced a gun, and robbed him of several thousand dollars. Other descriptors than "jerk" might come to mind.

When police learned of the robbery, they checked his history. He had a habit of carrying handguns. Therefore, they arranged for a tactical team to help with the arrest, and briefed the team about the dangers, and what Mr Lugela looked like.

Surveillance officers watched Mr Lugela's car. He picked up some fellow, who, like Mr Lugela, carried a satchel. They watched Mr Lugela's car drive to a mall parking lot, and the two men entered a drug store. The route back to the car involved turning a blind corner. The team picked that spot to make the arrest.

At the moment that the two men reached the corner, the tactical officers jumped out of their van.

As it happens, the two men resembled each other. Both fled.

Mr Lugela fell as he ran. Officers arrested him.

Cst Chan chased and caught the other man, Mr Araya, 2025 ABCA 61.  Cst Chan explained later that he believed that he was chasing Mr Lugela - an understandable mistake, considering how similar the two men looked.

Mr Araya's satchel contained a loaded handgun.

At his trial and on his appeal, Mr Araya complained that Cst Chan had no grounds to arrest him.

Even though Cst Chan was dead wrong about the identity of the person he was chasing, the judges felt no sympathy for Mr Araya.

Mr Araya:

1. looked like the true target, Mr Lugela, and
2. by running away, behaved like the true target.

The judges concluded that Cst Chan had reasonable grounds to think he was chasing Mr Lugela, and therefore, it was a good arrest.

You can't arrest or detain people just because they run away from you. There can be reasons other than guilt. For example, some refugees flee whenever they see police, because of the terrors of the places from which they fled. But when you see multiple factors indicating that someone is involved in crime, the flight from police may tip the balance to reasonable grounds to arrest or detain.

 

2025.04.29 "Amplification" of an ITO - Filling in Gaps After the Fact

How do you explain to a justice that a suspect lives at an address?

In an application to search 8 different places for drugs, the affiant asserted that Mr Griffith, 2025 ONCA 322 lived at his girlfriend's apartment. The ITO explained that they came to this conclusion from “information obtained from some intercepted calls”. The ITO did not quote, nor even summarize those calls. It did mention two incidents when surveillance officers saw Mr Griffith go to the complex.

In fact, there were 10 times that surveillance officers Mr Griffith and/or his car arrive or depart in circumstances that suggested he lived there. The ITO didn't mention this information. Therefore, the summary in the ITO about intercepted calls mislead the justice about how the police knew where he lived.

When you make a drafting error in your ITO, the the prosecutor may apply to "amplify" the ITO, by asking questions which correct the minor errors that may appear in the document.

But "amplification" doesn't let you rewrite the document.

When the defence applied for exclusion of the evidence found in the search, the prosecutor presented the additional evidence anyway.

Prosecutors may find interest in the Court of Appeal's handling of that additional information. Because the ITO lacked the necessary information to justify issuing the warrant, the judges said that the search breached Mr Griffith's right under s.8 to be free from unreasonable search.

But because the police actually had sufficient information to justify the search, the Court of Appeal found that the impact of the breach was minimal, and found that the evidence could be admitted pursuant to s.24(2).

Mr Griffith's convictions stuck.

For cops, the lesson is to summarize the evidence accurately. Even on apparently obvious stuff, like where the suspect lives.

For prosecutors, the lesson appears to be that even if you can't amplify an ITO, there may be benefit in tendering evidence which fills gaps.

2025.04.29 Right to Counsel in the Heat of the Moment - Curiosity Killed the Cop

When things get exciting, it's easy to forget basic principles.

A police officer stopped a car for the purpose of checking the sobriety of the driver. An odour of marijuana permeated the vehicle. The officer asked the driver, Mr Yaghoubi-Araghi, 2025 ONCA 314, where the marijuana was. The driver said it was in a bag in the back seat.

Then things got exciting.

Mr Yaghoubi-Araghi drove the car away fast, and crashed into a tree.

The officer arrested him for flight from a police officer and dangerous driving. The officer walked him back to the police car ...

... and asked him questions about what he had just done.

The officer returned to the car and searched the bag for improperly secured marijuana, pursuant to Ontario's Cannabis Control Act.

In it, the officer found marijuana and a handgun.

The officer returned to the police car and asked more questions.

The officer returned to the crashed car and searched it some more. He found methamphetamine in the trunk.

Finally, the officer returned to the police car and informed Mr Yaghoubi-Araghi of all the charges he was facing, and of his right to legal advice.

I hope that your gut clenched when you saw that the officer asked questions about the offences before offering legal advice. I trust that you know that the Charter requires you to hold off eliciting evidence from a detained or arrested suspect until you offer them legal advice, and they exercise or decline that right.

I suspect that the cop in this case knew better, but was distracted by the excitement of the event. It's hard to tell from the appellate decision, and the trial decision isn't published yet. In any case, the judges were unimpressed.

I lied.

Well ... I exaggerated. Above, I wrote "Curiosity killed the cop". Nobody got killed. The officer's reputation took a beating.

To make amends, let me sing his praises a little.

Curiosity makes cops into better investigators. I like the officer's instinct to ask the suspect for explanations. But in order to comply with the Charter, he needed to hold off until he dealt with the suspect's legal rights.

Because I see this issue often in the case law, I think it's a training issue.

I don't think a PowerPoint presentation can fix it.  Because this cop had 23 years of experience, I'm pretty sure that he "knew" what he had to do; but the excitement of the moment made him forget his book-learning.

You cops have better ways to train for such events than PowerPoint slide shows. In your use-of-force training, you police officers prepare for alarming events, so that even in the excitement of the moment, you can keep your head; and even if you can't think straight, at least your instincts will make you do sensible things.

For the sake of those good curious cops, can you build training for those exciting events which includes the component of holding off eliciting information or evidence from the suspect until after you deal with legal rights?

Postscript: You'd probably liked to know what happened to Mr Yaghoubi-Araghi. The defence asked the trial judge to exclude all of the evidence because the police officer asked questions instead of explaining the right to counsel. The Crown agreed that none of the answers should be admitted in evidence, but pointed out that the police found the gun and the drugs independently from any of the unconstitutional questioning. The judges agreed with the prosecutor. The trial judge convicted him, and the appeal judges upheld the conviction.

2025.04.29 Dog Handler - Reasonable Force to Arrest - Can "Displaying" an Excited Police Dog be Unreasonable?

When officers went to arrest Mr Jaramillo, 2025 BCCA 77 on an outstanding warrant, they knew of his history of violence, and his recent involvement with firearms. They even had reason to believe he recently possessed a sawed-off shotgun.

A dog handler brought a police dog to help with the arrest.

They found Mr Jaramillo at a storage locker. As I understand the facts, the officers closed in suddenly. The dog handler kept the dog firmly on the leash, but let the dog get close. The dog, Norco, barked with aggression while other officers yelled commands at Mr Jaramillo.

He surrendered slowly, unsure what to do. Because of the noise of the dog, he could not hear what the officers were telling him to do.

In the course of the arrest, the police found that he possessed two loaded handguns.

At his sentencing for offences related to those guns, he asked the trial judge to reduce his sentence because of the unreasonable conduct of the police in arresting him.

The trial judge agreed. Even though the dog never bit Mr Jaramillo, the trial judge criticized the police for the callous use of the police dog, and the risks of harm that could have materialized because of the confusion that the dog created.

The court of appeal disagreed. Mr Jaramillo suffered no harm. The officers had abundant reasons to fear that Mr Jaramillo could cause them harm, and therefore bringing and displaying the dog was reasonable.

Mr Jaramillo's legal argument failed; but as a practical matter, it seems sensible that police dogs should not complicate arrests by making too much noise. Surprise arrests can quickly become chaotic. If other officers are going to issue commands to the target, it would seem sensible to keep your dog quiet for the first few seconds of the confrontation, so that the suspect can hear what the other officers say.

But this is a lay person's perspective. Dog handlers may have special expertise.

What kind of testimony would you want to give, when explaining how you trained your dog, and why you deployed your dog aggressively in such a circumstance?

Pass the buck	"In handling my dog during this arrest, I followed the training that I received, which is to display the dog behaving fiercely."
Personal Experience	"I've been handling police dogs for X years, and have used police dogs in X arrests. In my experience, initiating an arrest by immediately displaying the dog behaving aggressively tends to intimidate and confuse the suspects. This tends to prevent them from fleeing or attacking officers."
Research	"I researched arrest techniques used by dog handlers worldwide. What I learned from that study is that people who flee or attack arresting officers tend to create situations in which they or the officers get hurt. I learned that deploying an aggressive dog as early as possible in the interaction tends to reduce the number of times that suspects attempt to flee or attack, and therefore tends to result in safer arrests all around."

I am not a dog handler. I have no expertise in the subject of dog apprehensions. All three testimonial examples above could be wrong.

I do have expertise in presenting witnesses. The witnesses who can give all three types of testimony tend to present best in the court room. But I found that few cops could give me the "Research" category of testimony. But I loved it when they could.

In my experience, dog handlers don't generally like research. Dog work generally appeals to practical, hands-on people, not the legal nerds who come here to read my musings.

Perhaps, learned reader, you might draw to the attention of the dog handlers that you know and love, the value of engaging in research.

And if you are a dog handler who regularly comes here, I'd be happy to hear from you!

2025.03.20 "Intoxicated" by a Drug in a Public Place

A BC police officer sent me a good question:

The BC Liquor Control and Licencing Act authorizes police officers to arrest drunks who can not care for themselves public places. But what can police officers do about drug users? Drugs have replaced alcohol as the main public nuisance.

If you look for case law under the current version of the Act, you won't find much guidance. But BC judges considered this question when previous version (RSBC 1996, c 267) was in force. First, let's check to see if the new legislation changed the offence:

Liquor Control and Licensing Act, RSBC 1996, c 267	Liquor Control and Licensing Act, SBC 2015, c 19
Drunkenness in public place 41  (1) A person who is intoxicated must not be or remain in a public place. (2) A peace officer may arrest, without a warrant, a person found intoxicated in a public place.	Intoxication in public place 74      (1) A person who is intoxicated must not be or remain in a public place. (2) A peace officer may arrest, without a warrant, a person whom the peace officer believes on reasonable grounds is contravening subsection (1).

You can see that the offence under 41(1) is identical to the offence in s.74(1). No change there.

The authority to arrest in subsection 74(2) has expanded. You can now act on information received from others; before you had to find the person intoxicated.

Why did the heading change from "Drunkenness in public place" to "Intoxication in public place"?

Because the judges interpreted the old s.41 to include intoxication by drugs. R. v. Wallace, 1998 CanLII 6701 (BC SC)  at para 22; R. v. Legrandeur, 2006 BCSC 227 at para 16. We can reasonably infer that the legislature agreed with the judges that the power to arrest for public intoxication applies to drug intoxication as well as alcohol intoxication.

In BC, police can arrest someone for being Intoxicated in a Public Place, regardless of the kind of intoxicant. (I have not researched what legislation police in other provinces use to arrest these folks.)

Intoxication isn't enough. You can only arrest under this section when they are a danger to themselves or others or causing a disturbance. (See Wallace).

Take care. When you do arrest someone under that kind of intoxication, you become responsible for their well-being.

2025.03.08 "Chinese" is multiple languages - What to do with Translation Difficulties

I read some interesting discussion about the dialects of Cantonese. I knew that Chinese languages were complicated, but it's even more complicated than I thought.

Because you police officers must sometimes arrest people who don't speak English, and sometimes arrest people who pretend, I thought you might the discussion of languages in this case interesting too.

At age 70, Mr Chen, 2025 ONCA 168 suddenly attacked and killed a 63-year-old woman with whom he was acquainted.

Why? He had no history of violence. Perhaps he suffered late-onset schizophrenia: he claimed that ghosts directed him.

Mr Chen spoke no English. He grew up in a rural village in the Guangdong province of China, where he learned to speak Taishanese - a dialect of Cantonese. He was illiterate in all languages. He came to Canada in 2000.

The trial court convicted him of murder. He asked for a new trial. He claimed that he did not understand part of the trial because one of the interpreters at the trial spoke Cantonese, not Taishanese.

At the appeal, the Crown and defence tendered conflicting evidence about Mr Chen's ability to understand Cantonese.

After his arrest, an English-speaking police officer interviewed him. A Cantonese-speaking officer acted as interpreter. During the conversation, the record showed that Mr Chen had trouble understanding the questions put to him. On the other hand, he was able to converse with the interpreter about the right to counsel, and where and how to use the washroom.

The police interpreter believed that Mr Chen understood Cantonese.

One court interpreter, whose mother tongue was Taishanese, testified that Mr Chen spoke a version of Taishanese which differed greatly from Cantonese. He would only understand simple things in Cantonese, such as getting a coffee or saying hello.

The other interpreter said that Mr Chen spoke reasonable Cantonese, but in a manner that resembled "baby talk".

Experts testified on the history and politics of language in communist China, explaining why Mr Chen would or would not understand Cantonese.

Of course, Mr Chen gave evidence that he understood none of what the Cantonese-speaking interpreter said.

Was he trustworthy? The psychiatrist who assessed his mental state felt that Mr Chen pretended to have a psychiatric disorder that he did not have. If he would lie about his sanity, then he might lie about ability to understand.

The appeal court granted the appeal.

That result is not the fault of any police officer, but I think that officers can learn useful things:

1. We all know that languages have dialects, but apparently some languages such as Cantonese contain dialects that are incomprehensible to other speakers of the language. If you use an interpreter, you might ask the interpreter if they have any difficulty communicating with your suspect or witness.
   
2. Police officers who speak foreign languages with suspects may want to take some extra time and care to determine and document the suspects' ability to comprehend. With the benefit of hindsight, it seems to me that a lengthy recording of Mr Chen discussing ordinary things with the police interpreter might have been useful at trial. I would think that such a step only becomes necessary when you find that the suspect speaks the language with an accent distinctly different from your own.
3. Faking good is a problem. When your suspect speaks with an accent, or when you talk through an interpreter, asking whether the person understands isn't always enough. One strategy for communicating in a foreign land is to answer every question with "yes". On average, that answer results in more good things than bad: "Are you lost?" "Do you have a passport?" "Would you like another beer?" Therefore, when comprehension may be in issue, dive a little deeper. Instead of asking "Do you understand?", try "Please explain in your own words what I just explained to you?"
4. Faking bad is also a problem. Taking some time, and recording the conversation may help the judge distinguish between the fakers and the honestly confused.
   

2025.02.07 Cops Bust Gun-Toting Parole Violator ... And Then Screw Up - Search and Seizure - Right to Counsel

Mr Truong, 2025 ONCA 69 killed someone. A judge convicted him of manslaughter and sent him to jail. He got out on parole, but he disobeyed the conditions. The Parole Board issued a warrant for his arrest. For similar reasons, the Parole Board also issued a warrant for his buddy, Mr Kreko.

When they received the warrants, a special team of provincial police devoted to repeat offenders went looking for the two men. They had reasons to suspect that they might be armed.

Undercover officers found Mr Truong walking near an apartment building, with a woman, walking a dog.

An officer identified himself as police, grabbed Mr Truong's arm and told him he was under arrest. Mr Truong pulled away. Officers took him quickly to the ground. He would not show his hands when asked, and so the police officers struck him several times. Mr Truong then acquiesced, and told them about the loaded Glock in his jacket.

Have you seen any screw-ups yet?

Me neither. Nor did the judge.

The violence appears justified. Before they struck him, these officers had reasons to fear that Mr Truong had a weapon and might use it. His resistance during the arrest amplified this concern.

The woman told the officers that Mr Truong had been staying at her place, and there was a room in her apartment from which she was prohibited from entering. Although she didn't mention Mr Kreko, the officers thought that he might be staying there too.

What should the undercover officers do?

They had no secure police car in which to transport Mr Truong. They wanted to catch Mr Kreko, if they could.

These provincial police called the local municipal police to manage Mr Truong.

Mr Truong wanted counsel. The city cops delayed access in case further charges popped up in the minutes or hours that followed. They kept him on scene for over an hour waiting to see what would happen.

Do you hear a ringing sound? Yeah. You should. It's an alarm bell in your head. If you don't hear it, then you should get your head checked out ... or read the decision.

Meanwhile, the provincial officers asked the woman for permission to enter the apartment to look for him. It looks like they weren't worrying about evidence. They didn't explain that she could refuse. Nor did they ask Mr Truong for permission to search. Therefore, the officers didn't get lawful consent from either of the people they knew to be living in the apartment.

Is that ringing sound getting louder? Good!

In their defence, I suspect that they were thinking only about the importance of getting a dangerous parole violator off the streets. They weren't thinking about evidence, and they weren't thinking about Charter rights.

You probably know where this is going.

The woman said "yes". In they went. They didn't find Mr Kreko. They did find lots of drugs.

The officers who searched the apartment posted an officer at the door, hoping to get a search warrant. Someone at the police station nixed that idea: the initial search was unlawful. Instead of obtaining judicial authority, a senior officer directed a team to seize the drugs without a warrant. A "no case seizure". Get the drugs of the street. They cleared the place of drugs.

I apologize for the awful noise in your head. The sound of alarm bells should now be deafening. Two warrantless searches of a residence is worse than one.

This prosecution involved no drug charges. Just the gun.

Mr Truong asked the court to exclude the gun from evidence because of the three breaches of his Charter rights: he didn't get legal advice for hours, even though he asked for it; and the cops searched his home without a warrant - twice.

The judges agreed that the officers breached his rights. They agreed that the breaches could justify excluding the evidence. But not in this case. The gun charge stuck. Read the decision if you want to understand their reasons. The big point is that screw-ups like these can imperil the entire investigation.

What an excellent fact pattern for discussions!

• If you work in a plainclothes or undercover team and you arrest someone, how will you ensure that the uniformed members who receive your prisoner will give him prompt access to counsel?
  
• If you wear a uniform, and you receive a prisoner from some other unit or team, how will you make sure that you don't screw up a serious investigation?
  
• If you have a warrant to arrest someone, and you think he's hiding in an apartment, what will you do to get consent to enter? If you can't get consent, what are your alternatives?
  
• Could these officers have entered on the basis of exigent circumstances? If not in this case, what would make the difference next time?
  
• What should you do to secure the contraband that other officers discovered during an unlawful residential search? (I think that you should seek a warrant. The ITO should confess all the problems, and explain the urgency of getting the poison off the streets. But maybe you have another idea.)
  

2025.01.06 ITO Drafting - Confessing Rejection

When you apply for a warrant or production order, you must explain in the Information To Obtain the reasons that the justice or judge should grant it ... and the reasons that the judge or justice should refuse it.

It's easy to forget that second obligation.

This principle applies to the facts.

If you compelling reasons to believe that Mr Felon robbed a gas station, and that searching his apartment will discover the disguise that the robber used, then of course your ITO must provide that information to the issuing justice.

If you receive information which contradicts your theory, you must include that information in your ITO, even if you don't believe it. "I spoke with Mr Felon's girlfriend, Allie Bye. She told me that on the day of the robbery, Mr Felon spent the entire day in her bedroom."

If you don't believe this information, you can explain why: "I don't believe Ms Bye because of her criminal convictions for deceit and her past history of lying. Over the past 6 years, she was convicted 7 times for obtaining things by false pretenses, fraud and theft. She has called police 6 times in the last 2 years complaining that Mr Felon assaulted her. On four occasions, she suffered visible injuries; on two occasions she required hospitalization. On all six times, charges were laid against Mr Felon. She recanted her allegations each time, and resumed residing with him. While it's possible that her allegations of violence were false, this pattern makes me think that he dominates her, and she lies about his misconduct in the hope of winning his favour."

I observe that such a paragraph would contradict the boilerplate many officers use in their ITOs: "I have personal knowledge of the matters set out herein, except where stated to be on information and belief, and where so stated I believe it to be true."

The requirement of frank disclosure applies also to rejections.

I read today Application for the taking of bodily substances for the purpose of forensic DNA analysis (Re), 2024 NSPC 7.

The judge refused to grant a DNA application because the judge discovered - from conversation with other judges - that the officer who applied for it forgot to mention that two other judges had already refused to grant the application.

Having made this discovery, the judge didn't even consider the application on its merits.

Go do it again!

Was the judge just being a jerk? No! The judge protected the police officer from worse criticism at trial. Here's what the judge said you should do if an earlier judge or justice refuses your application (para 8):

1. Add more information to the ITO, so that the judge can understand why the order should be granted.
2. If there is no more information to add, consult with Crown to see if it's appropriate to resubmit the application.
3. Regardless, the new ITO must mention the earlier refusal, including the date, the name of the judicial officer, and the reason given for the refusal.
4. Attach the previous judicial officer's reasons as an appendix to the ITO.
   
5. Avoid any appearance of judge-shopping. While it might be okay to ask that a different judicial officer review the new application, it's not okay to do anything to choose the judicial officer.
6. If you get refused twice, don't apply a third time without adding more to the ITO. [I would add "or getting significant help".]
   

2025.01.01 Right to Counsel in Exigent Circumstances

I've been thinking for over a decade about what police should do about access to counsel when lives are at stake. I've seen very little case law. That made me think about this recent decision.

Mr Mucpa, 2024 NUCA 15 called the RCMP in the afternoon. He told them:

"I... just...killed...my auntie man"
"I can prove it to you. I got blood all over me".

He orchestrated his own surrender the next day at the tiny RCMP detachment at Pond Inlet at the northern tip of Baffin Island. At 1:45pm, a police officer found him sitting on the steps waiting for them to arrive.

The officer who found him talked with him, and then detained him. The officer didn't start taking notes until two and a half hours after meeting him, but he did - wisely - turn on a recording device for the purposes of a formal arrest.

Mr Mucpa initially declined to speak to a lawyer. The investigating officer made commendable efforts to ensure that he understood that right. Mr Mucpa eventually expressed interest. The officer arranged for him to get legal advice. After Mr Mucpa talked with counsel, the lawyer told the officer that Mr Mucpa was too drunk, and that counsel needed to talk to him later, when he sobered up. The officer told the lawyer that he didn't think Mr Mucpa was intoxicated, but they'd call back in a couple of hours.

The officer called for advice. A senior investigator suggested that perhaps the victim wasn't dead. Perhaps the attack only incapacitated her. If so, she needed prompt assistance. (Baffin Island has cold temperatures and polar bears.)

The officer carefully reminded Mr Mucpa of his right to silence, and then asked him if he would lead the officers to her. He agreed readily, and took them to her dead body.

At his murder trial, defence complained that the officer breached Mr Mucpa's right to get legal advice: before Mr Mucpa had finished getting legal advice, the officer elicited evidence from him about the offence. The prosecution agreed, but asked the judge to admit the evidence anyway, because the evidence established that Mr Mucpa was going to help the police no matter what the lawyer told him.

The judge agreed that the officer breached Mr Mucpa's right to counsel, but agreed with the prosecution that the evidence should be admitted into the trial. And the Court of Appeal also agreed. Mr Mucpa's confessions to the killing were admissible. He was convicted of murder, and the Court of Appeal upheld that verdict.

I think that there are limits to the right to counsel, and this illustrates one of them. Where life is immediately at stake, legal advice takes a back seat.

Because I don't have all of the facts, I can't say that the prosecutor was wrong to concede a breach of s.10(b) in this case. As far as I can tell, the officer had nothing more than speculation that the victim might still be alive.

But in a slightly different case, I think that you might be correct to override a suspect's right to counsel, or to pursue creative avenues to save lives.

Recall that section 1 of the Charter of Rights and Freedoms guarantees rights "subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Is it your job to save lives?

Damn tootin' it is!

Is saving lives an obligation "prescribed by law"? Yup. The Supreme Court of Canada says it's a general common law duty of police officers. R. v. Godoy, [1999] 1 SCR 311. That's good enough.

Therefore, where life is sufficiently at stake, you can over-ride a prisoner's right to counsel.

This case provides an opportunity to explore how the right to counsel plays out when life is at stake.

Suppose you were that officer. Suppose that you start to worry that the victim might still be alive. Mr Mucpa comes out of the phone room, and says that the lawyer wants to talk to you. The lawyer tells you that Mr Mucpa is too drunk to understand his legal advice. You think that Mr Mucpa is sober enough to understand his rights.

We can figure out how to proceed by considering first principles.

You have a duty to protect life, and to investigate crime.

After you arrest someone, section 10 requires you to give them a reasonable opportunity to get legal advice.

Saving lives is more important than busting crooks, but it's best to save lives and bust criminals.

How do you tell whether your situation justifies overriding the right to counsel for the purpose of saving life?

Evidence!

How much evidence?

The court in Godoy established that reasonable suspicion that life is at stake justifies an infringement of s.8 of the Charter. I infer that the same level of knowledge would justify an infringement of s.10.

Therefore, I think that you need grounds to suspect that:

• the victim is still alive and needs help, and
• the situation is so urgent that there isn't time to provide legal advice.

Option 1 - Discuss it with Mr Mucpa

Like the investigating officer in this case, you could broach the problem with Mr Mucpa. If so, you should keep the question narrow: is there a possibility that the victim is still alive?

"Something important just occurred to me. Some people survive terrible violence. I'm wondering whether your auntie might still be alive and in need of help. If so, I want to help her. But you're under investigation for murder right now. You have the right to silence. That means you don't have to tell me anything. Do you understand?  If you think there's a possibility that she might still be alive, I'd sure like to know. If it's possible to save her, that's what I want to do."

If you get an answer which establishes hope, you still need to learn whether the situation is so urgent that it overrides accessing legal advice. I suspect that's why trial counsel in the Mucpa case conceded the breach. Over 24 hours had passed. This was Baffin Island in summer. Night time temperatures in that area at that time would have been close to freezing. If she was close to death after the assault, she was not very likely to be alive and in need of help a day later.

Option 2 - Discuss it with counsel

The lawyer's job is to give legal advice so as to protect the suspect's interests. You can might make progress by talking to the lawyer:

"Counsel, I need you to talk with Mr Mucpa some more. We don't have time to wait for him to sober up. As you know, I'm investigating Mr Mucpa for murder. I believe that there is some reasonable prospect that the victim is still alive, but in need of immediate assistance. Here's why <explain what you know>.  If she dies, he may be convicted of murder. If she lives, he might be charged with a serious assault, but he won't be charged with murder. But only if I can save her now. Your job is to give him advice. If you can find out from him where she is, you may be able to protect him from the more serious charges. I want to know where she is. You could get that information to us anonymously through a tip line, or by calling another lawyer to deliver it to us. If you do that, he won't be giving a confession that can be attributed to him and I might save her life. Everybody wins. Just so you know, I'm recording this conversation, because I figure that this is a high-risk situation for him, you and me. When you're done talking with him, I'm going to ask you if you think there is any prospect that we could save the life of this woman."

In the circumstances of Mr Mucpa's case, I prefer option 2. But I guarantee that the next time that an officer encounters this tricky situation, the facts will differ. If it's you, you'll need to find your own path through the essential principles: suspect's right to silence and prompt legal advice; your duty to save lives. If you think about them today, you'll be better prepared to find you way through this difficult conundrum.

2024 Developments

2024.12.19 Wiretap - Naming the Knowns - Informally describing a person, place or thing

If you know how to apply for a search warrant, beware of wiretap. It includes some extra "gotchas", like s.186(4)(c), which requires the applicant to "state the identity of the persons, if known, whose private communications are to be intercepted".

A confidential informant told police that "Marco", a Serb in London Ontario, would purchase large quantities of drugs. The informant gave Marco's phone number.

Does this fragmentary information suffice to identify the person of interest?

Police busted Mr Marco Maric, 2024 ONCA 665. At trial, he complained that the wiretap authorization that led to his conviction should never have named him as a person on whom the police could snoop, because they didn't have enough information to identify him. If he succeeded, he would have beaten the charges.

The court disagreed.

"identity can be established on the basis of other factors or combination of factors [than legal name], such as a nickname, physical description, or other indicators" (para 134)

This notion matters not just in wiretap applications, but in all search warrant and production order applications. If you have a legal name for a person or a formal street address for a location, then your application should use it. But you can also identify people, places and things with less formality. Suppose, for example, that you need to arrest the mad trapper in the woods who has holed up in a log cabin. Nobody knows his name. Your Feeney warrant could authorize you to enter "the log cabin at the north end of Lonesome Loon Lake" to arrest "the 6' bearded Cacausian with a squint in his left eye who lives there".

For wiretap applications this "gotcha" can get you either way:

• You can't identify a "known" if there isn't evidence to establish that intercepting their communications will advance the case;
• You must identify a "known"  if intercepting their communications will advance the investigation.

2024.12.10 Search Incidental to Arrest - Text Messages Impersonating a Drug Dealer

After you arrest someone, what can you do with text messages that pop up on his phone?

Police got a warrant, and busted Mr Gammie for drug dealing. After they seized his phone, it lit up with text messages from his supplier offering to sell him more drugs to sell.

What would you do?

These officers set a trap.

They used the phone to continue the text conversation. They expressed interest in buying the drugs, and explained how to get to Mr Gammie's house.

Mr Campbell, 2024 SCC 42 turned up. When he saw the police officers, he tried to flee. The officers caught and arrested him. He possessed some heroin laced with fentanyl, and a phone which contained the same text messages that the officers sent him from Mr Gammie's phone.

The case raised questions that matter to investigators generally. Some of the answers matter to investigations that do not involve cell phones.

1. Did Mr Campbell enjoy a reasonable expectation of privacy in this conversation?
2. Did the police officers commit a crime? Using technology to intercept a private conversation is an offence. See s.184 of the Criminal Code.
3. Was this engaging in this text conversation a search incidental to Mr Gammie's arrest?
4. Can police answer calls or texts on an arrested person's cell phone?
   
5. Did the officers need authorization of some sort from a judge text communication?
6. Were these "exigent circumstances"?
   

Expectation of Privacy

Mr Campbell said that the phone that the police took from him wasn't his. According to Mr Campbell, some guy named "Dew" made the initial offer to sell the drugs to Mr Gammie. Mr Dew gave the cell phone to Mr Campbell, so that Mr Campbell could arrange the delivery with Mr Gammie.

The prosecution suggested that under these circumstances, Mr Campbell enjoyed no reasonable expectation of privacy. When he gave the phone back to "Dew", he would lose privacy over the texts that he sent from it.

Most of the judges agreed with the defence. In most situations, people reasonably expect their text message conversations won't be shared with police. Even if they use a borrowed phone. In this situation, even after he gave the cell phone back to "Dew", Mr Campbell wouldn't expect "Dew" to hand this data over to the police. He enjoyed a reasonable expectation of privacy over the text messages.

That engaged s.8 of the Charter.

The judges disagreed on how to determine expectations of privacy. Justice Côté believed that the police technique did not interfere with any reasonable expectations of privacy: the cell phone was locked. The police saw only the text messages that the locked phone permitted. Their messages to Mr Campbell focussed solely on the proposed sale of drugs - they did not attempt to elicit any personal information about Mr Campbell. Therefore, the police technique did not engage s.8.  She pointed out that the majority's approach to determining the expectations of privacy in text messages results in the conclusion that most consensual text messaging conversations enjoy Charter protection.

The dissent's approach would accord a high expectation of privacy in most text messaging conversations.

Wiretap - "Interception" of Private Communications [paras 84-99]

The investigators did not commit the offence described in s.184 because they did not use some additional technology or device to receive the text messages. They used the very phone to which Mr Campbell directed his messages.

That's a relief.

If you use a victim's email or social media account to engage in a conversation with a culprit who is extorting or luring the victim, you won't be doing something that requires a wiretap authorization.

Search incidental to arrest [paras 101-108]

Was it lawful for police to use this phone in these circumstances as part of a search incident to arrest?

No.

The officers arrested Mr Gammie for drugs that they knew about already from their tipster. They didn't arrest him for Mr Campbell's drugs. Therefore, the text message conversation was not a search for evidence of the offence for which they had arrested Mr Gammie. It was a "search" for evidence of some other offence.

This is an important point generally. Many officers assume that when they arrest someone, they have a blanket authority to search the prisoner and the prisoner's vicinity (often a vehicle) for whatever turns up.

Nope.

You can only search for evidence of the offence that you arrested the suspect for, or objects that pose safety risks. For example, if you arrest a drunk driver, you can look for evidence that relates to that offence. Bottles of booze. Receipts from the bar. That sort of thing. You can't start removing panels from the car in the hope that you'll find hidden drugs.

But could you use a cell phone incidental to arrest in similar circumstances?

Possibly, yes.

Suppose that you arrest someone for some ongoing crime, such as a kidnapping or conspiracy to import drugs. And suppose your prisoner's phone receives a text message about the crime under investigation. The majority's reasoning leaves this search incidental to arrest as a justification for impersonating your prisoner and continuing the conversation. In this kind of case, you'd be collecting evidence of the offence for which you arrested the prisoner.

Answering the prisoner's phone [para 70]

"[T]here is nothing necessarily improper in the police answering the phone of an arrested person and speaking with an unsuspecting caller... but speaking with a caller on a telephone is constitutionally different from creating a permanent electronic record of the communication through a surreptitious sound recording or by using the medium of text messaging."

Wow.

There's a lot to unpack.

It's generally okay to answer the phone, and pretend to be the owner. But turning on a recording device to record the phone conversation triggers s.8 of the Charter. I guess it's okay to make handwritten notes of the conversation.

Texting triggers s.8 of the Charter because it creates a permanent record. (That raises an interesting question about SnapChat. Those messages are usually available only for a short time. It may be that covertly engaging in a SnapChat conversation with your target may require judicial pre-authorization or exigent circumstances.

Investigating child luring may get trickier, notwithstanding the helpful case of Mills, 2019 SCC 22.

Exigent Circumstances

Exigent circumstances may justify a warrantless search when there is:

1. an imminent threat to the police or public safety, or
2. an imminent risk of loss or destruction of evidence.

5 of the 9 judges found that exigent circumstances justified the text message conversation. But this determination relied heavily on the facts of the case.

For some reason, the prosecution relied only on the public threat. They did not argue that the imminent loss of evidence justified the search. I don't know why.

The text messages offered to sell $1,250 worth of heroin laced with fentanyl. The vendor expressed impatience. The officers explained their fears: fentanyl kills; this was their only chance to interdict this substantial quantity of dangerous drug. If Gammie didn't buy it immediately, they expected the vendor to sell it to someone else.

These judges found that these drugs posed an imminent and grave risk to the public. This justified intruding into Mr Campbell's private text message conversation.

Three dissenting judges didn't see this as sufficiently urgent to justify violating Mr Campbell's privacy.

Next time you rely on exigent circumstances, ask yourself:

• Is anyone in danger? How serious is the danger? How likely is it that they will suffer harm?
• Is any evidence in danger? How important is the evidence? How likely is it that the evidence will disappear if I don't act now.

Judicial Pre-Authorization

If you don't have exigent circumstances, then you need a judge to authorize this kind of intrusion into privacy.

When attending to execute this search warrant on Mr Gammie's home, these officers did not expect to be having a text conversation with his supplier. Nobody argued that in this case, they should have anticipated such a development.

Your next case may differ. At the time you apply for your search warrant, you may have reasons to think that your target's phone will receive text messages that relate to the investigation.

If you know that communicating on the target's cell phone may advance your case, then you need to ask for permission to do so before you arrive at the search. (Maybe you're okay with seizing the phone and waiting a day or two before using it; if so, you can apply for the warrant after the initial seizure.)

Which warrant do you need?

In the lower courts, the lawyers argued that a warrant under s.11 of the CDSA would have sufficed. The judges of the Supreme Court of Canada expressed concern that perhaps you would need a general warrant under s.487.01 of the Criminal Code. I think so too.

Conclusions

Mr Campbell's conviction stuck.

This case illustrates how the law imposes impossible requirements on police.

Before these officers started using the phone, they stopped and considered for a couple of minutes whether they had lawful authority. The majority, who agreed with them, liked how these officers considered privacy rights before proceeding. One of them held that their investigative approach did not intrude on any reasonable expectations of privacy.

The dissenting judges felt that the officers misconducted themselves seriously. They would have excluded the evidence, and acquitted Mr Campbell.

Those officers had a only couple of minutes to figure out what to do. The judges took years to reach their conclusions after hearing full legal argument.  And the judges didn't even agree.

You police officers must make snap determinations about expectations of privacy, especially in exigent circumstances. The law remains vague.  But you will hone your instincts if you keep reading cases like this one.

Unfortunately, this one is long. I spent days reading and re-reading it. Even though they disagree, each judge made useful points. If you're in a hurry, read the majority opinion (paras 1-146). My (lengthy) summary above skims the surface. If you want to hone your instincts, read the other opinions too.

2024.12.08 Warrant Execution - Plan for Prisoners

When you make a plan, make a good one.

When you plan to arrest someone, make a plan for your prisoner to get legal advice.

Tipsters told police that Mr Samuels, 2024 ONCA 786 dealt drugs. Their information appeared credible and compelling.

The lead investigator prepared a warrant to search his place, but his superiors directed him to arrest Mr Samuels on the streets before applying for the warrant, so as to reduce the risks of the warrant execution.

That led to an extended period during which the officers prevented Mr Samuels from contacting counsel. They did not want him to use the phone call to tip off other people who could destroy evidence in the residence.

The Ontario Court of Appeal forgave such a delay in the case of a Mr Keshavarz, 2022 ONCA 312. But not this time.

The difference was in the planning. Mr Samuels' case was an planned arrest, and a planned suspension of access to counsel pending the granting of a search warrant.  Mr Keshavarz involved an unexpected arrest, which triggered a need to seek a warrant, and to suspend access to counsel until the justice granted the warrant.

The court didn't like the plan because it involved a deliberate breach of Charter rights.

With the clarity of hindsight, we can think of alternate plans.

For example, what if the ITO asked the justice to grant a 5-day window in which to arrest the defendant? The affiant could have explained the safety concerns: "I ask for a wider window for the execution of this warrant than usual, for the safety of the Mr Samuels and the officers executing the warrant. As set out below, Mr Samuels has demonstrated a history of aggression toward police officers (source and summarize the incidents). This history makes me think that he may react violently when police attend his residence to execute a warrant. Therefore, if possible, we would like to arrest him outside his residence before executing the warrant. If we can not arrest him outside his residence, this history will justify a more forceful entry to the residence, possibly without knocking at the door or announcing police presence. I seek to avoid this riskier manner of entry."

2024.11.28 Open Liquor in a vehicle - "Readily Accessible" - Unzipping a gangster's gym bag

Open liquor in a vehicle poses a problem because people in the car may drink it. It's easy to pass around. Even to the driver.

From province to province, police officers' powers differ in their ability to search vehicles for open liquor.

The exact words of the legislation mattered to Mr Guerrier, 2024 ONCA 838. During a search for liquor in his car, police officers found a loaded handgun and another handgun with a full overcapacity magazine.

Four members of an anti-gang unit pulled over Mr Guerrier's car after he and his friends left a rap concert in downtown Ottawa. "One of the officers spotted an open bottle of cognac behind a child’s car seat next to one of the passengers in the back of the car." (para 2) The officers searched the car for more liquor, and found the guns.

Mr Guerrier complained that the police unlawfully unzipped the gym bag which contained one of the guns.

Let's compare Ontario and BC legislation. Because they are wordy, I highlight the important bits.

Ontario - Liquor Licence and Control Act	BC - Liquor Control and Licensing Act
Conveying liquor in vehicle, boat 32 (1) No person shall drive or have the care or control of a motor vehicle as defined in the Highway Traffic Act or a motorized snow vehicle, whether it is in motion or not, while there is contained in the vehicle any liquor, except under the authority of a licence or permit. Exception (2) Subsection (1) does not apply if the liquor in the vehicle, (a) is in a container that is unopened and the seal unbroken; or (b) is packed in baggage that is fastened closed or is not otherwise readily available to any person in the vehicle. …	Liquor in motor vehicle 76   (1) In this section, "motor vehicle" has the same meaning as in the Motor Vehicle Act, and includes an off-road vehicle within the meaning of the Off-Road Vehicle Act. (2) Subject to subsection (3), a person must not drive or otherwise exercise control over the operation of a motor vehicle, whether or not it is in motion, while there is liquor in the person's possession or in the motor vehicle. (3) Subsection (2) does not apply (a) if the liquor is in a container that is unopened and has an unbroken seal, (b) if the liquor is being transported, sold or served in accordance with the terms and conditions of a licence, authorization or permit, or (c) in any other case, if the liquor is not readily accessible by the driver and passengers.
Search of vehicle or boat (5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it.	Search 44   (1) In this section, "justice" has the same meaning as in the Offence Act. (2) A justice who is satisfied by information on oath in the prescribed form that there are reasonable grounds to believe that there is in a vehicle, a place or premises, including premises or a part of premises occupied solely as a private dwelling, (a) any thing on or in respect of which an offence under this Act has been or is suspected to have been committed, or (b) any thing that there is reasonable grounds to believe may provide evidence of the commission of the offence may issue a warrant authorizing a person named in the warrant or a peace officer to search the vehicle, place or premises for that thing, and to seize and remove that thing. ... (5) Despite subsection (2), if the conditions for obtaining a warrant exist and a peace officer has a reasonable belief that the delay necessary to obtain the warrant would result in the loss or destruction of evidence, the peace officer may, without a warrant, (a) enter and search a vehicle, place or premises, other than a private dwelling, and (b) seize and remove any thing that the peace officer has reasonable grounds to believe may provide evidence of the commission of an offence under this Act.

Defence counsel argued that under the Ontario legislation, that gym bag was "fastened closed". If so, the search was unlawful.

The court pointed out that 32(2)(b) of the Ontario Act focuses on unsealed liquor that is "readily accessible" to the occupants of the car. (So does the BC Act) If the zipped gym bag were in the trunk, its contents would not be "readily accessible" to the occupants and driver. But this gym bag sat on the back seat, next to a passenger. Unzipping it would take only a second. It's contents were "readily accessible". Therefore the search was lawful and Mr Guerrier was convicted.

Could a cop in BC do the same thing as the Ontario officers did? I don't think so.

BC officers can seize open liquor in vehicles (see s.46), but searching for more ain't so easy. Not any more. Some years ago, the BC legislature curtailed police powers of search of vehicles for liquor. I know of no cases which interpret s.44(5) of the Act, but it seems to me that in most cases, an officer who wants to search a car for open liquor must detain the car at the roadside while another officer applies for a search warrant. Inconvenience to the driver, the passengers or the police do not appear to justify the kind of warrantless search that Ontario officers can perform. Only imminent loss or destruction of evidence.

Members of a BC gang unit, however, might find that they have the time to draft such a warrant. With certain suspects. If so, they should expect a fierce attack on their motives. Was their concern about liquor just a pretext to shake down a gangster? That attack should fail if they can supply objective evidence which establishes why an independent decision-maker would think that a gangster's vehicle contains open liquor.

Suppose defence challenges you:

"You singled my client out. With ordinary drivers, you would not have sought a warrant to search for open liquor."

I think a fair answer might be:

"I agree that I would not go to this trouble with ordinary drivers. But your client wasn't an ordinary driver. The background information I had on your client made me think that he posed many dangers to society. I was not surprised to find evidence that he may be drinking and driving as well. Therefore, it was not so much that I singled him out for special attention, but that he singled himself out. I just applied the law, and an independent decision-maker agreed that a search was justified."

2024.11.27 Giving Legal Advice to Suspects - Be Right

Sometimes, legal topics arise when you deal with suspects. Giving inaccurate legal can blow up badly.

Even though Cpl. Purdy and Sgt. Di Nella got the law right, the trial judge excluded evidence, and acquitted the defendant.

The Court of Appeal ordered a new trial.

Mr Correia, 2024 BCCA 361 belonged to a gang. He participated in a conspiracy to murder a member of a rival gang. The conspiracy failed. The rival survived. Police busted Mr Correia, and he got jail time for that conspiracy.

After he got out of jail, his gang tried again. This time, they managed to kill two people in a house. But not the rival. The rival had moved out of that residence. Mr Correia's group killed a couple who had moved into the rival's old house.

If you ever decide that breaking the law would be more fun than enforcing it, it seems Mr Correia's gang may be looking for more effective leaders.

Police arrested Mr Correia for the new murders. Members of the interview team tried to get him to talk. They figured that talking about the conspiracy would a "safe" starting point for Mr Correia.

The officers pointed out to him that he had already been prosecuted and sentenced for that offence. Nothing he said about it could get him prosecuted for that offence again.

The trial judge called that a dirty trick, because it gave Mr Correia a false sense of confidence to start talking about the gang's efforts against the rival.

The Court of Appeal disagreed. The officers were correct on the law: a person can't be convicted twice for the same offence. And the officers made it clear that they were investigating the new offences, and that anything Mr Correia said could be evidence in the new murder investigation. No tricks.

Members of the interview team work hard to stay on top of their game. That includes knowing the law that could arise in their dealings with suspects.

You should too.

Legal topics where general duty police officers tend to give inaccurate legal information include:

• Telling drivers who refuse to blow into screening devices that the penalties for refusal are the same as impaired driving. They used to be, but now they're slightly different.
• Obtaining a statement by promising a witness that they'll never have to testify.
• Telling a suspect that he'll be a released once he gives a statement. This is an improper inducement, which renders the statement involuntary.

2024.11.02 Delaying Access to Counsel - A Ticking Time Bomb

I keep reading decisions in which serious investigations suffered significantly at trial when a police officer delayed a prisoner's access to counsel. You can delay a prisoner's access to counsel, but only for compelling reasons. When those reasons dissipate, the prisoner must get access to legal advice without delay.

Here's another reminder about this topic. It might be worth discussing with officers in your unit how you will prevent this recurrent problem. If your team invents a really good solution, feel free to email it to me.

Mr Vassel, 2024 ONCA 771 supplied drugs to a low-level dealer. When she didn't immediately pay for the drugs that he consigned to her, he beat her up. He sliced tendons in her feet. He broke vertebrae in her back, and he broke her leg.

She told police, and picked him out of a photo lineup. Police found security video from the day of the assault which showed a man walking away from her place.

Three months later, they arrested him. He wore clothes which matched the video.

They found him because they got a tip that he would be at a particular residence. When the lead officer arrested him, the officer figured it would be a good idea to search the place. That officer directed other officers not to give Mr Vassel access to counsel, for fear that word might pass from the lawyer to the residence, and people in the residence would hide evidence or prepare to resist police.

After a couple of hours, the investigator gave up on the idea of searching the residence. They didn't have enough evidence to link Mr Vassel to the contents of the residence.

But the officer forgot to rescind his earlier direction.

One officer permitted Mr Vassel to talk to duty counsel, but not the lawyer he wanted to talk to.  That diminished the Charter breach, but did not resolve it.

Something else went wrong with communications between officers. Even though the investigator directed other officers not to let Mr Vassel call his lawyer, the message didn't reach everyone. About 8 hours after the arrest, another officer let him call the lawyer he asked for. That officer never heard about the original direction.

Two problems:

1. The original officer's direction didn't reach everyone that it should have. If access to counsel truly endangered officers or evidence, then a search could have gone badly wrong; but
   
2. The original officer forgot to rescind the original direction, leading to a breach of rights under s.10(b) of the Charter.
   

I can't tell you how to organize your communications about prisoners. It seems to me that any officer who receives a prisoner would be wise to ask:

• What's the offence?
• Has the prisoner been told about the offence, and legal rights?
• What's the plan for his/her legal rights?
• Are there any medical or other immediate concerns?

Maybe you can think of a better procedure for the officers you deal with.

It seems to me that any officer who hands off a prisoner should tell the next officer the answers to those questions.

If you suspend a prisoner's access to counsel, then these many decisions I've read make me think that you should set yourself a reminder, so that you don't forget to reinstate access to counsel at the earliest opportunity. In my house, people often set alarms on their cell phones, to remind them to take food out of the oven, or to go to an appointment. Maybe your cell phone can help you remember.

At the end of the day, Mr Vassel's conviction stuck. The breach did not produce significant evidence. Your mileage may differ. I recommend that you plan ahead to solve problems of this sort.

2024.10.19 "Calm" differs from "Safe" - Delaying Access to Counsel After an Arrest

This is a good news-bad news story.  We can learn from both parts.

After you arrest someone who wants legal advice, you must arrange for it without delay. You can delay a prisoner's access to counsel while getting the scene under control. But you need clear reasons for the court. This case illustrates how an officer explained that problem to the judge.

A justice authorized a warrant to search a woman's apartment and car for a firearm. The officers who applied for the warrant wanted the firearm as part of their investigation of a shooting. They arrested the woman in the vestibule of her apartment, along with Mr Brown, 2024 ONCA 763. In the apartment, they found another guy, Mr Wright, for whom a warrant was outstanding. Mr Wright was wanted for a different shooting.

The officers put these three people together, on a couch, in the apartment. There, they waited, calmly, under the observation of a couple of officers. Even Mr Brown - who had attempted to flee when the police first arrested him - sat cooperatively where he was placed.

Upon learning of their rights, all of these people wanted counsel. But the officers had not yet searched the apartment, nor the car. They took no immediate steps to arrange for legal advice for the prisoners.

When the officers first arrested him, Mr Brown had a 9mm semi-automatic on his person. Mr Wright possessed no firearms. The apartment contained a laser-sight for a firearm, but no matching gun. In a laundry hamper, the police found an empty 9mm magazine and a bullet-proof vest.

Therefore, the officers had reason to believe that there was a missing firearm. Maybe it was in the car. Two officers left the apartment to find the car. They found the car. It contained drugs.

The officers returned, and explained the new charges to the prisoners, who still wanted legal advice.

About an hour and a quarter after the initial arrest, the officers arranged for transport of the prisoners back to a police station, where the prisoners could get private access to counsel.

At trial, defence complained that it took too long for the officers to arrange for access to counsel.

The judges found that the officers at the scene properly delayed access to counsel because:

1. Although the prisoners were calm, the scene was not safe. The officers had in their custody a person charged with homicide and another person who had been armed for homicide.
2. Mr Brown had attempted to flee - indicating some desperation.
3. The laser sight suggested that there was another gun to be found and made safe.
4. It could be in the car, which the police needed to secure.
5. No private access to counsel could be arranged in the apartment.

You may find some ideas about how to articulate such concerns from reading D.C. Stolf's testimony, quoted at paragraph 20

I like how he agreed with defence that an officer might have been able to arrange access to counsel earlier. But he qualified it as a determination made in hindsight. At the time, he knew of a problem - the missing gun - and he knew that he needed to get it under control quickly.

At paragraph 42, the judge drew a useful distinction between the calmness of the prisoners and the safety of the scene. It's not a legal principle, but a matter of common sense. Therefore, don't testify "there's a legal difference between calm and safe". That would make you look like an idiot on the witness stand. Instead, you can testify "I think there's a big difference between 'calm' and 'safe'. When I have two potential killers sitting in an apartment where there's probably a hidden firearm, it doesn't matter that they're sitting calmly at the moment. Maybe they're resigned to the arrest, or maybe they're watching for an opportunity to act. I'm not prepared to gamble the lives of myself and my colleagues on mere appearances."

D.C. Stolf did well. That's the good news.

Now the bad news: NMI disease.

The officers who executed the warrant came from Toronto. They executed the warrant in Durham. The Toronto officers had to rely on the Durham Regional Police Service (DRPS) to process the prisoners and provide access to counsel.

DRPS took hours to link the prisoners with counsel.

The judges agreed that DRPS breached Mr Brown's s.10(b) right to counsel.

That was a problem that shouldn't have infected this case.

You're wondering what "NMI disease" might be.

I made it up. It stands for "Not My Investigation disease".

The investigative team from Toronto cared. They tried to perform their duties properly. I suspect that the DRPS officers were less invested in the case. Maybe that's why they didn't attend to the prisoners promptly. Even if my suspicions about this case are wrong, I've seen too many cases where NMI disease harmed a prosecution. Therefore, I use this opportunity to suggest:

1. If you care about your investigation, you might prefer to stay with your prisoner until the s.10(b) issues are resolved. Strategically, it may work for you, especially if your prisoner decides to talk about the offence after getting legal advice.
   
2. If you can't stay with your prisoner, then issue clear and precise instructions to the officers who take your prisoner. Get the officer's name. Make them write your instructions in their notebooks.
   
3. If you receive a prisoner from another investigator, then make an effort to cure yourself of NMI disease. Ask: What do I need to know about this prisoner's health, jeopardy, and access to counsel?
   
4. And if some over-enthusiastic member of the investigative team emphasizes in a pedantic and overbearing way that you must arrange for the prisoner to speak with counsel, then please forgive that officer. She or he may have read this story, or seen another case fall apart because of NMI disease.
   

At the end of the day, the judges admitted the evidence, and Mr Brown went to jail for a long time.

2024.10.02 False Evidence - Bait or Coercion?

Mr Pearson, 2024 ABCA 245 told an undercover officer that he helped a buddy commit a murder - the very murder that the undercover officer was investigating.

The police actually targeted the buddy with a "Mr Big" operation. After the buddy confessed, he brought Mr Pearson to the undercover officers. Mr Pearson corroborated the buddy's story.

Mr Pearson's confession made the case against him. He and his buddy faced murder charges.

At the trial, Mr Pearson complained that the undercover police officers played an unconscionable trick on him: they told him there was a witness.

There actually was a witness, but that witness only heard the gunshot. The witness that the police actually had couldn't identify any killers. But what the officers told him made him think that there was an eyewitness to the murder.

The trial judge thought this tactic was outrageous. The trial judge excluded Mr Pearson's confession. Mr Pearson beat the charge.

The appeal court judges disagreed.

Fabricated evidence can be a problem if it coerces a vulnerable person into making a false confession. If the undercover officer had falsely told Mr Pearson that an eyewitness picked him out of a photo lineup, Mr Pearson might have feared losing credibility before these (apparently) scary gangsters. For fear of losing face, Mr Pearson might have falsely claimed involvement.

But these officers told Mr Pearson that they did not know what the witness would say.

I think it was wise to offer ambiguous false evidence. A guilty mind is likely to dwell on the inculpatory evidence that the witness might give. An innocent person is more likely to imagine that the witness will exculpate him or her.

The appeal judges agreed with the prosecutor: this confession was admissible.

If you interview a suspect - whether in uniform or under cover - you can invent false evidence; but you should be very cautious when doing so. You're playing with fire. The more clearly that your fake evidence inculpates the defendant, the less the judges will like it. Don't invent evidence if you don't have to.

2024.10.02 Breath Testing - Precision with Units

An officer in New Brunswick triggered a a whole lotta trouble for the prosecutors when he mixed up his units. This presents an opportunity to learn from his mistake.

It's not surprising that he tumbled over his tongue: there are two inconsistent ways to express blood-alcohol concentrations, and common parlance includes several legally-incorrect ways to talk about them.

Let's start with the law. s.320.14(1)(b) defines an offence of operating a conveyance when, after such operation, the driver has a concentration of 80 milligrams or more of alcohol in every 100 millilitres of their blood.

Some people call this offence "over 80". That's now wrong. Before 2019, the offence was driving with more than 80 in your blood was a crime. Now, it's 80 or more.

Let's talk about units.

Would you prefer to receive 80 cents or 80 dollars?

Even though the number is the same, the value differs significantly because cents buy less than dollars.

Would you arrest someone for disobeying that section if they drove with a BAC of 180 milligrams of alcohol per liter of blood?

I hope not.

It's a trick question, designed to illustrate the importance of units. If it tricked you, go back and read the question.

That concentration works out to 18 milligrams of alcohol per hundred millilitres of blood.

When testifying about alcohol concentrations, you should use the language of the Criminal Code: milligrams of alcohol per hundred millilitres of blood.

But it's cumbersome to say all those words.

Some people use decimals to abbreviate the phrases. "The driver blew over .08, so I arrested him."

That's what an officer did when testifying about Mr Gaudet, 2024 NBCA 87. He explained that the screening device he used was calibrated to register a "pass" between ".01 and .05". Unfortunately, he went on to explain that it would register a "warn" between ".05 and .01". And it would register a "fail" above ".01".

If you read that paragraph carefully, you noticed where the officer incorrectly inserted an extra zero after the decimal point. Breath screening devices register at "fail" at "0.1" - that is, 100mg%. (If you did read that paragraph carefully the first time, then my trick question achieved its purpose.)

A breath testing instrument detected BACs of 160mg% and 170mg% in Mr Gaudet.

The defence counsel noticed the officer's error. So did the trial judge.

Even though the judge figured that the officer mis-spoke, the judge acquitted Mr Gaudet. Even though the judge understood what the officer was trying to say, the judge figured he was stuck with the mis-statement about the calibration of the screening device.

The Crown appealed to a Summary Conviction Appeal Court. No luck.

The Crown appealed again. This time, the judges agreed that the mis-statement could be overlooked. Mr Gaudet was convicted.

Police officers who investigate drunk drivers can get away with abbreviations and sloppy language when talking to each other, or when preparing reports.

But when you get to court, use the formal language ... at least once.

If you explain the shorthand as part of your testimony, you can then continue to use the shorthand:

Q: How was your screening device calibrated?
A: Well, it's calibrated to issue a "fail" below .05, a "warn" between .05 and .1, and a "fail" at .1 or higher.
Q: And...
A: I'd like to explain my terms with greater precision. The Criminal Code defines offences in terms of milligrams of alcohol per hundred millilitres of blood. So by ".05", I mean 50 milligrams of alcohol per hundred milliilitres of blood. By ".1", I mean 100. 

2024.09.27 Expert Opinions - Precision and Care v. Speed and Practicality

Most drug cops I know are men and women of action. They need to think quickly and act when dealing with information about valuable contraband, and the violent people who deal with it.

Some of those officers develop credentials as experts in habits of drug traffickers.

Experts need to think slowly and double-check their work.

I read today a cautionary tale from last year about such an expert who moved too fast. It illustrates the difference in skill sets.

A tip about a drug dealer led police to watch the place where Mr Marrone, 2023 ONCA 742 lived. What they saw justified a search of his place. They found powdered cocaine and other things related to drug dealing.

An officer prepared a report which recited the salient facts, but it recited the habits of users of crack cocaine, and concluded with an opinion that "the crack cocaine found in the residence of [Mr Marone] is consistent with possession of cocaine for the purpose of trafficking".

I strongly suspect that the officer used a previous report as a template. He didn't check it over for relevance and accuracy.

Defence counsel spotted the error, and tried to exploit it. This angered the trial judge; but the Court of Appeal sided with defence.

Good drug cops don't get many opportunities to slow down. Templates help them pump out expert opinions faster. But speed and precision don't pair well. When preparing an expert report, book yourself some extra time to get it right.

2024.09.25 Videorecord Important Statements - Accomplices - Principled Exception to the Rule Against Hearsay

A kid whose initials are KA brought guns to school. In a bathroom in the school, he gave one to an older kid, Mr Charles, 2024 SCC 29. Mr Charles used the gun to frighten another kid, LB. LB complained to the authorities about being threatened in the bathroom by Mr Charles. I infer that LB told them that KA was present.

The next day, police interviewed KA. They gave him access to counsel, and let his mother attend the interview, just as the YCJA requires.

They didn't video-record the conversation. They did write down the substance of his story.

In his statement, KA described the incident pretty much the same as LB described it. He told the police that he still had the guns at his place. Investigators went there and received the guns.

The prosecutor figured that there was a strong case against Mr Charles. Charges proceeded.

At trial, KA told the court that he couldn't remember anything about the incident. (I'm thinking "liar, liar, pants on fire". How about you?)

Could the judge use KA's written statement instead of his testimony?

Although judges in criminal trials routinely admit statements made by defendants, they don't normally accept witness statements. Ordinarily, witnesses must come and testify. Although witness statements are essential for investigation and disclosure, in court, such statements are merely hearsay.

Except that law is full of exceptions.

Since 1990, the courts found ways to admit hearsay statements when it became necessary, but only if the statement is reliable.

The prosecutor convinced the trial judge to apply this exception. He did. The statement helped the judge convict Mr Charles. Mr Charles appealed all the way to the Supreme Court of Canada. There, 4 judges said that the trial judge misapplied the exception, and 3 judges said that he got it right.  Mr Charles will get a new trial.

It might (possibly) have gone differently if the investigators had video-recorded Mr KA's statement.

I don't know why they didn't video-record:

1. They were investigating Mr KA for a criminal offence - possession of restricted firearms.
2. They were interviewing him as an eyewitness who was also a friend or associate of Mr Charles.
3. It was possible that KA was the real offender, or at least an accomplice.
   

If you read the legal analyses in this decision, you will plunge into a quagmire for lawyers. The majority doubled-down on a messy concept that the court first explained in 2017. (Lower courts have had trouble with it.) Now, the majority has made the concept even more impractical for trial counsel.

If you just want to know what this case teaches you about investigation, the message is simpler. Accomplices and friends of the suspect may "forget" their evidence at trial. Video-recording their statements and committing them to telling the truth can be a sensible investigative step.

2024.09.20 Warrantless access to Apartment Buildings and their Security Systems

Surveillance often leads police officers to apartment buildings where a suspect may be stashing drugs or other contraband. Once the suspect passes through a secure entry, can surveillance officers sneak in and watch?

Many appellate decisions determined that suspects enjoy an expectation of privacy in the hallways and elevators of apartment buildings. You need lawful authority to intrude.

Can the building managers give you permission?

In R. v. Salmon, 2024 ONCA 697, officers specifically sought out the building manager to get that permission. They met with someone who gave them his card. It identified him as the "senior property manager". They explained that they were there to investigate criminal activity in the building (the report does not explain how much detail they gave). They asked for, and received:

1. the name of the tenant whose black Lexus they had followed;
2. the unit number and lease agreement for that tenant; and
   
3. CCTV footage of the entrances and elevators, showing their targets going to the floor of that unit.
   

This evidence supported warrant applications which led to the discovery of evidence that convicted Mr Salmon and others.

Naturally, defence complained that police violated their privacy. They argued that the prosecution must prove that the person that the police dealt with actually received specific authority from the organization that runs the building to disclose the information sought.

The building manager himself testified that he wasn't sure that he had authority to give the security video to the police. He couldn't remember exactly what he did when the police asked.

Despite this, the judges found that the police acted lawfully because the senior property manager gave them lawful authority. Interesting reading.

This case suggests several lessons for this situation:

• If you want information about a tenant or security video, ask to be put in touch with someone who has authority to disclose that kind of information;
  
• When you do talk with that person, explain the gravity of the matter that you are investigating, and ask for the things that you need; and
• Encourage the person to take notes about their authority to act, and their decision to release information.
  

2024.09.18 General Warrant - Searching for What Isn't There

I missed this decision when it first came out. Today, when I read it, I found an interesting concept about search warrants that some of you might apply.

What kind of warrant should you get if you want to search for something that you think isn't there?

Mr Jacobs, 2023 ABCA 283, had a valid possession and acquisition license for restricted firearms. He bought handguns in a pattern that differed from most buyers. Why would he spend $13,000 to acquire 14 handguns of the same make and model? Perhaps he was selling them to buyers who lacked licences.

They watched him buy three more handguns. Instead of taking them home, as his possession licence required, he took them to another residence. He carried them into the house in a cardboard box. He emerged a short while later, leaving the box behind.

The officers watching him arrested him. Other people fled from the residence when police made their presence known. None of them had licences.

Pretty suspicious.

The investigators didn't stop there. They sought and obtained a warrant to search Mr Jacobs' residence. What kind of warrant should they seek?

Mr Jacobs' licences required him to store his firearms in his residence, and permitted him to transport them to a specific range. The officers believed that he sold his firearms to unlicenced buyers. Could they seek a warrant under s.487 authorizing them to search for firearms if they had reasonable grounds to believe that the firearms weren't there?

Let's read the legislation:

487 (1) A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

(a) anything on or in respect of which any offence against this Act or any other Act of Parliament has been or is suspected to have been committed,
(b) anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,...

Because of the underlined words, these officers concluded that s.487 didn't apply.

They got a general warrant that permitted them to search the residence to establish that it did not contain the firearms.

Good thinking!

And they thought a little harder.

How would you prove that the guns weren't stolen?

They didn't just look for the absence of the firearms. They also looked for the registrations, the packaging and documentation that criminals would not want. And they looked for the presence or absence of the sorts of things that gun users would possess: earphones and goggles for practicing at the range; ammunition.

They searched carefully, but they didn't find the guns. They didn't find the earphones or goggles either or gun cases or locks either.

The defence argued that they should have looked harder: they should have looked in the vents and in the attic. (I'll bet these cops will look in those places next time.)

The judge was unimpressed, and convicted Mr Jacobs. The appeal court upheld the conviction.

2024.09.12 Searching Residences - How Much Detail should You Seek?

When surveillance establishes reasonable grounds to believe that drugs, guns or stolen property is being trafficked from a residence, justices will usually grant warrants to search the residence. What should you look for when you get inside?

Circumstantial cases stand and fall on little details that are easy to overlook. The case of Mr Cashman, 2024 BCCA 317 illustrates the importance of searching and documenting carefully.

Police watched some suspicious transactions. Some involved duffel bags. Some involved Mr Cashman. They got a warrant. When police entered the residence, the guy upstairs tried to flee out of a window, carrying a bag of drugs.

But Mr Cashman lived downstairs.

Upstairs, the officers found firearms, $850,000 worth of drugs, and over $100,000 in cash. Most of it was in the upstairs bedroom, but some drugs were in the upstairs kitchen, in plain view.

Downstairs, in Mr Cashman's bedroom, police found the monitor for a house security system. But no drugs, no money and no guns. Not in his bedroom. Not in the downstairs kitchen.

No evidence directly showed that Mr Cashman handled the drugs. Did Mr Cashman participate in the drug dealing?

Details which mattered included:

1. Did the security system work? (It did.)
2. Could a person in Mr Cashman's bedroom monitor who came and went to the house? (yes)
3. Were there doors between Cashman's part of the house and the upstairs? (yes)
4. Were they locked? (no)
5. Was there a lock on the bedroom door upstairs where most of the drugs were found? (yes, but the searchers missed it.)
6. Did the guy upstairs have any key for that lock? (no)
7. Were there any documents linking Mr Cashman to drug dealing? (yes - a separate residence that he and the upstairs dealer visited contained drugs, and a receipt in Cashman's name)

It would have been interesting to know whether the security system was recording, or whether it was only live-monitored. If so, what did it record?

It's easy to think that the face of the warrant defines your task when searching a target's residence. Officers who look only at what is obvious will miss the important evidence. "Curious cops will catch the clues." The search warrant permits you to search only for the items listed on its face; but s.489 authorizes you to seize any other probative evidence that you find along the way.

Maintain your curiousity!

2024.08.31 Unexpected Confession - Notetaking

On the way to court to appear on a murder charge, Mr Gauthier, 2024 ONCA 621 told the officers transporting him that he was not sorry for killing the victim. One officer made a note 15 hours later. The other made a late entry in his notes on the next day.

Both officers noted what the defendant said, but not much else about their contact with the defendant.

Before the jury could hear this interesting confession, the prosecution had to prove to the judge that Mr Gauthier made the remark voluntarily. At law, this means that the prosecutor must prove:

1. the officers didn't extort it out of him by suggesting that court would go better for him if he confessed, or worse, if he didn't.
   
2. the officers didn't apply some kind of hardship to him, like lack of sleep, clothes or food.
   
3. the officers didn't trick him into saying it.
4. Mr Gauthier had an "operating mind". He knew what he was saying, and that he was saying it to police officers.
   

The officers' sparse notes meant that they couldn't explain what the conversation was before Mr Gauthier made the interesting remark. That prevented the prosecutor from proving #1 and #3.

Before these officers transported Mr Gauthier, he acted irrationally. He ripped up his Tyvek suit, and tried to turn it into a privacy curtain. After they transported him, he smeared feces on the walls of his cell. That raised some doubts about how his mind was operating. These officers couldn't answer them.

The trial judge thought that the Crown proved voluntariness. The Court of Appeal didn't.

If you transport a suspect who starts talking about the crime, you can expect lots of questions at trial. Those questions won't only be "what did the suspect say?" You will also be asked about the questions and statements you made leading up to the suspect's statements. And the suspect's sobriety and sanity.

Epilogue: Other evidence in this case proved the defendant's guilt. It turned out that the statements weren't important. These officers got a mulligan. They didn't destroy the case. Mr Gauthier's conviction for first degree murder stuck.

Next time, you might not be so lucky. When the suspect convesses unexpectedly, take notes about all of the conversation. And for goodness sake, don't link threats or promises about how the prosecution will turn out to the idea that he should tell you what happened. Care for his creature comforts. No trickery.

2024.08.31 Mulligans and ASD Refusals

Judges don't much like the idea that a cop can turn a person into a criminal.

When you demand that a driver blow into a screening device, you create a situation in which a person must make the "right" decision quickly, and without independent assistance. Refusal is a crime.

It's not your fault. You didn't design this law. Applying it is just your duty. If police generally stop making screening device demands, the statistics suggest that drunks will drive more often, and a lot more people will get hurt or killed.

Unsurprisingly, judges sympathize with the plight of the driver, who must make a snap decision with life-changing consequences. Many drivers rely on their licence to work or to get to work. Judges therefore want to give the benefit of the doubt to drivers who initially refuse, and then change their mind.

Section 320.27 requires drivers to provide samples of their breath into a screening device "immediately" after a breath demand.

Knowing that background, how long do you think judges will say "immediately" lasts?

A couple of seconds? Nope.

A minute? Nope.

Mr Khandakar, 2024 ONCA 620, claimed that "immediately" lasted about 23 minutes. Initially he refused, but after the officer arrested him for refusal, he changed his mind.

Ouch!

I hear what you're thinking. Please don't think it so loud, it hurts my brain. Besides, the judges of the Ontario Court of Appeal agreed with you.

They said:

"[W]hen someone initially refuses to provide an ASD breath sample, the maximum time within which they can change their mind cannot exceed the time within which a compelled breath sample can lawfully be obtained by the police. This latter time is determined by the operational requirements of the ASD test process and by any 'unusual circumstances' that extend the statutory 'immediacy' window" (para 2)

That answer came from the recent case of Breault, 2023 SCC 9. In that case, the court found that an officer can't make a demand that someone blow into a screening device "immediately" if the officer doesn't have one on hand. "Immediately" means the time it takes to fish the device out of your cruiser, or out of your colleague's hand, start it up, and test the breath sample. Longer is too long.

But the judges in this case approved of police officers who try to persuade obstinate drivers to blow. They liked officers who explain the consequences of failure, and who give drivers a reasonable opportunity to consider their position before concluding that the driver refused. On the other hand, they did not think that police officers should be required to give too much leeway. If you and the driver argue too long before getting the driver to blow, defence counsel can argue that the "fail" result was not obtained "immediately". If so, any subsequent demand based on it would be obtained unconstitutionally.

How long is "immediately"? Paragraph 48 appears to say that in addition to the time it takes to get the instrument ready, it includes the time required to:

1. explain to test subjects how to properly blow into the ASD including giving a demonstration;
2. if there are language issues, extra time may be given for translations
3. obtain multiple attempts;
4. explain the consequences of refusing;
5. give "one last chance"
   

Note that this list does not include the time required to arrest the driver or release them on process.

While we're on the topic, I like to remind officers about taking breath samples:

• the consequences of refusal are no longer "the same" as the consequences of getting convicted of impaired driving or 80mg%+. There are subtle differences in the sentencing, depending upon the driver's past convictions and the blood-alcohol concentration. So don't tell the driver that the consequences are "the same". But the consequences are very similar in terms of criminal conviction, and impacts on driving privileges.
  
• don't paraphrase the demand in a way that suggests that the driver has a choice. For example, it is a terrible idea to ask "are you going to blow?" or "would you like to blow now?" Distaste is no crime. Nor are predictions of the future. Failing or refusing is.
• the driver who fails to respond clearly to a demand often tricks police officers. The officers think ambiguity or silence is a refusal. The driver has no obligation to say anything in response to a demand, but they do gotta blow. Do your preparation, present the instrument, and say "blow now".
• video-recording the interaction is a great idea. Otherwise, take copious notes, with lots of quotations of what you said to the driver, and what the driver said to you.
  

2024.08.29 Warrantless Seizure of Exhibits - Warrantless Search of Event Data Recorders

Officer Ken Ball should feel vindicated.

The trial judge said he screwed up. Three judges of the Court of Appeal said he was right all along.

Back in 2018, he investigated a serious car crash. He found smashed up cars and learned of injured people. A witness told him that the suspect vehicle was speeding. He watched dashcam footage which showed that the car Mr Attard, 2024 ONCA 616 drove went faster than other cars in this 80km/h zone. From the "carnage" at the scene, he figured that excessive speed caused the collision.

Without a warrant, he seized both cars. Without a warrant, he extracted the data from the Event Data Recorder (EDR) in Mr Attard's car which recorded the vehicle's:

• speed,
• engine RPM,
• motor RPM,
• brake pattern,
• brake oil pressure,
• steering input,
• shift position,
• drive mode,
• cruise control, and
• longitudinal/latitudinal acceleration.

Mr Attard's car was "going 120 km/h 4.75 seconds before the crash, accelerated to 130 km/h 0.75 seconds before the crash, and was going 113 km/h at the time of impact." (para 23) His vehicle hit a car that was making a left turn in an intersection.

The trial judge excluded this data because the defence persuaded him that:

• Seizing Attard's car was unlawful because Officer Ball only "suspected" that a criminal offence occurred; and
• Searching the EDR without a warrant was unlawful because drivers enjoy a reasonable expectation of privacy in the data that they record.

Warrantless seizure

When you are lawfully in a place, like a public street, s.489(2) of the Criminal Code authorizes you to seize "things" if you reasonably believe that:

• a crime occurred; and
• the things will afford evidence of an offence or are offence-related property

The Court of Appeal rejected the judge's reasoning. There was lots of evidence that showed that Officer Ball believed that an offence occurred, and that the cars would provide evidence of a criminal driving offence, he could seize them.

Note-taking

The defence lawyer pointed out that Officer Ball had not written "489" into his notes at the time. Maybe Officer Ball didn't know his legal authority, and only figured it out after the fact, when he came to court. The judge agreed.

The Court of Appeal agreed that taking thorough notes is important, but disagreed with this conclusion. The preconditions matter. The section number doesn't.

If you know that you're seizing something pursuant to s.489(2), it wouldn't be a bad idea to write that section number into your notes.

Warrantless Search

In 2018, Officer Ball knew about the 2016 case of R. v. Fedan, 2016 BCCA 26, which said that he could download the data from the EDR without a warrant, so he did. (That knowledge impressed the appeal court judges.) Ontario's trial judges disagreed whether Fedan was correct.

The trial judge said that EDRs collect private information, and therefore you need a warrant.

The court of appeal noted that this EDR stored only the last 5 seconds worth of information about activity that occurred in public, in a highly regulated activity. Do the things listed above tell you private information about the driver, like sexual orientation, political views or medical information? Absolutely not.

The court found that EDRs do not collect private information. The judges agreed with Fedan.

In the future, your mileage may vary.

As I understand it, EDRs vary. Some may record more private information than this one.

For example, dashcams aren't EDRs.

I recently acquired a car which automatically records and stores video of the entire route that I drive. If you download that data, you will learn whether - or not - I visited a liquor store, a casino, a drug house or a brothel. If you download that data from my car without a warrant, and charge me with a criminal offence, I'm going to complain that you violated my expectations of privacy ... even if I visited none of those establishments that day.

For that kind of information, you need a warrant.

What Happened

The trial judge excluded evidence from the EDR. Then, the trial judge found that without reliable evidence of speed, he could not convict the defendant of dangerous driving.

The appeal court found that the trial judge should have admitted the evidence of speed, and ordered a new trial. Maybe now, Mr Attard will take responsibility for the serious injuries he inflicted on the other driver.

2024.08.26 Notice to the Unfindable - s.490

I stumbled on something interesting as a result of a question that an officer sent me: what to do when you can't find someone to tell them about an application under s.490 for continued detention of property.

A couple of judges in BC discussed the problem. Notice is not paper. Notice is not a document. A person has "notice" when they receive information. Delivering a document helps delivery of information, and helps prove delivery of information. But there are other ways. Read the cases if you're interested.

The judge in the second case found a solution when the affidavit proved that the police could not find the person: the judge made the detention order with a condition that once the person received notice, they could apply to the court for reconsideration of the detention order.

Further Detention of Things Seized (Re), 2024 BCPC 50
Further Detention of Things Seized (Re), 2021 BCSC 1323 especially at paragraph 81

2024.08.24 Report to a Justice about Data from Seized Devices: 2 or 1?

The score is now 2:1. You can be happy or sad, depending on where you work.

Section 489.1 requires you to report to a justice every time you seize something. The dreaded Form 5.2.

After you seize an electronic device, and report its seizure to a justice, you may arrange for a search of the data that it contains. Do you need to file a second report for the data that you find?

BC says "yes": R v Bottomley, 2022 BCSC 2192 (and another unpublished decision)
Alberta says "no": R v Simmons, 2024 ABKB 397
Ontario says "no": R v Robinson, 2021 ONSC 2446

These are trial level decisions. These judges split 2:2 on this question. It's anyone's guess what the courts of appeal will do. Those of you who work in BC, Alberta and Ontario now have some clarity ... for now. If you work in a different jurisdiction, then get some advice.

2024.08.24 Is Every Drug Cop an Expert

Most drug cops will tell you that they have watched many drug dealers drive around town making short visits with people during which brief hand-to-hand transactions occur.

Can they write, in an ITO, that this is - in their experience - behaviour is consistent with drug dealing?

Yes. As long as they also explain in the ITO what experience they have had watching people doing this kind of thing, and whether those people were proved to be dealing drugs. R. v. Prosser, 2016 ONCA 467 at para 18

Can they give the same testimony in a court room?

No.

In front of a jury, a prosecutor asked five cops about Mr Jenkins 2024 ONCA 533. Each described seeing him driving around town, making short visits with people. The prosecutor asked each officer what opinion they formed. Each told the jury that in his or her opinion, the behaviour they saw was consistent with drug dealing.

The Court of Appeal didn't like that.

Courts are particularly fussy that juries hear only admissible evidence. The observations were admissible, but the opinion as tendered was not. There were two major problems:

1. The prosecutor never qualified any of the officers as experts in the behaviours of drug dealing.
2. It should have been limited to general remarks about what drug dealers do.
   

How should the prosecutor have handled this? The prosecutor should have asked the court to find that one of the officers was an expert in the methods and habits of drug dealers when selling drugs. The prosecutor should ask the officer how s/he got this knowledge, and what that knowledge is.

The officer could have testified that from watching many drug dealers, talking with some of them and their clients, examining text messages in dealers' phones, they have learned that dealers typically disseminate among drug users a means of contact such as a phone number or social media account. As orders come in, the couriers carry a small supply, and deliver the drugs in short transactions with their customers.

Then, the jury would understand the business, and draw the conclusion for themselves that the observations of the 5 officers were consistent with drug dealing.

Notice the importance in trial of the testimony about expertise. It's not enough to say "this is what drug dealers usually do". The witness must explain how they know what drug dealers usually do.

The same concept applies in ITOs. It's not enough to recite the observations of drug cops that they saw a series of brief transactions. At least one, but preferably all of them, should explain that this behaviour is, in their opinion, from their training and their ___ years of experience investigating drug crimes, consistent with the delivery of drugs to drug users.

2024.08.21 Costs of Non-Disclosure - Always Add your Notes to the File

Several officers investigated Ms Welsh, 2024 BCSC 1472 for impaired driving and hit-and-run. Some of them took very brief notes. One of them only made a note-book page of notes. One of the officers came from a different police service than the others.

Ms Welsh hired a lawyer who always demands disclosure of everything, as soon as possible.

Although the officers' statements reached defence counsel, their notes did not.

At trial, defence counsel demanded that the court throw out the charges because of this non-disclosure.

The trial judge declined to kill the case, but decided that the trial should be heard on another day, and that the prosecution service should pay the defence lawyer's bill for attending court that day.

The prosecution service didn't like paying the defence lawyer's bill. They appealed. The appeal court upheld the trial judge's decision.

I suspect that there was some finger-pointing between Crown and police on this case. I don't know whose fault it was that time. I'm thinking about next time.

You don't want it to be your fault next time.

The rules with respect to handwritten notes should be well-known:
- take lots of notes so that you can explain yourself later.
- make sure that copies of your all of your handwritten notes reach the main file, so that they can be disclosed to the lawyers (Crown and defence)

2024.08.20 Off-the-record Discussion with the Trial Judge

What do you do if the judge asks you questions privately about an ongoing trial?

Mr Morrison, 2024 NBCA 54 ran into some bad luck. Cops busted him for drugs and weapons and fleeing police. As we shall see, luck turned in Mr Morrison's favour.

Two of those cops testified at a voir dire. Shortly thereafter, one of them went on holidays with his family. He got a call from the trial judge, who wanted some details about licence plates and VINs explained. The officer did his best to help the judge.

The judge contacted the other officer with more questions on that topic. That officer also answered as helpfully as she could.

Neither officer realized at the time that this was a problem.

A "fair and public trial" requires that the trial judge decide the case on the basis of the evidence and arguments presented in court, in the presence of the litigants. This structure ensures that each litigant can criticize any adverse evidence.

A judge who receives evidence or arguments in private breaks that structure. Doing so undermines the fairness of the trial procedure.

That's a problem.

The truth came out when one of the officers mentioned the judge's questions to a prosecutor. (Well done, cop!) The prosecutor immediately disclosed to the defence lawyer.

The defence lawyer applied for a stay of proceedings. The prosecutor agreed.

The whole case got thrown out. The bad guy walked. What a lucky guy!

When a witness tells you that they want to contact the judge and explain their side of the dispute, tell them not to. Private conversations with the judge about an ongoing case are a big problem.

Heck, even the appearance of a private conversation is a problem. If you are a witness in a significant ongoing case, and you encounter the judge in a social situation, generally avoid talking with the judge. If you must speak with the judge, try to have a witness present, who can assure anyone who asks that you did not discuss the case with the judge.

This nearly happened to me quite recently. Part way through my last trial, I was eating lunch in a small restaurant when the judge walked in, looking for some food. When we saw each other, we both realized we had a problem. If the judge stayed, it might look like we discussed the case. The judge immediately understood the problem. We smiled. We laughed. He left.

2024.08.16 Pole Cams - 8 Days of Public Recording

Police surveilled the residence where Mr Hoang, 2024 ONCA 361 came and went. The also set up a camera on a utility pole which recorded video (but not audio) for 8 days. It captured only what could be seen from the public street.

That camera helped police bust him for possession of lots of drugs.

He complained that the camera violated his privacy rights.

The trial judge and the Court of Appeal disagreed. If the camera had been installed for a long time - such as 8 months, they might have agreed with him. But this short deployment did not violate his reasonable expectation of privacy.

That clarifies things for Ontario police officers ... in the short term.

Mr Hoang asked the Supreme Court of Canada to consider his case. If they say "yes", we might, in a year or two, get clear rules for the whole of Canada about the deployment of pole cams. Be careful what you wish for.

2024.08.14 Border Security - Reasonable Suspicion Required to Search Electronic Devices

Four years ago, the Alberta Court of Appeal decided that border security guards did not have an automatic right to search traveller's electronic devices. R. v. Canfield, 2020 ABCA 383.

Last week, the Ontario Court of appeal agreed on the main point, but disagreed on the details. R. v. Pike, 2024 ONCA 608.

I would think it likely that the Supreme Court of Canada will hear a further appeal of this issue.

In the mean time, border security guards shouldn't search the electronic devices of travellers entering Canada unless they have reasonable suspicion that the devices contain contraband.

2024.08.10

Tick Tock of the Jordan Clock - Where is the Defendant?

When a judge issues an arrest warrant, how hard should you look for the person?

In 2018, someone complained that Mr Reid, 2024 SKKB 77 committed a sexual assault. An officer in the sex crimes unit investigated, and found enough evidence to justify laying a charge. But where was Mr Reid?

• Not at his last known employment. His boss fired him.
• Not at his last known address. Police who went there learned that he moved after he lost his job.
• His last employer gave police a phone number. When an officer called it, the officer got a generic voice-mail. The officer left a number, but nobody called back.
• Police databases provided no information.
• An online search suggested the Mr Reid lived on Empress Avenue in Saskatoon.
  

When an officer laid the charge in October 2018, the justice issued a warrant for Mr Reid's arrest. If it used the standard wording from Form 7 of the Criminal Code, that warrant said something like this:

"you are ordered, in Her Majesty’s name, to immediately arrest the accused and to bring them before a justice of the Provincial Court of Saskatchewan, to be dealt with according to law." [my emphasis added]

Police did not arrest Mr Reid "immediately".

The file passed through the hands of several officers. Nobody went to the address on Empress Avenue. Nobody found Mr Reid.

In 2022, an officer noticed that nobody had asked the utility companies of Saskatchewan if they had any customers with the same name as Mr Reid. When asked, Saskatoon City Utilities gave a forwarding address in Regina. He had moved in 2019. And that's where they found him, in February 2023.

When he learned about the charge, Mr Reid retained a lawyer to defend him. Every sensible criminal lawyer knows that in R v Jordan, 2016 SCC 27, the Supreme Court of Canada placed time limits on trials: 18 months for provincial court trials; 30 months for superior court trials. This case was now 53 months old. The Jordan clock starts ticking when the charge is laid. It stops ticking for as long as the defendant or his lawyer causes delay. If it reaches the limit before the trial completes, the case could be thrown out.

Before the trial could start, Mr Reid's lawyer asked the court to stay the charge because the age of the case violated Mr Reid's right to a trial "within a reasonable time", guaranteed by s.11(b) of the Charter.

Mr Reid didn't cause delay. He didn't hide from police. He provided evidence that his social media accounts on LinkedIn and Facebook gave public information about where he worked, when he moved, and where. And he even provided evidence that in 2018, he lived at the Empress Avenue address that the police found online.

The prosecutor argued that the delay as Mr Reid's fault: he was hard to find. The judge disagreed. The police did not try hard enough to find him. The delay was not Mr Reid's fault, and therefore the judge stayed the case.

Most of the decision discusses the law about when the clock starts ticking (paras 27-124). Useful for lawyers like me. Probably dull reading for cops like you.

The other parts caught my attention. What did the judge expect cops to do to find people "immediately"?

In this case, the defence lawyer emphasized how easy it was to find Mr Reid through social media.

Some officers rely only on official police databases. Each database works for different slices of society. Some databases collect information about police contacts. These will help you find people who drink and drive, fight with their spouses, or wander the streets at night. They're not as good for finding people who hold regular jobs. You may have access to databases of licenced drivers. Not everyone gets a driver's licence.

As a prosecutor, I often located witnesses that the investigating officer told me they could not find. Lacking access to police databases, I usually found them by contacting family or friends. When I did, I wondered how hard the officer actually looked.

Some cops are great at locating people. They think outside the box.

Although there are other ways, this particular case illustrates the value of searching social media. Facebook, LinkedIn. Maybe hunting in TikTok will stop the Jordan clock.

Thank you to the officer who brought this case to my attention.

2024.08.06 Where's Waldock?

I apologize for going silent for a couple of months. I injured myself during my holidays. I'm climbing - gingerly - back into the saddle. Sciatica is a demon. You'll see more postings in the coming weeks.

2024.06.25 Search warrant execution - Pockets in the Search - Searching the Pockets

A search warrant authorizes you to search a place for things related to the crime under investigation. A warrant to search a house for a handgun authorizes you to enter the house, and search in any furniture or container that may contain the handgun. You can even search in the pockets of clothing.

As long as nobody is wearing the clothing at the time.

The BC Court of Appeal recognized a "hole" in Criminal Code search warrants. Although s.487 warrants authorize you to search places, and any containers within those places, they don't authorize searches of the people in the place to be searched. (I note that s.11(5) of the Controlled Drugs and Substances Act fills that hole. If you're searching under that act, you can search people.)

Mr Wallis, 2024 BCCA 235 complained that police searched his pocket. The judge disagreed. So did the Court of Appeal.

Because of evidence of child pornography, police got a warrant to search Mr Wallis' place for electronic devices that were capable of connecting to the internet. When they entered, he pulled a cell phone out of his pocket and asked if he could contact his employer. An officer let him do that, but seized the phone as soon has he was done. When they searched it, they found child pornography.

At trial, Mr Wallis argued that because the warrant did not grant police the authority to search his person, they had no right to grab the phone out of his hand.

The judges agreed with him that s.487 warrants do not authorize the search of a person. There is a gap (let's call it a "pocket") in the search power.

But these officers did not pat Mr Wallis down or put their hands in the clothes he was wearing. They did not "search". They could see the phone "in plain view". They seized it.  Mr Wallis lost his appeal.

How far does this distinction go?  Suppose Mr Wallis' cell phone remained in his pocket, but it rang while the police were present. At that point, the police officer would know of the presence of a cell phone. If the officer knows which pocket the cell phone is in, then pulling the cell phone out might not be a "search". I can't tell you for sure. But if the officer doesn't know which pocket contains the cell phone, asking the subject to turn around so that the officer can see the outline of the cell phone in his trousers probably would constitute a search.

This is a messy area of the law.

If you have reasonable grounds to believe that a person in the place to be searched will possess evidence on their persons, then under the Criminal Code, your reliable choice will be seeking a general warrant which authorizes you to search the clothing of the people you find in the place.

If you walk in with a regular Criminal Code search warrant under s.487, and you believe that a suspect possesses evidence in the handbag on the table or the clothing on the floor, go ahead and search the bag or the clothing.

If you believe that the suspect has the evidence in the clothing on their body or in the handbag they are carrying, then your solutions are trickier:

1. If you believe they can be arrested, then arrest and search incidental to arrest.
2. If you're lucky, they will produce the thing of their own accord (don't ask them to produce it). If you see it in plain view, you can seize it.
3. If you're unlucky, then you can detain them pending the production of a general warrant.  Give them access to counsel. Explain to the lawyer what you are doing. Maybe the lawyer will tell them to produce the evidence or permit you to search. Get a consent in writing.
   

2024.06.18 Professional and Private Relationships - Rules of Engagement

Daniel McAllister, 2024 ONCA 456 was a cop. He worked in a domestic violence unit. He took a shine to a victim of violence. Before her matter went to trial, they slept together.

While on duty, he used a police vehicle to drive to her place for some sex. He knew this was a problem. He didn't tell his supervisor.

When this liaison came to light, he was charged with sexual assault and breach of trust.

The prosecution failed to prove that he used his position of power to get the woman to consent. But he went down on the breach of trust.

The trial judge said  “pursuing a relationship with a victim of a serious domestic assault while the case is ongoing is serious and it is a marked departure from the conduct expected of a Domestic Violence Co-Ordinator”.

The Court of Appeal agreed.

I do not know all of Daniel McAllister's personal story. The decision says he was undergoing "marital difficulties". I can imagine sympathetic reasons why he fell into this hole.

We are all human, and subject to temptations. In police work, you will meet some people whom you find attractive. Often, you meet them during their personal crisis. It feels good to make a positive difference in someone's life. After all the abuse you receive from suspects, it feels good when someone thanks you. It's easy to like a vulnerable person who thanks you. Vulnerable people appreciate help. Some of them will be profuse in their thanks and admiration.

It's too easy to take advantage of their vulnerability.

Your powers come from the public. Don't use them for private pleasure. If you want more than a professional relationship with the vulnerable person you're working with, don't proceed with that desire unless the professional relationship ends, and the vulnerability is over.

2024.06.17 Confidential Sources - Rules of Engagement - Prosecuting a Rat

Most confidential sources circulate in the dim light of the underworld. They socialize with the people who organize and commit crime. Criminals don't like it when informers, police and courts shine lights into the dark places where they do their work. Criminals don't like rats, and will take steps to find and eliminate them - often with great prejudice.

The light that your informer throws on criminal activity can help you bust criminals. But the source usually won't say anything unless they know that you will keep their identity secret.

The law of informer privilege recognizes the value of source information and the importance of protecting their identities. You, judges, and prosecutors carry an obligation to keep their identities secret. You can't identify them without their consent. They can't "out" themselves without state agreement. And judges must not make you reveal the identity of your source except in very specific circumstances. In exchange for anonymity, the source gives you - and the justice system - information about what goes on in the dark.

All too often, the informer wants more than just anonymity. Some of them want money.

Some expect immunity from prosecution.

Consider Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21.  "Named person" was a confidential source. To respect privilege, he was never named.

Let's call the source Mr X. (I don't really know their gender.) When a police officer began to receive information from Mr X, the officer did not sufficiently explain the rules of engagement.

Mr X figured that because he was a source, he couldn't be prosecuted for the crimes he had committed. He candidly told the police about his involvement in some crime.

He got charged. He complained to the judge that the police gave him the impression that they weren't interested in prosecuting him. He only spoke candidly with them because of what they told him. He said it would be unfair to put him on trial. The trial judge didn't like that argument, but the court of appeal did. Mr X beat the charges.

From this, we draw our first lesson: clarity about the rules of engagement.  It's easy for you to become excited about the information that your source offers.  It's also easy for the source to develop an exaggerated sense of self-importance. Your source may well think that now that he works for the government; he is untouchable. Even if he doesn't honestly think that, when he commits some offence and gets busted, he'll be quite willing to tell the court that you told him he wouldn't get prosecuted.

Therefore, take some time to tell him that as a law enforcement officer, you can't give him a "get out of jail free card" without first jumping through some very formal steps.

If you read the decision, these issues occupy only a little space. The court worried about a different problem.

How do you prosecute a confidential source in an open court room?

It started off simply enough: lay a charge naming Mr X, and get going with the evidence.

But Mr X wanted to complain "hey! I'm a confidential source. These charges violate my agreement with the police."

He couldn't do that in open court. So the trial judge sealed up all the records and excluded the public.

That's a problem.

Courts operate openly. The public doesn't trust judges who operate secretly.

In Mr X's case the court directed trial courts and appeal courts to make as much of the proceedings public as possible. If necessary, commence separate proceedings for the parts which touch on privileged information. Only the sensitive parts of the record can be sealed or held in closed court. And judges should give public decisions thereafter, explaining - as much as possible - what the problem was and how they solved it.

Court procedure doesn't matter to police officers ....

... until it does matter.

Suppose two guys A & B commit a crime together, and get arrested. One is a confidential source. During an interview of B, he says to the interviewer: "I wanna talk to Cst Handler. She knows me because I've helped her out with some things in the past. We have an arrangement. I wanna get released. She can sort this out."

At first blush, it doesn't look like a problem. B didn't say "I'm a confidential source".  But B is dropping a pretty heavy hint.

Let's take the next step. The Crown lays charges against A and B.  Should the Crown disclose B's statement to A's lawyer?  Ordinarily, the answer is "yes". It's relevant.

But disclosure will tend to identify B as a confidential source.

Suppose that the prosecutor withholds B's statement from the disclosure.  A's lawyer will then notice that the statement is missing from the disclosure. A's lawyer will demand disclosure of the statement.

What should the prosecutor say, in open court, to the judge?  How about: "The prosecution resists disclosure of this transcript because it will tend to identify a confidential source."

Nope.

That's gonna identify Mr B as a confidential source.

This isn't just hypothetical.  It happened in R. v. A.B., 2024 ONCA 111. Because prosecuting a confidential source with a co-defendant created a disclosure problem which tended to identify the source, the court stayed the proceedings. Another source beat s the charge.

Prosecuting confidential sources gets tricky, especially when there are co-accused.  Discuss strategy with the prosecution early. Don't wait for the problem to blow up in court.

2024.06.10 Knock and Announce - Feeney warrants are Different

When executing a warrant which authorizes you to enter a place where people might be, the common law requires you to notify the people inside who you are and what you want. You must knock (and/or ring the doorbell) before entering, announce yourself, and give the occupants time to let you in.

But sometimes, doing so can endanger you. Some people hate police, and respond by arming themselves for a fight. Some folks will hide evidence. If you have information that these concerns apply to a search warrant that you're about to execute, you can curtail the waiting period, or even omit notice entirely. This is called a "dynamic entry". For search warrants and general warrants, you don't need to ask a justice for permission to do a dynamic entry. R. v. Cornell, 2010 SCC 31.

But the rules differ for Feeney warrants. Feeney warrants permit you to enter dwelling-houses to arrest people. But s.529.4 of the Criminal Code requires you to ask the justice in advance for permission to do a dynamic entry.

At the conclusion of a lengthy investigation, police arranged to arrest a bunch of people. One of them, Mr Brown, 2024 ONCA 453 had been dealing in drugs and guns.

In order to arrest Mr Brown at his home, police got a Feeney warrant. (Good idea.)

The officer who executed the warrant decided to do a no-knock entry. He thought that the rules for Feeney warrants match the rules for search warrants - that you don't need to ask a justice for permission.

That was his first mistake.

His second mistake was even more fundamental. There weren't actually sufficient grounds to justify a dynamic entry.

Unsurprisingly, the defence asked the trial judge to stay all charges.

The trial judge agreed to stay some of them.

The Court of Appeal figured that staying charges went a bit too far for this case. They reprimanded the police instead, and suggested that Mr Brown might get a lighter sentence if convicted.

The knock-and-announce rule gives notice to the people inside; it tells them what to expect.

A judicial reprimand is similar. It gives you notice. The court has just knocked hard on the "door" of the police services of Ontario, and loudly announced to them what comes next: stays of proceedings.

If you want to enter a residence to execute a Feeney warrant without alerting the people inside or giving them time to arm themselves, then before you get there ask the justice for permission to do a dynamic entry.

The judges won't be so forgiving next time.

2024.06.09 Knowing Why You're Looking - Legal Knowledge Cures Foot-in-Mouth Disease

Knowing your powers can save you some embarrassment in court.

Mr Dautruche, 2024 ONCA 426 was suspended. But he drove. When a cop tried to pull him over for a traffic stop, he drove away.

Did you know that it snows in Ontario?

I guess Mr Dautruche didn't think about that. He lost control. The driver's side of the car slid into a hedge and a snowbank and got stuck.

Mr Dautruche got out of the car on the passenger side. A police officer arrested him for fleeing police.

Mr Dautruche's legal problems grew more serious when an officer searched the car. The officer found a bag of crack cocaine on the driver's side floor. Mr Dautruche got charged.

At trial, defence counsel challenged the officer's search. What gave him the right to snoop in Mr Dautruche's car.  The officer replied:

it "was almost a search incident to arrest.”

Defence pounced on that answer. "Almost" means "not quite". "Not quite" a search incidental to arrest" means that the officer did not have authority to search the car. If the officer searched without lawful authority then the judge could exclude the drugs.

• Notice that the officer searched the car, not the suspect. How was this a search incidental to arrest? Isn't that just for searching people?
  
• Notice that the officer arrested the suspect for fleeing police. What evidence of that offence would the officer find by searching the car? The fleeing was all done. And a police officer can search incidental to arrest only if there are reasons to think that you might find evidence of that offence.
  

    Vicinity of the Arrest

Was it a search incidental to arrest? Can you search the car?

Yes, but only if you're searching a place closely related to the place and time of the arrest. If he had managed to put time and distance between himself and the car, then you could not search the car incidental to arrest.  (For example, see Ellis, 2016 ONCA 598)

Relevance

During the cross-examination, the officer also testified:

"[T]o me for someone to tear away from police like that maybe … there’s some reason so in searching that area where he was, maybe it would shed light as to give some reason as to why he would have done that."

The judge liked that testimony so much that the judge said it solve the "almost" blunder.

This actually was a search incidental to arrest because the officer was looking for evidence of motive. Motive evidence is always relevant.

The officer's legal mistake was to say "almost" when he didn't need to. Saying that word triggered lots of litigation. If he knew his powers, he wouldn't have said it.

2024.06.07 Do You Know What You're Looking For?

The first officer pulled over a vehicle and discovered that the driver, Mr Donovan, 2024 BCCA 213 - was prohibited from driving. Under BC's Motor Vehicle Act, the officer had to impound the car.

The officer decided to do an inventory search - searching the vehicle for valuables so that the owner(s) could not complain that the police lost their property while the vehicle was in the impound yard.

A second officer turned up. The first officer told the second officer "search the car".

The first officer didn't tell the second officer what to look for.  The second officer looked in the car, and found bucket full of steaming hot fresh-cooked GBH. And some other interesting precursors.

At his trial, Mr Donovan complained that the second officer's search was illegal because he didn't know what he was looking for nor why.

The court didn't buy that argument ... this time.

The first officer's decision to search was lawful; the inadequate briefing of the second officer didn't matter in this case.

It might matter next time.

An inventory search - when lawful - permits you to search so as to account for valuables, so that your agency can defend itself again claims that valuable property when missing while the car was in your possession.

A safety search permits you to search the suspect or the immediate vicinity for things that could be used as weapons against you or other people nearby.

A search incidental to arrest permits you to search the suspect or the suspect's vicinity for evidence of the offence (and weapons).

If another officer tells you "search the car", and you don't know why, then how are you going to explain to the judge what you were looking for, and what your lawful authority was?

2024.04.20 Proving Identity in a Circumstantial Case - The Concupiscent Cop

Two exclusive private schools for girls operate in quite close proximity in the Shaugnessey area of Vancouver.

Those schools require their students to wear uniforms - white shirts and kilts.

In 2018 and 2019, students complained of a black SUV which drove close to them when they were walking home. The driver would expose his penis and masturbate. None could identify the driver. A few got partial licence plates.

After enough complaints, investigators detected a pattern. Female officers dressed as students, and waited in the area. A black SUV passed by them, and the driver did the same thing. The firt officer got a partial licence plate. The second officer got the whole licence plate.

That plate was registered to a police officer, Cst Seangio, 2024 BCCA 143. He lived in Downtown Vancouver. He worked in Richmond. The Shaugnessesy area lay in the path of his daily commute.

Is that enough to prove he did it? These investigators gathered more evidence.

They gathered CCTV from the area. That CCTV video showed that at the times of some of the students' complaints, an SUV very similar to Cst Seangio's SUV drove in the area. They found an expert in motor vehicles who could, from the videos, narrow down the model (within 3 years) to the model of SUV that Cst Seangio drove.

Is that enough to prove he did it?  The investigators gathered more evidence.

The acquired his shift ladder, and videos of him leaving the police detachment. The timing of his departures from work coincided with the students' complaints, and the U/C officers' sightings. And one of the videos showed him wearing the same clothing that the complainant described the masturbator wore.

Is that enough to convince you that he was the culprit?  Probably.

But the investigators gathered more evidence.

They obtained cell tower data for Cst Seangio's cell phone. It showed that his cell phone was in the area on each occasion that the masturbator was seen.

All that evidence together convinced a jury that Cst Seangio was the masturbator.

Less evidence might not have succeeded. This was a hard case to prove because nobody ever caught the masturbator in Cst Seangio's SUV. Nobody ever pulled him over in the area at the time of an incident.

I suspect that the investigators became sure of Cst Seangio's guilt long before they collected the last of the evidence. But they kept going.

That's because of the great gap between feeling sure and proving guilt. A good investigator fills that gap with evidence. Especially when proving the identity of a culprit.

2024.04.06 Rock Stars and Traffic tickets - Describing the Offence

"Do you know why I stopped you?"

As you should already know, when you pull over a driver for speeding, asking this question violates s.10(a) of the Charter. That section says:

"Everyone has the right on arrest or detention to be informed promptly of the reasons therefor".

Ya gotta tell the driver why you pulled them over.

No guessing games.

Same thing with writing traffic tickets. No guessing games.

Buried deep in the provincial legislation, you will find a similar provision which requires you to set out which offence you say the driver committed.

In BC, the Offence Act says:

14(4) A violation ticket that is mailed under subsection (6) or served must be in the prescribed form and must contain all of the following:

(a) a statement of the alleged contravention;

96(3) An information must contain sufficient detail of the circumstances of the alleged offence to give to the defendant reasonable information with respect to the act or omission to be proved against the defendant and to identify the transaction referred to, but otherwise the absence or insufficiency of details does not vitiate the information.

Atlhough it uses more words, the concept is the same. You gotta explain the offence.

This reflects a fundamental concept of justice: in court, you have a right to know what complaint is being made against you, so that you can admit it if it's true, or contradict it if it's wrong. See s.11(a) of the Charter.

British Columbia's Violation Ticket Administration and Fines Regulation tinkers with this idea.  It defines some abbreviations that officers are permitted to use in violation tickets to describe the offence:

3 For the purpose of sections 14 and 132 of the Offence Act, every word and phrase set out in Column 2 of Schedule 2, Schedule 3 or Schedule 4 to this regulation is authorized to be used on a violation ticket to describe the offence of contravening the enactment referred to in Column 1 opposite that word or phrase.

Let's consider how this played out when Cst Halewood tried to give a break to Mr Robinson, 2024 BCCA 122.

Cst Halewood's radar clocked Mr Robinson's car going 97km/h in a posted 60km/h zone. Cst Halewood pulled him over and told him why.  That satisfied s.10(a) of the Charter; but we will see tht it helped with his Offence Act obligations too.

Cst Halewood decided to give Mr Robinson a break. Instead of giving him a ticket for speeding, he issued a ticket for "failure to obey traffic control device". A conviction for that offence carries a lower fine and fewer "points" on the licence than a formal speeding charge. Cst Halewood figured that going faster than a speed limit sign permits is failing obey it. (He's right.)

The phrase he wrote on the ticket ("failure to obey traffic control device") perfectly matched the phrase specified in the regulation for the lesser offence.

Mr Robinson didn't accept Cst Halewood's generosity. He hired an articled student, and contested the ticket.

The articled student asked the presiding justice to throw out the charge because the ticket didn't explain the offence. It didn't specify which traffic control device Mr Robinson disobeyed. Was it a stop light? A pedestrian crossing light? The language was confusing, because one doesn't think of a speed limit sign as a "traffic control device".

Cst Halewood responded like a legal rock star: He pointed out that s.119 of the Motor Vehicle Act defines "traffic control device" to include signs. And he explained that when he stopped Mr Robinson, he explained the purpose of the stop - he told Mr Robinson that he was speeding.

The justice figured that Mr Robinson had enough information to know what charge he faced. The trial proceeded, and the justice convicted Mr Robinson.

Mr Robinson appealed. At the first level of appeal, the judge agreed with him. The ticket did not sufficiently explain what Mr Robinson did wrong. Robinson beat the charge.

The Crown appealed to the next level of appeal court. Those judges agreed with Mr Robinson that the ticket did not sufficiently explain that Mr Robinson was speeding. To achieve that purpose, the ticket should have said more.

But they agreed with the Crown that the disclosure and the explanation at the scene made it clear to Mr Robinson what offence Cst Halewood alleged that he committed.

The appeal judges restored the conviction.

What lessons does this hold for police officers? When issuing violation tickets:

1. Not every good deed goes unpunished. Cst Halewood hoped to give a break to Mr Robinson, but Mr Robinson tried to punish him by contesting the ticket. Mr Robinson lost. He paid for his ticket, a trial, and two appeals. Cst Halewood won. The highest court in our province publicly approved of Cst Halewood's legal arguments, making him look like a nice guy and a legal rock star. This won't happen every time, but it feels good when it does.
   
2. S.10(a) and s.11(a) of the Charter are related. When stopping someone, you gotta explain why. When charging someone with an offence, you gotta tell them what they did wrong.
3. When using the abbreviated wordings for offences, use the exact wording set out in the regulation.
   
4. If you do use the abbreviation in the regulations, you can write a little more to explain the exact offence. In this case, Cst Halewood could have written "failure to obey traffic control device (speeding)". If he had, the articled student would have had to find a different creative argument to make in trafffic court.
5. Knowing and understanding the legislation can make you look like a rock star in court. (That's why I included links to the sections.)

May you all be rock stars!

2024.04.01 Detention - Seizure Incidental to Detention

Can you seize personal property incidental to detention? Yes -- if you seize because you fear for your safety of the safety of others.

A 911-caller complained of a home invasion: 4 masked men with guns and knives.

Officers in three police cars started driving toward the scene.

Just before the officers got there, the caller reported that the men had hurt an occupant of the house and left the residence.

The officer in the first police car saw a vehicle - a Jeep - making a U-turn in the victim's driveway, and then drive away from the residence. He blocked the Jeep with his police car, and directed another officer to investigate the occupant.

While the other police vehicles proceeded to the victims' residence, one of the officers approached the Jeep.

Considering the complaint about guns and knives, do you have reason to proceed with caution?

That officer recognized the driver, Mr Cameron, 2024 ONCA 231. The officer knew him to be a drug user and enforcer, with a significant criminal history.

I'll ask that question again. You are alone, approaching a vehicle that may contain four violent men armed with guns and knives, fleeing from the scene of a violent home invasion. Would you have reason to proceed with caution?

The officer told Mr Cameron that he and the other officers were "investigating a serious incident". The officer demanded the keys to the car, and instructed Mr Cameron to put his hands on the ceiling of the vehicle.

Other officers soon joined this officer and arrested Mr Cameron for "assault". They searched the car and found lots of evidence.

At trial, defence complained that the power to detain does not include the power to seize vehicle keys.

All of the judges disagreed.

When you detain a suspect, you may, if you have reason to believe that they may harm you or others, search them for weapons, and take those weapons away from them.

Cars make terrifying and highly destructive weapons. Even if Mr Cameron didn't try specifically to hit the police officer with his Jeep, an attempt to flee would pose safety risks to everyone.

Did this officer have reason to fear for his safety and the people in the area? You bet your life he did!

The trial judge found that seizing the keys "was within the scope of [his] duties; it was reasonable and necessary". The appeal court specifically mentioned the concerns that Mr Cameron might try to flee or injure the officer. Taking the keys was a "minimally invasive" way to control that risk. A simple practical solution that didn't involve much searching or inconvenience to Mr Cameron.

Does this mean that you can seize stuff from suspects - such as car keys - every time that you detain someone?

No.

Only when you can articulate reasons for concern about your safety or the safety of others. I asked that question twice, in order to emphasize it.

The defence made other complaints which also failed. It's a brief decision, but worth reading:

1. Was the explanation for the detention too vague? "A serious incident" did not identify the criminal problem that the officers were investigating, and therefore did not satisfy the officer's obligation under s.10(a). True. But the officer had a reason for giving such a vague explanation - he didn't want to escalate his interaction with Mr Cameron until he had backup. When other officers arrived, they fully informed him of the problem by arresting him for assault.
2. Did the arresting officer lack grounds to arrest? The 911 call, Mr Cameron's reputation for crime, and his car turning around in the victims' driveway provided reasons from which to infer that he was probably involved in the home invasion.
3. The police didn't tell Mr Cameron about the right to counsel for 11 minutes. Was that too long? In many cases, it might be. But in this case the officers gave a reasonable explanation why they delayed. Read paragraph 47.

Here's why you might want to discuss this decision with colleagues: The decision is short and ends happily. But getting to that happy result it reviews issues that arise often in police work. It's worth discussing how to avoid unhappy results in your investigations.

To all of you who drive into danger when someone calls 911, I say "thank you". I don't I think I would keep calm and focussed in situations like this one. Stay safe out there!

2024.04.01 Entrapment - "I'm Looking for 80" - Jargon

Mr Perri, 2024 BCCA 18 sold cocaine to an undercover cop.

At his trial, he complained that the cop entrapped him.

Although this decision looks like it matters only to drug cops, it contains a lesson for all police officers about jargon. To understand that issue, please walk with me first through the thicket of entrapment law.

Entrapment

As explained in the decision at para 17, police officers can lawfully entrap suspects; but it's unlawful to create an opportunity for someone to commit a crime (such as selling drugs) if:

1. you have no reasonable grounds to suspect that they're involved in that kind of offence; or
2. even if you do have grounds to suspect that they're involved in that kind of offence, you go beyond merely creating an opportunity to commit the offence, and push them into committing it.

Drug cops often receive tips that a phone number is used by a dial-a-doper. All too often, they receive no more information than a bare tip.  Can they call the number? Yes. Can they ask for drugs? No. In the absence of a reasonable suspicion, asking for drugs violates #1.

Drug cops must therefore use words close to the entrapment line, without crossing over it.

This cop called the number. When Mr Perri answered, the officer said "Hey, can you help me out, I’m looking for 80". The trial judge said that wasn't offering to buy a specific illegal drug and therefore it wasn't entrapment.

Mr Perri appealed. His lawyer pointed out that in a different case (R. v. Ahmad, 2020 SCC 11), the Supreme Court of Canada held that the statement "I need 80 hard" was a request for a specific drug - cocaine. If the Supreme Court of Canada says that the statement "I need 80 hard" constitutes entrapment, then surely, "I'm looking for 80" is also entrapment.

Nope.

When rejecting Mr Perri's appeal, the Court of Appeal identified a difference that I haven't told you about yet.

In the Ahmad case, a witness testified that in drug jargon, "80" meant "cocaine". In Mr Perri's case, the testimony in court established "I'm looking for 80" was only a request for $80 worth of drugs, but did not identify which kind of drugs. Therefore, this was not a request for a specific drug, and therefore not a direct offer for Mr Perri to commit a crime.

Even though the phrases sound almost identical, the different testimony about jargon created a different result.

The court pointed out that drug slang may differ between Ontario (where the Ahmad case happened) and BC. Case law does not determine what drug slang means. Users on the street decide what "jib" or "side" or "down" means. Judges must hear testimony from people who know the local lingo in order to understand what the jargon means.

Jargon

Defining jargon with precision made a difference in this case.

A prudent witness always explains jargon.

This principle applies to all cops.  (Drug cops are among the worst. They throw jargon around all the time: "up" "down" "pants" "shoes" "score sheets" "stash house" "dial-a-doper" "point".)

Drug users are not the only group that use jargon. Ever been baffled by lawyer-speak? It's not because you're stupid. It's because the lawyer failed to translate their jargon.

Don't make that mistake yourself.

All specialists develop jargons. If you're a cop, you're a specialist. Don't tell me you don't use jargon. You police officers are every bit as awful as us lawyers.

In your ITOs, explain your jargon. In your testimony, explain your jargon. Here are some examples of loaded phrases that I have heard officers use: "Soft hand control", suspect was "uncooperative", "bladed stance", "officer safety search".

Why do I belabour this point?

Because it's so hard to remember. When you learn a specialized vocabulary, and use it every day, remembering which words and phrases have special meaning is hard.

2024.03.21 How Much Booze Remained in the Bottle? - Crime Scene Investigation

Mr So, 2024 BCCA 101 drank heavily. Then he and friends went to a karaoke bar where they ordered a bottle of whiskey. He got into an argument with other people at the bar, and stabbed one of them to death.

How drunk was he?

At trial, it would have been useful to know how much whiskey he drank at the karaoke bar.

Although a photographer took pictures of the place where he drank, the trial judge did not receive evidence about how much liquor remained in the bottle nor in the glasses that remained in the place where he drank.

Ultimately, the trial judge resolved questions of drunkenness by relying on other evidence (see below).

But if you examine crime scenes where drunk people did - or suffered - terrible things, you might want to note the quantities of liquor that remain at the scene when you examine it.

2024.03.21 How Much Alcohol Remained in the Accused? - Arresting and Detaining Suspects

As noted above, Mr So, 2024 BCCA 101 stabbed a guy to death at a karaoke bar.  About 12 minutes later, a police officer arrested him for murder.

The issues at trial became: How drunk was he? Did a concussion render him unable to comprehend the world around him?

Unsurprisingly, the trial judge became very interested in how he behaved at the time of the arrest.

What do you think? Was this guy too drunk to understand what effect 10 stab wounds, including stabs to the heart and lung would do to the victim? Was this guy so dazed by a concussion that he didn't know what was going on?

• The first officer to deal with him, Cpl Atoui, told him he was under arrest for murder. The officer explained the right to counsel, and the right to silence. When asked if he understood, Mr So replied "Yes, let's go."
  
• A second police officer, Cst Killin, explained the right to counsel a second time, minutes later. This time, Mr So said to the officer "Is it bad? Did he die?" The officer asked him if he understood his right to counsel. He acknowledged that he did, and then asked "Can I ask you one question? … Is he dead?" The officer then read the police warning and asked if he understood. Mr So asked again "Is he dead?" He then explained repeatedly that he was acting in self-defence.  (The other evidence established pretty clearly that he wasn't acting in self defence.)
  
• He also said "I, um, realized, that guy’s fucking dead. I don’t start if he didn’t punch me in the face, right? It’s karma. What can I say?" (In fact, Mr So threw the first punch.)
  

Are you thinking that this guy that this guy had a reasonably clear idea of what was going on? Are you thinking he was making up excuses for his attack?

Yeah. Me too.

The defence tried to persuade the trial judge that Mr So suffered a blow to the head that so dazed him that he didn't know what he was doing when he stabbed the victim.  Or at least that he was so drunk that he didn't realize that stabbing the victim would kill the victim.

The trial judge rejected these arguments. So did the Court of Appeal. Mr So's responses to the complicated warnings that appear in your cards tend to suggest that he was not very drunk, and definitely not stunned by a concussion.

Did you notice that I underlined the quotations?

How did the officers remember, 3 years later at trial, the exact words that Mr So uttered when they arrested him?

I infer that they wrote notes that contained quotations.

Those notes evidently made a big difference in the case.

If you have not already developed the habit of writing quotations, start now.

But use them correctly.  Quotation marks should surround the exact words that come out of a person's mouth. I have seen them misused. Here's an example.

What the person actually said	Correct use of quotation marks	Incorrect use of quotation marks
Officer: You have the right to retain and instruct [full Charter warning omitted for brevity]  Do you understand? Suspect: Yeah, but look, I was just defending myself. I don't start if he don't punch me in the face.	s.10(b). DYU? "Yeah, but look, I was just defending myself. I don't start if he don't punch me in the face."	s.10(b). DYU? Sus said "he was just defending himself. He wouldn't start if other guy didn't punch him in the face"

Sometimes, things move too quickly, and you can't write exact quotations down. If so, paraphrase. Write down the substance of the suspect's remarks, reserving quotation marks for only those words and phrases that you can specifically recall.  For example: Sus said he understood, but continued "I was just defending myself". He said words to the effect that the other guy started the fight by punching him in the face.

Do you think these officers were asked about their impressions of Mr So's intoxication at the time? You bet. Was that a topic suitable for notes too? You bet.

These same questions of drunkenness and mental agility arise in less serious cases like domestic assaults and impaired driving. Many of you arrest offenders shortly after the offence. Making notes as detailed as this won't matter in 98% of the arrests and detentions that you make. But those notes will make you a hero in the remaining 2%.

2024.03.02 IP Addresses are Private

It's all over the news this week: the Supreme Court of Canada ruled that IP addresses are private. Police should get a warrant or production order. Bykovets, 2024 SCC 6

What does that mean for police work?

Looking at the facts helps bring their answer into focus.

Mr Bykovets used real credit card data to make online purchases.  First, he purchased gift cards using the victims' credit card data. Then he used the gift cards to make purchases of real things.

A company called Moneris processed some of the fraudulent online credit card transactions.

Notice that the bank and the true credit card holders were the victims here. Moneris just provided a service that allowed stores to apply charges to credit cards as requested by people using the internet.

An investigator contacted Moneris, and identified the dirty transactions. The investigator asked Moneris for the IP address of the electronic device which connected to Moneris to complete those transactions.

Moneris complied. No warrant. No production order.

The investigators used an internet lookup to discover that Telus managed that IP address. The investigators then got a production order compelling the Telus to name the customer, and provide the customer's address. When Telus told them it was Mr Blykovets' house, the investigators got a search warrant, and busted him.

A bare majority of the court - 5 judges - held that the police officer violated Mr Blykovets' reasonable expectation of privacy in his IP address when the officer asked Moneris for that IP address. They said that the investigator should have asked a judge for a warrant or production order to get the IP address from Moneris. On their view, the IP address is a key which unlocks access to so much information that police need judicial pre-authorization to get it from a third party.

The other other 4 pointed out that the IP address told the police nothing about their target until they got the subscriber information. The police learned nothing about the culprit until a judge reviewed their investigation and ordered Telus to provide the subscriber information. On their view, declaring a reasonable expectation of privacy in an IP address does nothing to protect Mr Blykovets' privacy; but it does slow police down.

The majority wasn't concerned about slowing police down. At para 85 Karakatsanis J. dismissed this objection: "In my view, however, requiring that police obtain prior judicial authorization before obtaining an IP address is not an onerous investigative step, and it would not unduly interfere with law enforcement’s ability to deal with this crime."

I agree that her procedure might not have interfered with the investigation of that particular fraud. But her ruling affects all investigations. I have reviewed too many criminal investigations to think that the prior judicial authorization is a minor inconvenience.

As we all know, the first 48 hours after a crime are the most productive for investigation. That is the time when the felon:
- cleans up the blood spatter;
- burns the body;
- sells the stolen property; or
- whisks the abducted child to another jurisdiction.

An application for a production order for an IP address takes a competent officer at least half a day to prepare. The more serious the case, the greater the flood of information that the investigator must explain in the ITO. If you move too quickly, you'll make a mistake. You'll be shot down at trial.

A judicial justice may - if you're lucky - process it on the same day. But even if you receive the production order by evening, the corporation likely won't respond before the next business day, or longer. Or if the corporation responds at night, the officer who worked all day will be sleeping.

The competent officer then spends hours perfecting another application for the subscriber information. Again, the more serious the case, the greater the quantity of additional information that the officer must explain in the second application. (I've seen investigations in which the first 24 hours produced thousands of pages of information.) If s/he's lucky, a justice might also respond near the close of day.  But the corporation staff likely won't answer until the next morning.

The officer who obeys this new decision can hope to get the subscriber information 48 hours after the crime. Now it's time to write another judicial application for a search warrant to search the house. You might get into the house 3 days after the crime.

Goodbye evidence. Goodbye kid.

What short-cuts exist?

Exigent circumstances

In exigent circumstances, privacy laws generally contain a section permitting corporations to release private information where life, health or security is at stake. For example, see: PIPEDA s.7(3)(e). In light of this decision, you need additional authority to "seize" (ask for and receive) this information.  S.487.11 of the Criminal Code supplies that authority in exigent circumstances. That helps when you already know that evidence is being destroyed or the kid is being abducted.

At the early stages of most criminal investigations, you don't know what the felon is doing. If you don't know that evidence is being destroyed or people are being hurt, then you don't have exigent circumstances.

Victims owe little to their abusers

You don't generally need a production order to receive the complaint of a victim.  The felon who defrauds a bank can only expect that the bank will supply the information in their possession to the police. If the bank knows the IP address of the felon, I do not think that you will breach s.8 of the Charter by receiving it from the bank.

Private citizens are not bound by the Charter - but police agents are.

Careful how you ask your questions.

In this case, if the bank had contacted Moneris, and obtained the IP address, the bank could have given it to the police without triggering s.8 of the Charter. That's because the Charter doesn't restrict private activity, only government (and police) activity. R. v. King, 2021 ABCA 271

But if the police asked the bank to acquire the IP address, then the investigator would have turned the bank into his/her agent. That does engage the Charter.

2024.02.29 Making a Screening Device Demand "Immediately"

When you form the suspicion that a driver has alcohol (or drugs) on board, decide promptly whether to make a screening demand. If you don't make the demand "immediately", the moment for making it will pass.

A police officer stopped a vehicle driven by Mr McCorriston, 2024 SKCA 5. The officer ran some computer checks on the vehicle, and then spoke to the driver. When the officer realized that Mr McCorriston had alcohol in his body, the officer said "hang on a moment".  The officer returned to his vehicle. There, he ran some computer checks on the driver, and warmed up his breath testing instrument.

The officer returned to Mr McCorriston, and made a screening demand. Just under 6 minutes passed between forming the suspicion and making the demand. Mr McCorriston refused, on the basis that the officer took too long to make the demand.

The trial judge disagreed, and convicted him. Mr McCorriston appealed. The appeal judge agreed with him. The Crown appealed further, without success.

Section 320.27 of the Criminal Code merely requires the driver to provide breath samples "immediately" after the officer demands them. Courts added a requirement that police make the demand "immediately" after forming the suspicion (see para 5).

Therefore, make the demand right away, then go fetch the device from your vehicle.  If, for your safety, you need to make some checks on the identity of the driver, do them. But make a note, so that you can explain later why it took so long to bring the device to the suspect.

2024.02.29 Do You Remember the Face You Met Last Year? - Proving Identity when You Forgot

Cst Sedgewick forgot the face of a driver.

He gave Mr Wurtz, 2024 SKCA 16 a speeding ticket. Ten months later, at traffic court, he frankly admitted that he could not remember the face of the driver. The presiding justice acquitted Mr Wurtz because the evidence failed to prove that the driver who speeded was in the court room.

What an idiot Cst Sedgewick was! He told the truth!

But the local Crown had faith in Cst Sedgewick. They appealed the acquittal.

The summary conviction appeal court agreed with the Crown.

Sedgewick wasn't an idiot at all.

Mr Wurtz didn't like getting convicted. He appealed to the highest court in Saskatchewan.

They agreed with the Crown. If anybody screwed up, it was the justice who acquitted Mr Wurtz, not Cst Sedgewick.

What did Cst Sedgewick do right?

For starters, he told the truth in court. Even though it caused an acquittal, that was the right thing to do.

But that's not the main point of this case review.

When he pulled over Mr Wurtz, Cst Sedgewick asked for a driver's licence. Mr Wurtz produced one. Cst Sedgewick then did something essential: he compared the photograph on the driver's licence to the face of the driver. He saw that they matched. (I presume that he also made notes of this comparison.) Then, Cst Sedgewick did something completely ordinary. He issued a ticket to Mr Wurtz.

The big identity question in any trial is whether the person charged with the offence committed it. That's a slightly different question from whether the culprit is in the court room.  In the usual course of events, the culprit ought to be in the court room. You can expect the prosecutor to ask you to point out the person that you dealt with. But not always. For some minor offences, the accused person can appear by agent. By issuing a ticket to the person that he caught speeding, Cst Sedgewick made sure that the person charged was the same person who was driving the car. And by using identification that matched the driver's face, Cst Sedgewick made sure that the charge named the right person.

But there was more. Mr Wurtz actually did show up at the trial. He identified himself by name to the justice. He gave the same name as the name on the identification that Cst Sedgewick examined.

How would anyone know to turn up at the trial if they weren't the person who received the ticket?

Mr Wurtz's appearance at the trial also suggested that he was the guy in the driver's seat. And his name matched the name of the guy that received the ticket. Therefore, even though Cst Sedgewick could no longer remember his face, there was no reason to doubt that the driver was in the court room.

Here in B.C., we refer to the act of comparing the face of the suspect to photo identification in his/her possession as "The Schryvers Test". But the courts across Canada agree with the logic in the Wurtz case.

This concept applies to more than issuing speeding tickets. The officer who arrests a suspect, and the officer who gives the suspect a promise to appear or undertaking do the same thing. Their testimony can prove identity too. They can provide valuable testimony about identification, even if they did nothing else in the investigation. They are witnesses.

Some suspects don't have photo identification with them ... or at all.

Whether they do or they don't, I suggest that it's a good idea to photograph the people that you detain, so that you can remember their faces 10 months - or even 5 years - later in court. (R. v. Multani, 2002 BCSC 68)  If they do produce photo identification, there are several good reasons to photograph it as well.

2024.02.29 Speeding Tickets - Was the Speed Sign Official?

In the same case described above, the justice who heard the evidence gave a second reason for acquitting Mr Wurtz, 2024 SKCA 16 of speeding.

Before busting Mr Wurtz for speeding, Cst Sedgewick made sure that there was a posted sign which established the speed limit. In court, he couldn't swear that some lawfully-authorized person put the sign there.

The justice acquitted Mr Wurtz on the notion that perhaps some miscreant might have posted a realistic-looking but fake speed-limit sign.

The Court of Appeal rejected this idea. Judges (and police officers) are entitled to presume that standard speed-limit signs are lawfully posted.

I see that after Mr Wurtz's trial, but before the Saskatchewan Court of Appeal rendered their decision, the Saskatchewan legislature added s.198.1 into their Traffic Safety Act. It codifies this presumption. Perhaps Mr Wurtz's case inspired them to do so.

If some clever lawyer raises this imaginative defence in your province, you might want to tell the justice about the Wurtz decision.

2024.02.27 The Detainee's Right to Access to Counsel of Choice - Waiting for Godot

When you arrest someone at an inconvenient time of day, and he wants advice from a particular lawyer, how long should you wait for the lawyer to call back?

Smart-ass lawyers will say only "it depends". Smarter ones will tell you what it depends on. Somehow, judges expect you to figure out from all this mushy advice the exact number of minutes to wait to see whether a lawyer will call back.

In my opinion, urgency of the investigation is the biggest factor, followed at some distance by gravity of the offence. The court will also consider your diligence in trying to reach the lawyer, and whether it is realistic to expect the lawyer to respond.

Mr Edwards, 2024 ONCA 135 passed out in the driver's seat of his car around 6:00am on a Saturday morning. This annoyed early-morning commuters, because Mr Edwards stopped his car in the middle of an active off-ramp on a major highway. But he didn't wake up when they honked their horns at him.

Dumb.

But he didn't kill anyone.

It took considerable effort to wake him. His car stunk of liquor. He appeared confused when he woke. The attending officer arrested him and told him of his right to legal advice.

Mr Edwards said that his cell phone contained the number of the lawyer (actually a paralegal) he wanted to call.

I think that the attending officer would have been wiser to call that number immediately, from roadside. Even if a private consultation was impossible at that point, making the call would alert the lawyer/paralegal right away that his services were needed. (A wise prosecutor in Quebec reminded me: giving your suspect a non-private consultation at scene with a promise of a private consultation later can - if you keep your promise - assuage many complaints about access to counsel.)

Instead, the investigator took him to the police station. 18 minutes after the arrest, Mr Edwards sent a text message to the personal cell phone of his chosen advisor.

No response.

6 minutes later, the officer called the number, and got a voice mail of the right person.  The officer left a message explaining the situation and asking for a return call.

No response.

The officer asked Mr Edwards whether he would like to duty counsel instead.  Mr Edwards said he would.

12 minutes after leaving the voice mail, the officer called duty counsel.

7 minutes later, duty counsel called. Mr Edwards spent 7 minutes speaking with duty counsel.  The officer asked if he was satisfied. Mr Edwards said "sure".

The investigator took Mr Edwards to the breath testing room, where the technician asked him if he was satisfied with his call to duty counsel.  Mr Edwards said yes, "But I didn’t get a chance to call back my lawyer”.

At 7:14am, the investigator called again.

No response for another 12 minutes.

The investigator gave up waiting. Mr Edwards blew 130mg%.

The lawyer never did call back.

At trial, defence complained that the police failed to respect Mr Edwards' right to counsel of choice. The defence complained that the police:

• failed to tell Mr Edwards that he had a right to wait a reasonable time for counsel of choice to call back
• should have looked up the paralegal's website to see if he had an after-hours number
• failed to ask Mr Edwards if he had any other way to contact his lawyer.

The trial judge rejected these arguments and convicted Mr Edwards. He appealed, and won. The Crown appealed that decision to a higher court.  Mr Edwards lost. His convictions stuck.

When your suspect says he wants legal advice, and then gives up on the idea, you must tell him that you have a duty to wait a reasonable length of time for him to get the legal advice he requires.  That's the Prosper warning.

But Mr Edwards didn't give up on the idea of getting legal advice. He actually got legal advice. And when he mentioned that he wanted more, the police tried to help by calling again.

And furthermore, these officers did wait a reasonable period of time. Well, they waited for a time that was "reasonable" in the context of an ordinary impaired driving investigation. Telling Mr Edwards that he had a right to what the officers already did and were doing would have made no difference.

Would the appeal court have reached the same conclusion if Mr Edwards had killed someone? Possibly not. Considering that the day was just beginning, there was some prospect at 7:15am that Mr Edwards's chosen counsellor might wake up and respond in the next 30 minutes.

How long should you wait for counsel of choice to return your early-morning call?

In the context of an ordinary impaired driving investigation, where the subject got legal advice from duty counsel, but wanted more from his own lawyer, a reasonable period of time to wait for counsel to respond early in the morning appears to be around an hour.

Remember the context of this case? Impaired driving. Every minute that passes, your suspect metabolizes or eliminates drugs or alcohol from his/her body. Part of what made 1 hour acceptable in this case was Mr Edwards' access to duty counsel. But the other part was this urgency to preserve evidence.

In other contexts, your mileage will vary.

If he had killed someone with his driving, perhaps waiting until around 8:00am for counsel to wake up (90 minutes) might have been wiser.

If you arrest someone at 6:00am on a Saturday morning for a minor domestic assault, and you want to interview him/her, don't be surprised if the court requires you to wait until 9:00am to see if counsel of choice will wake up and call back.  No urgency means a longer wait.  If you arrest a murderer at 9:30am on a Wednesday, don't be surprised if the court requires you to wait until after lunch for his chosen lawyer to respond. The lawyer might be busy in court and unable to call before then.

Mr Edwards' lawyer made some good suggestions. If you want to hurry things along, you might want to search online for the lawyer's website or the Law Society's website for alternate numbers to call. You might want to ask the prisoner if he knows of other ways to reach his lawyer. Your diligence may impress the judge that a longer wait is futile.

Or you might even reach the lawyer. No more waiting for Godot.

2024.02.27 Investigation of Impaired Drivers

Keep investigating, or you might look like an idiot.

As I described above, Mr Edwards, 2024 ONCA 135 passed out in the driver's seat of his car around 6:00am on a Saturday morning. This annoyed early-morning commuters, because Mr Edwards stopped his car in the middle of an active off-ramp on a major highway. But he didn't wake up when they honked their horns at him.

A police officer woke him, with some difficulty. He appeared confused, and he stunk of booze.

Did the officer have reasonable grounds to demand that he supply a breath sample? You bet!

Did the officer make a demand for a breath sample? You bet!

Did the officers continue to investigate his impairment? Not that I can see.

The fact that you have grounds for breath demand does not mean that your investigation of impairment is finished.

At trial, defence counsel managed to establish that once Mr Edwards woke up, the officers noticed no significant symptoms of impairment. No bad walking. No slurred talking. Nothing indicating intoxication at all. From this, defence counsel argued that the police mistook a sleepy guy for a drunk guy. Many acquittals have arisen from this kind of argument.

Maybe there was nothing to see. But this file reads like zillions of others I have seen. So often, investigators seem to forget to investigate impairment once they make a breath demand. I get the impression from the decisions that the officers stopped looking for symptoms, and therefore wrote nothing further in their notes.

Maybe, after he got legal advice, the officers attempted to get a statement from Mr Edwards, and he refused to talk. Maybe they asked him whether he would like to try some sobriety tests. Maybe they watched him carefully in the cell block for indications of sobriety or impairment. Without access to the police file, I can't be sure. But I suspect that they stopped investigating like so many other officers who conduct these investigations.

Don't get caught out by your own complacence. Keep investigating.

2024.02.26 Grounds to Seize and Reporting What you Seized - A Killer Problem

Road rage can kill people. Sloppy procedure can kill prosecutions.

After a minor collision on the road, Mr Gill, 2024 BCCA 63, shot the other driver dead. The trial judge concluded that investigative errors killed the case against him. This morning, the Court of Appeal agreed. Let's learn from the mistakes.

The initial evidence suggested that Mr Gill shot the gun. Police persuaded a justice to issue a warrant to search his home for his phone and the car.

The ITO failed to explain what evidence police expected to find in his phone. This posed problems, but Court of Appeal didn't dwell them.

The seizures

Police who searched the residence found a messy place containing 4 people and 9 cell phones. Because they couldn't tell which cell phones belonged to which people, they took all of them.

Defence counsel argued that the warrant permitted the police to take only one cell phone. The Court of Appeal rejected that notion. The warrant sufficed to seize all of Mr Gill's phones.

Defence counsel argued that the officer didn't know whether any of the 9 phones were the phone described by the warrant. The judges agreed. The warrant did not authorize police to take all phones that might be Mr Gill's phones. The officers should have made an effort to figure out which phones were probably Mr Gill's phones.

The officers noticed a home security system, and seized it too. At trial, the officer admitted that she didn't know whether it would contain evidence or not.

That's a problem. You should already know that when executing a warrant, you can seize items not mentioned on the face of the warrant if you believe, on reasonable grounds, that the item contains evidence of the offence. s.489(1)

In hindsight, it's easy to see that the home security video would provide evidence of the offence. It would likely show who drove the vehicle back to the house after the homicide.

But the officer did not turn her mind to that question at the time of the seizure. Although it probably did contain evidence at the time she seized it, the seizure was unlawful because the officer didn't think it through at the scene.

The judges didn't like that either.

Detention order and lapse

The investigators properly reported to a justice what they seized.

Good!

But the investigation went dormant for 6 years.

During that time, the investigators did not seek extension orders.

The judges did not like that.

The homicide squad simply stopped applying for them, even though senior lawyers told them that they had to.

The judges really didn't like that.

Before searching the phones, the police persuaded a court to extend the detention order.

Smart.

You don't want to search a cell phone when you possess it unlawfully.

Damning evidence

Surprisingly, one of the cell phones contained a recording of the homicide, including Mr Gill's voice.

With that evidence, one can be pretty sure that Mr Gill shot the gun.

The home security system also confirmed that Mr Gill drove the vehicle.

Exclusion of the evidence

The trial judge hated the breaches of Mr GIll's rights so much that he excluded the evidence from the phone and the home security device.

That left the prosecution without enough evidence to prove the case.

The trial judge acquitted Mr Gill. The Court of Appeal found no significant legal errors.

Lessons learned

This case offers lessons for investigators:

1. In an ITO, when you ask to seize an electronic device, you should explain what data you expect it will contain.
   
2. The authority of the warrant empowers you to seize what it describes. Choose your descriptions carefully.
   
3. If you're not sure whether the warrant authorizes you to seize a thing, investigate the thing.
   
4. Perhaps, when you ask for a warrant to search a place for a particular cell phone, you might want to ask the justice for authority to turn on all cell phones that you find at the place, for the purpose of determining which one is the phone that you seek. Some phones have facial recognition lock screens. Maybe you want to ask for authority to show the faces of detainees to the cell phones. That might help you identify phones pretty quickly.
   
5. When seizing things not mentioned on the warrant, think whether the things will (probably) provide evidence. Take your time to think it through. You may not get a second chance.

It offers lessons for file coordinators:

6. Reports to justices matter.
7. So do extensions of detention orders.
   

It offers a lesson for senior management:

8. After investigators seize exhibits, investigations need to move quickly to process them all.
   
9. Re-assigning investigators to other matters can cause fatal delays.
   

2024.02.26 Investigative Detention - How Long Can You Detain Someone on Reasonable Suspicion?

It depends.

At 8:03am, Mr R v Barton, 2024 ABCA 34 called police to attend to the dead woman in the bathtub of his hotel room. Although there was blood everywhere, police saw no injuries on her naked body. Mr Barton told police that he never touched her, except for poking her once that morning to determine whether she was alive. He told them that nobody else had been in his hotel room all night.

In most cases of investigative detention, you know there's an offence, and you suspect a person of involvement. This differed. These officers merely suspected that some kind of foul play caused the woman's death, but they knew that if there was a crime, Mr Barton knew what happened.

How long can you hold a person under these circumstances?

These officers detained Mr Barton at 8:13am, and took him to the police station. They told him his rights. He declined counsel. At 10:21am, they asked him for a statement. He started talking. They stopped at 11:27am.

It should come as no surprise that defence counsel sought exclusion of the statement. Combined with the forensic evidence, it established that he committed manslaughter.

Defence complained that "detentions" are meant to be brief. 3½ hours is not brief. It offended Mr Barton's right under s.9 of the Charter not to be detained arbitrarily.

The court concluded that in the circumstances of this case, the detention was not arbitrary.  "For a detention to fall within the common law powers of police, it must be “reasonably necessary” for the carrying out of a police duty." (para 50)

The court accepted that the police had a duty to figure out what led to the woman's death; and that they acted as promptly as circumstances allowed. They adverted to a list of factors which an Ontario court identified as helpful for determining whether a detention was excessive ("intrusiveness" of the detention, gravity of offence, complexity of investigation, safety concerns, diligence of police and absence of alternatives to detention).

I think that Mr Barton's efforts to talk his way out of the situation is what convinced the judges that this long detention was okay.  He was mostly cooperative. The detention, therefore, impacted him relatively little. The unexplained death made this situation complex.

Even still, I think your mileage may differ. Other judges might have found that this detention was too long.

You might find it useful to compare Mr Barton's case with the Ontario case, to get a feel for what judges accept and reject. A useful discussion for a watch briefing.

2024.02.17 Single Photo Identification - Getting Away with Murder

A month ago (2024.01.11), I cautioned against showing an eyewitness a single photograph of a suspect.

Yesterday, the Ontario Court of Appeal showed how this can go wrong. R. v. Shaw, 2024 ONCA 119

In 2016, three men approached a Pizza Pizza place. Two went in with guns and shot another man dead. The third man hung around at the entrance. Security video recorded the face of that third man: Winston Poyser. The camera did not capture the faces of the two shooters. Poyser and the two shooters left in a car driven by a fourth man.

Poyser worried that he would be convicted of murder or killed by the principals. Through counsel, Mr Poyser offered to assist the police in their investigation, so long as they gave him protection.

From the decision, it appears that the police handled his offer very properly. They promised not to use his statement against him in any trial, but explicitly declined to promise him immunity from prosecution.

Mr Poyser gave a witness statement. He told the officer that he knew one shooter and the driver. He said that he met the other shooter only that day. He told the police officer (and the court), that he consumed drugs and alcohol before the incident.

The interviewer carried into the interview room several envelopes that had been prepared for photo-pack identifications. For some reason, instead of asking Mr Poyser to pick out the suspects from the photos in the envelopes, the interviewer took a short-cut. He pulled out the pictures of the suspects, and asked Mr Poyser if he recognized them. He identified them as the two shooters and the driver.

Because Mr Poyser knew the two brothers for many years, those identifications posed no issue.

But the identification of the guy he met that day (while high) was a problem. A big problem.

By showing him a photo of one suspect and askin "is that the guy?", the interviewer made it impossible to know whether Mr Poyser recognized the guy, or just said what he thought the police wanted to hear. (Remember, this guy wanted police protection real bad.) At trial, the witness still identified the same guy as one of the gunmen, but his position as participant and his intoxication at the time undermined his testimony at trial.

The investigation turned up a little more evidence that suggested that he was right. That little bit of corroboration convinced the jury. They entered a conviction for murder. It wasn't enough to convince the Court of Appeal.

They acquitted him.

The case illustrates the danger line I discussed last month: does the witness know the culprit? How well? If the witness doesn't know the culprit well, then use proper photo pack if you possibly can.

Poyser wound up pleading guilty to accessory after the fact. (He destroyed evidence after the incident.) The shooters and the driver may beat the charges entirely.

2024.02.17 Burner Phone Subscriber Information 

Is there value in the subscriber information in pre-paid phones?

When investigating a murder (R. v. Shaw, 2024 ONCA 119), investigators found something interesting about a phone number in the star witness's phone. In the hours before the murder, that number communicated with the start witness.

The witness saw a murder and associated with the murderers. He knew the Shaw brothers, but there was one more guy. The witness knew him only by a street name. The police suspected that Mr Ali-Nur was that guy.

Police investigated the suspicious number. They got a production order. The phone company's subscriber information for that phone showed the name and address of the police's suspect: Mr Ali-Nur.

Great!

This match suggested that the witness was correct in identifying the suspect (named in the subscriber information) as the culprit.

Except ...

• The witness didn't remember ever communicating with the suspect by phone. He said that he only met the culprit that day.
  
• The witness assured the court that he - and the people he knew - easily obtained prepaid phones using false names. Phone company representatives confirmed this to be true.
  

This information made it entirely possible that in the shady world where the witness lived, he knew and communicated with someone else who got a cell phone by impersonating the suspect. And the true culprit could be someone different.

If you find that last paragraph confusing, you may find it easier to follow if you appreciate the difference between two words: "culprit" and "suspect". The "culprit" is the guy who did the crime. The "suspect" is the person that police think committed the crime. I often observe junior police officers using "suspect" when they mean "culprit". In whodunnit cases, keeping that distinction clear in your mind helps you think, write and speak - more clearly.

Too bad the investigator waited 2 years to apply for production orders against the cell phone company. The phone company discarded lots of data. If investigators had applied earlier they would have got much more information.

Ultimately, Mr Ali-Nur beat the murder charge.

The trial judge called that delay in the investigation "negligent". I can't quibble. He held that the police violated the defendants' s.7 right to a fair trial by waiting so long. I found that a surprising conclusion because it appears to impose on police more than an obligation to preserve evidence in their possession, but also an obligation to seek out evidence that is not in their possession. That runs contrary to my understanding of this branch of s.7. (For interested readers, see R. v. Darwish, 2010 ONCA 124 at para 29)

Regardless whether that ruling was correct, this case taught painful lessons:

• subscriber information for burner phones may need deeper investigation
• phone companies keep call data only so long. Apply for production orders promptly.
  

2024.02.03 Exceptions to Bail Conditions - Reasonable Grounds - Photographing a Joint

Damione Williams, 2024 ONCA 69 ended up "in the joint" because he rolled a joint.  At the wrong time, and in the wrong place.

Cops saw him in a car, rolling the joint. But nobody photographed the joint. Perhaps finding a handgun distracted them. Mr Williams possessed it in defiance of a court prohibition.

He lost his trial and he lost his appeal. Looks like he will stay in the joint. But this investigation offers some useful lessons for police officers.

It all started when Mr Williams was charged with assaulting his girlfriend Keylonna. A judge released Mr Williams on bail which prohibited him from communicating with Keylonna, except if she gave written, revocable consent.

Keylonna signed a written, revocable consent. (Maybe love conquers fear ... or good sense.)

She gave a copy to a police officer who uploaded it to a database accessible to the officers of the Toronto Police Service. Although CPIC contained the bail conditions, it didn't get updated with information about the written consent.

That set up problems for officers later.

Almost 2 months later, some plainclothes officers of the Toronto Police Service saw Mr Williams in a car. They ran the licence plate and learned of his identity. From CPIC, they learned of the bail conditions. Using the Toronto Police Service database, another officer got Keylonna's DOB, and used that to get her photograph from another database.

This information gave the officers at the scene knew:
- Mr Williams' bail prevented him from communicating with Keylonna; and
- The woman that got out of the car matched the woman in the photograph of Keylonna.

Would you arrest Mr Williams for breaching his bail? These officers did.

But while they waited for the photograph of Keylonna to arrive, the officers noticed Mr Williams rolling the joint.

The team of officers had staked out that spot partly because they wanted to enforce the Ontario Cannabis Control Act, which prohibits the possession of unpackaged or accessible cannabis in vehicles, and authorizes searches when officers believe (on reasonable grounds) that a vehicle contains cannabis.

They didn't just arrest Mr Williams, they also searched for the cannabis.  And that's when they found the gun.

At trial, of course, Mr Williams complained that the police should not have arrested him. Proving her love for him, Keylonna had given the police written consent. Before arresting him, the police should have checked the right database.

The Court of Appeal agreed.

But there was another reason to search the car.  The cannabis.

I guess that the gun got the officers excited. They got a warrant. They searched the car. They found the gun. They took pictures.

But nobody seized the joint. Very few pictures documented the cannabis. This offered defence an opportunity to accuse the police officers of inventing an excuse for the search.  Proving possession of the gun was way easier than proving lawfulness of the search.

But the trial judge found that the available evidence did prove that Williams rolled the joint while sitting in the car. The Court of Appeal found nothing wrong with that conclusion.

The end of the story for Mr WIlliams was: The search was lawful. Mr Williams stays in the joint. All because of a joint.

For police officers, the story comes with other lessons:

• If a little offence leads to a big bust, perhaps you want to document the little offence just as seriously as the big one. Someone should have seized the joint. The photographer should have focussed on the marijuana offence as much as the gun offence.
• If you're going to arrest someone for breaching a bail condition, beware of the exceptions. If you have time to research whether an exception applies (these officers did), then do the research.
  
• If the suspect complains about the arrest, saying that an exception applies, take his/her complaints seriously. Investigate them before dragging the suspect into custody. Mr Williams didn't complain, but in other cases - discussed in this decision - the suspect did. The courts take a dim view of police officers who ignore such a claim. That doesn't mean you must believe every fraudster who says "but the judge said I could" when you arrest them for breaching bail. Just look into the issue.
  

2024.02.01 Section 8 of the Charter is not a Breath Mint - Expectations of Privacy in Medical Situations

How close to a suspect should an officer get when medical staff attend to him/her? At what point does the police officer interfere with the suspect's privacy? Justice Doherty of the Ontario Court of Appeal threw some helpful light on these questions. He's a big name in criminal law. We should pay attention.

Mr Singh, 2024 ONCA 66 drank too much. Then he drove. Badly. He crashed his car into another vehicle, killing a mother and daughter. He suffered injuries. His infant daughter survived unhurt.

An ambulance took Mr Singh to the hospital. Cst Andrews went to the hospital to watch him, and update other officers on his medical condition. Nobody told that officer anything that suggested Mr Singh had committed any offence.

Cst Andrews did his best to stay out of the way of medical staff. He spoke only once to Mr Singh, to attempt to calm him down.

Cst Andrews heard a doctor ask Mr Singh if he had been drinking, and saw Mr Singh nod affirmatively. Cst Andrews saw a nurse draw blood. He saw Mr Singh enter the CAT scan room, and heard medical staff tell Mr Singh that he needed surgery for his injuries. Nobody asked Cst Andrews to leave.

Detective MacDonald went to the hospital for the purpose of interviewing the sole adult survivor of the crash.  He asked the treating physician if it was "medically safe" to speak with Mr Singh. The doctor didn't think it would harm Mr Singh, but warned that the morphine Mr Singh received might affect him. The doctor also volunteered something that Detective MacDonald didn't ask: Mr Singh had been drinking.

Detective MacDonald tried to interview Mr Singh, and video-recorded the attempt.

Detective MacDonald told Mr Singh that he had no obligation to answer questions. Mr Singh passed in and out of consciousness.

Detective MacDonald bent over Mr Singh, and smelled a strong odour of liquor on his breath. As a double-check, he asked another officer to do the same. That officer also detected a strong odour of liquor.

Mr Singh became more responsive. Detective MacDonald told him again that they were investigating the accident as impaired driving causing death, and that Mr Singh was under no obligation to say anything about it. Detective MacDonald asked him what he had to drink.  Mr Singh whispered that he "had a beer".

But he lapsed in and out of consciousness. Detective MacDonald gave up interviewing him.

Detective MacDonald applied - three times - for a warrant and production order for Mr Singh's blood samples and hospital lab tests. The first two justices refused him, but the third granted the application. The blood results showed that Mr Singh would have had between 124 and 164 mg% of alcohol in his body at the time he crashed.

Would the court admit the evidence?

Overheard Medical Consultation

The first problem arose long before trial. The justice who reviewed the first ITO rejected it because it relied - in part - on that head-nod that Cst Andrews saw when the doctor asked Mr Singh if he drank alcohol. Justice Doherty agreed with the justice.

A patient who communicates with a doctor for the purposes of getting medical advice enjoys a reasonable expectation of privacy. It did not matter whether Cst Andrews intentionally snooped on the conversation, or overheard it accidentally. The police could not rely upon that information because obtaining it violated Mr Singh's right to privacy under s.8.

Detective MacDonald rewrote the application so that he did not rely upon that detail (and very properly explained in the subsequent applications what happened in the earlier applications).

Justice Doherty approved.

Volunteered Information From Medical Staff

Justice Doherty even felt that it was okay for the officer to rely on the information that the doctor volunteered about Mr Singh's drinking.

He reached that conclusion because the officer didn't try to dig that information out of the doctor.

I feel a little nervous about that conclusion because of a pair of cases R. v. Dyment, [1988] 2 S.C.R. 417 & R. v. Dersch, [1993] 3 S.C.R. 76.

In those cases, medical staff gave blood samples and medical results to police officers. In one case, the officer didn't request it. The court found that this amounted to a "seizure".

Justice Doherty relied on two appellate court cases, which distinguished between medical staff volunteering information and medical staff handing over physical items. My skittishness arises from subsequent case law such as Reeves which doesn't draw such fine distinctions between information and physical items.

Sniffing the Breath of the Patient

Defence argued that sniffing the breath of Mr Singh as he lay trapped in a medical facility constituted a search which violated his expectations of privacy. The trial judge agreed.

But not Justice Doherty.

The Crown argued that whether a driver is at the roadside, in an ambulance or in a hospital, when the police are investigating a car crash, the driver enjoys no reasonable expectation of privacy over what his breath smells like.  Justice Doherty agreed.

That's why s.8 of the Charter is not a legal mint to conceal the boozy breath of a driver.

"Medically neutral" information

"[N]ot everything done, said, or observed in a hospital emergency room is wrapped in a cone of constitutionally protected privacy." (emphasis added)

I figure that cone was a reference to the absurd "cone of silence" from Get Smart. Justice Doherty ain't just some highbrow legal nerd.

Justice Doherty pointed out that police have a duty to investigate these crashes. There's nothing wrong with going into medical places to do so.

Although you can't ask the doctor for private medical information, some information is "medically-neutral". You can ask whether the staff took blood samples because this doesn't reveal any medical information. Doctors can tell you things that the patient told them - so long as those things do not relate to the protected area of medical treatment. It was okay for Cst Andrews to see Mr Singh go into the CAT scan room, or learn that he would need surgery.

And it was okay for the Detective MacDonald to ask the doctor whether it was medically-safe to interview Mr Singh.

Questioning the Intoxicated Singh in his Hospital Bed

Should you interview a drunk like these cops did?

If you want a voluntary statement, and the doctor tells you that the suspect is high on morphine, you might not get a voluntary statement.

But these cops investigated impairment. It makes all the sense in the world to videorecord the sobriety of the suspect. And to videorecord themselves in the process of investigating it.

Defence complained that in so interviewing him, police detained Mr Singh.

Justice Doherty rejected that idea pretty quick. Mr Singh's injuries restrained him, not the police. Indeed, Det. MacDonald took time to tell Mr Singh that he didn't have to answer any questions if he didn't want to.

Conclusions

In serious cases, assign someone to follow the suspect into hospital, and to track what happens. Watch when medical staff take blood samples. If you don't behave in ways that give the suspect reason to think they are in your custody, then their immobility on the gurney is not a detention. (Of course, if you do assert your control over them, then explain their rights under s.10, and arrange for access to counsel, if the detainee wants it.)

Do ask the treating physician if it's okay to talk to the suspect. When life or health is imperilled, don't get in the way of medical staff.

Don't ask the treating physician for information emanating from medical consultation, or for the results of medical tests.

If you overhear a medical consultation, don't rely on it for grounds for arrest or demands or warrants.  If a doctor or nurse volunteers medical information to you, you might be able to rely on it; but take careful notes about how the information came up.

If you're interested, I wrote more about this in "2023.04.03 Continuity of the Injured Suspect - Protecting Life or Invading Privacy?". See my "Old news" page for more information.

2024.01.30 Right to Counsel on Arrest and Detention - When and Where?

Seven years ago, 250 Quebec police officers arrested a bunch of people simultaneously for various drug and organized crime offences. A big operation.

At their trials, Mr Brunelle, 2024 SCC 3 and the other defendants all complained to the trial judge that the police failed to give prompt access to counsel to the defendants who asked for it. The police officers told anyone who asked that they could talk to a lawyer when they got to the police station. Defendants had to wait between 23 and 66 minutes to get legal advice. The trial judge stayed all of the charges. The trial judge complained that police officers always postpone access to counsel until they bring the suspect back to the police station. He said that's wrong. He said that police forces should supply police officers with cheap phones so that defendants can always get legal advice immediately at the scene of the arrest.

The Crown appealed. The Crown pointed out that some defendants did not want legal advice. Some didn't want it immediately. Even if there were some delays, the police scrupulously avoided asking the defendants any questions about the offences until after access to counsel was completed.

The Court of Appeal agreed with the Crown that the trial judge didn't analyze the breaches properly.  So did the Supreme Court of Canada. These folks will face their charges (8 years late).

The Supreme Court did not bless those 250 police officers with approval. The judges reviewed the law that the trial judge must apply, and clarified some duties and obligations of police officers on arrest and detention. It's a confusing read because the decision also tackles legal issues of abuse of process and standing. More on that later.  With respect to police duties on arrest and detention:

1. Without delay, inform the detainee of his or her right to retain and instruct counsel and of the existence and availability of legal aid and duty counsel (para 80)
2. If the detainee indicates a desire to exercise this right, provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); (para 80) and
3. Refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). (para 80)
4. Where the detainee asks for access to a lawyer, you may delay no more than is reasonable under the circumstances. (para 82)
   
5. Police officers are not obliged to give the defendant their own personal cell phone. (para 84)
   
6. Police forces are "not yet" obliged to supply cell phones to their officers for the purposes of giving access to counsel. (para 84)
   
7. Logistical concerns - such has handling multiple prisoners at the same time, the problems with providing privacy, the availability of communication devices at scene - can justify longer delays (para 102)
8. Because police officers must explain delay, the burden lies on police to make a record of what prevented instant access to counsel. (paras 82 and 97)

This case involved a planned arrest. Those are the worst for police. Look how easy it is for the defence to complain about delayed access to counsel:

• Did the officer bring handcuffs? Yes! Why? Because he was going to arrest someone. Even before he left the police station, he knew that he would need them.
• Did the officer bring a handgun? Yes! Why? Because he was going to arrest someone. Even before he left the police station, he knew that there was a risk that he would need it to overcome resistance.
  
• Did the police officer bring a police car or paddy wagon? Yes! Why? Because he was going to arrest someone. Even before he left the police station, he knew he would need a way to transport the prisoner back to the police station.
• Did the police officer bring a cell phone that the prisoner could use to call a lawyer? No? Why not? Even before he left the police station, he knew that his prisoner would likely want to talk to a lawyer.
  

Early in my career, cell phones were exceptional. Now, almost everyone carries them. Probably, even the judges on the Supreme Court of Canada use them.

Decades ago, police got the idea that if they told the suspect about the right to counsel at scene, then the law would permit the officer to take the prisoner to a police station before providing access to counsel.

True back then. Not true now.

Some supervisors (mostly the ones approaching retirement) continue to teach young officers the old rule. Senior officers might want to put this case on the agenda for discussion with the supervisors.

Management should start considering what to do when the SCC decides that you do need to equip every police cruiser with a cell phone.

Officers who arrest people should know that when the prisoner says "yeah, I want to talk to a lawyer", a clock starts ticking. The longer it takes to arrange access to counsel, the louder that clock should tick in the back of the officer's head.

If you pass the prisoner to another officer, tell the next officer about the ticking clock: "This guy wants to talk to a lawyer. Make it happen without delay."

Post Scriptum 2024.02.09 - A reader pointed out that police officers can rarely provide the prisoner with sufficient privacy for a proper legal consultation at the scene of the arrest. He asked what an officer should do to respect the prisoner's right to privacy. In his email he said that he expected me to write "it depends".  Here's my answer:

It depends.

If you can provide privacy at the scene, then you should provide privacy at the scene and offer to make the call.

If circumstances prevent you from providing privacy at the scene, then say so, but assure the prisoner that they will get a private call as well.

"You have a right to talk to a lawyer right now. We can call right now. But you have the right to a private consultation with a lawyer.  I can't give you complete privacy right now. So here are your choices: We can call right now, but I can't give you much privacy. But you can have a second conversation later at the police station, in privacy. Or we can make the call later, at the police station, where we have a private room for those phone calls. Your choice."

2024.01.30 Accumulated Breaches of Constitutional Rights - Standing

Section 24(1) of the Charter of Rights and Freedoms says: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

From those words come the idea of "standing": Only the people whose rights were infringed can complain about it. If some police officer arrests my best friend without any reason, and then holds him in custody without a bail hearing, nor any access to a lawyer. That would be a serious bunch of breaches of s.9 and 10 of the Charter. But I can't apply to court under s.24 of the Charter for an order that the police release my friend. The court must reject the application unless the person affected makes the application.  (Of course, if my friend is held incommunicado, he can't make such an application. Long before the Charter, the writ of Habeus Corpus was invented to solve this kind of problem.)

When police arrested a bunch of people which included Mr Brunelle, 2024 SCC 3 (see above), some of them wanted immediate legal advice, and some didn't. The police may have responded too slowly to the ones who asked to speak to their lawyers right away. And the police made some mistakes with warrants. For example, they had executed general warrant to "sneak and peek" into some properties. The general warrants required the officers to give formal notice to the people whose privacy they violated. The officers gave informal notice instead. And there was a warrant or two which should have been backed, but the officers executed them without backing orders.

So the police may have breached the rights of some of the defendants. But the defendants as a group asked for remedies, and, as noted above, the trial judge stayed all of the charges. Everyone beat the rap, even those who suffered no Charter breaches.

What was The reasoning For that conclusion? Abuse of Process.

The Crown appealed, complaining that many of the defendants lacked standing. The Supreme Court of Canada disagreed with the Crown. In Section 7 of the Charter, they found a back door, through which defendants who suffered no personal breach of their rights could still claim for Charter relief.

How does that work?

Section 7 reads "Everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The principles of fundamental justice requires that prosecutions (and the investigations that they rely on) be fair and lawful.

The concept of abuse of process has two arms: the first one is obvious: sometimes, the trial is just unfair to a defendant. For example, it's unfair to prosecute a old defendant who's dementia prevents him from understanding the case against him. Proceeding in such a case would be an abuse of process.

Other times, the trial may be fair, but the behaviour of the prosecutor or the investigators was so icky that permitting the trial to proceed will besmirch the reputation of the court. The idea is that the public won't trust judges if judges just ignore outrageous behaviour by police or prosecutors.

In this case, the trial judge felt appalled that the officers who arrested the defendants routinely delayed defendants from contacting their lawyers. This, he felt, tainted the whole trial. And the technical failures with the warrants made it all worse. He didn't want anything to do with the case, and thew everything out.

The Supreme Court of Canada concluded that an abuse of process complaint under s.7 provides a route for all co-accused to complain of the breaches of the rights of other people involved in the case.

How can this affect regular police work?

An anonymous tipster asserts the people in 123 Main Street, Anytown, BC, sell drugs. You watch two people separately attend for short visits, as if to purchase drugs. The tip and the observations certain amount to reasonable suspicion that the two people bought drugs. Here in BC, people can possess small quantities of drugs. But you arrest them anyway, to confirm your suspicion. Sure enough, on a search incidental to arrest, you find that both possess small unopened baggies of fenanyl. Relying on this information, you apply for a warrant and bust the drug house.

At trial, the defendants can complain that the investigation is an abuse of process. The judge might agree. The "no-case seizure" might eviscerate the larger investigation.

I don't know what will happen to Mr Brunelle and his friends, 8 years after the busts. The Supreme Court hinted that the breaches in that case were not so terribly serious that the charges needed to be stayed. I suspect that their prosecutions will be more difficult to run, all these years later.

I do know what this decision means for you:

1. Section 1 of the Charter says that everyone in Canada has rights.
2. One of your jobs as a police officer is to uphold the law. That includes respecting and protecting everyone's rights.
   
3. Therefore, as a matter of principle. you can't bank on the notion of "standing" to sweep Charter rights under the carpet.
4. This case shows that as a matter of tactics, relying on "standing" to engage in questionable investigative techniques may backfire.  A "no case seizure" may not work for you. Trespassing on one property to snoop on another may not always work.
   

2024.01.17 Circumstantial Proof of Criminal Possession - Virtual and Real "Found-Ins"

Whether you find drugs in a house or child pornography in a computer, the principles of criminal possession will apply at trial. To convict someone of possessing the contraband, the evidence must prove their responsibility for it beyond a reasonable doubt.

In most cases, you figure that the resident(s) of the house or the owner of the computer or cell phone are responsible for the drugs in the house or the images in the phone. But common-sense probability doesn't meet the test.

In most of these cases. the prosecution relies on circumstantial evidence. If Jimmy lived in the house, and slept in the bedroom, and police found his wallet sitting on top of the drugs, then one may fairly safely conclude that Jimmy knew about the drugs in the bedroom, and controlled whether or not they stayed there.

But Jimmy can escape conviction if he can point out an innocent explanation for the presence of the drugs which could reasonably be true. For example, suppose that police arrested Jimmy outside the house. When they searched it, they found Denise the Drug Dealer sleeping in Jimmy's bed. Jimmy's lawyer could argue:

"The evidence certainly suggests that Jimmy was responsible for the drugs. But there is a reasonably possible alternative explanation.  Denise the Dealer deals drugs. For some reason, she slept in Jimmy's bed. We have no evidence that she normally slept there. Indeed, the bedroom contained only male clothing. It's possible she was just visiting, and needed to sleep off a binge.  It's possible that she placed her supply on the bedside table, without Jimmy's knowledge or permission. We don't know that's true, but on the evidence presented at trial, we can't say it's false either.  Therefore, you must acquit Jimmy."

The same principle applies to child pornography on an electronic device. The evidence must prove who put it there. If there's an innocent alternative possibility, then the judge must acquit.

When police searched the residence of Mr Beauvais, 2024 ONCA 22. On his computer, they found child pornography and filesharing software that would have downloaded it. The username was his nickname. The laptop was password protected.

The investigators went further. They interviewed his housemates. As we shall see, that was a good idea.

Mr Beauvais' lawyer offered three alternative possibilities to guilt:

1. Mr Beauvais sometimes permitted his housemates to use his computer. It could have been one of them. (One testified that he didn't, and that the other only ever used Mr Beauvais' computer when playing videogames with Mr Beauvais.)
2. There was an occasion when Mr Beauvais downloaded the contents of a housemate's SD card to his computer. The child pornography could have come from it. (This did not accord with the forensic evidence.)
3. There was evidence of a computer virus in the computer, which would permit a stranger to execute commands on it remotely. Maybe some hacker put it there.
   

The trial judge dismissed these ideas as too speculative. He convicted Mr Beauvais. But the Court of Appeal said he didn't sufficiently tackle #3, and sent the matter back for retrial.

If I were the prosecutor, I'd look for a really good digital forensic technician to explain why there's no reason for the person who controls a virus to do that.

In Panko, 2010 ONCA 660 the defendant argued "maybe a hacker put the child pornography on my computer". The court properly rejected that argument because there was no evidence of any virus. In this case, they did find evidence of a virus. But nothing more. This raises an interesting question. Is the presence of a virus enough to make the alternative a reasonable one? Or should there be more evidence that someone used the access that the virus granted to mess with the contents of the computer?

That will take some careful examination of all of the evidence.

It's the same for physical cases. When searching for evidence, you want more than just the contraband. You want the evidence which establishes who was responsible for it, and the evidence that shows that nobody else could be responsible for it.

2024.01.11 Showing the Eyewitness a Single Photograph

It's easy to screw up eyewitness identification, especially in urgent, high-stakes cases. The cop who investigated Mr Odesho, 2024 ONCA 9 didn't screw up. Before you find yourself in a similar crisis, let's consider why.

Mr Odesho shot two guys in a cafe in Vaugan, Ontario. One died. The other, Mr Eyup, suffered serious injuries.

An investigator spoke to Mr Eyup at the hospital. Mr Eyup named Mr Odesho as the gunman. Then, using a cell phone, the investigator showed Mr Eyup two mugshots - one of each of the two suspects identified so far. Mr Eyup confirmed that the photo of Odesho depicted the man who shot him.  He lived to testify, and said the same thing on the witness stand.

The jury convicted him and Mr Odesho appealed.

Defence argued that the two mugshots did not constitute a fair photo lineup, and that the Mr Eyup's identification of Mr Odesho should not be trusted. By showing the photograph, the police officer may have affected Mr Eyup's memory. The power of suggestion may have caused him to believe that Mr Odesho was the shooter, even if someone else did the deed.

The judges agreed that it wasn't a proper lineup. But they pointed out that Mr Eyup had already identified Mr Odesho, a person known to him at the time. This flawed procedure would not likely have implanted false identification in the victim's memory.

Things could have gone differently.

Imagine that you attend the hospital, with a photograph of a suspect in your cell phone. You ask the injured victim who shot him. He does not give a name, but starts describing someone who looks like the guy in the picture in your phone.

The next step seems obvious. Just show the picture to the witness and ask "is this the guy that that shot you?"

Judges hate that procedure. Psychologists confirm that it can plant false memories.

If the witness has not yet identified the culprit, showing that mugshot can significantly undermine the witness's testimony in court.  Ordinarily, you should not show the photograph until you can assemble a proper photo pack. Interview the witness fully, including descriptors.

Let's push the thought-experiment one step further into the world of urgency and high stakes. Suppose your victim is dying away, despite the best effort of able medics around him.

Your conversation may be the only chance that the victim gets to identify their attacker. Justice demands that their voice be heard.

What should you do?

These dying words of the victim may be admissible in court. Turn on a recording device.

The risk of false identification arises for many reasons:
- By the power of suggestion. "Because a cop showed me a picture, my assailant must be the the person pictured." Therefore, regardless whether the victim recognizes the person in the picture, the victim may think that the correct answer to the question is "That's him."
- The absence of alternatives prevents us from knowing whether the witness is guessing or recognizing.
- A positive identification of a culprit tends to suppress investigators' curiosity. They stop asking questions they ought to ask.

Therefore, ask someone to send you other similar mug shots, if at all possible.

Before showing any pictures, ask the questions you would ask if you had no photograph. You know the drill. What happened? Whodunnit? Clothing, skin colour, hair, height, age, weight, distinctive features etc.

If you can't get other photographs, then attempt to defeat the power of suggestion. Don't ask "Is this the guy?" You want the witness to engage with the issue of mis-identification. Maybe you should say:

Someone sent me a picture. I'm worried that we might have the wrong guy. It would be really bad if we pursue the wrong person right now. Can you help me make sure?  What can you tell me about the person shown in this picture?

This is a last-choice procedure. Avoid it if you can. If your victim identifies the culprit, there will be battles in court about the admissibility and probative value of the answer. Don't rely on it to prove the case. Keep investigating identity.

This final scenario doesn't come up often. But when it does, the poor officer doesn't get much opportunity to work out the principles that apply.

2024.01.11 Asking the Suspect for a Password

Should you ask the suspect for the password to his/her electronic device? How?

Police seized two cell phones from Mr K.S., 2024 ONCA 14 during their investigation of a sexual assault, because they believed that the phones contained relevant messages exchanged between him and the complainant.

The officers got a search warrant, but they couldn't crack the security on the phones.

The officers asked Mr K.S. for the passwords, but he refused to divulge them.

When they returned the phones to Mr K.S., the phones no longer worked. He could no longer extract the messages either.

Mr K.S. complained the the police lost evidence relevant to the case, and therefore the case should be thrown out.

The judges rejected this argument: Mr K.S. refused to share his passwords. He controlled access to the data. He defeated police investigative efforts He had no right to complain of police misconduct.

Please note: the judges did not say Mr K.S. bore any obligation to reveal the passwords. Indeed, some Canadian judges have gone so far as to find that there is no way to compel suspects to divulge their passwords.

You can't generally force the defendant to tell you his password (there might be exceptions where life is in peril). There is substantial doubt whether a judge can order a defendant to reveal a password (see my post on 2023.03.29). But this case illustrates there can be value in asking.

If password security locks you out of an electronic device, and nothing else works, you could contact the defendant (perhaps in writing, through counsel), explain the problem, and ask for passwords.

Most probably, you will get a firm, clear "no".

As this brief opinion illustrates, even that answer may prove useful.

2024.01.10 Vehicle Search after a Crash - Electronic Data Recorders

You don't always know what caused a car to crash.

More and more vehicles contain electronic devices which record what happened in the moments, minutes or hours before a vehicle crashed.

Great data!  Can you lawfully access it?

In R. v Genge, 2023 NLCA 35, the court found that the owner retained a substantial interest in the privacy in a wrecked car, and in the data in a device in the car.

In 2018, Mr Genge crashed his car. One passenger died, the other suffered injuries.

Newfoundland police seized it pursuant to a provincial statute which authorized them to seize a car if they believed it was used in the commission of an offence, or if serious injury or damage occurred. At the time that they seized it, they had no evidence to suggest that Mr Genge committed a criminal offence.

They did not know whether this vehicle contained any electronic device which recorded the vehicle's activity.  But they brought a mechanic to search for one. The mechanic found one and removed it.

I infer that the officers gathered reasons to believe that Mr Genge committed an offence, because later, a justice granted them a warrant to search the device for evidence of an offence. The data in it showed that the vehicle travelled at 165km/h when it crashed.

At his trial for dangerous driving causing death, Mr Genge's lawyer complained that the police violated Mr Genge's rights under s.8 of the Charter. Even though the police lawfully seized his car, he still enjoyed privacy in the contents of the car. The police violated that reasonable expectation of privacy when they asked the mechanic to locate and remove the electronic device.

The judges agreed and excluded the evidence.

Back in 2018, one of the leading cases in this area was R. v. Fedan, 2016 BCCA 26. That case suggested that a lawful seizure extinguished territorial privacy in the vehicle. In the Fedan case, the officers seized the vehicle pursuant to s.489(2) of the Criminal Code. Those officers had reason to believe that the car was used in an offence.

The officers who investigated Mr Genge did not have reason to believe that he committed an offence. Therefore, they could not seize the car pursuant to s.489(2). They seized the car pursuant to a provincial statute.

The judges in the Genge case figured this made a big difference.

I find that logic troubling. If police lawfully seize something, then the owner can reasonably expect that the police will look at it.

I suppose that there is some reason for different expectations of privacy depending upon the authority used to seize. A seizure for a criminal case leads to an expectation that police will examine the thing for evidence of a crime.  A seizure for civil purposes leads to an expectation that the vehicle might be held as collateral to pay a debt, and that an insurance adjuster may examine the vehicle for evidence which settles civil claims.

Either way, it seems to me pretty unrealistic for the owner to expect that nobody will snoop through his vehicle. If the investigators violated Mr Genge's reasonable expectation of privacy in this case, it seems to me to be a minimal expectation of privacy.

Furthermore, the evidence suggests that the officers attempted to respect the law of privacy. They obtained a warrant before breaching the informational privacy in the electronic device. It appears that the officers were trying to follow the principles explained in the (then) recent ruling in the Fedan case. As you probably know, after the courts find a breach of a Charter right, they must then consider its seriousness when deciding whether to exclude the evidence. In the Genge case, the court equated the seriousness of the warrantless seizure of the device from the vehicle with unlawful examination of the data (Para 32). Eight days after the Newfoundland Court of Appeal rendered its decision, the Supreme Court of Canada explained that this is the wrong way to assess the seriousness of police misconduct. R. v. Zacharias, 2023 SCC 30. I don't see any indication on the Supreme Court of Canada's website that the Newfoundland prosecutors appealed Mr Genge's case further.

What should investigators draw from this troubling case?

If you seize a vehicle for civil purposes, then beware of searching it for criminal purposes.

If, after a civil seizure, evidence leads you to believe that it was involved in a crime, then formally seize it pursuant to the Criminal Code. Report it to a justice, and get a detention order before you examine it.

Even still, judges may say that you need a warrant to search the interior of a crashed car for electronic devices that contain data from the crash.

I thank a friend who brought this case to my attention.

2023 Developments

2023.12.29 Search & Seizure - Seizure vs. "Receiving"

What's the difference between "receiving" something, "gathering" it, and "seizing" it? In part, it depends on whether you will give it back.

A few months ago, an officer asked me some challenging questions. When you pick up a cell phone dropped at the scene of a crime, are you "seizing" it? Do you need to write a report to a justice? If you don't know whose phone it is, how can you give notice to the owner of your application to extend a detention order? I'll summarize my thoughts on those questions, because I think that this new decision explains my thinking.

In 2016, Mr Lambert 2023 ONCA 689 downloaded child pornography onto a computer that he shared with his wife. She noticed. She took the computer to a police officer, and explained why she thought it contained child pornography. The officer lacked experience with child pornography investigations. He wisely sought advice. But it took him a couple of months before he reported to a justice that he had the computer. In 2018, the Supreme Court of Canada delivered a decision in a very similar case which suggested that he should have reported it immediately. (R. v. Reeves, 2018 SCC 56.)

The defence complained that the officer breached Mr Lambert's rights by failing to report the seizure promptly. And when Mr Lambert's wife delivered a second computer to the police, with more complaints of child pornography, they made the same mistake a second time.

The prosecution argued that the officer never really "seized" the computer. In Reeves, the police officer took the computer from the complaining wife. In this case the wife delivered it to him. No "seizure".

The trial judge agreed with the Crown. Justice Paciocco agreed with the defence.

Justice Paciocco's reasoning works like this:

1. The wife could deliver her private information to the officer. The officer could receive that without "seizing" it.
2. But the wife could not waive her husband's reasonable expectation of privacy over his private information in the computer.
3. When the officer received the computer, he determined that he would not give it back to the husband, because it contained child pornography.
4. That's "seizure" - taking something from someone without their consent.
5. In this case, just like Reeves, the officer did not seize the computer from the wife, but the officer did "seize" private data from the husband.
6. Therefore, the officer should have reported the computer promptly to a justice.
   

That's a pretty expansive definition of the verb to "seize".  It captures actions by police which involve no participation, possession or even presence of the husband.

It creates some complications for police. For example, consider the question that the officer sent me. If you pick up a cell phone that you find lying on the street, are you seizing it? Do you need to report it to a justice?

Justice Paciocco's analysis tends to support the answer I gave to that officer:

Your job involves protecting life and property. If you pick up the phone with the intention of returning to the owner, then you are merely preserving it from harm. No seizure. But at the point that you decide that you will not return it to the owner, then you are "seizing" it. At that point, you must report that seizure to a justice. If you pick it up at a crime scene because you think it may contain evidence, then you're probably seizing it.  Report it to a justice and start your s.490 timer ticking.

I don't think Parliament expected the courts to give such expansive meaning to "seize" when they drafted s.490 of the Criminal Code. That section requires you to give notice to the person from whom the thing was seized any time you apply for an extension of a detention order. But this judicial interpretation of "seizure" means that you will inevitably "seize" things from people whose identities you do not know. It's hard to notify them that you've got the object if you don't know who they are. For example, if you seize a cell phone from the body of a dead dial-a-doper, it may contain the private communications of other members of the drug-dealing ring. Unless you intend to return it to "the person from whom it was seized" or the "lawful owner", you may need to report it to a justice.  Without looking into the phone, how can you tell those folks that you want to keep the phone a little longer?

Don't expect the courts to change this opinion. Justice Paciocco was a celebrated criminal law professor. His views will likely enjoy support in the Supreme Court of Canada. I don't expect that judges will vary his interpretation of "seizure" just because it's cumbersome for police officers.

Justice Paciocco sympathized at least a little with the investigating officer. He concluded that the breaches of Charter rights did not warrant exclusion of the evidence. Mr Lambert's conviction stuck.

2023.12.29 Search Incidental to Arrest - Determining Identity

Can you search a suspect's wallet incidental to arrest, for the purposes of confirming the suspect's identity?

Of course, most practical police officers would like a yes/no answer to this question. And they would prefer "yes".

The Ontario Court of Appeal says "It depends. Is that search necessary?"

Mr Sureskumar, 2023 ONCA 705 worked for a bank. He personated an elderly customer, and wired $150,000 out of the country. The customer noticed, and alerted the bank. The bank staff investigated, and prevented Mr Sureskumar from wiring another $150,000. They reported him to police.

Police arrested him after a shift at the bank. They demanded identification. Mr Sureskumar mentioned his wallet, which he left in his car. An officer seized the wallet and searched it. The wallet contained a sticky note on which was written the victim's credentials. Pretty damning evidence.

At trial, defence sought to exclude the evidence of the sticky note. They complained that the officer lacked lawful authority to search the wallet incidental to arrest.

The trial judge agreed. So did the court of appeal.

The judges did not say that you can never search for identity evidence incidental to arrest. But that you can't search for identity evidence when it's unnecessary to do so.

In this case, the police knew who they wanted to arrest. If they had any doubts, they could ask the bank staff if they got the wrong guy. They didn't need to go into Mr Sureskumar's wallet to figure out who he was.

As it turned out, the bank staff had already given the police all that they needed to persuade a justice to authorize them to search Mr Sureskumar's phone. They got the warrant and searched the phone  In that phone, they found a photograph of that same sticky note. The police didn't really need the note itself to make the case against him. The trial judge convicted Mr Sureskumar and the appeal court upheld that result.

Most of the time, when arresting suspects, general duty police officers don't receive reliable identification information from credible witnesses. Those officers may be able to explain why it is "necessary" to examine a suspect's wallet in order to identify him.

Therefore, incidental to arrest:

• You can search a suspect's wallet for evidence of the offence - if you can explain why you think that the wallet might reasonably contain evidence of the offence.
• If you can't explain why the wallet might contain evidence of the offence, you can still search it for identification of the suspect - if you need that identification, and it isn't reliably available from another source.

2023.12.07 Links in a Chain - How Judges Calculate Charter Breaches

When police officers respect Charter rights, prosecutions go more smoothly.

Starting an investigation with a Charter breach complicates things.

In R. v. Zacharias, 2023 SCC 30, the court explained how judges analyze the impact of an initial breach.

An experienced police officer pulled over Mr Zacharias' pickup truck because of a burnt-out tail light and illegal tinting. The vehicle was travelling to Calgary from BC, on Highway 1. The officer noticed:

• Zacharias was very nervous
• He transported his luggage in the cab of the truck, instead of placing it in the bed under the high-quality tonneau cover.
• Zacharias said that he was visiting his sister "for a couple of days". It seemed like a large quantity of luggage for such a short visit.
  
• The truck sported pro-police stickers (was that to defuse police suspicion?)
• Zacharias explained that his son bought the truck with those stickers attached - but the truck was registered in Zacharias' name
  

Suspicious that Zacharias might be delivering drugs, the officer checked deeper into police databases than usual, and learned that 3 years earlier, police received an anonymous tip that Mr Zacharias trafficked cocaine and cannabis.

For the officer, that information tipped the balance. He figured he had"reasonable suspicion" that Zacharias was moving drugs. The officer detained Zacharias and called for a drug dog to sniff around the truck.

Did the drug dog find drugs? Of course it did! I would have nothing to write about if the dog found nothing.

100 lbs of marijuana in the back of the truck.

The judges concluded that the officer's grounds for suspicion were almost - but not quite - good enough.

Therefore:

• deploying the drug dog violated Mr Zacharias' right to privacy, protected by s.8 of the Charter
  
• detaining Mr Zacharias (for 20 minutes while waiting for the drug dog to arrive) arbitrarily detained him, contrary to s.9 of the Charter.

When the drug dog confirmed the presence of drugs in the car, the officer arrested Mr Zacharias, and searched the car incidental to arrest.

The majority of the judges of the Supreme Court of Canada found more breaches. If the drug dog's sniff was unconstitutional, then they would exclude the drug dog's evidence from the trial. Without that information to work with they concluded that the officer lacked reasonable grounds to arrest Mr Zacharias.

Therefore:

• arresting Mr Zacharias also violated his s.9 right to be free from arbitrary arrest; and
• searching his car for the drugs violated his s.8 right even more.

It sounds like the officer went crazy, and violated Mr Zacharias' Charter rights every which way!

Five judges in the Supreme Court reached three different conclusions. Oversimplifying them:

Justice Côté pointed out that the officer made one mistake. And it was a very small mistake. In all other respects, the officer acted impeccably. Therefore, the size of the unconstitutional behaviour is very small. The evidence should be admitted into trial.

Justices Martin and Kasirer disagreed. The mistake might have been small, but the cumulative impacts on the defendant's rights made the constitutional breach very big. The evidence should be excluded. (I think that these two attempted to rewrite a previous decision of the court: R. v. Grant, 2009 SCC 32. I think that they effectively conflated the first two parts of the 3-part test described in that case.)

Justices Rowe and O’Bonsawin offered a compromise. The police misconduct was small but the cumulative impact on the defendant was larger. The public interest in the prosecution was large enough that excluding the evidence would do more harm than admitting it. Until the court clarifies further, we can expect their view to be prevail in future.

What does this case mean for police officers?

We often say that a chain is as strong as its weakest link. But this kind of chain is made clay, and it hangs from a hook in the ceiling.  If the first link is weak, the weight of the rest of the links may cause the chain to break. The longer the chain, the weaker it becomes.

It means that the early Charter breaches can break the case, even if you follow-up impeccably. How you get your grounds can significantly affect the rest of the investigation. Longer series of linked intrusions into Charter protected rights are more vulnerable than short ones.

Consider a typical series of links in an investigation. It doesn't matter whether the offence is impaired driving or murder:

A officer detains a suspect based on "reasonable suspicion" (s.9). The officer searches for officer safety (s.8). The officer explains the reason for the detention.(s.10(a)) and the right to counsel (s.10(b)). The officer attempts to arrange for access to counsel (s.10(b)). The officer holds the suspect for 20 minutes while investigating (s.9). The officer arrests the suspect (s.9). (s.10(a)) (s.10(b) information) (s.10(b) access) The officer searches incidental to arrest. (s.8).

That's 11 links in the Charter chain. Presumably, after the arrest, the officer will hold the suspect for a period of time, and perhaps gather other evidence as a result of these initial steps. At trial, defence now has 11 opportunities to take down the case: "The officer acted too fast in in forming suspicion. The officer lacked grounds. The officer acted too slowly in explaining or arranging counsel. etc."

For police officers who conduct simple investigations, the early steps matter. Cautious policing pays. Good note-taking of those early steps pays.

In complex investigations, some chains grow very long. Short chains are more likely to bear the weight of Charter scrutiny than long ones. When wiretap leads you to a new suspect and a new offence, consider whether you can support your next application without relying on prior interceptions. If you have the luxury of independent evidence, use it.

Postscript: The appeal judges did not reconsider whether the investigating officer had reasonable suspicion. If Cst MacPhail got the test wrong, he was damn close.  And Mr Zacharias stayed convicted.

2023.11.24 Searching Electronic Devices pursuant to a Warrant - Using the Right Words

When applying for search warrants, try to get the most recent precedents.

Way back in 2013, Ontario Police officers got information from American sources about a Canadian user of child pornography. Most recently, he accessed it using an IP address registered to Research in Motion (aka Blackberry).

They tracked Mr Neill, 2023 ONCA 765 down at a Tim Hortons. The officers feared that he noticed their surveillance. They seized his phone, in order to prevent him from erasing the incriminating data.

The appellate judges dwelt on whether exigent circumstances existed to justify the seizure. I found this odd, because s.489(2) of the Criminal Code seems to apply. It doesn't require exigent circumstances.

The investigators took 7 days to report their warrantless seizure of the Blackberry. The trial judge didn't like that. It should have been reported faster.

The investigators got a warrant to search their property bureau, and seize the Blackberry for the purposes of a forensic analysis. That warrant contained some outdated boilerplate about  the “suspected commission or intended commission of an offence”.

The defence counsel complained that police can't get a search warrant under s.487 based on suspicion. You need reasonable belief.  The judges agreed.

Fortunately, this ITO fully explained the reasonable beliefs, and the specific offences at issue. Because of that, the trial judge ignored that old language, and the appeal court agreed.

As set out in the decision, if you use out of date language, your mileage may vary. (See paras 11 and 15).

Defence counsel also complained that after the forensic analysis, the police should have made a report to the justice about the data that they found.

This is a big issue in British Columbia, because a judge here determined that police must report what data they find after such a forensic analysis.

The Ontario Court of Appeal decided not to answer that question for the police officers in that province.  They're going to wait a little longer before deciding that the answer is obvious, and all police officers should have been doing all along.

2023.11.10 Arresting Responsible Drug Users - Good Samaritans and Curious Gawkers

A drug user who overdoses becomes helpless. Only the people around them can save their lives. Usually, those people use drugs. They don't like calling for help, for fear of getting into trouble themselves.

Back in 2017, Parliament created an exception to make it safer for drug users to call for help. S.4.1 of the CDSA provides:

No one who seeks emergency medical or law enforcement assistance because that person, or another person, is suffering from an overdose is to be charged or convicted under subsection 4(1) [drug possession] if the evidence in support of that offence was obtained or discovered as a result of that person having sought assistance or having remained at the scene.

Mr Wilson, 2023 SKCA 106 drove a pickup truck. One of his passengers overdosed. Someone called 911. Mr Wilson stayed at the scene. When police attended, they noticed some white powder on the ground near him. It looked like crystal meth. An officer arrested him for simple possession of a controlled substance. A search incidental to that arrest discovered lots of drugs, scales, needles, and handgun parts.

At his trial, Mr Wilson argued that s.4.1 made his possession of drugs lawful during the time that he stuck around to help someone overdosing.

Does it?

Read the words.

The court agreed with the Crown: it prohibits charges and convictions. It doesn't make possession lawful.

Regardless whether it made possession lawful, Mr Wilson argued that it prohibited police officers from arresting him for possession.

Does it?

Read the words.

This time, the court sided with Mr Wilson, but not because the words directly supported Mr Wilson's argument. They applied logic similar to s.495(2), but they applied it to s.495(1) as well:

1. In these situations, police have a choice (a "discretion"). They can arrest, but they don't have to.
2. Police must exercise this discretion responsibly.
3. The purpose of arrest is to prosecute.
4. If the officer knows that the suspect will never be charged, then there's no point in arresting.
5. Therefore, this arrest was arbitrary. It offended s.9 of the Charter.

Does this mean you can never arrest people that you find in the vicinity of an overdose? No. The limitation applies only to possession. You can arrest people for PPT or trafficking, if you have grounds.

But notice that the limitation applies to people who "remain at the scene" as well as the people who "sought assistance".

Therefore, everyone in the crowd that hangs around the overdose victim seems to enjoy the protection of this section.

BC's decriminalization experiment makes this decision largely academic. But the section brings the harm reduction ideas to other provinces.

2023.11.07 Arresting the Passenger for the Driver's Offence

When you arrest the driver, can you arrest the passenger too?

In the absence of context, don't answer that question!

Here's a little context: suppose that a court prohibited a driver from driving, and you caught her driving again. Can you arrest her passenger?

If that's all the evidence that you have, then obviously, you have no grounds to arrest the driver.

But suppose that while you're arresting the driver, she complains "It's his fault. He said he's too drunk to drive. I told him that the judge prohibited me. But he didn't care. He told me that he would pay me $100 to drive him home." If you believe her, then her passenger counselled the commission of an offence (and abetted her). You could arrest him for that offence.

My point is that there is no rule that says you can't arrest the passenger. You can always arrest someone if you have reasonable grounds to believe that they committed an indictable offence (and s.495(2) doesn't apply).

Let's consider a real case.

Police found Mr Cudney, 2023 ABCA 279 in the back seat of a car. The driver possessed lots of identification documents in other people's names. Could they arrest Mr Cudney?

What's that? You need more information? Of course you do!

Police pulled over a Land Rover because they had a warrant to arrest the owner. They knew the vehicle had frequented a drug house. When asked, the driver gave a name but did not produce a driver's licence. An officer asked her for the keys to the vehicle, and checked her name. That officer noticed Mr Cudney fidgeting in a surprisingly nervous manner, in the back seat. Other officers attended, and asked the passengers who they were. A female passenger refused to identify herself. Mr Cudney, however, gave his name. He was so "fidgety" that one officer directed another to stay with the car and keep an eye on him. He seemed to be touching or handling bags around him.

Another officer recognized the driver as Stacey Palumbo. That's not the name she gave the first officer. The first officer got her out of the car and arrested her for obstructing a peace officer. He saw a purse in the driver's door. He grabbed it and looked inside for her identity documents.

He found lots of identity documents. But not in her name. 20 or 30. Many female. At least one male. Based on the quantity and the genders, he directed the other officers to arrest everyone in the car for possessing identity documents. When explaining why he thought Mr Cudney should be arrested, this officer pointed out that Cudney's position behind the driver allowed him to reach into the pocket in the driver's door, if he wanted.

Because of Mr Cudney's interest in the bag at his feet, the lead officer looked into it for officer safety. (I think he could have searched it incidental to the driver's arrest.) He found handguns. They arrested Mr Cudney for those guns and searched the car more fully. They found drugs, cash, and, in the trunk, another handgun with a silencer.

A handgun and silencer?

Other investigators were investigating a murder that occurred several months earlier. An unsavoury witness said that Mr Cudney did it, using a handgun and silencer.  At Mr Cudney's murder trial, he didn't want this important corroboration admitted. He complained that the police lacked sufficent grounds to arrest him for the identity documents, and therefore the search was unlawful.

What do you think? Having found the identity documents in the driver's door, did the police have sufficient grounds to arrest her passenger for possessing them?

The trial judge found that the evidence did not suffice:

• Mr Cudney's nervousness might indicate that he was involved in criminality, but does not establish any specific offence. This is counterbalanced by his cooperation when he identified himself. This suggests that he had nothing to hide.
• The presence of a little bit of male identification in the purse did not link Mr Cudney to the collection.
  
• The id was in a purse close to the female driver. That tends to link it to her, not Mr Cudney.
• It's usually difficult to reach the front door pocket from the back seat of a vehicle.
• Mr Cudney neither operated nor owned the car. He was just a passenger. There wasn't enough to establish his control over the purse.

The Court of Appeal reached the opposite conclusion:

• Not only did the large quantity of identity documents justify an inference that the driver possessed them for criminal purposes, but the number also suggested "some degree of planning and execution".
• Mr Cudney's unusual behaviour reasonably justified the inference that he formed part of the group that collected or possessed them for criminal purposes.

The Appeal Court judges emphasized that police officers must make arrest decisions on the fly with incomplete information. They agreed that this was a good arrest.

The principles are simple:

• You can't arrest the passenger just because you think that the driver committed a crime.
• You can arrest the passenger if the evidence gives you reason to believe that the passenger participated in, counselled, aided or abetted the offence.

2023.10.31 Warrantless Entry into a Residence when Providing Security for Social Workers

Do you have authority to enter a home whenever a social worker asks you to provide security? I think you may wish to exercise some caution.

Someone complained that Ms Henry looked drunk when she picked up her 7-year-old girl from school. She took a taxi home.

Some police officers saw the taxi reach her home. She went in.

The officers rang the doorbell to inquire about the complaint. Ms Henry and her partner, Mr Land 2023 ONCA 207 answered the door. Henry and Land looked drunk. They refused to let the officers in, nor did they permit the officers to speak with the girl, who appeared "teary-eyed".

The officers left the home, and contacted social services and explained the situation. A social worker asked the police to help her with a welfare check on the child.

The social worker attended the home. Mr Land refused to let her in, and "began acting aggressively" toward her. She explained the purpose of her visit. Mr Land agreed that she could enter.

When the officers tried to follow her in, Mr Land tried to close the door on them. A strategically-placed boot kept the door open. The officers got into the house; there, they arrested Mr Land and Ms Henry for obstruction. Because the police took the parents away from the home, the social worker concluded that the child should not be left alone. It took 3 months for the parents to get their child back.

The criminal charges against the parents were later withdrawn.

Mr Land and Ms Henry sued the police for trespass, negligent investigation, assault and battery and various Charter breaches.

The trial judge threw out the claims. But the Court of Appeal took an interest in some of them.

Why?

Because of the specific wording of the child protection statute, and gaps in evidence from the social worker.

Section 40 of Ontario's Child and Family Services Act includes the following:

40(7) A child protection worker who believes on reasonable and probable grounds that,

(a) a child is in need of protection;
(a.1) the child is less than 16 years old; and
(b) there would be a substantial risk to the child’s health or safety during the time necessary to bring the matter on for a hearing under subsection 47(1) or obtain warrant under subsection (2),
may without a warrant bring the child to a place of safety.

(8) A child protection worker acting under this section may call for the assistance of a peace officer.

…

(11) A child protection worker who believes on reasonable and probable grounds that a child referred to in subsection (7) is on any premises may without a warrant enter the premises, by force, if necessary, and search for and remove the child.

The social worker gave evidence that before she went into the house, she believed that the child "may" have been in need of protection. The judges didn't like that. If you look carefully, you'll see that s.40(7)(a) requires a belief that the child actually required protection ("is in need").

The social worker didn't turn her mind to whether she had time to go get a warrant. The judges didn't like that either. Social workers should not take short-cuts with their power to barge into private homes, bringing an armed contingent. If possible, they should apply to court first.

The appeal court ordered a new trial at which the police may be found liable for entering without lawful authority and unlawfully arresting the parents. The police might pay, even though the social worker took responsibility for the questionable decision. (Read the decision to discover how the social worker escaped from the lawsuit unscathed.)

What does that mean for Canadian police officers?

1. Judges interpret legislation tightly when it permits government agents to enter residences. Therefore, when you're considering entering a residence without a warrant, you want to make sure that your situation falls within the words of the legislation which authorizes.
2. Child protection legislation varies between provinces. For example, Section 30 of British Columbia's Child, Family and Community Service Act similarly permits social workers to enter when they believe that a child needs protection and getting a court order would be inadequate to protect the child. But it gives police less discretion to decline a social worker's request for help. It says "At the request of a director, a police officer must accompany and assist the director in exercising the authority given by this section."
3. When a social worker calls you to assist in the warrantless apprehension of a child, you may want to double-check with the social worker whether their grounds fit the language of the legislation. Don't enter a residence without lawful authority. Obviously, if you learn reasons to suspect that a child's life is in immediate peril, then you can take action yourself. R. v. Godoy, [1999] 1 SCR 311.

If the social worker's reasons to enter the residence are flimsy, then as a law enforcement officer, do you feel comfortable in assisting an unlawful entry?

 

2023.10.11 The Midnight Call to Counsel - Providing Access to Legal Advice when Everyone's Asleep

As I plumbed the depths of a rabbithole today, I encountered a decision which tackles a problem that police officers often face.

You often arrest people after their lawyers close their offices and go home. Many of your prisoners want legal advice. Drugs and alcohol often cloud your prisoners' judgment. In those situations, judges require the sober cop in the room to do the right thing. What should the officer do if the suspect asks to speak to a lawyer who doesn't answer the phone?

Chief Judge Cozens of the Yukon Territorial Court tackled the problem head-on.

I don't usually cite trial judgments on this website. As a mere trial judge, he lacks the authority of an appeal court judge. He does not work in the biggest jurisdiction. Some might dismiss him as a big fish in a small pond.

That would be a mistake.

I worked for a time in remote northern courts. I found that separation from the "sophistication" of urban centres caused the justice system to apply more common sense than I found in the cities. When Cozens C.J. tackled this problem, he demonstrated some of that northern common sense.

The case was routine: in the dead of a December night, Mr Vaillancourt's, 2023 YKTC 17 truck lacked an operating tail-light, and it made an awkward turn. A cop pulled him over. The officer made Mr Vaillancourt blow into a screening device. It registered a fail. The officer arrested him for impaired driving.

The officer offered him an opportunity to get legal advice. Mr Vaillancourt liked that idea. Using his cell phone, the officer summoned a list of lawyers from the Yukon Law Society's website.

Probably at random, Mr Vaillancourt picked Sarah Bird. This probably wasn't a good choice. According to her website, Ms Bird specializes in corporate commercial law, with a big Vancouver law firm. When asked to give legal advice about criminal law, most sensible corporate lawyers duck.

Ms Bird's answering machine said that she was out of the office for a month.

The officer found two more phone numbers for Ms Bird, and made a total of 5 calls over 20 minutes, starting at 3:00am. She never answered. Perhaps Ms Bird's labours for big business rewarded her with a tropical vacation in Fiji, where, at 10:00pm, the loud music in the nightclub drowned the ringing her phone. Or perhaps she was sleeping soundly in a chalet at Whistler.

The officer audio-recorded his conversation with Mr Vaillancourt. The decision quotes extensively from the transcript. It looks to me like the officer made a real effort to help Mr Vaillancourt get legal advice. But the judge concluded that the officer made mistakes. The judge excluded the breath tests. Mr Vaillancourt beat the charge.

Where did the officer trip up? After failing to reach Ms Bird, the officer asked Mr Vaillancourt if he would like to call a different lawyer. Mr Vaillancourt stuck with Ms Bird. The officer should have told Mr Vaillancourt what Ms Bird's answering machine said: away for a month. Maybe Mr Vaillancourt might try calling someone else. (The same sort of thing happened in the case that started me down the rabbit hole.)

This sort of thing comes up often. The routine nature of this problem inspired Chief Judge Cozens to review the law and make suggestions for police. His decision hints that he that knew that Ms Bird didn't practice criminal law (see paras 34 and 35). He suggested that police in smaller jurisdictions could assemble lists of criminal lawyers for prisoners to consider. I noticed that the Yukon Law Society's website has a cool feature that can filter the list by area of practice. The full list contains over 700 lawyers. The criminal law filter cuts that list down to 29. Paragraphs 37-39 makes me think that maybe he knew about that feature.

This is a worthwhile decision for general duty officers to read and discuss. I'll summarize some high points, but I think you'll get more out of it by reading the case and perhaps the other case.

Paragraph	Topic
24	Before police elicit evidence from a prisoner, section 10(b) of the Charter gives the prisoner the right to get legal advice from the lawyer of their choice. But they must exercise that right within a reasonable period of time. If their first choice of lawyer isn't available, then they need to make another choice.
25	How long to wait for a lawyer to call back depends upon the circumstances. [In my opinion, urgency is the most important. Investigations into alcohol and drug need to move quite promptly. Humans eliminate alcohol and drugs from the body as time passes.]
26, 55	When the prisoner names a lawyer, and the police control the phone and access to the internet, police need to take reasonable steps to contact the lawyer. One after hours call to a business phone number doesn't necessarily suffice. Try searching for the lawyer's home number or after-hours number, or asking the prisoner if s/he knows of another number, or another person who can reach the lawyer.
52-53	Helping intoxicated prisoner to contact counsel is the right thing to do. But don't choose their lawyer for them.
32-34; 73-75	Police must tell the prisoner about the availability of Legal Aid; but police must not steer or coerce the prisoner to call Legal Aid.
36	Late night phone calls to random lawyers' offices aren't usually going to succeed. "The right to legal counsel means the right to get legal advice, from counsel who are able to provide it, at the time that you need it."
Other case	If you get an answering machine, leave a message explaining what the time is, who the client is, what the trouble is and what number to call in order to give the legal advice. Some answering machines are monitored. You can't assume that the lawyer won't hear the message in time.
61	If you get an answering machine, tell the prisoner what the message said. Don't just say that the lawyer is unavailable.
37, 39	Police should not express opinions about the suitability or the skill of the lawyer that the prisoner chooses, but it might be a good idea to have a list of criminal lawyers available for prisoners.
64-69, 90	In the context of urgency, like taking breath samples reasonably promptly, a prisoner who persists unreasonably in contacting a lawyer who isn't responding isn't exercising their right diligently; if so, you can press ahead with your investigation. If you see there's a risk of this happening, give the suspect notice. "Okay sir. 10 minutes have passed, and the lawyer hasn't called back. We're going to wait 30 minutes more, and then we'll test your breath. Is there anyone else you'd like to call in the mean time for legal advice? You can call anyone you like, and I'll do what I can to help you reach them. Of course, Legal Aid's available too. And if your chosen lawyer calls back while you're talking to Legal Aid, I'll make sure you can talk to him or her."
71-73, 92	There is no fixed time-line that the law imposes on the taking of breath samples. [I observe that in impaired driving cases like this one, judges seem to permit the prisoner around 30-45 minutes of floundering around to find a lawyer. But expect judges to permit more time if the prisoner makes diligent and sensible efforts which, for no fault of his own, bear no fruit. In cases where there is no urgency, expect the judges to permit the defendant to wait hours for counsel to call back.]

Judge Cozens didn't specifically discuss Prosper. But you should think about it. If the prisoner says that s/he wants legal advice, and then says that s/he doesn't want legal advice, then whip out that Charter card, read the supplementary Charter warning, and explain it. Preferably with an audio-recording device on. Make sure that the suspect understands.

PS: A prosecutor friend of mine in a smaller jurisdiction says that his local police force tried to create a list of local lawyers for prisoners to call. He says it failed, because the officers didn't update it when lawyers came and went. If you do create one, date-stamp it, and set up a system which reminds you to update it regularly.

2023.10.03 Warrants and Wiretap - Individualized v. Global Belief

The Ontario Court of Appeal delivered a decision last week which explains an important theoretical point underpinning applications for authority to search.

Back in 1984, the Supreme Court of Canada explained that to justify a significant intrusion into privacy, a police officer must show the judge that there are reasonable grounds to believe that there was a crime, and that the evidence that the officer wants is in the place that the officer proposes to search. It's a constitutional requirement of legislation that authorizes searches that there must be "reasonable grounds" that the place you search will turn up evidence. What you're looking for "will" be there. "Credibly-based probability". "Might be" isn't good enough. Hunter et al. v. Southam Inc., [1984] 2. S.C.R. 145.

Seems simple enough. So I'll screw around with it. Here's an artificial example constructed to wreck the principle:

Suppose a surveillance team watches Wicked Wanda at a jewellery fair. Knowing of her larcenous ways, they watch her carefully. She arrives carrying four small empty bags - all identical - slung around her neck. Shortly after she visits the booth of the diamond merchant, they see that one of the bags now bulges, as if it contains something heavy. They ask the diamond merchant if anything is missing. Yup. A diamond encrusted watch disappeared. Wicked Wanda wanders into the gold merchant's kiosk. When she emerges, the second bag looks like it contains something too. When asked, the gold merchant complains that a necklace went missing. She hits the sapphire place, and a bracelet disappears. Her third bag now looks heavy too. She stops briefly at the pearl merchant. A pricy pearl comb evaporates. The fourth bag looks heavy too.

Before the surveillance team can grab her, she slips out the back door. Security video at her apartment shows her enter with four full bags around her neck, and leave moments later with three full bags.

She must have dropped one in her residence.

Can you get a warrant to search her place?

Obviously, you have reasonable grounds to believe that one of the stolen items is there. But which one? You can not say that you have reasonable grounds to believe that the search "will" discover the watch in the apartment. The odds are - at best - one in four. Same with the necklace, or the bracelet or the comb.

A strict reading of Hunter v. Southam suggests that you can't get a search warrant for Wicked Wanda's place.

If that were the law, it would be outrageous!

Even though you do not have reasonable grounds to believe that any one specific item is in the residence, you do have reasonable grounds to believe that one of the looted four is there.

And that's good enough to justify the issuance of a warrant.

Don't believe me? Look at Form 1 of the Criminal Code. It specifically expresses this idea. The justice can issue the search warrant if satisfied that there are reasonable grounds to believe that things sought "or some part of them" are in the place to be searched.

That's the idea behind last week's decision.

Police believed Ahmed Hafizi murdered someone. During their investigation, they persuaded a judge to let them intercept his private communications, and the conversations of his father, Temorshah Hafizi, 2023 ONCA 639.

The investigators found good evidence. They busted Ahmed, the charges stuck, and Ahmed went to jail.

But Daddy's conversations revealed something more. Daddy dealt drugs and uttered death threats. The recordings were damning.

He got charged too.

At his trial, Daddy Hafizi complained to the judge that the police lacked sufficient evidence to establish that probably, listening to his conversations would reveal anything about the murder. And he was right. The application showed that there was a possibility that eavesdropping on Daddy would discover evidence about his son's homicidal activity, but not a probability.

Unfortunately for Daddy, section 185(1)(e) of the Criminal Code actually permits snooping on people whose conversations "may assist" the investigation. Not "will" assist. "May".

Mr Hafizi's lawyers complained to the court that this language failed to meet the standard required by Hunter. It shouldn't permit snooping unless doing so "will" assist. "The legislation is unconstitutional!"

The legislation is fine, said the court. Although it sets a lower standard for snooping on specific people, it permits snooping on the group only if snooping on that group "will" assist in the investigation of the offence. [But try to protect the privacy of the minor players as much as you can.]

As the decision explains, there are significant differences between wiretap and search warrants. But the big point applies to both. "Reasonable grounds to believe" applies globally, not individually: will the search strike gold? Maybe not all the gold, but at least some gold?

2023.09.25 Dealing with Foreigners - Language Complications during Arrest

Do you have a way to communicate with people who speak foreign languages? I reviewed R. v Polusmiak, 2022 PECA 8 this week. In 2017, a Ukranian immigrated to Canada. She got a job as a housekeeper. Although she spoke Ukranian and Russian, she wasn't very good at English. She got by at work with Google Translate, and the help of Russian-speaking colleagues.

In 2019, she crashed a car. She smelled of liquor. An officer demanded that she provide samples into a screening device. The officers managed to convey the basics - that she had to blow. She blew into the device, but never enough for a proper analysis. Communication with her required the officers to go to extraordinary lengths to explain themselves.

An officer arrested her, and told her she could call a lawyer. When asked if she understood, she said "yes". When asked what she wanted to do, she gave a reply that the officer understood to mean that she would speak to her husband on the following day, and contact a lawyer after that.

The investigating officers never learned what languages she spoke. They never attempted to communicate in any language other than English.

At trial, Ms Polusmiak told the court that she didn't understand the English word "lawyer". The trial judge figured that if she understood the breath demand, then she must have understood the right to counsel.

The Court of Appeal disagreed. They found that the officers did not take sufficient steps under the circumstances to make sure that she understood. They suggested:

• Ask the person to explain their understanding of what you tell them.
• Use an electronic or a digital translation device or app. If you do, "keep a record".
• Contact a translator.

The court overturned Ms Polusmiak's conviction.

Because of the court's suggestions, I tried playing with Google Translate. I thought it was pretty nifty for simple conversation; but I see some risks where legal rights are implicated:

1. To "keep a record", you'd need to run an audio recorder, and take screenshots of what Google Translate shows on its screen. A little tricky. If you're on general duty, and you do get a translation app, I suggest that you play with it a bit. Figure out how to keep a record of its translations.
2. If you need a translation app to communicate, then you don't know the precision with which it translates your words to the suspect. Use it for short-term matters, but perhaps start again, once you have a qualified translator to work through.
   

2023.09.25 Expectation of privacy in a name and phone number

How much privacy is there in a name and phone number? Those things don't tell you much about the person's lifestyle. In this case, police asked two businesses for a customer's name and phone number. The target complained this violated his right to privacy under s.8.

A tipster told Winnipeg police to expect a drug courier to arrive in town, driving a red truck bearing Alberta licence plates. The tipster said that the man would arrive on October 1, and check into the Rockwood Inn, at Stonewall, just north of Winnipeg.

It was a good prediction.

The police watched that motel, and saw a man arrive in a red truck bearing Alberta plates. He then drove to a nearby gas station. He parked by a grey truck. The officers saw a quick hand-to-hand transfer of a brown satchel. The red truck returned to the motel. The driver took a duffle bag into his unit. The investigators also saw him a woman come to his motel, visit him for 9 minutes and then drive away.

Manitoba Release of Information

Rather that bust the guy, police asked the front desk for the name and telephone number of the guy in that unit. The clerk told him "Jacob Neumann", 2023 ABCA 200. The clerk gave the officer Mr Neumann's phone number. The investigators contacted Edmonton to ask whether they knew anyone by that name. Edmonton Police Service knew of someone by that name, and confirmed that he had the same phone number.

Winnipeg investigators applied for, and got, warrants to track the location of his cell phone and transmission data for its communications.

Mr Neumann travelled a lot. From Vancouver to Edmonton, Regina and Saskatoon. Lots of trips. Lots of short stays. Edmonton police watched him at the end of an alley. Someone visited him briefly, and walked away with a duffle bag. Calgary police tried to follow him, but he appeared to engage in "counter-surveillance". Calgary police got a fresh tracking warrant when the first one expired. This one tracked the truck.

At the end of December, the truck stopped moving. It was in a repair shop in Calgary. Calgary investigators asked the repair shop for the name and phone number of the person who left the truck with them. They gave the same name - Jacob Neumann - but a new phone number. Calgary police got a third tracking warrant. It showed that the truck travelled into the USA and returned to Canada in Ontario, and was heading back towards Alberta.

Figuring that Mr Neumann was delivering drugs, they got a warrant to search the truck. They stopped it. It contained drugs. Lots of drugs. 47kg of cocaine. 47.5kg of meth.

Judicial Reaction

At trial, Mr Neumann convinced the judge that the police violated his reasonable expectation of privacy when they asked the motel and the repair shop for his name and phone number. The defence lawyer pointed out that the name and phone number was the key that allowed police to track Mr Neumann everywhere he went. The trial judge threw out all of the evidence.

The appeal court disagreed. The name and the phone number provide no information about a person's private activities and lifestyle choices. The tracking information came only after the police sought judicial pre-authorization to track the phone. To determine whether the suspect has a reasonable expectation of privacy, one must consider what the police got without the assistance of warrants.

Does this mean you can ask any business for the name and phone number of a suspect?

No.

It depends on the local legislation and the contractual arrangements of the business with their customer. And perhaps other considerations besides.

Manitoba legislation governed privacy in Manitoba. But Manitoba didn't enact privacy legislation for private businesses. Therefore, the Federal Personal Information and Electronic Documents Act applied. The judges pointed out that PIPEDA provides a circular definition of privacy, which is difficult to work with. So they said names and numbers don't reveal private personal choices. It was okay for the police to receive the name and phone number without a warrant.

Lawful = "reasonable"?

In Alberta, the Personal Information Protection Act permits businesses to give information to police who are investigating an offence.  (BC's Personal Information Privacy Act, s.18(j) is similar). The judges said "Given the wording of the Alberta statute, there was nothing unlawful about the police asking for or Advantage Ford providing Mr Neumann’s name and cell phone number to the Calgary police." (para 45)

Hmm. Charter trumps statute. Even if the request and delivery of information was "lawful", the Supreme Court of Canada might say it's "unreasonable". (R. v. Spencer, 2014 SCC 43) Suppose Mr Neumann had attended a private photography studio, where he posed for nude photographs of himself. Just because Alberta legislation makes it lawful to exchange information, would he still have reasons to expect privacy in the nude photos?

That's where you might look for contractual language between the business and their customer. Or ask for less personal information.

But if your target is not a customer, there will be much less reason for the target to expect privacy. That's why you can feel comfortable obtaining security video from businesses of strangers on the street.

Must Police Dance the Two-Step?

Defence argued that the police should have got a warrant or production order to get the phone number from the motel. With that phone number, the police should then have been able to apply for a tracking warrant. Two steps are required by the constitution, they argued.

The court disagreed. At paragraph 73, the appeal court judge asserted: "Properly applied, the Charter does not require the police to get a warrant to get a warrant." Police shouldn't have to dance the two-step. If there are grounds to intrude on privacy, then a judge or justice should be able to grant that intrusion in one application, not multiple ones.

There's some appeal to this idea. Suppose that the motel's rental contract guaranteed anonymity: they'd never tell anyone who rented the room. In that case, Mr Neumann might have enjoyed an expectation of privacy over his phone number and name. If so, the investigators needed a production order. Perhaps the police could have applied for a production order for the name and phone number and a tracking order for the phone number that the motel provided. Drafting a two-step application will be trickier, but might get the tracking going faster.

2023.09.18 Identification by Comparison - Authenticating the "Known" Exemplar

Suppose I produce two different photographs of the same young woman. I point at one of them and say "That's Ashley Reybold-Trudeau, Justin Trudeau's love child with Jody Wilson-Raybould."

You say to me, "Ridiculous. Trudeau and Raybold-Wilson hate each other. I don't believe that they had a kid together. What makes you think this?"

I point at another photograph of the same person, and I tell you, "because that's a photo of Ashley Reybold-Trudeau, and it's obvious that the second photo shows the same person as the first photo."

Are you now satisfied?

I hope not. A sensible investigator would go on to ask: "How do you know who the person is in the second photograph?"

If I can't give you a compelling answer, then my claims should not convince you.

The same thing happens in court. It happens when police officers think that hearsay suffices for authentication. It doesn't.

Here's an example.

Some evidence - partly from unreliable witnesses - suggested that Mr Havyarimana, 2022 ABCA 235 participated in a home invasion.

But the police got some more evidence. Wiretap. They had recordings of a discussion about the home invasion.

A police officer testified that he recognized Mr Havyarimana's voice in the recordings.

Defence asked "How did you know Mr Havyarimana's voice?" The officer was ready for that question: "I listened to a recording of a police interview of Mr Havyarimana."

Defence counsel asked "How do you know that the defendant in the court room is the same guy as the person the police interviewed?"

The officer explained that he relied on annotations in a computer database when retrieving the recording.  No witness testified "I interviewed Mr Havyarimana. The man in the court room is the man whose voice was recorded in the interview that the previous witness relied on."

As you know, judges don't like hearsay.

What the computer told you is usually hearsay. The judge ignored the testimony about what the computer said.

That left the court with only "This voice sounds like a voice I've heard before." But nobody identified the previous voice. The voice identification evidence therefore fell apart.

This problem arises not only in voice identification, but also fingerprint identification. A fingerprint examiner can testify "Fingerprint A matches Fingerprint B". But unless the fingerprint examiner took one of the fingerprints from the person of interest, the fingerprint examiner's testimony does not prove who put the fingerprint there.

During the investigation, you can rely on hearsay. At trial, the prosecutor needs a live witness to authenticate the "known" fingerprint, voice or bodily sample, so that the judge can then conclude that the match means something.

I'll never forget a case in which an officer who took a bodily sample from the suspect for the purposes of DNA comparison. This officer didn't know the defendant, and had nothing to do with the investigation of the offence. He took a sample, but not a photograph. DNA in the sample that he took matched DNA from the crime scene. The officer forgot about the case until he received a notification to testify. By that time, he had no memory of the person from whom he took the DNA sample. He could not say whether the person in the court room was the person from whom he took the DNA sample. That made proving the case more difficult for me. (I found another officer who remembered arresting the suspect and putting him into the cell block where the DNA sample was taken.)

If evidence in the case you're investigating relies upon a comparison of a "known" to an "unknown", make sure that you provide the prosecutor with the evidence that proves the "known".

2023.09.18 Expectations of Privacy in Apartment Buildings

Where does the drug dealer stash his drugs?

All too often, surveillance leads police officers to an apartment building. Without resorting to warrants, what can an officer do to learn where the dealer stashes his drugs?

Investigation

Tips, tracking warrants and surveillance led police to believe that Mr Nguyen supplied drugs to mid-level dealers. Before meeting with suspected dealers, he stopped by an apartment complex. But which building did he enter?

A member of the surveillance team who who lost Mr Nguyen in the area visited the front desk for two buildings. He explained to the security supervisor that he was trying to identify someone who entered the buildings. He asked to see the security video for the public entrances for the two buildings. The security officer did not get approval from management, but he let the officer watch some recordings. In the video of Telegram Mews, the officer saw Mr Nguyen, 2023 ONCA 367 point an object at the security system, and then enter the building. From this, he inferred that Mr Nguyen had a key fob which unlocked the locks.

This supplied grounds for a production order, and then a general warrant to search the apartment associated to the key fob that opened the door. From the apartment, the police seized 11kg of fentanyl, 2.5kg of meth and 1kg of ketamine, along with lots of gear for packaging and diluting the pure product for sales on the street.

The police got a search warrant for Mr Nguyen's residence. There, they found a loaded handgun, more ammo, cash, a debt list, a price list for fentanyl, and key fobs for the unit at Telegram Mews.

Defence complained that by watching this video without a warrant, the officer violated Mr Nguyen's reasonable expectations of privacy.

Judicial Reaction

The trial judge agreed with defence: police need judicial pre-authorization to view security video of the common areas of apartment buildings.

The Court of Appeal disagreed. Sometimes police need warrants to view security video of the common areas of apartment buildings. It depends upon whether the defendant enjoys a reasonable expectation of privacy in the place that the video watches.

Factors which satisfied those judges that Mr Nguyen didn't enjoy an expectation of privacy in that place were:

1. The officer asked to see only the security video for the public entrances. And that's all he saw.
2. Glass walls surrounded the vestibule in question. The public inside and out could see what occurred there.
3. The security cameras there were "readily visible".
4. The apartment building that it served was large - many people would pass through that area.
5. The information that the officer sought and obtained did not reveal personal life choices of the defendant: which building did he enter? did he use a fob?
6. The officer did not seize the video, but just watched it.
7. Not only could the public see into the vestibule, but the general public could access it too.
   

What about the next case?

How will you determine whether there will be a problem in your next case?

The judges in this case dwelt on two prior Ontario cases, White and Yu.

In White, the court found that officers breached the suspect's rights by sneaking around in his 10-unit building, snooping into the storage locker and listening in on conversations in the hallways.

In Yu, the officers got access to the parking garages and hallways of a large apartment building. The garages were accessible to the general public. The hallways were not. The court found that the defendant didn't have a reasonable expectation of privacy in the garages, but even in a large apartment building, the area of the hallway at the furthest end from the elevator was a place that the defendant could expect few people would go.

In R. v. Pipping, 2020 BCCA 104, the court reached similar conclusions. At the risk of oversimplifying, the fewer people that you would expect to find in the place, and the more that the suspect is able to regulate or control who goes there, the greater the liklihood that a judge will find that the suspect enjoys an expectation of privacy in the building.

2023.09.18 General Warrant - "Best Interests of the Administration of Justice"

To get a regular search warrant, you need to satisfy the issuing justice that there are reasonable grounds to believe that an crime occurred, that evidence will be found in the place you want to search, and that evidence relates to the crime.

General warrants require two more elements: (2) no other kind of warrant will do, and  (3) issuing a general warrant is in the "best interests of the administration of justice".

What are the "best interests of the administration of justice"?

Some officers think of it only in terms of how much it might advance the investigation. Yeah, but that's only half of the story. The other half is how much a general warrant intrudes on privacy interests of the people affected by the search. Will the investigative technique intrude too much on the privacy of the people affected by it?

Investigation (see above) led police officers to believe that Mr Nguyen, 2023 ONCA 367 stashed large quantities of drugs in a specific apartment. He met regularly with mid-level drug dealers, often after visiting this apartment. A production order compelled the managers of the building to divulge rental documents and information. Mr Nguyen wasn't on the lease. There was conflicting information whether the named tenants received 1 or 3 key fobs for the apartment, but it did seem clear that nobody lived in the apartment.

Rather than seeking a search warrant to seize the drugs, the investigators asked for a general warrant to permit them to enter covertly on multiple occasions over a period of time.

How does one justify a general warrant instead of a regular search warrant?

The affiant who applied for the general warrant pointed out in the ITO that executing a regular search warrant would alert Mr Nguyen and anyone working with him. It would effectively bring the investigation to an end.

Does that fully address the additional requirements of a General Warrant? It snuck under the wire in this case, but you can do better.

Why would a general warrant produce a more complete investigation?

1) It would permit police to monitor how much product entered and left the suite. Combined with ongoing surveillance, this would reveal who was responsible for bringing it and taking it away. A regular search warrant would not necessarily produce this evidence of control. Execution of a general warrant would result not only in the ability to take the drugs out of circulation, but also the dealer(s).
2) If other people also used the suite, covert entry would permit the police to discover their identities. A regular search warrant would scare those people into hiding.

Great. But what about privacy? Would these covert entries adversely affect the privacy of Mr Nguyen or others?

This is where the evidence of occupancy came to the fore. Searching residences intrudes on privacy more than other places. This search wasn't going to intrude on anyone's home.

The ITO didn't discuss this part. But the judges sure did.

They concluded that there was enough evidence in the ITO to satisfy the issuing judge that the general warrant was necessary, and in the best interests of justice.

Your ITOs for General Warrants, will, of course, contain paragraphs which addresses all of these issues.

2023.09.11 Holding Off Eliciting Evidence Until the After Suspect Gets - or Declines - Legal Advice

I remain surprised by how often this fundamental concept gets overlooked.

A confidential source gave police information suggesting that they would find handguns and a shotgun at the residence of Mr Hamouth, 2023 ONCA 518. They got a warrant, searched the place and found the guns (unlocked and loaded) in his bedroom, and in other places in the house. Mr Hamouth had no right to possess such things.

Although their main target was Mr Hamouth's son, they also arrested Mr Hamouth. He told the arresting officer that he wanted to get legal advice from Alan Gold, a particularly famous defence lawyer.

Then, the officer said to him:

“…do you wish to say anything in answer to the charge, you are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence”.

Mr Hamouth made some incriminating remarks.

Until your prisoner declines to get legal advice, or gets legal advice, you must hold off eliciting information from him or her. During that time, don't ask questions like the underlined part of the quotation above.

Unsurprisingly, the famous defence lawyer complained at trial that the police officer should not have asked that question. Because the officer did, the lawyer asked the judge to throw out all of the evidence.

Maybe this investigator used out-of-date tools. In some provinces, the standard-issue "Charter card" used to contain this phrase. The Supreme Court of Canada rejected the underlined phrase in February 2018. R. v. G.T.D., 2018 SCC 7. This arrest occurred in June 2019. The officer should have used an updated card.

If you've been working as a police officer for 5 years or more, maybe you want to check your Charter card, to see if it contains this dangerous phrase.

And even if your card doesn't contain this dangerous phrase, make sure that you and your team understand this fundamental concept: you can't start asking the suspect about the offence until the suspect declines - or exercises - the right to counsel.

Are you wondering what happened in the case?

Okay. I'll tell you. But only if you make the following promise:

I promise that after I - or my colleagues - arrest or detain people, I will never question the prisoners about the offence until after they decline or exercise their right to counsel.

2023.09.11 Possession - Paupers and Valuable Contraband

Can someone be too poor to possess a million dollars?

Mr Daponte, 2023 ONCA 572 and his wife lived on a farm. She owned it. Police officers watched that farm because they suspected that it contained drugs.

They only saw the wife doing domestic tasks. They saw Mr Daponte stay in the house. They saw him enter and leave various buildings in the farm. They also saw Mr Colpaert, a farm labourer, stay in a shed on the farm on weeknights. That shed lacked electricity and running water. They never saw Mr Colpaert enter the house.

When the police executed a search warrant on the place, they found $800,000 worth of hard drugs cleverly hidden in a different shed. And $80,000 cash. Packaging for the drugs matched items in the house.

At trial, defence argued that Mr Colpaert could have hidden the drugs without Mr Daponte's knowledge. If that was a realistic possibility, then the court had to acquit Mr Daponte.

The trial judge rejected this argument, in part because it made no sense to live in such poverty while possessing such wealth. The Court of Appeal rejected Mr Daponte's appeal (but agreed that the evidence failed to prove that his wife possessed the drugs.)

I found the Crown's argument interesting. You may encounter other cases in which a henchman lives in poverty while a boss possesses contraband of great value. Proving the henchman's poverty may assist in showing who possesses the contraband.

But it might also prove motive. Many people willingly endure poverty and privation for a short time, in the hope of handsome rewards.

Therefore, your mileage may differ.

The appeal decision is short. Drug investigators might find it interesting. Unfortunately, as I write this, the trial decision is not yet available. It may become available after a few weeks - now that the appeal ended.

2023.08.23 "Good Defence Counsel - Bad Counsel" - a confidential source too well placed to be used

What do you call a defence lawyer who rats on her clients?

A disaster.

I read today the story of Nikki Gobbo on Wikipedia. It's already old news, but I hadn't noticed the story until now. She was a lawyer to Australian gangsters ... and a confidential source for Australian police for over 15 years. She sought out police officers to give them information.

Maybe her tips saved some lives. Certainly, her tips helped Australian police to seize drugs and bust people.

Many of the culprits were her own clients. This violated her professional obligations of loyalty and confidentiality. When she told police what her clients told her in confidence, then she revealed privileged communications too.

Things eventually turned sour between her and the police, and the truth bubbled out. A commission of inquiry examined the history, and concluded that her conduct shook the foundations of the justice system. Police officers who worked with her and kept her misconduct secret were complicit. Protection of the identity of a source is not the only goal of a human sources unit. The integrity of the justice system relies on defence counsel doing their job. The officers should have sought legal advice early. When they finally did get legal advice, they acted very slowly on it. Thousands of convictions were impugned. Murderers were set free.

The case illustrates the easy slide into "noble cause corruption". The job of police - to serve and protect - seems so simple: if you enforce the law energetically, society becomes a safer place. But sometimes, to catch big fish, you need to let some little fish go. You overlook minor misconduct in order to protect society from bigger threats. To catch murderers and drug lords, it seemed justifiable to ignore Ms Gobbo's lack of ethics. But by working with her, police participated in her subversion of the justice system.

In your professional life, defence counsel are often your adversary, but they should never be your enemy. You should definitely try to maintain a respectful - and even cordial - working relationship. On the flip side, don't get too close. Defence counsel can sometimes even assist you to do your job; but beware of letting them become your partner or agent in your investigations.

If the next Nikki Gobbo comes to you offering tempting tips about her clients, run, don't walk to the senior people in your source handling unit. Seek out legal advice.

2023.08.22 "Good Cop - Bad Cop" - How Bad is Okay?

I missed this decision when it first came out. I think it's an interesting read because it explores the limits of how aggressive you can be when interviewing a suspect, or investigating generally.

Mr Z (MJ), 2022 MBCA 61 sexually assaulted his partner's nephews, when those nephews were kids. After many years, the nephews complained to police, who investigated.

Mr Z was gay - his partner was male. The partner took exception to the police investigation. He reported the investigator to disciplinary authorities. He called the investigator a Nazi, and published his name on social media. The partner posted comments on social media which could be viewed as threatening or harassing to two of the victims and their families. The investigator formed an impression that the partner was aggressive in his communication style.

The officer interviewed Mr Z twice. For the second interview, the officer decided to mimic the communication style of this aggressive partner.

While doing so, the officer disparaged the accused and his partner. The officer made remarks suggesting that he was prejudiced against the accused by reason of his sexual orientation. See para 26 for a list of the remarks of concern.

In that second interview, Mr Z made no confession.

At trial, defence used the officer's tactics against the prosecution. They complained that the discriminatory language constituted an abuse of process; they asked the judge to stay the charges.

Although the trial judge did not like the officer's language, the trial judge did not think that the discriminatory language amounted to an abuse of process.

The court of appeal disliked the discriminatory language even more than the trial judge:

"The jurisprudence undoubtedly allows a police interrogation to be tough and aggressive.  Nonetheless, in my view, the approach taken here exceeded permissible boundaries.  Applying the correct legal test to the interview, I would find that it was conducted in such a manner as to be an abuse of process constituting a section 7 breach." (para 64)

Those judges agreed with the Crown that the case was too serious to be stayed by reason of this display of prejudice against gay people. Mr Z's conviction stuck.

Notice the first sentence of the quotation. The Court of Appeal judges recognized that interrogations aren't always nice, cozy, comfortable conversations. And this investigator had some reasons to criticize Mr Z's partner.

The danger zone highlighted by this case is expressing discriminatory language - whether you actually believe it or not - while wearing (or carrying) your badge. Mimicking the partner's communication style might have been a good idea: it might have made Z feel "at home". But lacing it with anti-gay comments put the officer in a bind at trial. Civil servants like you will have a hard time justifying the use of discriminatory language. As an undercover officer, you could pretend to be a bigot for the purpose of infiltrating a criminal organization of bigots. I expect judges would accept that as an ugly necessity. But was such language necessary or even desirable in the case of Mr Z?

To be fair to the investigator, he attempted to separate his display of aggression from issues of sexual orientation. He said: "...it has nothing to do with your sexual preference as adults, so don’t get that in your mind." Unfortunately, he ended the interview saying: “You fucking sicken me, I’m done with this.  Don’t even have the balls to apologize.  Classic.  I would say enjoy jail, but you probably will.” This resonated with negative connotations. The defence complained. The judges agreed.

I doubt these remarks reflect the investigator's actual thoughts. He was playing a role, and ad-libbing as he went.

Those of you who will role-play in future investigations may wish to set mental guards against bigoted language. Use it if you must; avoid it if it's unnecessary.

2023.08.19 The Liberty of Witnesses

Witnesses have Charter rights too. This case explores how investigators should treat witnesses in the course of serious investigations. I thank an investigator for bringing it to my attention.

Keenan Corner, 2023 ONCA 509 called police. He reported that several men came to his house to rob him and his friend Shabir of their marijuana. One of the strangers shot Shabir in the head, killing him.

Police attended very quickly; and there was a reason. Police already suspected that Mr Corner dealt drugs. One officer had just set up to watch Mr Corner's house when the call came in. He responded very quickly to the scene. Sure enough, Shabir's body lay on the floor of the garage.

Would you take precautions for your safety when entering the scene of a recent shooting? These officers did. Even though Mr Corner was speaking on his phone to the 911 dispatcher, the two officers who first dealt with him approached with guns drawn, patted him down and directed his movements. Once they had relieved him of a knife, they invited him to sit in a police car to explain what had occurred.

He repeated his story about the robbery, adding more detail.

Police took him to the police station, and questioned him extensively. But at the police station, was he a prisoner or a witness? The investigators neither confirmed his liberty to leave nor suggested that he could get legal advice.

Other evidence led police to believe that Mr Corner's story was false, and that actually, Mr Corner shot Shabir. Indeed, they discovered that Mr Corner himself called in a false CrimeStopper's tip about the group of assailants. The Crown wanted to use that information to prove his story was false.  That triggered a question that only the Supreme Court of Canada could answer. R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45.

At Mr Corner's trial, his lawyers complained to the trial judge that the police detained him without giving him his legal rights. All of his false stories about the attackers should be excluded from evidence.

The trial judge agreed that when the police first took charge of the scene, they did detain Mr Corner without giving him his legal rights. But the trial judge found that the initial detention (when police first took control over the scene) lasted only seconds. It ended too quickly to justify offering legal counsel. No evidence should be excluded because of that.

The conversation in the police car couldn't be a detention. It was, after all, Mr Corner who called police and asked them for help. The officer did no more than what Mr Corner asked: they took his statement about an attack in his residence.

But after that initial statement, the officers took Mr Corner to the police station for further interviewing. There, he continued to talk about the three (or four) assailants.

The defence lawyers argued that even though the police considered Mr Corner to be a witness, they "detained" him. Because of that, they should have told him about his right to counsel.

The trial judge found that the first couple of hours at the police station did involve a detention. The appeal judges disagreed. The facts that they identified which turned this witness interview into a detention included:

• When police arrived at the police station, they took Mr Corner directly to an interview room, instead of leaving him in the lobby with the general public. (I don't see this as particularly significant. A fresh murder deserves more prompt attention than criminal record checks or complaints about vandalism.)
• The interview room was in a secure area. Officers would not let Mr Corner walk in that area unsupervised. (Judges have accepted this factor as significant in past cases. It shouldn't be significant. You can diminish this factor if you explain to the people you interview why they can't walk around in the secure area; but make sure you tell them that they are free to go if they want.)
• Police wouldn't let him wash his hands because they wanted to swab his hands for gunshot residue. (With the luxury of hindsight, it occurs to me that the officers could have secured his cooperation by saying "I'm worried that someone will say that you shot your friend. You just told me that you didn't. I want to preserve the evidence of your innocence by proving that you have no gunshot residue on your hands. Are you willing to protect that evidence by putting these bags on your hands?")
• For some reason, before going to the interview room, Mr Corner relinquished his wallet and cell phone to the police. Why? The officers couldn't clearly remember why. (The judges inferred that this was coercion.)
• The officers offered to get Mr Corner food, but did not suggest that he could go get his own food.
• The officers never told Mr Corner that he was free to go. They kept him for almost 2 hours. Then, they kept him for another 5 hours.
  

The appeal court ordered a new trial.

I had some trouble with the appeal court's conclusion:

1. Mr Corner's deliberate and serious deception contributed to the confusion about his custodial status. Why should the court reward Mr Corner for deceiving police officers?
2. In  R. v. Grant, 2009 SCC 32, the Supreme Court of Canada identified factors that distinguished between mere delays of citizens, and detentions that triggered the right to counsel. One of the key factors was focus: a suspicion that the individual a committed a crime. But in Mr Corner's case, the initial questioning at the police station was focussed on the guilt of other people, not Mr Corner.

My quibbles don't count for much. The judge who authored the appeal decision is one of Canada's foremost authorities on criminal law.

I can find no fault with the broad-stroke take-away from this case. When you deal extensively with a witness - particularly a suspicious one - you can avoid this kind of trouble if you communicate clearly with them whether they are free to go.

Ordinarily, you have no power to detain a witness. I can imagine situations in which arguments can be made that police can lawfully detain a witness, but they would occur only in extreme situations such as imminent loss of life or evidence. If you must deprive an innocent person of liberty for any significant period of time, then s.10 of the Charter compels you to explain why and to give them access to counsel.

In most situations, you must rely upon the cooperation of the public in your investigations, obtained by persuasion, not coerced. Remember the Peelian Principles of Policing.

PS: something similar occurred in R. v. Beaver, 2022 SCC 54. First responders detained witnesses at a suspicious death scene. That caused trouble.

2023.07.08 Executing Warrants to Search Cell Phones

A warrant issued under s.487 authorizes an officer to enter a place or open a receptacle, and search for something inside.

The justice says: "I authorize you to open it up, go in, and search."

In R. v. Vu, 2013 SCC 60, the Supreme Court decided that a police officer who wants to search an electronic device needs specific authority to do so. As a result, after seizing cell phones during a warranted search, police officers often apply for a second warrant authorizing them to search the phone for specific relevant data.

As I discussed back in April 2019, many officers have been trained to draft the warrant to allow them to search their exhibit locker for the device, rather than to search the device for the data. They were also trained that if they reported the seizure of the device to a justice ("Form 5.2"), they didn't need to report what data they found after the search of the device.

Some judges here in BC take the view that you must report both the seizure of the device, and the seizure of the data. Two different reports, (or two different lines in one report). R. v Bottomley, 2022 BCSC 2192; R. v Bottomley, 2023 BCSC 603.

In the Bottomley case, the investigator got a warrant to search the contents of a phone. Actually, the officer drafted it to authorize police to search an exhibit locker between 7:00pm and 9:00pm on a particular day for a cell phone. On that day, he never went to the locker. That evening, he merely signed the back of the warrant, and issued directions to other officers to deliver the phone to the tech crimes unit. Delivery occurred on a later date.

The judge didn't like that because the officer did not do what the warrant authorized. The search of the phone for the data it contained actually started at a later date and time than what the warrant authorized.

I don't like it either, but for different reasons:

• With great respect for contrary opinions, I think that the drafting was silly. The officer did not need permission from a justice to open the exhibit locker and fetch the phone. The officer needed judicial authority to examine (or arrange for others to examine) the contents of the phone. That's what the face of the warrant should have specified.
• With great respect for justice Devlin, I do not see that the breach of s.8 of the Charter was serious. The officer violated the letter of the warrant, but not its intention. Nobody expected the search to complete in 2 hours. It was always going to take weeks or months. The officer didn't need the authority of the warrant to open the locker. The justice plainly intended that the police search the phone, and to take the time they needed to do so.
  
• The officer asked for a very tight time window to commence the search - only 2 hours. Why? It does make sense to specify tight windows for the execution of warrants to search residences and other private buildings. An ITO for a residence should persuade a justice that there are reasonable grounds to believe that a place contains evidence of a crime. For fear of loss of evidence, the justice should want the search to commence promptly; but for fear of disturbing the peaceful occupants, the justice should specify the time of day or night that the search may commence. Neither of those considerations apply to a phone in an exhibit locker. The evidence isn't going to be lost if police delay. Nobody will be frightened when officers arrive to start the search. I think that no tight window is required for a Vu warrant (warrant to search for data from a device in police possession). I observe that s.487 does not explicitly require any window at all. The section does refer to Form 1. Form 1 suggests a window, but s.849 says that the form can be "varied to suit the case". A search of a cell phone should be started - and completed - during a period of lawful detention pursuant to s.490. But beyond that, the concerns of the justice - securing evidence while respecting property and privacy rights - are not affected by what time of day or even which day of the week an officer starts looking into it.

Therefore, I suggest that you draft Vu warrants to authorize you to search receptacles for data. I suggest as well that you ask for wide windows for the search. Because justices are accustomed to tight windows for residential searches, your ITO may need to explain something like this: "I ask for a wide window for this search because (1) unlike a residential search, the time of day when the search commences will not affect anyone's property or privacy rights; (2) unlike physical exhibits in private places, the data in the cell phone is not at risk of loss or degradation; (3) the process of searching electronic devices is slow meticulous work, which sometimes requires re-examining the device, as discussed in R. v. Nurse, 2019 ONCA 260. I also ask for an endorsement pursuant to s.488 permitting this device to be searched at night. I ask for that because the interests protected by that section are not engaged by the proposed search and because the limitation in that section should not prevent technicians from working on that phone at night."

I suggest that you draft your Vu warrant to authorize you to do what you will actually do. If you're going to arrange for the delivery of the device to technicians who will copy its contents and search them for the data of interest, then perhaps that's what the warrant should say.

2023.07.08 Breath Screening and Legal Advice - "Immediately" and "Without Delay"

Section 10(b) of the Charter requires a police officer who detains or arrests someone to offer them legal advice "without delay".

Section 320.27 of the Criminal Code permits an officer to screen a driver's breath "immediately", or to perform field sobriety tests "immediately".

When both are at play, which one takes priority?

Police Constable Lawrie solved this problem. He stopped a speeder on a busy highway in Hamilton. Dispatch told him that the car was stolen. He arrested the driver, Ms Haist, 2023 ONCA 465. He noticed an odour of liquor on her breath, and so he demanded that she blow into a screening device.

She refused. Three times.

He arrested her for refusal as well. Because he didn't have a suitable vehicle for transporting prisoners, he called for another officer.

He searched Ms Haist, but he didn't explain her right to counsel until after placing her into the other officer's vehicle.

Ms Haist wanted legal advice, but it took a while to deliver that advice. When they arrived at the police station, they had to wait in line for other officers to deliver their prisoners to the secure bay. I guess it was a busy night.

At her trial, Defence complained that the police took too long to explain the right to counsel. 12 minutes passed between arrest and the offer for legal advice.

Back in April, I wrote about Mr Davis. In his case, the Ontario Court of Appeal said that 8 minutes was too long. In June, the same court concluded that 12 minutes was okay. How did Cst Laurie get more sympathy from the court than the officer who investigated Mr Davis?

P.C. Laurie gave good reasons for the delay:

• The requirements to make a screening demand "immediately" and to execute on that demand "immediately" took priority to explaining the right to counsel.
• The busy highway made it dangerous for the officer to read out the right to counsel at roadside. Cst Laurie wanted to wait until he safely placed Ms Haist into a police vehicle.

The court agreed. In the ordinary course of investigations, getting a breath screening done takes priority over explaining rights to counsel. Safety comes first.

Defence had more complaints: they said it took too long to deliver on that promise of legal advice "without delay". It took almost 3 hours to start calling for legal advice.

P.C. Laurie had answers for that too:

• He could not immediately leave the scene immediately after placing Ms Laurie in the other police car, because he needed to look over the stolen car.
• The busy police station delayed him further.

The judges accepted these explanations.

How did P.C. Laurie have so many good answers for the judges? I suspect that he put answers in his notebook at the time of the investigation because he knew that promptness was an issue.

When you arrest people, do you worry about getting them legal advice "without delay"? When things move slowly, do you take notes about why? When you plan to arrest people, do you try to plan ahead to solve that problem?

2023.07.08 Processing Exhibits

Every day, young officers learn procedures that solve problems they never knew existed. Processing seized property is one of them. A tedious task that doesn't matter ... until it does.

When police searched Mr Rocha's 2023 ONSC 1573 house, they found drugs and cash.

At trial, Mr Rocha accused the police of stealing his money. The officers denied it. Despite Mr Rocha's history of crime and dishonesty, the judge trusted him more than the officers who handled the exhibits. The judge concluded that a police officer stole money from exhibits. The judge disliked the idea of a crooked police officer so much that he stayed the serious drug charges that Mr Rocha faced.

I don't know whether the bad apple was an officer or Mr Rocha. Whether or not an officer stole money from the exhibits, I do think that police can learn from this case.

What are the procedures for? Accounting. So that after the fact, everyone can know exactly what the officers found, where they found it, what it looked like, and how much of it they found.

Why does it matter? Convictions stand on evidence. If the court doesn't trust the evidence, then the prosecution fails. Proper handling and documentation proves that the exhibit in the court room really did come from the crime scene, and explains whether anyone changed the exhibit in any way between the time it was seized and the court room. And every so often, someone (or some rodent, or flood or fire) does steal from exhibits. When that happens, good procedures and documentation make it easier to identify the felon, and know what the exhibit looked like when it was first found.

	Problem	Solution
Notes	One of the searchers made no notes at scene. By the time he got back to the police station, he could no longer remember the time at which he found the drugs. This turned out to be important. Another officer found bundles of money. At the scene, that officer put the money down somewhere, but made no notes about where he put it. If one of the other officers stole the money, a note would have helped determine who had access to it.	Make notes on scene. What, when and where. And continuity.
Scene photography	Photography can sometimes fill the gaps in an officer's notes. Not this time. Someone gathered the exhibits together on a table, and photographed them as a group. This mixed exhibits before the officers bagged them.	Photographs can supplement notes, if you take enough of them, and at the right moments. If possible, photograph the exhibits In the spots where you find them. You may need to take several photos, showing the process of removing the item from its hiding place. Photograph the exhibits again when processing them.
Continuity	The officers who found interesting exhibits put them in bags. They did not close or seal those bags before transporting the exhibits to the police station for processing. Premature sealing of exhibit bags can complicate processing later, but failing to seal exhibit bags risks contamination and a loss of continuity.	If you're going to lose personal possession of the exhibit bag, maybe you should seal it. If the bag contains items of great value, maybe you should seal it. If the exhibit is sensitive, for example, the thing might bear fingerprints or DNA or gun shot residue, then seal it to protect the contents.
Continuity	Police seized several bundles of money. The officer who counted them mixed up the money from separate bundles. This caused confusion. Mr Rocha's claims about the money became difficult to contradict.	Handle exhibits separately and one at a time.
Labelling	The officer who counted the money used a system which required him to create a "property report", a "property receipt", a "property bag" and an exhibit tag. Naturally, the receipt, the bag and the tag each had a different serial number. Unfortunately, the officer recorded the wrong property bag number into the report. Because of the theft allegation, this flaw in the documentation made the officer look less trustworthy.	Exhibit handling produces a bewildering variety of identifiers. Understand what they mean, and record them carefully.

Good exhibit handling takes time and diligence. But it rarely wins anyone any accolades. Bad exhibit handling often goes unnoticed ... until disaster strikes. 4 years passed between this search and the judge's decision. Lots of time for other problems to accumulate.

Junior officers should learn not only how their exhibit procedures work, but also why, so that they can fully account for exhibits, and prove their own honesty when challenged.

Supervisors might consider checking how their junior officers are doing. If you praise the diligent ones, exhibit handling won't be a "thankless task".

2023.06.12 Interviewing the Suspect - A Standard Practice

Here's another example that illustrates why a police officer should ask the suspect what happened.

Four men told police that Ms Guillemette, 2022 ONCA 436 drove from the bar drunk. One of those men tried to stop her by reaching into the car and taking her keys. While his body was partly in the car, she drove the car in reverse, which caused his body to collide with a post. He suffered a broken pelvis.

Another man called 911 to report her intoxicated driving.

A police officer drove to her residence, and caught her as she arrived. The officer investigated her driving. Breath tests recorded 180mg% of alcohol in her blood.

At trial, she explained that one of the men was harassing her, touching her thigh and her breasts, and demanding that she spend the night at his place. She intended to take a cab, but faced with this unwanted sexually aggressive conduct, she felt that she had no choice but to drive in order to escape.

The trial judge didn't believe her. But the trial had not proceeded well. The prosecutor made the mistake of demanding that she explain why she didn't run to the officer and complain about the aggressive man. That's a legal error. The right to silence means that she has no obligation to complain to police, and furthermore, judges are not permitted to draw the rather obvious inference "if she really had been scared, she would have run to the cop".

When I read the judicial summary of her testimony, I didn't believe her story. But I'm in a poor position to judge.

But her story reminded me of many other cases I've seen in which people committed criminal acts by reason of worse threats that they faced. Battered spouses, low-end drug dealers and victims of familial sexual abuse often take desperate measures. The cop who investigates only their offence sometimes traps a rabbit, but leaves the wolf.

The cop who encourages a felon to talk sometimes receives a tall tale.

Assuming Ms Guillemette told lies about her misadventures, would it have been a waste of an investigator's time to attempt to interview her that night?

I say "no", because there would be little risk of harm, and opportunity for important discovery:

• Most probably, she would have maintained her silence. The investigator would be no further ahead, and no further behind.
  
• Possibly, the recorded interview would have demonstrated that she was too drunk to to understand her rights. That's good evidence that she was too drunk to drive.
  
• Possibly, she might have complained about a sexual assault, from which she had to flee. That's an investigation worth pursuing.
  
• Possibly, she might have given a guilty explanation for her driving, which included no complaint of abuse. A statement like this tends to prevent defendants from inventing false stories between arrest and trial.
  

2023.06.12 Impaired Drivers - Mandatory Alcohol Screening ("MAS") - Constitutional

Back in 2019,  I urged officers to use the new Mandatory Alcohol Screening power ( s. 320.27(2) of the Criminal Code) cautiously, because I anticipated controversy. I expected that defence counsel would challenge this warrantless search provision.

They did. McLeod v British Columbia (Superintendent of Motor Vehicles), 2023 BCSC 325; R. v. Day, 2022 MBPC 2; R. v. Blysniuk, 2020 ONCJ 603, R. v. Brown, 2021 NSPC 32, R. v. Kortmeyer, 2021 SKPC 10, R. v. Labillois, 2020 ABQB 200, R. v. Morrison, 2020 SKPC 28, R. v. Switenky, 2020 SKPC 46

To my surprise, I have found no decision in which defence persuaded a judge that the section is unconstitutional.

That suggests that you could start using this power more often. The BC decision of McLeod provides compelling reasons to do so. The court heard evidence that Canada still has one of the worst rates of impaired driving fatalities and injuries in the developed world.

If you'd like to help reduce that carnage, then you need to use this power properly. The section says:

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

That tells you:

1. You gotta have a screening device with you. But if you're thinking of using a screening device, the Supreme Court of Canada already decided that you must have one with you. R. v. Breault, 2023 SCC 9
2. You gotta know how to use it. Don't look here for instructions. I'm just a lawyer. I might know some law, but I've never operated one of these things. Reread your manual. Get the details right.
   
3. You gotta be "in the course of the lawful exercise of powers..." Generaly, that means a traffic stop for some reason or another. Can you stop a car just to do a MAS demand? One judge said "yes". (R v Labillois, 2020 ABQB 200) I think legally, you're on more solid ground if you pull the vehicle pursuant to the vehicle legislation of your province or territory, for the purposes of ensuring driver safety, licencing and insurance.
   
4. You require the person who "is operating" the vehicle. This part makes car MAS demands at car crashes troublesome. You usually arrive after the driver stops driving. There are some old cases based on a prior version of the legislation which might justify a shortly-after-the-fact demand (R. v. Lacovic (1988), 1988 CanLII 7075 (ON CA), 45 C.C.C. 3d 80 and R. v. Campbell (1988), 1988 CanLII 4932 (SK KB), 44 C.C.C. 3d 52) If your find reason to suspect that the driver has alcohol in their body, use the reasonable suspicion demand instead.
5. You gotta move fast. The section says "immediately provide samples of breath". In the context of a trraffic stop, the reason that the MAS demand survives constitutional attack is that using it should delay the driver for only a very short time. If you delay the driver for 5 minutes to figure out whether to make the demand, and then another 5 minutes to test the driver's breath, a judge may find that you did not comply with the section.

On screening devices generally, I would add:


6. Demands are not requests. Don't ask the driver whether they will blow. That suggests that they have a choice. They don't. Failure to comply is a crime. Tell them to blow. If they equivocate, proceed. Produce the device and tell them to blow.
7. Failure to blow is a criminal offence. Preventing crime is your job. When someone resists your demand, it is right and proper to urge them not to commit a crime.
8. Don't give bad legal advice. Police officers sometimes tell drivers "the penalty for refusal is the same as the penalty for impaired driving." Before 2018, that was true. Not any more. In some cases, the penalty for refusal is worse.
9. Give the reluctant driver many opportunitites to blow. Because they can't get legal advice, a screening device demand puts them in a tough position. Judges are sympathetic.
10. Document the breath testing process in notes or on video. Judges won't convict drivers for refusal unless except when satisfied by compelling evidence. The question isn't whether you're satisfied that the driver has now refused, but whether you have enough evidence that a judge will be convinced beyond a reasonable doubt.
    

2023.06.05 Identification - When to Show Photo Lineups to Officers

Officers in Saskatoon responded to a call of domestic violence. When they attended the house, Cst Willard checked out the back yard. Cst Willard saw someone on a back deck pointing a gun at him. He heard the racking of a firearm, and a man said "Get the fuck out of here." The officer retreated fast and called for backup.

As officers arrived, they took positions around the house. An hour after the incident, two people came out of the house: Mr Lachance, 2023 SKCA 48, and his girlfriend, who told police that he had assaulted her. Inside the house, police found nobody else, but they did find a sawed-off .22 rifle.

Mr Lachance faced charges of assault and firearm possession.  He beat all of them.

Don't blame Cst Willard for Mr Lachance's aqcuittal. The decision suggests to me that he is a man of integrity. He told the truth, even when it hurt.

At trial, the girlfriend got cold feet, and left the court house before testifying. The Crown tried to work around that problem. But the follow-up that they attempted did not satisfy the trial judge.

And even though Cst Willard testified that the man in the court room - Mr Lachance - pointed the gun, the judge harboured a doubt that perhaps someone else could have been the culprit.

Why did the judge doubt? It seems so obvious that Mr Lachance did it. He was the only man in the house. Cst Willard heard a man's voice when the gun was pointed at him.

Because reasonable doubt rests upon innocent possibilities:

1. The police did not surround the house immediately. In the first few minutes before other officers arrived, it was possible that a different man with a gun could have left without the house without being seen.
2. The officer that saw the gun said he saw a shotgun. Nobody found a shotgun in the house. They found a .22. This gave weight to that possibility. If the officer actually saw a shotgun, then some other person must have taken it away from the house.
3. Alternatively, it was possible that the woman pointed the gun, and the man said the words. Cst Willard didn't see who said the words.
   

It was only in the court room that Cst Willard identified Mr Lachance as the person who pointed the gun. Cst Willard had never seen Mr Lachance before.

Judges hate that kind of identification evidence. It's called "stranger eyewitness identification evidence".

Under stressful situations like this one, where a witness gets only a brief opportunity to see a face, people often make mistakes. Especially when they don't know the felon.

One can understand why the investigators thought that identification was solid. The first clue should have been the contrast between Willard saying it was a shotgun, and only a .22 showing up in the house. Probably, stress and danger made the gun look bigger than it was. Understandable. But the prosecutor needed a stronger answer.

A photo-lineup might have solved the problem. But only if someone presented it to Cst Willard before Cst Willard saw Mr Lachance arrested or in custody.

Cst Willard's notes might have saved the day. They would be most compelling if Cst Willard could record unique features of the gunman before seeing those features on Mr Lachance.

The decision makes for interesting reading. Mr Lachance was a gangster. Between the incident and his arrest, he sent a Facebook message to his gangster friends to "hit up" his girlfriend. This suggests that there were reasons to make extra efforts to investigate the case and to support the witness.

2023.06.01 Safety Search - Searching a Vehicle

The power to search in order to assure your safety - or the safety of the public - is not strictly limited to frisking the person that makes you nervous. When you have sufficient reason, you can search their immediate vicinity. Whether you can, and how widely you can search, depends heavily on the circumstances.

Mr Buakasa, 2023 ONCA 383 caught the attention of Cst Sinclair by driving at 140km/h on the 401 Highway in Ontario.

Cst Sinclair pulled him over. Mr Buakasa produced invalid insurance. His car contained two children. One of them was not properly seatbelted.

Cst Sinclair decided to impound the vehicle, and arranged for it to be towed.

Simple, so far.

But it got more complicated. A computer database alerted Cst Sinclair that police were surveilling Mr Buakasa, and that officers who arrested him should contact an officer in Waterloo.  Although Cst Sinclair did not arrest Mr Buakasa at that point, he called the Waterloo officer for more information. That officer told him that Mr Buakasa had "deep gang involvement", and there was a "good probability" that Mr Buakasa possessed a handgun.

Cst Sinclair called for backup.

When another officer arrived, Cst Sinclair searched the car for firearms. He noticed a loose panel on the passenger side console. When he touched it, it fell off.

This exposed a handgun.

It was loaded, and with it was a sock containing more ammunition.

At Mr Buakasa's trial, his lawyer argued that the officer had no lawful authority to search the car.

The prosecutor argued three reasons for the search:

• Because the officer smelled marijuana in the car and saw marijuana debris, the officer could search under Ontario's Cannabis Control Act (I presume s.12).
• Inventory search; and
• Safety search

The trial judge rejected the first two reasons, but agreed with the last one. The Court of Appeal judges declined to reconsider the first two questions; but they agreed that Cst Nickerson could search the interior of the car, for his own safety, and for the safety of the public.

Only because the circumstances of this case justified it. Here's how the appeal court analyzed it:

[47]      The trial judge noted the following constellation of circumstances:

1. once the ticket was issued, the appellant would no longer be under police control;
2. the appellant and the children were presumably going to travel with the tow truck operator;
3. a gun is a valuable commodity, giving rise to a real concern that the appellant might take steps to retrieve it;
4. it would be reasonable to expect that the tow truck operator would need to access the interior of the car as part of the towing process, and that the tow operator would reasonably expect that police “would not expose him to a known risk of travelling with a person who had a gun that he might try to retrieve from the car”;
5. the Waterloo officer, an officer involved in intelligence, had told Cst. Sinclair that the appellant had “deep gang involvement” and details of two prior incidents in which the appellant had been involved in or present at shootings in the past several months;
6. Cst. Sinclair was able to form a “high level of suspicion” that the appellant had a firearm; and
7. Cst. Sinclair came to a consensus with the Waterloo police officer that there was “a good probability” that the appellant had a gun in the car.

[48]      While Cst. Sinclair testified that he did not have reasonable grounds to believe that the appellant was in possession of a firearm, he did have, on the totality of the circumstances, a reasonable belief that the safety of the tow truck driver, the children present and the public was at stake, because he believed that there was “a good probability” there was a gun was in the car. That threat to safety was imminent because that “present danger of harm” had not been dispelled at the road side: see Lee, at para. 59. I adopt the observations of the trial judge:

If Mr. Buakasa did have a gun in the car, the public safety concerns were immediate and serious. Cst. Sinclair was faced with making a choice between Mr. Buakasa’s expectation of privacy and the safety of the tow operator and anyone else whom Mr. Buakasa might encounter in a quest to regain control of a gun. I have concluded that Cst. Sinclair was correct to give priority to the safety concerns.

The trial judge considered the danger to the tow truck driver to be so acute that the officer would be negligent if he failed to make the car safe to tow away. The appeal court judges agreed that a search was lawful.

Travelling to that destination took the judges over a rough trail through the jurisprudence of officer safety searches.

In R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the judges found that for the purposes of staying safe, police officers could frisk detained suspects for weapons, if there were reasons to suspect that the detainee possessed weapons and posed the officer some danger.

In R. v. MacDonald, 2014 SCC 3, the judges considered whether police could - for the purposes of safety - search someone who wasn't detained. They agreed that you can, but most of the judges said that you needed reasonable grounds to believe that your safety is at stake.

That kicked off a judicial and academic debate which hasn't yet settled. Reasonable suspicion is a lower standard than reasonable belief. Just how much evidence of danger do police need before they can intrude into people's privacy? For you police officers, this can raise a life-and-death question. Even the Supreme Court's subsequent decisions in the area of safety searches failed to clear up the confusion. Read the decision to follow the debate.

In this case the court ducked answering the question. They said that whatever the test is - reasonable belief or reasonable suspicion - Cst Sinclair had sufficient grounds.

I don't blame them for ducking. They lack jurisdiction correct the Supreme Court of Canada.

For you, on the street, this case provides an example of common sense:

• You can frisk a risky person if you have reasons to fear that they might have a weapon and they will hurt you (or others).
• You can search a place associated to the risky person if you have compelling reasons to think that failing to do so will put you or other people in danger.

In expressing it this way, I avoided the language of the legal debate. You need good reasons for this kind of search. They must be grounded on real risks that you can't avoid. Alternatives to searching didn't exist in this case.

Don't play games with this power to search. Safety searches are for keeping police officers safe. They're not for discovering evidence. Judges worry that making the power too broad will unnecesarily intrude on civil liberties. If the judges get the idea that police officers abuse this power, they will restrict it. That will put cops in more danger.

2023.05.30 Reasonable Grounds - Sgt Mortenson's Rule of Three

Here's a short decision which teaches the importance of understanding the whole judicial process, including how building grounds for an arrest sometimes requires some patience.

Sgt Mortenson supervised a drug enforcement team that busted Mr Fong, 2023 BCCA 196. He did something smart that you can learn from, but he articulated it in a way that you might want to avoid.

Members of his team saw Mr Fong engage in three brief interactions that looked like a dial-a-doper in action.

After the second transaction, Sgt Mortenson was sure his team found a trafficker. But he waited for a third transaction before authorizing an arrest.

And sure enough, his team found drugs.

At trial, defence counsel asked Sgt Mortenson why he waited for the third transaction before authorizing the arrest. Sgt Mortenson explained that three transactions was his "rule of thumb". It was a practice he followed because “the Crown is [generally] satisfied after three … decent observed short-duration meets that [this] fits the criteria for reasonable and probable grounds with some other criteria involved”.

At trial and at the appeal, defence counsel pointed out that Sgt Mortenson's team members did not see anything change hands. Defence proposed innocent alternative explanations for the short meetings. Maybe Mr Fong was just picking up a friend. If one of the incidents could be explained away, then there weren't enough brief transactions to amount to reasonable grounds.

The judges rejected those arguments, and rightly so.

If you read the decision, you will see that Sgt Mortenson had more than three brief transactions: file information suggested that Mr Fong's car was involved in drug-related incidents; and the transactions started in a drug-infested neighbourhood.

What I liked about Sgt Mortenson's approach was the care and patience he took to build a solid case for arrest. He was right to testify that he didn't need three transactions. What he needed was enough information to satisfy himself, and enough information to satisfy the court that his belief was reasonable. Generally, in the kinds of investigations he does, three brief transactions - along with some supporting background information - suffices.

Although I liked Sgt Mortenson's candour about his "rule of thumb", I think that he could have expressed a longer view of the file. Your job when gathering grounds is not to satisfy the prosecutor, but to satisfy the court that you are obeying the law. When assessing such cases, some prosecutors require police to show very strong grounds for their arrests. Those hard-nosed Crown Counsel do so only from painful experiences in the court room. If I were the prosecutor at Mr Fong's trial, I would have preferred Sgt Mortenson to explain that two transactions convinced him that his team found a trafficker, but he asked his team to keep watching, "so that the evidence would satisfy the judge that my belief was well-founded".

2023.05.30 Using Force - Adrenaline, Training and Safety

Police arrived - en masse - to the scene of a gunfight. By the time they arrived, the shooting had stopped and the shooters scattered. About 40 minutes after the shooting, an officer in a helicopter spotted someone suspicious on the ground, and alerted other officers.

That guy was Mr Brar, 2023 ABCA 63.

Mr Brar hid under a deck. A police officer shone a flashlight under the deck, but could not see Mr Brar. The officer stood in the vicinity of the deck for 7 minutes, waiting for a police dog to arrive.

The dog arrived. At the moment that the handler released the dog to search for people under the deck, Mr Brar said “All right, I’m coming out now."

The dog bit him and dragged him out from under the deck, face down. His hands were empty, and up around his head.

Four officers received him.  One stood over him pointing a rifle at him. One knelt at his right shoulder, grabbing his hand. The dog handler stood by. And one more officer kicked and punched Mr Brar repeatedly in the head - as a distraction.

The punching broke Mr Brar's nose and orbital bone. (That's the bone that supports the eye.) He required surgery, and suffers lasting eye problems. That's common with orbital bone injuries.

After arresting him, police found a handgun in a bucket under the deck. The trial judge convicted him of possessing it unlawfully, but reduced his sentence by reason of the injuries he received during his arrest.

Mr Brar appealed his conviction. He complained that the arrest involved unreasonable force.

At trial, the officers explained that Mr Brar's actions justified the force that they used: one of Mr Brar's hands moved as if to reach for a weapon.

The trial judge felt that the fast moving event gave the officers no time to choose less violent means. The appeal court judges didn't like that explanation.

Considering that a dog was biting Mr Brar's leg, was the punching necessary? With the luxury of hindsight, the judges identified less-injurious alternatives. Instead of punching him, an officer could have stood on his shoulder.

I see irreconcilable conflicts between the law, human psychology and risk management.

The law seems straightforward. Even the guilty felon enjoys a right to be arrested with no more force than is reasonably necessary. The police officer arresting him also has rights.  After each shift, every officer should go home alive and uninjured. The officer should be permitted to use reasonable force to protect himself or herself from harm. Canadian law permits the officer to use "reasonable force" - force which is objectively justified by things that the police officer knows about.

Risk management operates by identifying possible harms, and taking steps to prevent them. When facing Mr Brar, an officer who does not know whether he possessed a gun should assume that he does. Good risk management requires us to assume the worst, and take steps to prevent it. When approaching potential gunfighters, prudent officers will assume that the subject has a gun and may use it.

That's fine ... until you start to use force. You can approach with caution. You can choose tactical positions which defend you. But when it comes to applying force, the law permits you no luxury of assumptions. Unless you have positive information that someone poses you danger, you can't use force.

When testifying why you used force, do not use risk management language ("I didn't know whether he had a gun, therefore I believed it was necessary to take immediate control of Mr Brar..") Instead, you must use the language of reasonable grounds ("The dispatch information and the information from the helicopter made me think that he likely possessed a gun and was desperate enough to use it. That made me think I needed to take immediate control of Mr Brar.")

These officers had some evidence. They attended the scene of a gunfight, and located a potential gunfighter, hiding. Wasn't that enough to justify the force that they used?

When determining whether force was "objectively reasonable", judges must consider all of the information available to the officers at the time. When the dog dragged Mr Brar from under the deck, his hands held no firearms. The appeal court judges suggested that the officers should have modified their response based on that new information.

I take the view that police officers on the ground can not consider all of the evidence in real time.

Our human brains respond to acute danger by narrowing our focus to the threat. These officers knew that they were responding to a gunfight in a public place. They had reason to believe that they found one of the shooters. When he emerged from under the deck, the officers had little time to assess what dangers he posed to them. But they had reason to think he was a killer.

Research suggests that greater training tends to create officers who adapt better to changing circumstances. Top-flight members of tactical squads might have been able to re-assess Mr Brar's risk so quickly that they might have determined that beating him wasn't necessary. But not every officer who attends such a scene gets advanced training in the use of force. Not every officer can act so coolly in the face of possible death.

Some would suggest that the law should adapt, to account for human frailties of police officers. Don't hold your breath. Part of the job of the courts is to hold police to high standards of conduct, even when arresting bad guys.

The lessons to draw from Brar include:

• Tactical training does matter. It's not just for jocks, but for all officers on the street. It improves your chances of survival in sticky situations. Measured use of force deprives defendants like Mr Brar of arguments like this one.
  
• Articulating the use of force depends upon what you knew, rather than what you didn't know.
  

2023.05.09 Confirmation Bias - Traps Everywhere

Confirmation bias affects all humans. If you're not sure what it is, you can read a formal explanation in Wikipedia. Or you can listen to the profane and irreligious Tim Minchin. I find the latter more amusing.

I don't know whether either of those links inspired the lawyer who represented Mr Ogden, 2023 ONCA 324. But s/he made an argument based upon that concept.

During a home invasion, one of the felons ripped a phone off the wall. Police found a fingerprint on that phone. Did it belong to Mr Ogden?

The first expert, Sgt Cuff, compared the print from the phone to fingerprints on file. Sgt Cuff found a match with one of Mr Ogden's fingers.

A supervising officer arranged for a "blind verification". The supervising officer found another fingerprint expert, D.C. Young. D.C. Young received the telephone print, three unrelated sets of fingerprints and a copy of the fingerprints of Mr Ogden that Sgt Cuff saw.  D.C. Young also concluded that Mr Ogden's finger matched the print on the phone.

As a result, Mr Ogden was charged with the home invasion.

Unfortunately, the first expert, Sgt Cuff, left the forensic identification unit.  His qualifications lapsed. But the prosecutor would need a qualified expert to testify at trial.

D.C. Young got a new set of fingerprints that had been taken from Mr Ogden after the charges were laid. D.C. Young compared the new prints to the print from the phone, and again concluded that there was a match. This, of course, was not a blind identification. This time, D.C. Young knew who was charged, and who he identified during the "blind verification".

The supervising officer "verified" D.C. Young's results. That is to say that the supervising officer himself compared the print from the phone to the new prints, and agreed that there was a match.

At trial, the prosecutor presented the testimony of D.C. Young's second fingerprint comparison, but not the earlier comparisons.

Defence cried foul.

At the time that D.C. Young did the second comparison, D.C. Young expected to find a match because of the earlier work on the file. That pre-existing belief could blind him to differences between the print on the phone and Mr Ogden's fingerprints on file.

The judges didn't buy the defence argument.

D.C. Young showed the court some compelling similarities between the print at issue and Mr Ogden's file fingerprints. A good chart of comparison points can be very persuasive.

I feel no sorrow for Mr Ogden. As I understand the state of fingerprint science, good quality fingerprints provide compelling and reliable evidence of identity. The 14 points of correspondence in this case provided compelling evidence of his guilt.

I feel some sympathy for Mr Ogden's lawyer. The forensic procedure was messy. If D.C. Young already believed that he knew the "right" answer, it may well have been harder to view the second fingerprints objectively. The lawyer made a smart argument which might succeed in other cases.

This problem arises everywhere in police work. If the first three witnesses tell you that they saw Jimmy assault Mary, you will likely have reasonable grounds to arrest Jimmy. Suppose you meet Mary, injured and bleeding.  Suppose she begs you for help to get away from Jimmy. Only people with hearts of stone would feel unmoved by Mary's plea. When a fourth witness - perhaps Jimmy's sister - tells you that Jimmy did not assault Mary, you may not trust the witness. Some officers may even disregard what the witness. Beware. Confirmation bias is already creeping into this investigation. The last witness should be interviewed at least as carefully as the first.

The officer who denies that s/he suffers from confirmation bias is an officer who denies his or her own humanity. We all suffer from it. We can control it only when we know it's there.

The procedure of fingerprint comparison causes problems. Unless one is careful, it's difficult to prove that confirmation bias did not affect an identification. Wise fingerprint examiners try to use "blind" identifications and verifications; they usually avoid following the messy procedures like the one followed in this case.

2023.04.30 Exhibit Retention - The Appeal Period

Your exhibit locker is full to overflowing. When the judge sentences a defendant, can you get rid of the exhibits related to that investigation?

Yeah, but wait a month, and ask the defendant (or counsel) whether there's going to be an appeal.

Three weeks after the judge sentenced Mr Zanolli, 2023 BCCA 163, police destroyed or disposed of all exhibits in their possession related to his case.

It took Mr Zanolli a year to file his appeal from conviction. Neither he nor his lawyer told the prosecutor that there could be another trial.

The missing exhibits might make it harder to prove the case next time around.

Ordinarily, a defendant in BC has 30 days to file an appeal. But the Court of Appeal can permit them to launch their appeal late - even years after the sentencing.

In this case, the court permitted Mr Zanolli's appeal to proceed.

Part of their reasoning worked this way: Police wouldn't destroy exhibits before the appeal period expired unless those exhibits didn't matter. Because police did that, we infer that the missing exhibits don't matter. It won't be a problem to run the trial again.

Did the officer who authorized destruction of exhibits really think it through?  I don't know. I do know that the trial exhibits stayed with the provincial court. Those were obviously important. I don't know how important the other ones are.

If they were important, the officer ducked a bullet.

Mr Zanolli's reasons for wanting a new trial did not impress the appeal court judges. They rejected his appeal. There won't be a new trial after all.

While it is important to clear your exhibit locker after the trial is done, you can protect the prosecution's prospects in a retrial if you:

• wait for the appeal period to expire (usually 30 days); and
  
• ask counsel for the losing side if there will be an appeal.
  

2023.04.24 "Is THIS the Culprit?" - How to Poison a Photo Lineup

Two different drug dealers visited a customer. A dispute broke out between them. One shot the other in the leg and in the stomach.

The injured dealer told police what happened.

The customer identified the shooter. She bought drugs from him 10-20 times in the preceding 3 years. She picked Mr Graham, 2023 ONCA 273 out of a photo lineup.

Unfortunately, before she saw the lineup, she saw media coverage of the shooting which included an image of Mr Graham. Did she recognize him from prior dealings or from the media release?

Why did the investigators prepare a media release which included Mr Graham's photograph?

Probably because Mr Graham was a very dangerous man, and the investigators wanted to protect the community by apprehending him as soon as possible. I drew that inference from the fact that the trial judge had no difficulty concluding that Mr Graham met the Criminal Code definition of a "dangerous offender". I can't say whether the investigators in this case made the right or wrong call in releasing Mr Graham's photograph. They had to balance short-term public safety against long-term success of the prosecution.

It would have been much better to present the photo lineup to the eyewitness before she saw the media release.

Fortunately, the procedural slip did no damage. Because she knew him, the media photograph did not undermine her recognition.

Your mileage may vary, depending upon factors beyond your control. Lessons from this case include:

1. Media releases which include mug shots of your suspect can sometimes produce new witnesses; but they can also undermine identification evidence. That can be a hard call.
   
2. Prompting an eyewitness with a single photograph of a suspect undermines the evidentiary value of a photo lineup. Don't let your witness see such a photograph unless you are certain that you don't need a photo lineup.
3. Beware. Witnesses like this one may seem clear and certain when you investigate, but their information often deteriorates. At trial, this eyewitness claimed that she could not recognize Mr Graham in the court room because she left her glasses at home. The prosecutor was lucky. I've had similar eyewitnesses point at the defendant and declare "that is not the man". A couple of my witnesses even admitted, after court, that they lied on that point for fear of reprisal. In those two cases, both defendants were convicted none-the-less, thanks to good evidence of identification.
   
4. Photo lineups are best done promptly after the offence.
   

2023.04.17 Cannabis in a Car

This case isn't "new". It's a year old. I paid greater attention to it today because a police officer recently asked me what I know about the federal Cannabis Act. Truth is, I don't know much, and I ought to know more. So I paid attention to this case, to see where it led me.

Mr Santos, 2022 SKCA 50 used a rental car, a CRV, to drive a kilo of cocaine from Calgary to Winnipeg. Perhaps to make the trip more enjoyable, Mr Santos put a baggie of marijuana in the centre console, along with a can of Red Bull energy drink.

In Saskatchewan, a police officer pulled him over to check his licence and registration.

Mr Santos had trouble locating the documents that the officer requested. He seemed flustered or panicked. He explained that he rented the car for 4 days because his own car was in the shop. The officer saw the Red Bull, smelled the smell of fresh marijuana, and saw fast food wrappers on the floor behind the passenger seat. The officer noticed that a stock cargo cover concealed the back area of the vehicle from view.

At roadside, the officer found a database entry from 9 years earlier in which officers in Lethbridge noted some information which suggested that Mr Santos might have been selling drugs from his home.

Even though possession of 30g of marijuana had become lawful, the officer arrested Mr Santos. What the officer saw, combined with his experience with traffickers and the database entry, made the officer believe that Mr Santos was transporting more than 30g of marijuana, likely for distribution in Winnipeg, contrary to s.9 of the Cannabis Act.

At trial, defence complained that the officer lacked reasonable grounds for this belief. The trial judge sided with the police officer. The Court of Appeal agreed with defence. The court of appeal judges agreed that the officer had reasonable grounds to suspect that Mr Santos was moving drugs illegally. But the database information was so old. The smell of marijuana didn't help distinguish between legal and illegal quantities of drugs. And all of the remaining observations were consistent with lawful activity.

Then, the court observed:

Unlike the Cannabis Act, however, s. 2-10 of The Cannabis Control (Saskatchewan) Act makes it an offence to “possess, consume or distribute cannabis in a vehicle”, unless the cannabis is in the vehicle “for the purpose of transporting [it] from a place at which it was lawfully obtained to a place where it may be lawfully had, kept or consumed or from that place to another place where it may be lawfully had, kept or consumed”. As with the Criminal Code and the Cannabis Act, a police officer who makes a lawful arrest under The Cannabis Control (Saskatchewan) Act for any one of these offences has the common law authority to conduct a search incidental to the arrest.

Under the provincial legislation, if the baggie of weed was open, then the officer had an offence to enforce. If the officer had investigated the baggie, a lawful arrest and search might have followed. And maybe, the officer would have lawfully found the cocaine.

Even though the judges considered this one a fairly close call, they decided to exclude the cocaine. Mr Santos beat the charge.

This case provides two lessons. First, for reasonable grounds to believe, you need some reasonably compelling information. 9-year-old tips don't usually deliver much punch.

Second, your provincial Cannabis legislation may be worth studying for offences and powers of search. Look not only at the relevant Act, but also the associate regulations.

BC	Cannabis Control and Licensing Act
Alberta	Gaming, Liquor and Cannabis Act
Saskatchewan	Cannabis Control (Saskatchewan) Act
Manitoba	Liquor, Gaming and Cannabis Control Act
Ontario	Cannabis Control Act
Quebec	Cannabis Regulation Act
New Brunswick	Cannabis Control Act
Nova Scotia	Cannabis Control Act
Prince Edward Island	Cannabis Control Act
Newfoundland and Labrador	Cannabis Control Act
Yukon	Cannabis Control and Regulation Act
Northwest Territories	Cannabis Products Act (see also amendments to the Motor Vehicles Act)
Nunavut	Cannabis Act

If you read your legislation carefully, you may learn more than I know about the subject.

2023.04.17 Disclosure - A Dark Pit of Despair

In 2014, a little girl, only 19 months old, drowned in a bathtub.

How could this happen? Ms Bouvette, 2023 BCCA 152 should have been watching her, along with 2 other children whom she babysat.

The Albertan forensic pathologist who examined the little girl's body noticed injuries which made him think that somebody injured the little girl before putting her into the bathtub. The girl was fine when her mother dropped her off in the morning. Either Ms Bouvette or the other children hurt her. The pathologist didn't think these injuries could be inflicted by children.

Did this babysitter kill a child entrusted to her?

A different pathologist disagreed with his conclusions, not just in this case but in others. She caused a review of the first pathologist's work generally. The Alberta prosecution service lost faith in the first pathologist entirely. They would not use his opinions in their prosecutions.

At first, the prosecution charged Ms Bouvette with murder. These troubles with the pathologist's opinion and reputation weakend the case. The prosecutor offered defence a deal. Defence took it: Ms Bouvette pleaded guilty to criminal negligence. The judge sentenced her to a year in jail.

Years later, long after she served her sentence, a special prosecutor discovered that the defence had not received full disclosure.

Although defence knew that there was some disagreement about the forensic pathologist's opinions, the police and Crown possessed full documentation which revealed how much disagreement there was. Defence never received it.

And there was more. It turned out that the little girl suffered a brain disease when she was younger. Perhaps left-over effects of that ailment caused her to fall in the tub and drown. Although defence had a little information about this prior medical condition, the police possessed much more.

All these years later, Ms Bouvette learned that her lawyer could have had more information with which to defend the case. She applied to withdraw her guilty plea. She explained that if her lawyer had received full disclosure, she would never have pleaded guilty. The missing information would have given the defence ways to undermine the first pathologist's opinion, and an alternate theory to raise at trial.

The court permitted her to withdraw her guilty plea.

But should the trial proceed?

Even though there remained substantial evidence on which Ms Bouvette could be prosecuted for murder or criminal negligence, the court stayed further proceedings. The Court wanted to make the point that failure to disclose relevant evidence is a serious matter.

Disclosure sucks.

It adds to the load of paperwork that first responders must complete as they hurry from call to call. Busy investigators 'waste' precious hours gathering, organizing and documenting the evidence that they find. Supervisors can't always follow up. M

Most investigators and prosecutors find no excitement or glory in the task of making full disclosure. It involves data entry, and inventories and re-reads of known material. When done well, nobody notices your hard work. When done wrong, guilty people can beat charges, innocent people can get convicted, and confidential sources can be identified.

And it's easy to do wrong.

Late Disclosure

All through my career, rookie officers would come to court to testify, bringing previously undisclosed materials. Photographs. Notes. Documents that mattered. They thought that they were doing a good thing: providing the evidence that would be needed at trial. What they didn't realize is that late disclosure triggers adjournments. The day of trial is too late for material disclosure. The lawyers need to prepare long before the trial begins. When new documents or photographs change the way the trial will go, judges grant adjournments so that the lawyers (usually defence) can prepare a response.

Delays kill prosecutions. You don't want to be the one responsible by revealing something important close to trial.

Whether your case is large or small, always strive to deliver disclosure promptly.

Assessing Relevance

I can understand why the police may have thought that the little girl's childhood illness was irrelevant. The evidence that they collected made them think that the defendant assaulted the child and left her in a bathtub to drown. On that theory, the earlier illness had no bearing on the case.

I can understand why a police officer might fail to disclose the full depth of the disagreements between the pathologists. Although an Albertan pathologist rejected the key opinions of the examining pathologist, several American pathologists agreed with him. If one accepted the theory that Ms Bouvette beat up the child then put her in the tub, then the second pathologist was just a trouble-maker in a personality conflict.

But defence had another theory to pursue. The defence needed the dissenting opinion.

This is the misery of the dark pit of disclosure: when you're reviewing documents that don't fit your theory of the case, it's hard to notice that they're "relevant".

When in doubt, disclose.

Disagreement between Experts

If the theory of guilt depends upon an expert opinion, and other experts disagree, look out! Full disclosure about the experts matters much more.

Conclusions

Investigators and general duty officers: your report to the prosecutor is not complete until it accounts for all of the evidence that you gathered. Learn your documentation systems, and make them work for you.

Supervisors: help the people you work with understand that disclosure covers more than the evidence that supports the investigator's theory of the case. Help them get all the relevant material to the prosecutor.

Managers: disclosure systems matter. Do your people have the tools and training that they need? Do they know the importance of using them?

2023.04.13 Impaired Drivers - Breath Screening Demand - No Delays - Pack an ASD or Use Other Investigative Techniques

When a driver smells of booze, many officers demand that the driver blow into a screening device. What do you do if you don't have one with you?

Before today, the case law suggested that the demand remains valid if you can get a screening device within about 10 minutes.

Not any more.

Don't make a breath screening demand unless you have a screening device immediately to hand.

Here's what happened.

Back in 2017, in response to a complaint that a drunk was driving an ATV, police attended and stopped Mr Breault, 2023 SCC 9. Mr Breault denied driving, but other people in the area assured the investigators that he did indeed drive.

An officer demanded that he blow into a screening device. Mr Breault refused immediately, repeating that he was not driving.

If the officer has reason to suspect that the boozy driver did drive, then the claim "I wasn't driving" does not provide a lawful reason to refuse to blow into a screening device. The officer properly told Mr Breault that refusal was a criminal offence.

But the officer didn't have a screening device with him. He radioed for one to be brought.

Mr Breault continued to refuse, and demanded to speak with a lawyer.

The officer refused to permit him to speak with a lawyer. Mr Breaul made it clear he would not blow. In the face of the clear refusals, the officer gave up trying to test Mr Breault's breath. He cancelled the request for the screening device (which did not arrive for 15 minutes). Mr Breault was charged with refusal.

At trial, Mr Breault argued that the demand was invalid because the officer did not have an ASD with him at the time of the demand.

The Supreme Court of Canada agreed. They overturned decades of lower court decisions which held that the demand would be okay if the device could be delivered within a short delay (up to around 10 minutes).

Back in 2017, s.254(2)(b) used the word "forthwith" to describe how quickly after a demand a driver had to blow.  The new version, s.320.27(1)(b) says "immediately". The court says that their new interpretation applies to both sections -  see para 44.

The court's logic depended partly upon the right to counsel. Ordinarily, if you detain someone for an offence, you can't get elicit evidence from them without first giving them an opportunity to get legal advice. But back in 1988, in the case of R. v. Thomsen, [1988] 1 SCR 640, the court found that the police could refuse to let the driver call a lawyer because the screening process happens so quickly.

That logic breaks down if you have to wait 10-15 minutes for a device to arrive.

35 years later, the court now explains that your demand is valid only if you can screen the driver immediately after making the demand.

The judges allowed for several exceptions:

• Delay for the device to warm up is okay. If the device needs a few minutes to warm up and go through a self-check phase, the demand is still good.
• Delay necessary for getting an accurate result is okay. R. v. Bernshaw, [1995] 1 SCR 254. If you have reason to believe that mouth alcohol or some other substancein the driver's mouth may skew the results, you can wait for it to dissipate. (But don't make a policy of always waiting for mouth alcohol to dissipate. You can only delay a breath test if you have a reason to think that mouth alcohol is a problem.)
  
• Delay necessary for keeping you, the suspect, and other drivers safe is okay. Move cars and people off the highway if you need to. Set up flares if you need to. The obligation to screen rapidly does not require you to gamble with lives and safety.

This list isn't exclusive. The judges figured that other reasons might arise which justify delaying the breath testing; but they weren't prepared to guess what those reasons would be.

This decision has repercussions that officers on the road should consider.

1. You can't make a screening demand if you don't have a device handy. If you stop a driver, and you suspect that the driver has booze in them, you must use other means to determine whether to make a breath analysis demand. If you know the standardized field sobriety tests (SFST), then make that demand, and apply that skill. If you do not, all you can do is observe and ask questions. Study the driver and record carefully what you see.
2. An interesting question arises whether you can radio for a device, and delay making the screening device demand until it arrives. Before Breault, such a tactic was improper, because s.254 required the officer to make the demand "forthwith" upon forming grounds. Because this new ruling prohibits making a demand without an ASD handy, lower courts may revisit that rule. Stay tuned.
   
3. British Columbia's administrative driving prohibition scheme depends upon screening device demands. This ruling makes that scheme harder to operate.
4. The new screening demand section applies the same language to the SFST demand as the breath screening demand. I think this decision applies equally to SFST. If you make an SFST demand, you'd better be trained, or have a trained officer on hand, ready to proceed with the test immediately. You can't make a demand, then radio for someone to meet you to do the test.
   

This decision has repercussions that police managers need to consider.

1. Do you have enough screening devices?
2. Do you have enough officers trained on SFST?

2023.04.10 Qualities of a Police Officer - Thick of Skin and Tender of Heart

 - Duty to Care for Prisoners

I encountered this decision today. I missed it last summer when it first came out. Better late than never.

It illustrates the importance of caring for the health of your prisoners.

Cst  Doering, 2022 ONCA 559 dealt with lots of drug addicts. Most of them just needed to sober up.

One of his colleagues picked up Ms Chrisjohn because members of the public complained that she'd been running in and out of traffic. The colleague called an ambulance, which took her to a hospital. Another police force had a warrant for her arrest, but they wouldn't come pick her up. The first officer left her at the hospital. She left, against doctors' orders.

The next day, Ms Chrisjohn made another scene at Petro-Canada. Someone grabbed her, and held her. Someone else called 911.  Cst Doering attended. Knowing of the warrant, he arrested her.

She was agitated, aggressive, and sometimes delusional. Cst Doering figured that she was "very high" on meth. In his experience, such people didn't need medical attention. An EHS looked into the window of the police car, and then told Cst Doering that if he took Ms Chrisjohn to the hospital, they would do nothing more than monitor her.

Cst Doering contacted the other police force. They said they'd take her, if he drove her to a specific Tim Horton's - about an hour away.

On the way, Ms Chrisjohn went from responsive to unresponsive; from sitting up to lying down; from combative to limp, moaning and shaking. At the exchange, she did kick out at the officers once, but otherwise did not acknowledge them. She couldn't walk properly.

The other officers took her. Cst Doering told them that EHS had "looked at" her, and she didn't need to go to the hospital.

Two hours later, she died. The methamphetamine stopped her heart.

Cst Doering was charged, and convicted, of failing to provide the necessaries of life.  Instead of giving her to the other officers, he should have arranged medical treatment.

Poor Cst Doering. He had reasons to feel unsympathetic to Ms Chrisjohn, and annoyed by the whole situation:

• Ms Chrisjohn was a nuisance to his colleague the night before.
• Ms Chrisjohn should have been someone else's problem - the other police force wanted her, but they didn't come get her the night before.
  
• The other police force made him bring her to them.
  
• Ms Chrisjohn was her own worst enemy. She kept returning to drugs.
  
• Ms Chrisjohn was a nuisance when he met her.
• She seemed like just another "crackhead" (dispatcher's word) who was going to sober up.
• A paramedic who looked at her through a window also thought she would sober up.
• She didn't seem to be in distress when he started driving.
• Even if she was worse when he arrived, she became somebody else's problem when the other officers took her.
  

Cst Doering wasn't a trained medical professional. How could he know that she was going to die?

The judges' answer shows you how careful you must be with the health of your prisoners:

"The question was whether the changes evident in her condition would have caused a reasonably prudent police officer to seek out the advice and assistance of those with the necessary medical training to properly assess the significance of the observed changes and provide any further needed medical response."

The changes in Ms Chrisjohn's condition triggered that obligation to seek out advice and assistance.

The fact that other officers would take her from him did not relieve him of the duty to care for his prisoner.

In my career as a prosecutor, these people tested my patience. Your job as a police officer is even harder.

Emotionally, how do you remain "reasonable" and compassionate when your prisoner treats you (and everyone else) with disrespect, abuse or violence? Here are two suggestions that might help:

• Professionalism - take pride in your work. Your job includes protecting the lives of the unlovables in our world.
• Sympathy - underneath every addiction is a person suffering emotional torment. If you can hear the addict's suffering in those cuss-words s/he hurls at you, you are a greater soul, and a better cop.
  

2023.04.10 s.10(b) - "without delay" - how long is too long?

Section 10 of the Charter reads:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right;
(c) ...

How long is "without delay"?

Mr Davis, 2023 ONCA 227 drove with too much booze in his bloodstream. A cop noticed his bad driving, and busted him. But Mr Davis beat the charge.

Why?

Because the officer took too long to tell him about his right to get legal advice.

How long was too long?

8 minutes.

The placement of the phrase "without delay" immediately after "retain and instruct counsel" suggests that issues arise only when you delay someone from speaking with a lawyer.

Judges in Canada disagree. They say that you need to tell the prisoner very promptly after the arrest (or detention) about the right to get legal advice.

This officer didn't tell Mr Davis about it for 8 minutes. That would have been okay if the officer had been busy dealing with other urgent matters. You don't need to start reading scripts about the rights to silence and to legal advice before ensuring your own safety, and the safety of others around you.

At trial, this police officer couldn't explain what he was doing over those 8 minutes. Indeed, some evidence contradicted his memory of what occupied him over those 8 minutes.

The trial judge hated the delay so much that he excluded the evidence. All the appeal judges agreed.

One might reasonably ask "8 minutes of delay? So what? The delay caused Mr Davis no harm. The officer did get around to telling him about his right to counsel. Mr Davis got legal advice before the instrument analyzed his breath."

The appeal judges relied on technical procedural issues to skirt this apparently reasonable argument.

For police officers, this case illustrates the high importance judges place on prompt explanations of the right to counsel to detained and arrested people.

Good habits may protect you from this trap. For example:

• Memorize the language of the 10(a)&(b) advice, along with the police warning about the right to silence.
• Recite them immediately, every time you arrest or detain someone.
• Record in your notes the time of the arrest and detention, along with a note indicating that you gave the rights from memory and how the prisoner responded. (eg C&W - oral - DYWTCAL? "Yeah")
• Once the prisoner is safely in custody, and the scene is under control, read the warnings formally from your card. Make notes about the time, and what (if anything) delayed you. Confirm with the prisoner that s/he understands the rights.

2023.04.03 Continuity of the Injured Suspect - Protecting Life or Invading Privacy?

Two stories start the same, but end differently. The recent one creates some challenges for police who monitor injured suspects.

In 2001, an off-duty police officer named Chris LaChappelle, 2007 ONCA 655 drove drunk. He crashed into another car, killing the driver. LaChappelle also suffered injuries. When paramedics loaded him into an ambulance, a police officer climbed in too - with the consent of the paramedics. That officer watched and listened as the paramedics asked LaChappelle about his condition. LaChappelle gave one-word answers which did not probe the offence.

In 2019, a 17-year-old youth, S.S., 2023 ONCA 130, crashed a car after drinking, killing his passenger. Like LaChapelle, S.S. suffered injuries. Paramedics loaded S.S. into an ambulance. A police officer climbed in to maintain continuity over the suspect - again, with the consent of the paramedics. Young Mr S.S. did not know she was there. She listened while paramedics asked S.S. how fast he drove and how much he had to drink. Unlike LaChapelle, S.S. gave incriminatory answers.

Both defendants complained that the police violated their expectation of privacy: they needed medical attention; they needed to speak frankly with the medical experts; they needed (and expected) privacy during that communication.

The judges in LaChapelle's case felt no sympathy for him because the police obtained no confidential information. No harm, no foul.

The judges in S.S.'s case found that the police officer in the ambulance violated his expectation of privacy by listening in on his communications with the paramedics.

On its face, this creates a conundrum for police investigators.

Whether or not you have arrested or detained an injured suspect, you will probably need to maintain continuity. You need to learn what injuries the suspect suffered. If the crime involves intoxication or mental illness, you need to know whether the paramedics administer mind-altering medications. If the crime involves firearms, you'll want to know if the suspect cleaned his hands of any potential gunshot residue. And you'd sure like to know what the suspect says about the crime under investigation.

On the other hand, you don't want to endanger the investigation by gathering evidence in violation of the suspect's rights under s.8 of the Charter.

The difference between the two cases offers a partial solution.

Nobody told Mr S.S. that the officer was in the ambulance. He couldn't know that what he said might be used as evidence against him. That made the officer's "interception" of private communications a problem.

So perhaps an officer who climbs into an ambulance with a suspect needs to tell the suspect of their presence ... and give the police warning.

I see this as an incomplete solution because it may infringe the suspect's rights under s.7 of the Charter to life and security of the person.

First, if the paramedics need to give immediate life-saving care, the investigator should not interrupt. Second, if you warn an injured suspect against speaking about the incident, you may discourage the suspect from telling the paramedics frankly about his medical condition. If he can't tell them about the drugs in his system, they may administer medication which hurts or kills him.

The only solution that occurs to me is telling the suspect: "If you need privacy to talk about medical stuff, let me know, and I'll cover my ears." Not every investigator will have the opportunity to say this to the suspect in the ambulance; but if you can, then you create a clear path between the suspect's rights under s.7 and s.8 of the Charter.

2023.03.29 The Password Conundrum - Search Warrants for Computers and Electronic Devices

Password protection can render computers and cell phones impossible to search. What should a peace officer do to get passwords, when executing a warrant which authorizes police to search an electronic device?

With the present state of the law, I'm not sure I can tell you what you can do; but the case of Mr O'Brien, 2023 ONCA 197 provides some examples of what not to do. How do you avoid the mistakes described there?

The officers had good grounds to believe that someone at Mr O'Brien's address downloaded child pornography. The investigators got a warrant and went to execute it at the reasonable hour of 9:00am.

Accountability - Note-taking

The officers who executed the warrant made insufficient notes about what happened. When they came to court, they couldn't account for all of their behaviour during the search. They didn't think they had detained the occupants.

But Mr O'Brien and his wife had lots to say. But at 9:00am, Mr O'Brien and his wife were still in bed, sleeping. They complained of being woken and separated from each other. The officers treated them so gruffly that they felt detained. They said that the officers demanded passwords for all of the electronic devices. Mr O'Brien and his wife didn't know that they could refuse. They didn't know that they could get legal advice. So they gave the passwords.

The officers denied treating Mr O'Brien harshly or separating them. The officers remembered telling them that they were free to leave. But the judge didn't entirely trust their evidence. Too many gaps in the notes.

Compelled Passwords

The officers who dealt with the occupants didn't remember asking for any passwords. But the officers who searched the electronic devices on scene had passwords to work with.

Unsurprisingly, the judge concluded that the officers intimidated Mr O'Brien and his wife, causing them to feel detained. The judge concluded that the officers asked for passwords without telling Mr O'Brien and his wife that they didn't have to give them.

Some officers testified that they routinely asked for passwords when executing warrants to search electronic devices.

The judges hated that. Compelling someone to provide such a password, they found, violated s.8 of the Charter and the right to silence. Compelling it after a detention, without giving the suspect access to counsel made the police action even worse. (Another judge came to the same conclusion in R. v. Musara, 2022 ONSC 3190)

As I read the decision, I kept wondering when someone would mention s.487(2.2) of the Criminal Code. But nobody did. You'll see why when you read it with me.

Compelled Access

The Criminal Code does not provide authority to compel someone at the scene of the search to give up their password. But it does compel people at the scene to permit access to the device:

487(2.2) Every person who is in possession or control of any building or place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the person carrying out the search

(a) to use or cause to be used any computer system at the building or place in order to search any data contained in or available to the computer system for data that the person is authorized by this section to search for;

(b) to obtain a hard copy of the data and to seize it; and

(c) to use or cause to be used any copying equipment at the place to make copies of the data.

Access at the scene isn't as convenient as possession of the password for later use. But at least this subsection exists.

Pursuant to that subsection, perhaps the officers could have required Mr O'Brien and his wife to unlock their computers and phones. Imaging of the devices would have to occur on scene. Your search team would require some computer forensic expertise.

If you use this provision, I anticipate that some suspects will get legal advice, and then refuse even to unlock the electronic devices. Many defence counsel will say that the provision violates the suspect's right to silence, because it compels them to assist the state in gathering evidence against them.

Back in 2018, I pointed out that arguments of this sort enjoyed some success when police sought assistance orders which compelled suspects to divulge passwords. Boudreau-Fontaine, 2010 QCCA 1108; Talbot, 2017 ONCJ 814. I expected to see more case law on this topic. There has been a little. R. v. Shergill, 2019 ONCJ 54 repeated the view held in Talbot. In Peel Regional Police Service v. Grant, 2022 ONSC 287, the court upheld an assistance order which compelled a witness to divulge her password.

I see problems with these analyses. The Peel v. Grant case distinguished the Shergill and Talbot decisions on the basis that Ms Grant was just a witness, and therefore innocent. I dunno. At the investigative stage, isn't everyone presumed innocent?

But I have a deeper philosophical problem with these decisions.  In the physical world, people who put locks on their warehouses can reasonably expect privacy. But where lawful reasons justify it, a judge can make an order which allows the police to enter any place within the judge's jurisdiction, regardless how many padlocks secure it.

In the virtual world, people who put passwords on their phones can also expect privacy. No police entry without prior judicial pre-authorization. But these rulings create something stronger than privacy. All of the data in the device enjoys something akin to privilege. (see my comments from March 21, 2023)

As a matter of sovereignty - national jurisdiction - it seems odd to me that the simple act of placing password protection on a phone creates a private zone that no judicial order can penetrate.

I think that privacy in digital devices is important. I don't think that they merit the protections of privilege.

If privilege applies, then Canada abdicates sovereignty over password-protected digital spaces. The digital world is a wild place, rife with crime. I think abdicating jurisdiction over that space is a problem.

Therefore, I expect some officer, someday, will test s.487(2.2) as a way to compel a suspect to open a digital device. I expect the trial judge will declare that compulsion to be unconstitutional. I hope that a thoughtful prosecutor somewhere in the country pushes the issue higher, because I remain very uncomfortable with this extraordinarily high level of protection judges are granting to password-protected digital devices.

If you are that officer or that prosecutor, I would be happy to discuss this with you.

2023.03.29 Random Vehicle Stop - Ontario and Elsewhere

Mr McColman , 2023 SCC 8, stopped at a gas station. Police officers noticed his vehicle, and followed it for 200m, intent on stopping it for a sobriety check, pursuant to s.48 of the Highways Traffic Act. Before they turned on any lights or sirens, Mr McColman turned into his private driveway. The officers pulled in behind him.They approached him, and noticed a remarkable absence of sobriety. Although he drove just fine, Mr McColman had trouble walking. He stunk of booze.

At his trial for drunk driving, he complained that the police had no authority to stop him. The Ontario Highway Traffic Act authorizes police to stop drivers who are driving on a "highway" for random sobriety checks. These officers could have stopped him when he was driving on the road, but they didn't. At the time they stopped him he was no longer driving on a highway, but on a private driveway. The Crown pointed out that the officer decided to stop Mr McColman before he reached private property, and argued that once the decision was made, the stop could occur on private property. The trial judge agreed with the Crown, but the Court of Appeal agreed with Mr McColman. So did the Supreme Court of Canada.

I wrote about the case two years ago, when the Court of Appeal gave its decision. I emphasized the importance of reading the legislation that operates in your province, because your power to stop vehicles may differ from the ones in Ontario.

Please forgive me for gloating. The Supreme Court of Canada reached the same conclusion. They examined the precise wording of Section 48(1) of Ontario's Highway Traffic Act and concluded that it only permitted police to perform random vehicle stops on drivers who were driving on public highways at the time that the officer turned on the emergency lights. They made it clear that they might come to other conclusions in other provinces.

This decision is limited to random stops. Ontario officers who have a reason to believe that the driver is committing a criminal offence may stop the driver even on private property. R. v. Lotozky 2006 CanLII 21041 (ON CA)

You should look at the precise wording of your statute to appreciate what your powers of random stop are.

To help you, I did a quick search for case law. I don't guarantee that the table below identifies the best cases for explaining your powers in your province. If you know of a better case which discusses police powers to stop drivers, please let me know. I can add it to the table.

Province	Act and section	Explained in
British Columbia	Motor Vehicle Act s.73	R. v. Simon, 2011 BCPC 345 R. v. Kroot, 2021 BCPC 139
Alberta	Traffic Safety Act s.166	R v Dhuna, 2009 ABCA 103
Saskatchewan	Traffic Safety Act s.209.1	R v Lux, 2012 SKCA 129 R. v. Nolet, 2010 SCC 24
Manitoba	Highway Traffic Act, s.86.1	R. v. Desjarlais and Malcolm, 2018 MBQB 135
Quebec	Code de la sécurité routière, s.636
New Brunswick	Motor Vehicle Act, s.15	O’Kane v. R., 2008 NBCA 58
Nova Scotia	Motor Vehicle Act
Prince Edward Island
Newfoundland & Labrador	Highway Traffic Act, 201.1	R. v. Kean, 2017 CanLII 26893 (NL SC)

2023.03.22 Similar Fact - Crime Statistics

The downtown area of Hamilton suffered a strange rash of random attacks of strangers between March and December 2011. Each victim was walking alone at night when they were stabbed by a black male wearing dark clothing, who then fled. The stabbings were deep, serious, and life-threatening.

Whodunnit?

Some pretty strong evidence suggested Mr Café 2023 ONCA 10 did one of them. But what about the others?

Some soft evidence suggested that Mr Café might have been the guy who did the others. But that wasn't enough.

A police analyst found that random stabbings of this sort were very rare in that area: there weren't any that didn't match this pattern. The judge admitted this evidence, which tended to show that nobody else was running around Hamilton at the time stabbing people. That tended to identify Mr Cafe as the perpetrator.

The jury found him guilty. The Court of appeal rejected his appeal.

Statistical evidence isn't usually accepted in Canadian criminal courts. This illustrates the kind of case in which it might help: statistics can show that a pattern of offences is unusual and distinctive.

2023.03.21 Privilege - How to Figure Out When it Applies

You know - or at least you ought to - that the communications between your suspect and his/her lawyer when the suspect seeks legal advice are "privileged". Equally "privileged" is the identity of your confidential informant.

"Confidential" means that the information should not be shared.

"Privileged" means something more.

For example, medical records are confidential. You can't get a suspect's medical records just by asking medical professionals for them. But a judge or justice will issue a warrant or production order for them if you supply adequate grounds in a properly-prepared written application. If you lawfully obtain confidential information, it becomes admissible in a trial. And the prosecutor can send a subpoena to the medical professional, and compel them to testify at trial.

But the judge or justice will baulk if you ask for a lawyer's records of what the client said when seeking legal advice. Even if the prosecutor got a subpoena for the lawyer, the lawyer won't  testify about those "privileged" communications, and the judge won't compel the lawyer to discuss it (unless someone's life is in peril).

If you obtain privileged information, you can't use it in court.

People who obtain privileged information can't be compelled to produce it to others, nor can a subpoena compel those people to reveal that information in a court room. A defence lawyer cannot be compelled to reveal what the defendant told him or her about the offence unless someone's life is at stake. Equally, a police officer cannot be compelled to reveal the identity of an informer (again subject to very rare exceptions).

But how do you tell which confidential information enjoys privilege?

Mr Chatillon, 2023 SCC 7 confessed to a counselor that he sexually-abused a 4-year old child. He confessed entirely voluntarily. He did so in the process of seeking help to beat his substance addictions. He explained that he also wanted help for his sexual deviance. The counsellor referred him to experts. He told them everything. The psychiatrist told him that he would only get better if he was completely honest. The psychiatrist referred him to group counseling. The group therapist told him that there were limits to confidentiality, and that she must report the offences to the police. She obtained his consent to disclose the counsellor's notes to the police. Those notes sunk him.

Once facing criminal charges, Mr Chatillon complained of the unfairness of the prosecution. He was diligently trying to cure himself of addiction and sexual disorder. Society should encourage him, not punish him, for trying to make himself safe. He complained that he turned to professionals who, he expected, would keep his problems confidential.

Of course, once police lawfully obtained confidential information, the prosecutor could use it in court.

Mr Chatillon's lawyers argued that it was privileged, and could not be used in court.

The test in Canada comes from a revered American legal scholar named Wigmore. Wigmore's formula for how communications become privileged goes like this:

1. The communications must originate in a confidence that they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
   

The Supreme Court of Canada agreed with that formula. See, for example, R. v. McClure, 2001 SCC 14 at para 29.

The trial judge didn't think that items 1, 2, or 4 were satisfied. Two of three judges in the Quebec Court of Appeal disagreed. [Decision in French] They were particularly concerned about the unfairness of busting a guy who earnestly wanted to control his offending. They said that triggered #4: it is more important for society that sex offenders seek help than it is to convict them.

But the third judge of the Quebec Court of Appeal pointed out that regardless whether the four conditions for privilege were made out, Mr Chatillon consented to the disclosure of the confession to the police. That terminated the privilege.

Most of the judges of the Supreme Court of Canada agreed.

They did not say that all - or none - of the communications between the sex offender and the therapists were privileged. They left that thorny question for another day.

I focused this discussion on how communications become privileged. Beware of this concept of waiver of privilege. That concept can get tricky. Don't assume that privilege ended just because your confidential source says "I don't care any more about confidentiality".

If your investigation leads you to evidence in a therapist's confidential notes, beware of privilege. You'll want to be very careful to document how the evidence came to you. Consent matters, whether from the suspect or from the victim.

2023.03.03 DNA Ain't Proof (By Itself)

Three or four masked intruders invaded Mr Iten's home, and robbed him violently. They took his truck.

11 hours later, police found that truck, abandoned and locked.

Under the driver's seat, they found a cigarette butt bearing a single DNA profile which matched Mr Metzger, 2023 SCC 5.

Was Mr Metzger one of the intruders?

The trial judge thought so. So did the majority of the Court of Appeal.

A majority of the Supreme Court of Canada felt that there was too much opportunity for an uninvolved person to have dropped the butt in the car.

They pointed out that the victim often left the car unlocked, implying that Mr Metzger might have got into the car some time before the offence.

They pointed out that 11 hours passed between crime and recovery of the vehicle, implying that perhaps the felons picked up an innocent passenger after the crime.

There was another shred of evidence. The victim believed that heard the name "Metzger" mentioned during the crime. Considering his head injuries, and the risk that he heard the name later, and formed a false memory, the majority did not think that it could rely on that evidence.

As a prosecutor, whenever I had a case that relied solely on DNA or a fingerprint to prove who did the crime, I always felt uncomfortable. I wanted something more, such as evidence that:

• the suspect lived or attended somewhere near the crime at the time in question;
• nobody but the felon could have placed that DNA or fingerprint in that location;
• the suspect recently committed identical offences; and / or
• the suspect had a unique motive to commit this offence

Whenever you get this kind of case, you should always attempt to get a statement. If there's an innocent explanation for the DNA or fingerprint, you want to know what it is at the earliest opportunity. If it's true, then maybe someone else committed the crime. That's something you really want to know.

2023.02.19 Warrant Drafting - Reciting the Circumstances of Previous Investigations that Led to Acquittals

Don't mention unconstitutionally-obtained evidence in an ITO unless you need to; and don't rely on unconstitutionally-obtained evidence to justify the issuance of a warrrant.

Back in 2017, police found lots of drugs in the possession of Mr Shah, 2023 ONCA 103. He beat the charges by complaining that the police obtained evidence in violation of Mr Shah's Charter rights. The judge agreed.

In 2019, police received new information that Mr Shah was dealing drugs. They sought a warrant to search his place.

In the ITO, the affiant mentioned the 2017 drug investigation, and the fact that Mr Shah was acquitted at trial by reason of a Charter breach. The affiant did not mention that the evidence was obtained unconstitutionally.

Defence cried foul: the issuing justice should not have been told about the drugs in Mr Shah's possession back in 2017.

Defence counsel was right. Inclusion of that information led to lots of litigation, but Mr Shah was convicted anyway of the new matters.

It may be that the affiant never knew the exact reason for Mr Shah's acquittal for the 2017.

If your application doesn't need to mention an investigation that led to an acquittal, then omit it. Judges treat acquittals as evidence of innocence.

If your application must mention the details of an investigation that led to an acquittal, then if those details reflect badly on the defendant, you must mention the acquittal.

If you don't know whether a prior investigation led to a conviction or an acquittal, then find out.

If the prior investigation led to an acquittal because a judge determined that police obtained evidence in breach of your suspect's rights, then avoid mentioning that evidence if at all possible.

If the obligation of full disclosure compels you to mention:
- circumstanes discovered in an investigation that led to an acquittal, or
- evidence obstained unconstitutionally,
you can mention the details, but in the same paragraph, ask the justice of judge not to rely on the information in that paragraph.

Don't use this technique just to hint to the justice that the defendant is a bad person. Tempting though it may be, that could trigger the result defence hoped for in this case.

2023.02.19 Search of Electronic Devices - What to Do when you Find Unexpected Evidence

Does discovery of unexpected evidence during the execution of a search warrant oblige you to stop searching, and obtain a new warrant?

No.

But continued searching creates a trap which you must take care to avoid. Getting a new warrant is a good idea.

Cpl. McGregor, 2023 SCC 4 creeped out a work colleague. The colleague discovered recording devices in her home. She suspected Cpl McGregor. Her complaints led to an investigation. The investigation discovered good reason to think that Cpl McGregor installed the devices in the woman's home, and that searching Cpl McGregor's home would discover evidence of voyeurism and interception of private communications.

Cpl McGregor worked for the Canadian Armed Forces at Washington DC. He lived in the USA. No Canadian court could issue a warrant to search his place. The investigators asked local police to apply for a warrant there.  Cpl McGregor enjoyed diplomatic immunity. No American court could issue a warrant to search his house without consent of the Canadian government. Canadian military police obtained a "diplomatic note" which granted that permission.

Washington police got a search warrant to search for electronic devices and to analyze them in the residence. A team of local police and Canadian military investigators searched Mr McGregor's house. They found electronic devices. They started triaging them. They found evidence of child pornography and a video of Cpt McGregor committing a sexual assault. They did as much triaging as they could, seized relevant devices, and left the residence within the time frame permitted by the warrant.

The Canadian investigators wound up with the devices. (The decision does not explain how they did this lawfully. I wonder how they did that.) They obtained Canadian warrants to analyze the devices for evidence of all four offences that they now knew about: voyeurism, interception of private communications, sexual assault and child pornography.  They found evidence which led to his conviction on all of those offences.

Cpl McGregor complained that during the first search, when the police hit evidence of offences that did not appear on the face of the warrant, they had an obligation to stop searching, and to get a new warrant.

"Rubbish!" said the court.

Um.

Okay, they didn't actually use that word.

Here's what  they really said:

"the discovery of unforeseen evidence does not invalidate the authorization to conduct a search for the purposes outlined in the original warrant." (para 36)

"Discovering evidence of an unrelated offence neither authorizes police to begin searching for evidence pertaining to that unrelated offence nor requires them to entirely cease their search as to what the warrant authorized them to search for." (para 89)

As long as you keep looking for what the warrant authorizes you to seek, you can continue the search.

But that creates the trap.

Suppose you started by looking for evidence of voyeurism, and you discovered evidence of child pornography. If you continue searching for evidence of voyeurism, you might find more child pornography. If so, it looks like you started searching for child pornography. If the warrant didn't mention child pornography, then it looks like your search went beyond the lawful parameters of the warrant.

For that reason, stopping the search and obtaining a broader warrant is a good idea. It shows the court you tried hard to get lawful authority to search. It ensures that your investigation is complete, because you got authority to search for all of the contraband that the device might contain.

But sometimes, you don't have time to stop your search and get a new warrant.  In this example, the warrant that the American judge granted only permitted the officers to occupy Mr McGregor's residence for a short time. It only permitted the investigators to analyze the devices in place to determine what to seize. These investigators couldn't stop and get a new warrant.

When you have lawful authority to search for evidence of offence A, and you encounter evidence of offence B, definitely seize and document the evidence you found about offence B.

It doesn't matter whether you're searching a house or a cell phone.  If you decide to keep searching, you would be wise to document how you continued to search only for evidence of offence A. But in my opinion, you need scrupulous clarity when continuing a search of an electronic device.

2023.02.17 Leaving Home - Conduct of Canadian Cops on Foreign Soil

The case of Cpl. McGregor, 2023 SCC 4, described above, spends lots of time discussing what rules apply to Canadian investigators who work abroad.

The majority of the court ducked the question.

The minority wanted to revisit a previous decision called Hape. For those of you who investigate abroad, the judicial comments hint that the Charter does not confer Charter rights on people outside Canada, but it might continue to limit a Canadian investigator's behaviour even when they leave the country.

I think that means that the Canadian that you investigate in a foreign country does not enjoy a Charter right in that foreign country to get legal advice after some foreign agency arrests him. But it may permit a Canadian court to exclude evidence obtained from your target if you treated the suspect unfairly, or if you took unfair advantage of local laws or treatment of the suspect to get incriminating evidence.

Regardless of local custom, you must remain squeaky clean for Canadian courts.

This topic didn't come up much in my career. Those of you who do travel might want to tackle the minority decision. It's pretty abstract, and it doesn't reach a clear decision. It does hint at the direction that the court will go.

2023.02.15 Identity - So Basic But So Essential

Three guys beat up Mr Houle over a drug debt. They confined him in his house, and demanded that he sign the house over to them. A neighbour noticed trouble, and called police.

When police arrived, they found Mr Houle and three guys in the house. Mr Houle was in bad shape. One of the blows broke the right orbital bone in his face.  That's the bone that supports the eyeball.  Mr Houle couldn't see very well.

Mr Houle named two of the attackers - they were Neil and Stephan Cantrill. But he didn't know the third guy that attacked him.

The police found Neil and Stephan Cantrill in the house, along with Mr Lowry, 2023 BCCA 60.

Was Mr Lowry the third attacker, or had that guy left, and someone else entered?

Mr Houle's description of the third man didn't entirely line up with how Mr Houle appeared.

The investigators did some good work. They photographed the three men that they arrested at the scene. They noticed blood on Mr Lowry's jeans. The DNA lab matched it to the victim.

Defence complained that the officers should have done a photo lineup, to confirm that the police arrested the right guy.

Defence suggested that the Mr Lowry in the court room might not be the man that the police arrested at the scene.

These arguments didn't work on this case, but they might in other cases.

When you arrest someone for committing a crime against a stranger, identity is always in issue. Sometimes, that notion seems odd. In this case, the officers arrested Mr Lowry in the victim's house, during the offence. Even still, defence raised arguments that the police got the wrong person.

One way to keep this straight in your head is to distinguish between "culprit" and "suspect".

The "suspect" is the person you arrested because you believe that he/she committed the crime. But the "culprit" is the person who actually committed the crime. Because the difference between belief and proof is evidence, keeping this distinction clear in your head reminds you to gather evidence which proves accuracy of your belief.

Basic steps, such as photographing the appearance of the person (not just his/her face) helps identify the culprit. Only when you keep that distinction in your mind do you realize that you sometimes need to go deeper. Like presenting photo lineups or ordering DNA tests.

2023.02.03 Warrant Drafting - Innocent Possibilities Don't Supplant Guilty Probabilities - Insecure WiFi

Here's a deck of cards. You can shuffle it as much as you like. Let's make a bet. If I draw the 2 of clubs, you pay me $100. If I don't, I'll pay you $100.

Would you take that bet? I expect most of you would. (Except for the kind ones, who don't want to take unfair advantage of a simple guy like me.)

There is a possibility you will lose. But there is a higher probability that you will win.

When asking a justice to issue a search warrant, it does not matter that there is a possibility that the crime never happened, or that the search will come up dry, so long as the evidence establishes that probably the crime happened, and probably evidence will be where you propose to search.

A judge convicted Mr Illa , 2023 ONCA 75 of accessing and possessing child pornography. He complained to the Court of Appeal that the warrant that the police obtained should never have been granted. He tried to confuse the court into thinking that a possibility defeats a probability. He tricked the trial judge, but the appeal court figured it out.

The decision also illustrates the importance of articulating why you think that the evidence is there.

In 2015, investigators learned that an IP address linked to Mr Illa's mother downloaded child pornography through an email account linked to Mr Illa. For reasons not mentioned in the decision, no investigation led to searches or arrests.

In 2018, investigators learned of further downloads of child pornography to an address linked to Mr Illa's mother's business. Officers watched him and his mother going to their shared home and to her business.

They applied for and obtained warrants to search both locations for child pornography. They found child pornography.

At trial, the defence lawyer asked the investigator whether the IP addresses served data to a secure or an insecure WiFi router. The investigator didn't know. The investigator agreed that if an insecure router were connected to the IP address, then anyone in the vicinity with a smart phone could download the child pornography. The fact that pornography arrived at that IP address therefore did not mean that pornography would necessarily be found in the building.

The trial judge agreed. But because the ITO described the 2015 investigation, the trial judge found that the ITO explained why, probably, the Illas were responsible for the 2018 downloads.

The Court of Appeal disagreed with the defence suggestion.  Just because there might be an insecure WiFi router at the IP address does not mean that there was an insecure WiFi router there. Even without the 2015 information, the evidence available to the officers established a probability that the Illas were responsible for the downloads.

Curiously, the officer who drafted the ITO omitted any link between the 2015 information and his belief that the Illas downloaded the child pornography. The judges relied on it anyway. It would be wiser to include such information when justifying your beliefs. For example:

"The downloads of child pornography to an IP address at the Illa business at the times described above makes me believe that computers in that location or the Illa's residence will contain digital copies - transient or permanent - of the child pornography, and information tending to identify who was responsible for downloading it.

The 2015 information linking the Illas to similar downloads strengthens my belief that the Illas or someone close to them has an interest in such material, and therefore that digital devices in their business or home will contain the data mentioned above."

This distinction between possibility and probability can arise in every context, not just routers with insecure WiFi.

I see no harm - and much good - in mentioning the possibilities which undermine your ITO:

"Confidential Source A confessed to lying to his/her handler on one of the 5 previous occasions that s/he gave information. While it's possible that Confidential Source A lied this time about the drugs in the residence, I believe it is more probable that s/he didn't because the hander changed the agreement between them. After the lie, the handler stopped paying for tips unless subsequent police investigation confirmed them. And thereafter, police confirmed each of the three tips that Confidential Source A gave." (emphasis added)

2023.02.03 Business Records are Valuable Hearsay

When a witness looks up their bank records or phone records to answer your questions, they introduce a complication to the evidence. When those records contain the key evidence, you want those records, not just the statement of a person who looked at them.

Mr Li, 2023 BCCA 47 worked at a massage parlour.  Three female clients independently complained that a 50-year-old Asian male fondled intimate parts of their bodies without first obtaining their consent. Some of them said he went by "Tom".  Mr Li's given name was not "Tom".

A police officer went to the massage parlour and asked the staff to produce records of the visits of the complainant, and Mr Li's work schedule. She produced them on a computer screen. The officer photographed the screens that showed his work schedule, two of the complainants' bookings.

The third complainant figured out what date she attended the massage parlour by looking at her financial records for the payment transaction.

At trial, the photographs of the business records established that Mr Li worked at the massage parlour on the days that two of the complainants attended.

But the evidence that the third complainant worked on a day that Mr Li worked was too thin. It relied on hearsay. Because the prosecution did not tender the banking record, the court did not receive reliable evidence of the date on which the third complainant attended for her massage. That gap caused problems in proof of the third woman's complaint.

I thought that the investigator was wise to photograph the computer screen as a way of preserving the evidence. Some employers might destroy evidence to protect their employee and their reputation.

However, I worried that photographing the computer screen might affect the privacy of other people who attended the massage parlour.  I thought that a production order might have been a more prudent way to get the evidence of when Mr Li worked at the massage parlour, and what dates the complainants booked their appointments.

Most of all, it struck me that this illustrates the importance of drilling down to the key evidence. If a date or transaction really matters, and a witness needs to refer to a document in order to give you that date or transaction, then get the document. That's the evidence.

2023.02.02 Keepin' safe and Carryin' Cell phones - Safety Searches and Prompt Access to Counsel

When I started reading about Mr Dhillon, 2023 BCCA 38, I got the wrong idea. Mr Dhillon took off when cops showed up, I thought this case would travel the same legal path as Wilkinson (see 2023.01.08). Arbitrary detention. Inferences cops can or can't draw when people act skittish.

Wrong.

Like Mr Wilkinson, Mr Dhillon lurked in the worst part of town. When two cops drove by, he took off in the opposite direction.

Unlike Mr Wilkinson, Mr Dhillon drove a car. He drove it too fast. The speed limit in the laneways of downtown Vancouver is 20km/h. That gave the officers a reason to stop him.

But speed wasn't what interested the officers.

Mr Dhillon stopped his car in a car lot where the officers had encountered many stolen vehicles. Mr Dhillon, in his early 20's, could not be the registered owner, who was 68. And when Mr Dhillon looked at the officer in the passenger seat of the patrol vehicle, he looked alarmed and surprised.

The computer also reported to the officers that the vehicle had been taken without consent on a prior occasion, and turned up in a recent call involving an assault with a weapon.

Mr Dhillon did stop the car when signalled to do so. But his hands shook when he produced the insurance documents. He could barely hold his cigarette. His eyes darted back and forth. One of the officers thought this meant he would soon run or attack.

The officers got him out of the car. He continued to show nervousness.

The officers searched him. He "bladed" his body to block their view of or access to the man-purse that hung from his side.

They put him in handcuffs, and checked his bag. That's where they found the handgun.

This case turned into a discussion about safety searches.

At trial, defence complained that the officers lacked grounds to search Mr Dhillon's man-purse. Defence pointed to a confusing Supreme Court of Canada decision which said that police can do a safety search only when they have "reasonable grounds to believe" that their safety is at risk.

But we travelled this legal path before in the case of McKenzie, 2022 MBCA 3 (see my comment from last summer 2022.08.27)

The BC Court of Appeal reached the same conclusions as the Manitoba Court of Appeal: The confusing Supreme Court of Canada decision didn't really set an untenable standard. Police can do safety searches for weapons when the specific circumstances suggest that the detainee may possess a weapon and may use it against the officer or some other person.

I won't repeat the analysis I gave of that decision. However, the Dhillon provides you with another opportunity to challenge yourself and your fellow officers to articulate why these particular circumstances justified a reasonable concern that Mr Dhillon possessed a weapon. Don't just recite the facts and then conclude "I think it's reasonable to fear that Mr Dhillon possessed a weapon that he might use against police." Try to articulate why each little detail pushes you closer to that conclusion.

But wait. There's more!

After the officers found the gun, they arrested him. He wanted legal advice. The officers carried only their personal cell phones. They did not want to give Mr Dhillon their personal phones to make that call. And besides, downtown Vancouver isn't a very private place to get legal advice. They called for a paddy-wagon to take Mr Dhillon to the police station.

Mr Dhillon complained that the police failed to give him access to legal advice sufficiently promptly.

In the circumstances of this case, the judges gave the officers a pass. The judges agreed that officers shouldn't need to share their personal lives/phones with suspects. They observed that when police expect to arrest people, they need to plan ahead for it by arranging ahead of time for prompt access to counsel at the scene. (see para 108). They accepted that these officers did not expect to arrest Mr Dhillon. They accepted that if officers can quickly send someone to a cell block to get legal advice, they don't need to provide access on the street. Vancouver patrol officers may find some comfort in this decision. I suggest that they read it.

I dunno. The logic at the end of the decision left me with a queasy feeling in my gut.

Isn't the purpose of a patrol vehicle to supply officers with the equipment that they need in their daily duties? Don't officers driving patrol vehicles expect to arrest people in their daily duties? If so, then in places with good cell service, like Vancouver, patrol cars ought to carry phones that can give prisoners access to legal advice.

In the long run, I would hope that senior officers work out how they can provide prisoners access to legal advice from a patrol car. If it can't be done for reasons other than money, then the senior officers should explain clearly to patrol officers why. When defence counsel complain, as Mr Dhillon's lawyers did, that police failed to provide immediate access to counsel, patrol officers can explain to judges why cell phones in patrol cars don't work.

2023.01.23 Waldock's (semi) Retirement

At the end of this week, I will retire from the BC Prosecution Service.

I have an abundance of projects, legal and otherwise. I intend to continue to research and write about criminal law. Therefore, this website will continue for a few more years, and I will continue to be interested in your emailed questions.

Thank you, to my many colleagues in the BC Prosecution Service over the years. You have been great friends and supports.

2023.01.18 British Columbia's Justice Centre has New Rules for Telewarrants

Last week the Chief Judge of the British Columbia Provincial Court announced some new rules for applications for search warrants, telewarrants and other judicial pre-authorizations.

These respond to the Criminal Code amendments in Bill S-4 that I mentioned back in December.

The court wants telewarrant applicants to submit materials by secure file transfer ("SFTS"), instead of FAX.  Expect some growing pains at first; but in the long run this should improve the experience of applying for and receiving warrants and production orders.

Oaths and affirmations are now optional. When making your application by telewarrant, the Criminal Code now permits you, instead of swearing an oath, to make a statement in writing: "all matters submitted in support of this application are true to my knowledge and belief".

2023.01.08 Flight from Cops - Does it create Reasonable Grounds to Suspect?

Can cops detain people just for being skittish of cops?

Mr Wilkinson 2023 BCCA 3 and a friend walked late at night in the hot zone where most of the town's crime occurred. They wore dark clothes, and Mr Wilkinson carried a backpack. They "looked around a lot", giving the impression that they were "skittish".

Two plainclothes officers in an unmarked police car drove by, and looked at them.

The two men fled in opposite directions. Wilkinson ran into a vacant lot.

The officer driving the car turned it around and aimed the headlights at Mr Wilkinson. He started to run out of the lot. The officers got out and yelled "stop, police", but he kept running.

Mr Wilkinson turned and ran back into the lot. He tripped over a fence and fell down. When told to stop, he replied "okay", but kept running. He lost his shoes and his backpack as he fled.

When the officers caught him several minutes later, they handcuffed him.

And asked him why he ran.

He said he feared getting shot.

An officer backtracked, found the backpack, and searched it.  It contained lots of drugs and cash.

4-6 minutes after the detention, the officers arrested him and explained his rights to him.

At his trial, Mr Wilkinson complained that the police breached his rights:

1. They had insufficient reason to detain him because they had no specific crime in mind when they chased him. The trial judge agreed.
   
2. They had no right to search his backpack. The trial judge disagreed.
   
3. They should have giving him his legal rights before asking him questions. The judges agreed, but didn't care much about it.
   

Inferences from Flight from Cops

The Court of Appeal found that in these circumstances, the officers did have reasonable grounds to suspect that Mr Wilkinson was engaged in crime. They disagreed with the trial judge that the officers needed to identify a specific crime. They noted that fleeing from police provides a very strong clue.

They did not say that every time someone flees police, the officers automatically have reasonable grounds to suspect that he is committing a crime.

Some folks, as a result of unhappy experiences in the past, will avoid police regardless whether they are involved in crime or not. You probably know some folks for whom this is a vicious circle. If every time they walk away from a cop, they get harassed some more, they won't ever trust police.

Therefore, exercise the power of detention considerately. Look for reasons why, in this situation, why you think crime is afoot. If you have trouble identifying a specific crime, then think twice: what class of crimes do you think are happening?

Absence of knowledge does not get you there. The judge won't like it if you say: "I didn't know what he was up to, and so I stopped him."

Explaining your Inferences

In this case, the officers testified that "everyone" in this town knew that the unmarked car belonged to police. They believed that Mr Wilkinson and his friend recognized the police vehicle.

The trial judge didn't buy that testimony. He complained that the officers provided no evidence to explain why Mr Wilkinson in particular would recognize the car.

With respect, I don't think that the trial judge fairly interpreted this point. The question isn't whether Mr Wilkinson recognized the vehicle, but whether the officers had good reasons to think that the men on the street recognized the vehicle.

To be fair to the officers, it looks like they tried to explain to the judge why their belief was reasonable. They recounted its long use in the town, and how sometimes, they heard people on the street identify it as a police car. I suspect that they could have explained this point with a more focussed assertion. Instead of saying "everyone" recognized the car, I think that they would have done better by saying that they believed that many people involved in criminal activity in that town now recognized the car.

Blame the Evidence

I sometimes use this soapbox to promote my idea of "blaming the evidence". When explaining your inferences, identify how each observation or detail, individually or with others, forced you to the conclusion you reached.  Try using phrases like "X suggested to me" or "Y made me think". For example:

1. Most of the crime committed in town occurs in that area. And most of that crime occurs at night. That made me interested in all the people I saw there.
   
2. Drugs and property crime are among the most frequent; but we also find a fair number of people packing weapons. Mr Wilkinson's backpack made me think that he might be involved in such crime because backpacks are so convenient for - and so often used - in carrying drugs or stolen goods.
3. Mr Wilkinson's skittishness - looking all around him as he walked - made me think that he feared some kind of adversary.
4. Many innocent people would feel skittish there - it's a bad part of town.
5. But when we identified ourselves as police, Mr Wilkinson fled. The people who fear muggings gravitate gratefully towards police officers who talk with them at night. But Mr Wilkinson fled. That made me think that Mr Wilkinson did not fear criminals, but police.
6. That fear of law enforcement made me think that his skittishness arose from doing something that was illegal. I didn't know exactly what, but the backpack made me suspect it involved drugs or stolen property.

Legal Rights on Detention

When you detain someone, you must explain why, and offer legal advice. You can't question the suspect.

These officers gave the most vague explanation for the detention: "Why did you run away?"

Under these circumstances, where you act on suspicion, and you don't know the specific offence, what should you say?

Perhaps it's a good time to spell out your observations. After all, s.10(a) requires you to explain the detention:

"I stopped you because you look like you've got something to hide from police. You ran away when you saw us. This is the area and time of day when people deal drugs and steal stuff. Your backpack looks like the kind of thing that would carry drugs or stolen stuff."

Some folks will volunteer an explanation. Beware.  You haven't dealt with s.10(b) yet. The judges all agreed that there was a technical breach of that section in this case.

Searching the Backpack

If Mr Wilkinson had not dropped the backpack, the officers would have had no authority to search it for evidence. You can't search for evidence incidental to a detention.

But the trial judge found that he "abandoned" it. Therefore, he lost his expectation of privacy.

"Abandonment" does not occur when the suspect drops the object by accident, or in response to a police command.

As for searching the backpack for officer safety, that's different.  Look for what I wrote on 2022.08.27.

2022 Developments

2022.12.29 General Warrant - Best Interests of the Administration of Justice

General warrants under s.487.01 differ from regular search warrants issued under s.487.

A justice will issue you a regular search warrant if evidence justifies a reasonable belief that there is evidence of an offence or offence-related property in a specific place, building or receptacle. When you execute the warrant, you must do so overtly. No sneakin' around! Bring the warrant and give a copy to the people in the place.

A general warrant permits you do all kinds of things that will gather information about offences committed or yet to be committed. You can even execute them covertly. Including sneakin' around. (Give notice later to the people affected.)

To get one of these warrants, you need to satisfy a judge that an offence was or will be committed, executing the warrant will produce information, granting the warrant is in the "best interests of justice", and there is no other statutory authority that would permit you to do what you want to do.

What are "the best interests of justice"? A balancing between the public interest in investigation against the right to privacy.

Police in Thunder Bay learned of a drug trafficking ring. Members of the group frequently visited a storage locker. The officers figured that the members of the group stashed their drugs there. The officers sought a general warrant, so that they could find out when the locked contained drugs and when it didn't, so that they could best identify all the members of the group, and to best time their arrests.

The bust succeeded. They found drugs and they caught some drug traffickers, including Mr Brown, 2021 ONCA 540.

At Mr Brown's trial, defence argued that the police should have sought for a search warrant, and seized the drugs.

The judges rejected that argument: the objective of catching all the felons was a valid reason for sneakin'.

His lawyer pointed out that the trial judge, when reviewing the warrant, failed to consider whether the best interests of justice would be served by granting the warrant.

That could have been a problem, had it not been for the wisdom of the officer who applied for the general warrant

He wrote that "he believed it would be in the best interests of the administration of justice to issue the proposed general warrant because the investigation was ongoing and the execution of a conventional warrant would likely terminate the investigation, as the main targets would be immediately notified that they were the subject of a police investigation."

Perhaps not a perfect explanation why the public interest in collecting evidence outweighed the privacy of the storage locker, but at least the officer explicitly raised the subject. This reference to sufficed for the appeal court judges to uphold the trial judge's conclusion that the warrant was properly issued.

When applying for a warrant, spell out how the evidence establishes each precondition for the warrant you seek. When applying for a general warrant, include an explanation how it serves the "best interests of justice". In this case, one might put it this way:

I believe that the proposed covert searches of the locker best serve the interests of justice. Whether overtly or covertly, police officers will intrude on the privacy of the same locker and recover the same drugs. But a overt search will alert the targets of the investigation, who will doubtless take steps to separate themselves from the drugs before police can identify them. Covert searches will intrude slightly more on the privacy of the locker because of the secrecy and the multiple entries.  But covert searches will recover considerably more evidence of the offence. Covert searches will permit the investigators to determine when drugs are in the locker, and who put them there.

2022.12.27 Right to Counsel - Early Delays Increase Urgency

Of course, you know that the people you arrest are entitled to get legal advice "without delay" because the Charter guarantees it.

Who delivers on that guarantee?

You.

And of course, in real life, unavoidable delays occur.

When unavoidable delays accumulate, you might become complacent. Judges don't like that.

Some judge released Mr Desilva, 2022 ONCA 879 on conditions including:

• surety bail.
• house arrest.
• no cell phones.

Mr Desilva could leave his house if accompanied by a surety.

What's a surety? A surety is a member of the public who promises to the judge that they will keep the defendant in line, or else the court can take lots of their money. Here are some explanations.

Mr Desilva's surety was a woman.

At around 1:45am, police watched Mr Desilva get out of a Mercedes near a nightclub. I doubt that the judge had nightclubbing in mind when releasing Mr Desilva.

The officers didn't see a woman get out of the car with him, but there was a woman on the sidewalk about 5' in front of him. But she walked away when he stopped to talk to the bouncer. Could they arrest him for breach of his bail?  Yes. Even if the woman was his surety, she wasn't accompanying him.

The officers arrested him and told him about his right to counsel. Good!

He wanted legal advice.

The officers asked him about his surety. Bad! You can't attempt to elicit evidence until after the suspect gets legal advice.

The officers couldn't give him access to counsel at roadside. To do so would require them to:

1. give him a cell phone, which would put him in breach of bail;
2. put him in the police car, which was equipped with cameras and recording devices.

When officers searched Mr Desilva for officer safety, they found lots of cocaine and MDMA in Mr Desilva's clothes. The officers drove him to the police station. Unfortunately, lots of other officers arrested other folks. The officers waited an hour before booking him into the cells.

Then, for some unexplained reason, it took an hour to put him in touch with a lawyer.

At the drug trial, defence complained about the arrest and the delay connecting Mr Desilva with his lawyer.

The judges concluded that officers made no errors arresting him.  The judges didn't like how the officers handed the Charter guarantee about legal advice. The questions were bad. The unexplained delay after arriving at the police station bothered them. The Crown dropped the breach of bail charge because of the dumb questions. The judges forgave the slow delivery of legal advice. Mr Desilva's drug convictions survived appeal.

I mention the case to remind officers that slow connection to legal advice can undermine good investigation. You swore to enforce the law. One of the laws you swore to uphold includes this Charter guarantee. When busting bad guys, you must still deliver on that promise.

2022.12.24 Pedigrees of Informants - Criminal Records not Always Required

Confidential informants told police that "Amber" supplied drugs to street-level dealers. Amber Bridgen, 2022 BCCA 429 fit the descriptions they gave of this person.

Surveillance suggested that the tipsters spoke truth. Over a 3-month period, investigators watched her on 10 separate days. They saw her drive places to meet people briefly, in a manner suggesting that she was dealing. A known dealer possessed a substantial supply shortly after visiting her.

In an application for a search warrant, the investigator failed to mention whether the confidential informants had convictions for perjury or obstructing police. A justice granted the application anyway. Mr Bridgen's house contained lots of drugs.  At trial, defence argued that this omission was significant. The judges disagreed. There is no rule that the criminal records of confidential sources must be provided or that ITO must disclose whether or not an informant has a perjury or obstruction of justice conviction.

If some cases, your application depends heavily upon the honesty and reliability of the tipster. In those cases, you must supply the issuing justice with a pedigree which fairly explains how honest - or dishonest - the tipster is. For example, in this case, if the officers had done no surveillance, then the application had to contain fulsome pedigrees of the tipsters.

But in this case, the police surveillance by itself justified the issuance of the warrant. To the extent that the application needed to provide corroboration of the tipsters, the surveillance supplied it. In these circumstances, a minimal pedigree sufficed. See para 35.

Don't assume you no longer need pedigrees if surveillance confirms a tip.

Why? Because your application may rely more heavily on tipster than you think. We all suffer from confirmation bias. This psychological foible causes investigators to over-estimate the strength of the evidence listed in their ITOs.

But if you collect compelling evidence from other sources, and if your confidential source is particularly vulnerable to discovery, then this offers a solution. You could write: "Because I think that the other evidence justifies issuance of this warrant, I ask you not to rely on the information given by Confidential Source A". If you can write that, and still get your warrant, then you don't need a pedigree for that source.

2022.12.24 Search Warrant - Identifying the Place to be Searched

The investigation of Ms Bridgen, 2022 BCCA 429 (described above) led investigators to a single-story house. Ms Bridgen always entered through the back. Municipal records listed two owners. No vehicles registered to the owners of the house parked in the driveway. The investigators figured that Ms Bridgen lived there, renting it from the owners. During surveillance, officers got the impression that the house might be divided into two separate suites, but they didn't know for sure. They didn't raise this as a concern in their application for a search warrant.

The officers had grounds to believe that Ms Bridgen possessed drugs in her residence. What should they do about the possibility of separate suites and separate renters?

They got a search warrant to enter "The residence of Amber BRIDGEN located at 22318 117 avenue, Maple Ridge, British Columbia".

It turned out that the house was divided into two separate suites.  They searched only the back one, where she lived.

At trial, defence complained that the application should have mentioned the possibility of separate suites, so that the issuing justice would limit the search to that part of the residence that Ms Bridgen occupied.

The judges did not think that this omission mattered in this case. The wording of the place to be searched narrowed it to the right suite.

In this case, the investigator wisely worded the place to be searched as "the residence of...., located at ...". They knew who possessed the drugs, and they needed to narrow the search to the place where the drugs would be stored.

Your mileage may vary. Suppose the officers obtained the warrant, and then learned Ms Bridgen resided elsewhere. Executing that search warrant might lead to trouble.

2022.12.23 Santa doesn't need a Feeney Warrant, but You Do

A reader in Nova Scotia brought this case to my attention. I thank him.

Mr Mitchell, 2022 NSCA 77 had a girlfriend. After the relationship ended, she complained to police about his violence.

Knowing that a judge imposed a curfew on him for other matters, the investigators knew when to expect him at home. They attended at 1:00am to arrest him.

An officer knocked on the front door. Mr Mitchell answered. An officer told him that they were there to arrest him. He asked if they had a warrant.

They didn't, and they admitted it.

Mr Mitchell closed the door and locked it.

An officer kicked in the door. Three officers rushed in, and dragged him, struggling, shirtless, and barefoot, out into the chill of a March morning. They got him on the ground and cuffed him. He complained that the incident damaged his hip reconstruction.

Before trial, defence counsel asked the judge to throw out all 33 charges relating to his old girlfriend.

The trial judge agreed. So did the Court of Appeal.

The judges considered the police action in this case so outrageous that it justified dropping charges of domestic violence.

The officers knew that they needed a Feeney warrant to arrest Mr Mitchell in his residence. They didn't get one.

Chasing him into his house did not count as hot pursuit. There were no exigent circumstances either: the old girlfriend was free of Mr Mitchell - indeed, he'd found a new girlfriend by the time that the police arrived. (Hopefully, the new girlfriend is happier with his company than the old one.)

I suspect that lots of you attend homes without Feeney warrants for the purpose of making arrests. You can arrest your suspect outside the home. Unless you have a Feeney warrant, or immediate fears for someone's safety, or hot pursuit, you can't rush in.

2022.12.17 Heads Up! Changes to Legal Applications and Search Warrants

On January 14, 2023, Bill S-4 comes into force. It contains some good news, and some fundamental gotchas.

Good news:

• Production orders become available by telewarrant
• Telewarrant applications will be simpler and more broadly available.
  
• Telewarrants will be available regardless whether an in-person application was possible. You will no longer be required to call the court house to see if a judge or justice is available.

Gotchas:

• The new s.487.093 will add to the old s.29. You must always bring a copy a search warrant with you to give to the person who is present and in control of the building, receptacle or place.
  
• Every time you execute a search warrant, you must provide a notice which explains how to get from the court registry a copy of your report to a justice (Form 5.2).

I need to spend much more time reading this bill. I hope to write more extensively about it soon. If you apply for warrants or authorizations after January 14, 2023, search out training materials to ensure that your documents and procedures are up-to-date.

2022.12.10 Right to Counsel When You're Losing Your Grip

Section 10 of the Charter guarantees that everyone arrested or detained by the state learns why they lost their liberty, and that they get legal advice about what to do about it.

Even people who can't think straight.

When medical people apprehended Mr Berry, 2022 BCCA 389, they had good reasons. It looked like he stabbed his two little children to death and then tried to kill himself in a bathtub. He left a note complaining about his ex-spouse and his mother.

The police took no part in this apprehension. But police had a double homicide to investigate.

The staff at the hospital locked Mr Berry up, but did not tell him about his right to get legal advice. During his time in their care, he asked several people to kill him. He told some that he tried to kill himself.

He complained some more about his ex.

Were those complaints admissible?

There was a clear breach of his right to counsel, but the judges forgave it. The right to counsel in this setting does not protect the right to silence. It simply helps the patient learn how to get released.

The evidence of his suicidal thoughts completed the Crown's case. The jury convicted.

But that leaves me worrying about the psych wards. Unlike you, they probably don't receive frequent reminders about their legal duties under s.10 of the Charter.

You can't control what hospital staff do; but you can remind them of the law. If you find yourself apprehending people under mental health legislation, it wouldn't hurt to remind the hospital staff what they're supposed to do about their patients' legal rights: explain the reason for their detention, offer access to counsel, and let them call a lawyer if they want. If the hospital staff want more information tell them to give this case and my email address to their lawyer.

2022.12.09 Right to Counsel When You're Under the Gun

When you make a demand under the Criminal Code for a driver to provide breath or bodily samples for analysis of undergo a Drug Recognition Evaluation, section 320.28 of the Criminal Code requires you to get the testing done "as soon as practicable".

But every such demand is a "detention" within the meaning of s.10 of the Charter. You must offer the suspect access to counsel, and give that suspect access if s/he wants it.

Some folks behave badly. After such a demand, Mr Hepfner, 2022 ONSC 6064 abused the officers, and even spat in the face of one of them. But he wouldn't say whether or not he wanted legal advice.

What would you do?

The investigators in this case took him to a phone room and put him in touch with a Legal Aid lawyer. That step added 23 minutes to the time it took to test Mr Hepfner's breath.

He blew 200mg%.

At the trial for impaired driving, Mr Hepfner's lawyer complained that the police did not test his breath "as soon as practicable". Defence argued that Mr Hepfner never asked to speak to a lawyer, and therefore, the police did not need to waste time connecting him with a lawyer. Because the investigator wasted time, the breath testing wasn't done "as soon as practicable", and the results should be excluded.

The judges sympathized with the police:

The fact that Cst. Rose “was not getting answers to his questions” did not mean that the appellant was waiving his right to a lawyer. Therefore, he found, it was reasonable for the police to contact duty counsel given the uncertainty caused by the appellant’s silence.

This does not mean that you arrange legal advice for every cantankerous suspect. If they say clearly that they don't want legal advice, get on with the testing.

But if they won't tell you whether or not they want legal advice, putting them in the phone room with Legal Aid may be an efficient way to resolve the question.

Just keep in mind that the breath testing must be done as soon as practicable.

2022.12.03 Police Practices that Conflict with Law - Strip Search or Delaying Access to Counsel

A Manitoba officer sent me this trial decision yesterday. I'm grateful. It illustrates a problem that arises often: mindless obedience to standard practices.

Don't get me wrong. Most police procedures and practices exist for very good reasons. Beware of following them when they conflict with legal rights.

Police searched a residence where Mr Gessen 2022 MBKB 210 stashed the drugs that he kept for sale, and the cash that he accumulated from the business. They found lots of incriminating evidence, but Mr Gessen beat the charges anyway. In a routine kind of way, the officers violated his rights.

The officers arrested him in the afternoon, after they had started their search. They told him that he could retain and instruct counsel without delay. But they delayed that access to counsel until after the search was done.

You can lawfully delay a prisoner's access to counsel if you have reason to believe that the accused's access to counsel could compromise the investigation or endanger police officers.  R. v. Mongomery, 2009 BCCA 41; R. v. Griffith, 2021 ONCA 302.

I guess that such fears often arise so often in drug searches that police officers developed a habit of always delaying access to counsel. The habit became a routine practice.

If so, that's a problem. In Mr Gessen's case, the scene was under control at the time of arrest. Nobody that Mr Gessen called could tip off anyone to flush the drugs or attack the police. The police practice breached Mr Gessen's right to counsel.

The judge didn't like that. But there was more.

The officer who took Mr Gessen to the police station also strip-searched him.

Two officers had already patted him down, and found no weapons. There were no specific reasons to think that he carried evidence of the offence in or under his clothing.

Never-the-less, for the purpose of discovering evidence from Mr Gessen, the officer required him to strip naked. Completely naked. Like he always did after drug busts.

This displeased the judge for two reasons:

• when conducting a proper strip search, police officers should avoid stripping the suspect completely naked. (Sometimes a prisoner forces you into such a situation. Avoid it if you can.) R. v. Golden, 2001 SCC 83
  
• you can't strip-search for evidence unless you have specific reasons to think that the evidence is there. R. v. Ali, 2022 SCC 1
  

Note that you can strip-search a prisoner without specific suspicion if you believe you're going to keep him for a while, in the company of other prisoners. See my comments last month on 2022.11.12 about Mr Francis.

If any of your standard police practices conflict with legal or Charter obligations, stop and think: what are the reasons in this case that I'm doing this? If you have no answer, maybe you should rethink what you are doing.

At the time that I wrote this, I found the Gessen decision published only on a private commercial legal database. I did not find it on CanLII, nor on the court's web page. If you urgently need a copy, contact me. If you wait a few months, I expect that CanLII will eventually publish it too.

2022.11.27 Entrapment on the Internet

Some people fish with a hook and line. Others use nets.

Project Raphael netted 104 men who arranged online to have sex with children.

Some of them complained that police officers entrapped them.

Yup.

Those officers sure did trap them.

But not unlawfully.

Because they did not cast their net too wide.

For those of you struggling to reduce a significant social plague, you might consider a sting operation. Stings usually involve police officers offering people opportunities to commit a crime. But your job is to stop crime, not encourage it. Therefore, the law draws limits on this kind of police work.

If you go online to attract your targets, you must take care to fish in the right waters, and to avoid a by-catch of the wrong species.

Inspector Thai Truong worked in drug and vice enforcement units, where he learned of the commercial exploitation of young girls and women. The more he educated himself about the problem, the more widespread he discovered it was.

He worked first with the young sex workers, attempting to stamp out the problem. But many of them would not cooperate. They feared their pimps, they wanted their drugs, the needed the money.

Inspector Truong then tackled the johns. He and his team posted fake internet ads on sites where the young sex workers posted their ads, using the code-words that the sex trade used to identify underage sex workers.

Lots of folks answered by text. Many of them disengaged when the officers explained that they were underage girls. But lots more continued the conversation. Some were looking for underage girls. Others just didn't care how old the kids were.

After his bust, Mr Ramelson, 2022 SCC 44 asked the trial judge to stay the charge against him. He argued that too many innocent people accessed the webpage where the police posted their ad. The police engaged in "random virtue testing" by exposing them to opportunities to commit a crime. He argued that the police should have focussed their ads in a way that attracted only criminals. And, he complained, the police failed to keep statistics about how many innocent people got attracted to their ads.

The trial judge agreed to stay the charge. The Court of Appeal disagreed.

The Supreme Court of Canada agreed that posting temptations like sex with underage girls needs to be aimed at the people who were looking for that kind of thing, or were indifferent to the age of the sex trade worker.

The court worried that policing the internet this way could stifle freedom of expression; but in the sphere of child prostitution, this effect was not terribly important.

What does this mean for your investigations of other online offences, such as fencing stolen property, gambling or whatever comes next?

If you're going to offer opportunities for people to commit offences, you need to focus your offers to the online "place" and in the style that will connect you to criminals. Try to avoid a large by-catch of non-criminal targets. If you have a big project, keep statistics, so that you can prove that your bait attracted mostly the criminals you meant to fish for.

2022.11.12 Teamwork during Arrest Procedures - Gettin' It Right

This case caught my eye because the officers involved did some good work, but also made some common mistakes. I think it offers an excellent example for discussion at a briefing.

An arrest warrant issued for Mr Francis, 2022 ONCA 729. Attempted murder on July 29. A shooting.

On August 8, an officer found him.

Officer Ma found him driving. Ma pulled him over and arrested him at gunpoint for attempted murder. Officer Ma patted him down, finding only a phone, wallet, keys and change. Officer Ma told him about his right to counsel. Mr Francis wanted legal advice.

Search incidental to arrest

Officer Jackson attended and assisted. Officer Ma told Officer Jackson to search the vehicle incidental to arrest.

Officer Jackson thought that his task was an inventory search. He snooped through it to see what valuables it might contain.

(I pause to commend these officers for their honesty on the witness stand. There was plainly some kind of miscommunication at the scene. I suspect that by the time they reached the court room, they knew there was a problem.  "Fixing" errors on the witness stand can blow up badly.)

During his "inventory search", Jackson found drugs and a handgun behind the front seat.

Jackson stopped searching, and returned to Officer Ma seeking further instructions. Ma directed Jackson to stop searching, pending the preparation of a search warrant.

The court rejected Jackson's idea that it was a lawful inventory search. You can't inventory a car just because you find someone suspicious in it.  The duty to make an inventory arises when you have a statutory duty to seize or impound, and you need to be able to account for what you seized. See R. v. Nicolosi, 1998 CanLII 2006 (Ont CA).

Thankfully, Jackson searched because Ma told him to search. Therefore, the Crown could argue that Ma's decision was lawful.

Was it?

If you arrest lawfully, then you can search a vehicle incidental to that arrest:

1. to the extent that you think that there's some reasonable possibility that it contains evidence of the offence for which you arrested you can search for that evidence;
2. to the extent that you believe public safety is at risk, if you have reason to think that there's something there that would cause harm to police or the public, you can search for that thing.

Plainly, Ma's arrest was lawful. A judge had ordered it.

But were there reasons for Ma to think that evidence of the attempted murder would still be in the car 10 days after the shooting?

The judges had little difficulty with this idea, and did not spend any time explaining why. They found this search was lawful.

You might not be so lucky.

If you find yourself in a similar situation, turn your mind to what powers of search you have. If it's a search incidental to arrest, what evidence do you think you might find? And if you direct another officer to search, maybe explain your thoughts to the other officer, so that they know what they're looking for and why.

If both of you make notes of that conversation at the scene, then at court, you won't contradict each other as Ma and Jackson did.

Right to Counsel

Having learned about drugs and a gun, Officer Ma forgot to tell Mr Francis about the new jeopardy he faced.

After he spoke with duty counsel, Mr Francis made two admissions: the gun was the one used in the shooting incident; and at the time he lived nearby.

Because Ma breached Mr Francis' right under s.10(a) to be told that he was arrested for the gun and the drugs, the judge excluded those admissions from evidence.

Damn! Those admissions might have been useful evidence!

When a prisoner's jeopardy changes, let him know!

Strip Search

During booking-in, officers strip-searched Mr Francis. They found more drugs.

They did the strip-search by the book. The got permission from a senior officer. In a closed room, they removed clothing from him one garment at a time. They never stripped him entirely naked.  Two male officers observed him.

Mr Francis complained that this search did not meet the requirements of a search incidental to arrest. The officers had no reason to expect to find further evidence of the shooting. Considering Ma's initial pat-down, there was no reason to think he carried weapons.

The judges rejected this argument. They distinguished between strip searches incidental to arrest, and custodial strip searches.

Strip searches incidental to arrest must follow the rules of search incidental to arrest, and follow the strip-search protocol.

Custodial strip searches address a different issue.  If the prisoner will be placed with other prisoners, you owe a duty to the other prisoners not to endanger them. You can strip-search the suspect, looking for drugs or weapons, even if you arrested for other reasons. The judges noted that the police already found a gun and some drugs in the car. It was no stretch to imagine that he might carry weapons or drugs on his person.

Epilogue

Mr Francis beat the attempted murder charge. The prosecution withdrew it even before it went to trial.

But the trial judge convicted Mr Francis of offences relating to the gun and the drugs. And the Court of Appeal upheld those convictions.

2022.11.05 Thin Blue Line - Camaraderie, Privacy and Broken Trust

A retired cop named Walton, 2022 ABCA 276 set up a private investigation company. An embittered ex-husband hired him to investigate and harass an ex-wife.

Walton enlisted the help of working police officers, retired police officers and even a suspended police officer. He paid them money.

Some of them used their access to police databases to assist in the investigation and harassment of the ex-wife. Walton paid them. And they harassed her.

Access and a badge gives you power.

And responsibility.

If you're a cop, you've been warned not to turn these things to personal profit or advantage.

Broken Trust

Curiously, it was the suspended cop who blew the whistle. Whatever the misconduct that led to his suspension (and his misconduct working for Walton), he realized that Walton's project was wrong, and reported it to authorities in the police service.

I presume that Walton's police friends got into lots of trouble. A jury convicted him, his wife and the husband of various offences reated to criminal harassment.

Police officers form strong bonds of friendship and trust. This is natural and healthy. When working with hostile people, you need to trust the officers around you. The badge confers power that civilians often fear. The job brings access to private information. The public entrusts you with it because you need it to do your work.

How did this abuse of power and public trust happen?

Power can corrupt. For those it corrupts, it can start small. Your routine access to databases makes accessing them for personal purposes seem so easy, so ordinary.

Those boring institutional warnings that routinely pop up on your screen when you access those databases actually address something real.

I often wish they did not appear on my screen. This case reminds me why they are there.

Privacy

The case of R v Marakah, 2017 SCC 59 taught us that sometimes, the sender of communications still enjoys an expectation of privacy over those communications even after they arrive in the recipient's phone.

The whistle-blower showed internal investigators screenshots of emails he received from Mr Walton.  At trial Mr Walton complained that the investigators breached his reasonable expectation of privacy: Those were private emails! He still expected privacy in them when they landed in the whistle-blower's phone!

On the facts of this case, the court found otherwise. The private investigation was no secret. The ex-wife knew exactly who they were and what they were doing. Mr Walton had no arrangement to keep these communications secret.  Instead, the private investigator swore affidavits in family court about the activities of him and his team. The thin-blue-line kind of trust between members (and ex-members) did not suffice to create an expectation of privacy. No automatic protection of the thin blue line. No secrets there.

This does not mean that a whistleblower can always show you the communications he received from the culprit. It depends on the circumstances of each case. What circumstances? Evidence that the sender of communications expected privacy in them.

So when a complainant comes to you asking to show you texts or emails they received from the subject of concern, take a moment or two to find out whether the complainant ever promised to keep them private.

2022.10.15 Questioning Suspicious Witnesses - Voluntariness

When I read Lafrance earlier this summer, I figured that the Supreme Court of Canada would soon tackle the legal issue of voluntariness. Last Friday, they delivered R. v. Tessier, 2022 SCC 35

The judges didn't change the law in the ways that I feared. I'm still working on a full explanation.  The main point is:

If you have reasonable grounds to believe that the person you're speaking with committed an offence under investigation, then you should give them the police warning

Regardless of detention or arrest.

Therefore, if you receive a dispatch to a domestic assault "man beating woman", and you meet a man who's probably the guy complained of, then you need to start talking about the right to silence before asking "'Ullo, 'ullo, 'ullo, what's all this then?"

I'll write more about this decision soon. It's a pretty important one.

2022.10.12 Reasonable Expectation of Privacy in a Burner Car

If you find the concept of "reasonable expectation of privacy" fuzzy, take heart. Judges disagree over it too.

Raja Dosanjh, 2022 ONCA 689 wanted to kill Aly Suderani.

To avoid detection, he rented a car under a false name.

Being a classy gangster, he chose a luxury car for this particular murder: an Infiniti QX60 - equipped with a wonderful infotainment system.

When he rented it, his passenger, Mr Passi, plugged his cell phone into that infotainment system. The infotainment system immediately downloaded Mr Passi's contacts list, which included Mr Dosanjh.

The infotainment system did more. It recorded everywhere the car went while Mr Dosanjh possessed it.

Mr Dosanjh drove that car to a hotel, where he used a submachine gun to kill Mr Suderani. Mr Dosanjh left the gun at the murder scene - with some of his DNA on the grip.

Security video cameras in the area recorded the car.

Police tracked down the rental car and bought it. They obtained the rental contract and video of Mr Dosanjh renting the car. They knew he lied about his identity.

Now that police owned the car, did they need a warrant to search the data in the infotainment system?

An investigator figured they didn't, because police now owned the car. He instructed the technical investigators to start digging. Then a lawyer told the investigator that they did need a warrant, so they stopped their examination of the data from the infotainment system, sealed up what they had, and got a warrant.

The trial judge found that Mr Dosanjh enjoyed a reasonable expectation of privacy over the tracking data and the passenger's contacts list. The trial judge found that this privacy survived transfer of ownership of the car.

The appeal court disagreed. The rental agreement required the driver to give his real identity. Mr Dosanjh gave a false name. He acquired the car by fraud. It was effectively a stolen car. And now it belonged to the police. Therefore, Mr Dosanjh did not enjoy an expectation of privacy in the data it collected when he used it. And he certainly didn't enjoy any expectation of privacy when the police later bought the car.

So the investigator was right, but for the wrong reason.

Note also that the transfer of ownership of the car was "a factor" in determining the expectation of privacy - but not the determining one. Still, I thought purchasing the car was a good strategy. It certainly put an end to any concern about reporting the car to a justice of the peace.

If an expectation of privacy did attach to the data in the car, I would expect you'd still need a warrant to get the data, and you'd have to report to a justice what data you extract from it.

If this analysis applies to burner cars, I wonder whether it might also apply to burner phones? Rarely do investigators hunt down the rental contract for burner phones. Maybe you should.

2022.10.09 Keeners who Commit Crimes - Noble Cause, Criminal Execution

I didn't notice this case when it first came out. From a lawyer's perspective, it looked like a sentencing case.  But there's another message.

Abe Letkeman, 2021 MBCA 68 worked for 6 years as a member of the RCMP.  People liked him. He worked hard.

He had some compelling reasons to dislike bad drivers. His brother, sister and father all died in car accidents.

This may have affected his objectivity. Early in his career, he continued a police pursuit contrary to orders, and got into trouble for it.

Later in his career, a over-enthusiastic pursuit ended very badly.

At 2:00am, he saw a Jeep revving its engine and spinning its tires. He followed it and formed a suspicion that the driver was impaired. He probably wasn't wrong. The driver had been at the bar socializing with people who had been drinking and using cocaine.

When he first tried to pull it over, it stopped. Before he could talk to the driver it took off. He pursued. In order to stop it, he deliberately hit the vehicle using the "Precision Immobilization Technique" (PIT). It kept going. Eventually, it turned onto an ATV trail, lost control, and stopped. Letkeman used his police cruiser to hit it broadside, on the passenger side. That collision broke the passenger's pelvis. Still the driver wouldn't stop. The vehicle reversed and drove toward Letkeman.

Letkeman fired his revolver at the driver, killing him, and further injuring the passenger.

Letkeman probably knew he crossed the line. He lacked the proper training to disable a vehicle using PIT. He wasn't supposed to use it. During the pursuit, he sought his supervisor's authorization to continue the pursuit. When doing so, he failed to mention the first collision. Again, in the aftermath, he failed to mention the first collision.

He was charged with manslaughter, dangerous driving and criminal negligence causing bodily harm. The judge acquitted him of manslaughter - because he fired the gun in self-defence. The judge convicted him of criminal negligence.

What went wrong?

I suspect that his passion for his work overcame his judgment. I think Abe Letkeman's enthusiasm for getting bad drivers off the road blinded him to the boring police pursuit policies that keep cops out of trouble.

I like to believe that the officers who read this website come here because they want to be better at their work. They have commitment and passion. I keep writing because I respect that attitude and the people who hold it. I want to encourage them.

This case reminds us all that passion creates blind spots. Maybe you care more about gangsters or child abuse than bad drivers. It doesn't matter which subject moves you. To work hard, we need inspiration. To get results, keeners often work close to the boundaries.

If you are a keener, I applaud you. But I also worry for you. How can you tell when your passion affects your judgment?

This tragic case offered me some hints:

1. If you need to violate policy or legal rules to get the job done, slow down and think again.
2. Second opinions from knowledgeable people can keep you from crossing the lines.

2022.10.01 Expectations of Privacy in Sent Communications - Exigent Circumstances Justify Immediate Action

If you send a text message to someone, do you enjoy a reasonable expectation that the government will treat that message as private?

It depends ... on the relationship between you and the recipient, and the content of the message.

If, for example, you're dealing drugs with someone, you can generally expect that the other guy will keep your communications private from the state. Therefore, the government must also treat those communications as private. Police will need lawful authority to get at them.

Kyle Gammie was dealing drugs. Some of his supply came from "Dew".  By text messages, "Dew" let Mr Gammie know that he had some heroin/fentanyl mixture for Mr Gammie to sell.

The text messages arrived on Mr Gammie's phone just when the cops were busting him for drug dealing.

The officers pretended to be Mr Gammie, and by text message arranged a time and place to meet up, so that "Dew" could deliver those drugs.  The officers planned to arrest whoever showed up.

Mr Campbell, 2022 ONCA 666 turned up. Police arrested him. On his person, they found 14.33g of a mixture of heroin and fentanyl, and a cell phone which contained the text message chain which led to the meeting.

At his trial, Mr Campbell complained that when police viewed his text messages to Mr Gammie, they violated his reasonable expectation of privacy.

The appeal court agreed. Drug dealers don't generally share with police the communications they had with other drug dealers. Mr Campbell had a reasonable expectation of privacy in the messages he sent to Mr Gammie's phone.

But the officers explained that they had to act immediately when they saw the messages light up Mr Gammie's phone. Fentanyl kills. They needed to get that stuff off the streets. If they did not pretend to be Mr Gammie, people could get killed.

The judges agreed that exigent circumstances justified this intrusion into privacy. The risk of harm to life justifies substantial intrusions into privacy. For example, even a reasonable suspicion that life is in peril will justify entry into a private residence. Godoy, [1999] 1 S.C.R. 311.

But the risk of loss of evidence may also create exigent circumstances.

A different text message conversation might discuss the the sale of stolen property. Using the reasoning in this decision, an officer might be permitted to impersonate a felon in order to recover a victim's property (and catch the felon responsible for trying to sell it).

2022.09.29 Computers - A tool for Precision or a Tool to Replicate Mistakes

Mr Pampena, 2022 ONCA 668 kept his drugs at 1015 Galesway Boulevard, Unit 19, Mississauga.

Police learned of this and got a warrant.  Unfortunately, the applicant for the warrant copied and pasted " 1105 Galesway Boulevard" into the ITO.

And the draft warrant.

26 times.

The justice granted the warrant as drafted. Officers went there and executed the warrant, not noticing the mistake.

The trial judge and the appeal judges forgave the officers this mistake, because they made it in good faith.

They all believed that the warrant permitted them to search this address, and the source material justified a search at that place.

The warrant authorized a search of the wrong address. A search of a different address is a warrantless search.

What if you, as a member of a search team discover this problem just as you assemble outside the door of the residence?

Who wants their face to appear on YouTube or TikTok as the cop who screwed up?

You can't execute the warrant "in good faith" because you now know that it authorizes the search of a different residence.

At that point, you must consider s.487.11 of the Criminal Code. Exigent circumstances. Is your cover blown? Will you lose evidence if you fail to enter? If the answer is "yes", then you may enter under the authority of s.487.11. I would suggest that limit your entry to freezing the scene.  Before searching for the evidence, get an updated warrant which corrects the typographical error.

That allows you to reclaim "good faith", because you rectify the problem as early as possible.

2022.09.26 "What's in the Bag?" - Threatening to Arrest

You can threaten to arrest people as a way to dissuade them from committing an offence:

• "Jimmie, if you spray paint your name on that wall, I'll arrest you for mischief"
• "Sir, I'm going to issue you a ticket. To do that I need to know who you are. If you don't identify yourself to me, I'll arrest you for obstruction."

You can't threaten to arrest them as a way to obtain their consent to a search.

At a time when possessing marijuana was illegal, an officer approached a group of people that smelled of burning weed.  He detained one of them, Mr Mengesha, 2022 ONCA 654, and asked him to show what was in his fanny pack.

Probably because it contained a loaded handgun, Mr Mengesha refused to say.

The officer didn't tell Mr Mengesha the reason for the detention, nor did the officer mention the right to legal advice.

The officer arrested Mr Mengesha for possession of marijuana. Within 2 minutes the officer found baggies of cocaine and fentanyl and a concealed knife. Soon after, when Mr Mengesha tossed his fanny pack into the bushes, the officers found the gun.

The judges didn't like the threat of arrest. They didn't like the breaches of s.10 of the Charter.

Although Mr Mengesha's conviction stuck, that fact should not encourage you to use the threat of arrest as a means to obtain a "consensual" search. 'Cause even if it works, it ain't consent.

2022.09.26 Examining Illegally Obtained Evidence - When the Complainant Breaches the Suspect's Privacy

"When citizens ... attend at the police station and provide evidence of what they have reason to believe was a crime, the police do not engage in an 'unreasonable warrantless search' by examining the evidence provided."

Mr King, 2021 ABCA 271 kept child pornography in private electronic devices. His wife, discovered his passwords and snooped through his devices. She suspected infidelity. She found illegal images.

She copied them onto her own flash drive, and took the images to police.

Police officers looked at what she brought them, and described what they saw in an application for a warrant. A justice issued the warrant, and the officer busted Mr King for child pornography.

At his trial, Mr King complained of the unreasonable search and seizure in this case.  His wife had no right to look at his private data. Therefore, when she stole it and took it to the police, the police had no right to look at it either, and therefore they violated his reasonable expectation of privacy.

The trial judge bought this argument. The Court of Appeal did not.

The wife may have violated Mr King's expectations of privacy, but the police did not. The police are entitled to look at evidence that a citizen brings to them.

This conclusion conflicts with the conclusion in Vey, 2019 SKQB 135. In that case, a wife secretly recorded private communications between her husband and his lover, in which the husband and the lover planned to murder the wife. She gave those recordings to police. The court found that by listening to the recordings, the police violated the husband's reasonable expectation of privacy.

This area of the law remains unsettled. The trouble arises when someone tells you "I broke into the bad guy's computer / phone and took this data without consent, would you like to see it?" The conservative approach is to ask the witness to describe the data, then ask a judge to authorize you to examine the data, using the witness's description to establish reasonable grounds.

King suggests you don't have to do that. Few judges have yet considered the reasoning in King. When they do, we may get better answers.

2022.09.10 Publicity, Privacy, Revolution, Massacre and Pretty Girls - Sealing Orders and Unsealing Them

Today's case resonates with recent issues in the news. First, the news:

• Americans saw the publication of portions of the materials which justified a search of Donald Trump's clubhouse residence.
• Britons and Canadians inherited a new monarch, King Charles III.

Next, the topic: sealing orders.

When explaining the principles behind sealing orders, I find that our new king's predecessor, King Charles I of England, provides a useful starting point. If that sounds like boring history, perhaps the prospect of beach babes in bikinis will tempt you to read further.

King Charles I needed money. He imposed unpopular taxes. Some of the rich people of his age objected. One of the tools he used to keep them in line was the Star Chamber. This court earned a bad reputation - so bad that it became one of the justifications for a rebellion. That rebellion ended badly for King Charles. They chopped off his head.

I hope Charles III keeps his head ... firmly attached. Long live the king!

What was so awful about the Star Chamber? One of its flaws was that it proceeded in secret. The public could not see and hear how it reached its conclusions. How could anyone know whether the evidence justified the fearsome punishments it imposed?

Criticism of the Star Chamber taught English, Canadian, and American judges a lesson.

Good courts operate in public, so that the public can see the fairness with which they operate. Canada's highest court keeps re-affirming the importance of the open court principle, even at the risk of embarrassing or inconveniencing some of the people involved. For example, see last year's cases: Sherman Estate v. Donovan, 2021 SCC 25; CBC v. Manitoba, 2021 SCC 33, or the earlier case of R. v. Mentuck, 2001 SCC 76

To maintain public trust in the justice system, courts must expose as much as possible of what they do to public scrutiny, and keep as few secrets as possible. The press loves this principle, because it gives them access to information about high-profile people (like Donald Trump), high-profile events (like the search of his residence), and the sorts of sex and violence that sells newspapers and click-bait.

Applications for search warrants necessarily offend the open court principle. What good would searching a drug dealer's residence do if you had to apply for the warrant in open court? Someone would tip off the dealer before you get there. Some applications rely on information from confidential informants. Would rats help police bust gangsters if the courts name them?

Therefore, courts must operate in secret some of the time. The court must keep some secrets. The open court principle requires judges to operate in secret as little as possible, and to keep the fewest possible secrets.

The open court principle conflicts with police concerns:

1. The identities of informants can be inferred from the information that they give.
2. Publicizing the evidence during an ongoing investigation can taint witnesses, destroy the value of holdback, or alert culprits how to defeat the investigation.
3. In high-profile cases, widespread publicity of the evidence may prejudice the public, making it difficult for the court to find impartial jurors to give the defendant a fair trial.
4. Publicity can sometimes inflict further hurt on the victims, their families, and other innocent parties.
   

This brings us to sealing orders and beautiful women in bikinis.

I compare a blanket sealing order to the beach blanket that a bashful girl in a string bikini uses to protect her dignity,

The open court principle is like a requirement that the bashful girl throw the banket aside. And it compels her to wear only a string bikini to cover only the most private parts.

Do you remember the story last year of the Norwegian women's beach handball team? They protested a rule that required them to wear bikinis when they competed. Like police officers who don't like their investigations exposed to public view, these women didn't like being ogled when they played in public places.

The Norwegian women won worldwide support for their protest, and got the rules changed.

I noticed a case that might change the open court rules a bit. The bashful girl of my analogy might be permitted to wear something a little more conservative than a string bikini when she throws the beach blanket aside.

It arose when a reporter sought access to the applications for search warrants issued during the investigation of a high-profile serial killing in Nova Scotia back in 2020. CBC v. CBSA, 2021 NSPC 48; CBC v. CBSA, 2022 NSPC 22 The press wanted to find out whether the police should have issued public warnings earlier. But the warrant applications were sealed.

The reporter pointed out that the killer, Gabriel Wortman, died during the take-down. There won't be a criminal trial. Except for information tending to identify confidential sources, there's no need for any redaction, right? By asking the court to remove the sealing order, the reporter was asking the judge to make the bashful girl throw away the beach blanket. Expose her to public view.

Not so fast, the Crown responded.

These 22 killings left a trail of bereaved families. Applications for search warrants necessarily recite private information, the publication of which may hurt them.

The relatively recent Canadian Victims Bill of Rights requires the court to consider their privacy too, and to hear from those victims before making decisions which affect that privacy.

The judge agreed.

It's a little victory. The bashful girl in my analogy should be allowed to ask for the dignity of shorts, like the women of the Norwegian women's beach handball team.

But this little victory offers police officers engaged in fast-moving investigations a further justification for a blanket sealing orders over their applications for warrants and orders.

If you have a boilerplate sealing order application, it probably recites the justifications listed in s.487.3.

If your ITO or affidavit includes information private to a victim - anyone who has suffered physical or emotional harm, property damage or economic loss as the result of the crime - then you might add to your justification for the sealing order something like this:

This application contains private information about a victim. Section 11 of the Canadian Victims Bill of Rights requires this court to consider his/her privacy. Section 14 requires this court to receive his/her/their views about decisions that affect his/her/their privacy before making those decisions. Until it hears from the victim(s), this court should not risk harming him/her/them by releasing that private information.

If your victim tells you that publication of the his/her information will cause her harm, you might want to mention that fear in your ITO.

I note that these blanket sealing orders ought to be temporary. The open court principle requires that eventually, the blanket be removed, and to allow public access to all but the private material.

Where there are victims, the Canadian Victims Bill of Rights makes that a more complicated process.

2022.09.05 Wiretap - Investigative Necessity or Criminal Organization or Both

By definition, snooping on private phone conversations invades privacy.

A lot.

Except in serious emergencies, police must obtain judicial permission to do this snooping.

Because it's such a big deal, Parliament requires investigators to show the judge that no other technique will reasonably work to catch the bad guys, or that the offences are "organized crime" (gang) offences.

Applications for "wire" therefore often contain fulsome explanations why other techniques would not work.

Mr Chen, 2022 BCCA 296 supplied drugs to a dealer of kilogram quantities of MDMA. Police found Chen by wiretapping the dealer, who talked to him whenever he needed drugs.

Mr Chen challenged the wiretap authorization.

The officer who applied for it explained not only that no other investigative technique would work, but also that the targets fit the definition of a criminal organization, and that the crimes were by and for the organization.

The application spent a lot of time explaining investigative necessity, but merely mentioned criminal organization aspect.

The trial judge ignored the criminal organization part, because the application didn't emphasize it.

The Court of Appeal agreed that the authorization could have been better drafted, but disagreed that the trial judge could ignore that part.

For officers just getting into "wire", this case provides a reasonably clear discussion of the difficult topic of investigative necessity, and what to expect at trial - years after you draft your affidavit.

For experienced affiants, if you're going to rely on both routes, this case reminds you to spell out both justifications at the conclusion of your application.

I put the word "wire" in quotes, because modern interceptions of communications virtually never involve wire nor tapping. But the word "wiretap" remains a useful term - short and evocative - of what the technologies can do.

2022.09.05 Gender Safety When a Strip Search goes Wrong

How carefully must you protect a prisoner's dignity when the prisoner poses police a threat?

Mr Black, 2022 ONCA 628 started the problems when he lied about his name. Officer McCabe - a female police officer - pulled his vehicle over because the licence plate didn't belong on that car. When she asked him to identify himself, he gave a false name.

Mr Black had reasons to lie: he was on probation, a judge had issued a warrant for his arrest for robbery, ... and the thirty baggies of heroin in his underpants might get him into trouble.

When Officer McCabe figured out who he was, she arrested him and took him to the police station. The seriousness of the charges convinced her not to release Mr Black.

She asked a senior officer to permit a strip-search, to make sure he didn't bring weapons or drugs into custody with other prisoners.

Knowing that strip-searches should be done only by officers of the same sex as the prisoner, she arranged for two male officers to search Mr Black.

Although those officers followed the proper protocol, things went badly. Mr Black didn't want them to find the drugs. He reached into his pants as if to draw a weapon. He disobeyed the officers' commands to keep his hands out of his clothing. A struggle ensued. Mr Black kicked, pushed, banged his head against the wall, and screamed that the officers should kill him. One of the officers called for help.

Officer McCabe ran in and helped.

The officers bound him and stripped him naked. They carried him naked to a cell. They supplied him with a jumpsuit.

At his trial, Mr Black complained that the female officer should not have participated in stripping him or carrying him. The judges disagreed.  Mr Black created a crisis in which safety took precedence over dignity. Even when bound, Mr Black continued to thrash vigorously in a way that could hurt the officers.

In reaching their conclusions, the judges remind us:

• A prisoner’s non-cooperation and resistance does not automatically deprive them of the right to privacy and dignity. (para 42) Even if the prisoner speaks disrespectfully to officers, you can't use the strip search as a means to punish their foul mouth.
• A compelled strip-search can inflict emotional trauma. (para 38) When you deal with an upset prisoner, try to avoid inflicting more trauma.
• Judges will scrutinize how police conduct these searches. Don't ogle your prisoners. Get out of there if you aren't needed. But if you are needed, make notes, and keep security videos.
  

The judges' answer to the question made sense: Safety first. If mayhem erupts in the room where the strip-search is being conducted, you can run to your colleague's aid. You don't need to run away, hunting for same-sex officers to solve the situation.  And you can stay until the danger subsides.

This case made me think of the difficult characters that we must routinely manage.

Many of you struggle frequently with irrational people living the very worst parts of their unhappy lives. Many of them express hatred of police. One may naturally feel that they deserve the sufferings that they bring upon themselves.

A professional strives to remain respectful of the dignity of even the most difficult people. It ain't always easy.

Respect and patience can pay in the long run. Seasoned members of our justice system all remember entrenched felons who responded to a little sympathy. Sometimes, in their gratitude, they'll later tell you - or some other officer - a crucial tip. Sometimes, they reach bottom, and turn to you - or some other officer - for redemption.

2022.08.27 Safety search during investigative detention

Mr McKenzie, 2022 MBCA 3 jogged through the back yards of a residential neighbourhood. At night. Clutching the left side of his body with his elbow.

A cop in a lane saw him, and wondered if he held his arm that way because of an injury. The officer called out, asking if he was okay.

Mr McKenzie and the officer locked eyes. At that moment, the officer recognized him: McKenzie was long-time member of a street gang, who often carried weapons.

I figure that Mr McKenzie realized he was looking at a police officer.  I'm guessing that Mr McKenzie feared that the officer would stop him. McKenzie had a reason for that fear: he was doing something suspicious.

Mr McKenzie ran faster.

The officer suspected - from his extensive experience with people who carry firearms - that Mr McKenzie held his arm that way to carry a concealed weapon. The officer yelled at Mr McKenzie to stop.

I doubt that Mr McKenzie felt any happier when he heard this.

Mr McKenzie kept running.

Mr McKenzie's reaction increased the officer's suspicions.

The cop caught up, and pinned him against the wall.

Mr McKenzie was carrying a fanny pack.

Should the officer lawfully look inside it?

Any officer interested in surviving his or her shift will say "yes".

But only the wise ones know why it's lawful.

This cop looked.

He found the handgun. He arrested Mr McKenzie, and then found the drugs. Charges followed. At trial defence complained that the officer lacked lawful authority to search the fanny pack.

You can - briefly - detain a person that you suspect is involved in a crime.  But suspicion - even reasonable suspicion - does not authorize you to search the person for evidence of that crime.

You can can arrest a person you have reasonable ("and probable") grounds to believe that the person committed a crime. And if you have some reason to suspect that they have evidence of that crime with them, you can search them for it.

This cop suspected that maybe Mr McKenzie had a gun or drugs. But the cop didn't have enough evidence to justify a reasonable belief. Therefore, the officer could not search incidental to arrest.

But pinning gangsters up against a wall in a back alley at night is a risky business. Any cop who wants to stay alive will want to take precautions to make sure that he does not get a knife between the ribs or a bullet in his brain.

Judges saw a tension between the public's right not to be subjected to search without reason, and the police officer's need to protect themselves from unsavoury suspects.

They struck a balance. You can't search for weapons any time you feel like it. But you don't need proof that the suspect has a weapon before you search for it.

Unfortunately, as discussed in this case, the Supreme Court of Canada used confusing language to describe this balance.

Either it's "reasonable grounds to believe that the suspect poses the officer a risk of using a weapon" against you, or it's "reasonable grounds to suspect that the suspect has a weapon" that he will use against you.

If you read the decision, you will see the struggles the judges have defining the test.

I dunno. I've long felt that this debate over language is silly.

I think that the key concepts are obvious. To search for officer safety:

1. You need reason to think that the detainee may have a weapon; and
   
2. You need reason to think that the detainee may want to use it against you.

If you don't have both, don't do a safety search. As the judges said, you can search when it is "reasonably necessary to eliminate an imminent threat".

When asked to explain their reasons for their fears, many officers resort to the language of safety training. Some instructors in that field emphasize the dangers of ignorance in a hostile situation. "You don't know what he's got in the fanny pack. It could be a weapon. You need to be sure. You don't know what kind of mood he suspect is in. You don't want to wait to find out."

That language doesn't meet the legal test. If you tell the judge that you searched the suspect because of what you didn't know, the judge will find that you lacked reasons to justify the search. To justify a reasonable fear, you must talk about what you do know, rather than what you don't know. For example, in this case:

• His running through back yards made me suspect he did not want to be seen. He was hiding for some reason.
• His holding his elbow against his body made me think either he was injured or he carried something heavy under his clothing.
• Guns are heavy, and are often carried concealed in clothing like that.
• His flight, when I told him to stop, made me think what he carried was illegal. Like drugs or a gun.
• People who carry drugs often carry weapons too.
• These observations made me think that he might be carrying some kind of weapon. if it was a weapon, it was most likely a heavy weapon like a gun.
• Because he defied me by running when I told him to stop, I feared that when I caught him, he might grow more desperate, and use any weapon in his possession against me.

When confronted with a situation like this, seasoned officers can think all of these thoughts so quickly that they may interpret their conclusions as "instinct". I don't believe in instinct any more. Break the situation down. You'll find that your "instinct" consisted of logical inferences. You can turn those inferences into words, if you try.

When you get good at that exercise, gangsters like Mr McKenzie will follow his footsteps ... into jail. Mr McKenzie lost his arguments at trial and on appeal.

2022.08.23 Collision Investigation - Event Data Recorders

Warrantless Seizure

Two vehicles crash on a public highway.

Does the Criminal Code give you the power to seize the car of the driver who caused the crash?

It depends. Do you think that driver committed a crime?

Section 489(2) permits you to seize anything if:

• You're lawfully in the place (public highway)
• You believe that someone committed a crime
• You have reasonable grounds for that belief
• You also have reasonable grounds to believe that
  
• the criminal used the car to commit the offence or
• the car will provide evidence of the offence

Notice the last two lines. If you have grounds to seize the culprit's car, then you may also have grounds to seize the victim's vehicle.

Warrantless Analysis

If you have grounds to seize the car, can you seize and download just the event data recorder (EDR); or do you need to ask a judge for a warrant?

An Ontario line of cases says you must always ask for a warrant. The BC Court of Appeal found that the driver/owner does not enjoy a reasonable expectation of privacy in the data that these devices record.

Mr Major, 2022 SKCA 80 also owned a pickup truck. He overloaded it with passengers, and blew through a controlled intersection, crashing into a big truck. The collision destroyed his truck and trapped the people in it. Emergency personnel had to rip the pickup truck open to extract him and his dead children.

Police investigators at the scene seized the EDR and downloaded it at the scene.

It said he was travelling at 137km/h just before the crash, but slowed to 118. The speed limit was 80 km/h, but it was winter in Saskatchewan. The roads were packed ice and snow.

Mr Major's lawyer argued that the officer needed a warrant to get the data.

The judges concluded that he did not in the circumstances of this case:

• The EDR data was in a broken car, stuck in a pubic place, where authorities would need to clear it out of the way
• Other emergency personnel were tearing the car apart. The territorial privacy was negligible.
  
• The EDR recorded only the last 5 seconds of driving - nothing personal about Mr Major. The informational privacy was minimal.
  

But that conclusion did not settle the case.

Expertise Necessary to Interpret the Data

At trial the officer who downloaded the data testified about what the EDR told him. Defence challenged his expertise:

He might know how to download the EDR data, but did he have the expertise to say that the numbers that the EDR records are accurate? For example, in this case, the EDR reported a few numbers that could not possibly be correct. The officer could not explain how those numbers got there.

The judges agreed that the testimony at trial failed to establish that the data that came from the EDR could be trusted.

I suspect that many crash investigators may actually have the expertise to establish that fact. This decision should alert you to formalize that expertise on your CV and in the reports that you write. If you lack the expertise to interpret the data, then the prosecutor needs to find someone who has it.

If you have any trials coming up in which your opinion relies upon EDR data, you might want to review your report, and contact the prosecutor to discuss the expertise necessary to establish the reliability of that data. Tell them about the case of Mr Major.

2022.08.20 Investigative Techniques - Wiretap and Lineups

The crime

Daniel Davis hung out with friends at 1:00am in a school yard. Three men in hoodies surrounded him and shot him dead.

A gang killing.

Mr Bent's girlfriend drove Mr Bent there. They met with Mr Wheatle, 2022 ONCA 591, and another guy. The men went into the park, fired their guns, and then they returned to where the girlfriend waited.

The investigation

The police worked with an agent - a gangster who worked with the police.

In a wiretapped holding cell, Mr Bent told the agent what happened.

The agent bought drugs from Mr Wheatle and socialized in a bugged hotel room. Mr Wheatle talked about his involvement, giving similar details as Mr Bent.

Police arrested Mr Bent's girlfriend for murder around the same time as they arrested Mr Wheatle for murder. When the two were shipped to court, they travelled together in a bugged prisoner transport.

On that transport, Mr Wheatle talked as if he knew her.

At first Mr Brent's girlfriend refused to cooperate with the investigation. Then, as part of a total immunity agreement for this and other serious crimes, she told them what she knew.

During an interview, an officer showed her a single picture of Mr Wheatle, and asked if he was one of the three men. She said he was.

The lessons learned

Gangsters don't often cooperate with police. As this investigation demonstrates, recording their conversations can often discover information that other techniques will never reveal. This investigation relied heavily on authorizations to intercept private communications. Those authorizations worked. Prisoner transport vehicles and cells provide excellent controlled circumstances under which gangsters may talk.

Agents and accomplices don't make great witnesses. The appeal court judges spent most of their decision discussing whether the jury had been sufficiently warned not to trust the girlfriend.  She got a great deal: freedom. All she needed to do was say that the men were guilty.

The other problem was the photograph. The judges didn't like how the officer showed her a single picture. It was like saying "if you want to go free, all you have to do is say this guy did it." A proper photo pack would have shown more clearly whether she recognized the guy.

I suspect that the investigators believed that the girlfriend knew Mr Wheatle well.  But that's not what she said. She said she met him only that night, for only a few minutes.

The judges agreed that this way to identify Mr Wheatle was very weak.

Fortunately, the recordings made up for what the identification procedure lacked.  The jury convicted and the appeal court upheld their verdict.

This case contains lessons for general duty officers and lead investigators of sophisticated units.

For you homicide and gang investigators, it illustrates how much you can do with wire and a coordinated plan. It reminds you how little judges trust agents, rats and turncoats. Get corroboration.

For you first responders and junior investigators, don't show a single photograph of a suspect to any witness (or suspect), unless you're sure that there is a substantial prior relationship between them. And be doubly careful when interviewing a witness of dubious credibility about who was there at the time of the crime.

This concept applies to live bodies too.

Sometimes, a first responder will catch - within minutes of the crime - a suspect who resembles the person that the complainant describes. Can you show the complainant who you caught?

Even if the complainant does not know the attacker, you can show the suspect to the witness, and ask "is this the culprit?"  But beware. At trial, the defence may argue that you merely caught a person who looked like the culprit. You'll want more evidence than this to prove beyond a reasonable doubt that the suspect is the culprit. If the complainant says "yes", keep investigating. For example:

• Ask how s/he knows you caught the right person
• Arrest the suspect, and search incidental to that arrest for more evidence
• Search the area for other similar people.
  

2022.08.20 Reasonable Grounds and Possibility

When you ask a justice for authority to search a residence for evidence, you need to explain to the justice why you think that the evidence is there.

If years pass between the crime and the search, you may need compelling reasons to explain why one should expect that the evidence still remains in the place.

Mr Collison disappeared in 2009. Nobody found his body until 2014. It bore witness to 5 gunshot wounds. One in the back of the head. Four more in the back. Witnesses said that Mr Wise, 2022 ONCA 586 complained of disliking Mr Collison, and expressed interest in his murder.

In 2016, could the officers search his home?

The police had reasons to think that Mr Wise was a serial killer. They asked a psychologist whether serial killers kept souvenirs of their killings. The expert could not say that Mr Wise would likely keep them, but this behaviour was "within the realm of possibility".

They put that information into the ITO to help explain why their search would locate evidence.

Possibility ain't probability.

Although the investigators persuaded a justice to issue a search warrant for Mr Wise's home, the trial judge and the judges of the court of appeal held that the warrant should never have been granted.

Too bad.

He did possess some things that tended to show his guilt. Including what appeared to be a map of the place where the body was dumped.

That evidence was excluded.  Mr Wise beat the charge.

Even if little time passes between the crime and the search, your application for a search needs to explain why the evidence will likely be there.

If your grounds lead you to conclude that the evidence could "possibly" be there, then your grounds still aren't strong enough. You need to be able to say that the evidence and information you gathered so far gives you good reasons to think that the evidence - or at least some of the things - are there.

2022.08.14 Don't (always) need a gun to prove it was a gun

One way to prove that what the suspect fired is a "firearm" is to seize the thing, and send it to an expert to examine.

What if you can't get the gun?  What if the lab's too busy?

Sometimes, the prosecution can prove it's a gun by applying the duck principle.

If it walks like a duck, and it quacks like a duck, it must be a duck.

After a basketball game, some kids followed the coach of the losing team. One of them, Mr O.A., 2022 ONCA 565, pulled out something that looked like a gun. There was a bang like a gun. Afterward, there were two small round holes in the coach's car that weren't there before.

Even though investigators never caught Mr O.A. with any weapons, the trial judge concluded it must have been a firearm.

Mr OA complained to the Appeal Court that a judge needs more evidence than that to conclude that Mr OA possessed a "firearm".

The court disagreed. Effectively, they applied the duck principle.

This doesn't mean that a bang from something that looks like a gun, leaving bullet holes, will always prove that it's a firearm. It will depend on the quality of the evidence. Often, you will need an expert.

But not always.

2022.08.06 Foreign Cops and Local Offences - What's your Jurisdiction?

American cops asked Canadian cops to help bust an American drug trafficking ring. The American officers covertly seized 26kg of real cocaine, and put fake cocaine in its place. The American police said that their targets expected the cocaine to arrive in Canada. The American cops asked Canadian cops to participate in the investigation.

The Canadian cops participated in the delivery of the fake cocaine. Mr Hollaus, 2022 BCCA 272 and Mr Oliynyk showed up to pick up the fake drugs.

Canadian police officers arrested them, knowing that the drugs in their possession were fake. No real drugs entered Canada.

When the American authorities asked the courts to extradite Mr Hollaus, he complained that the Canadian police had no authority to arrest him. Because the drugs were fake, he was not really committing a crime in Canada. And besides, he said, the Canadian police were just helping the American officers investigate a crime that happened in the USA. Therefore, the Canadian officers had no jurisdiction to exercise police powers in Canada.

If the officers had arrested Mr Hollaus for possessing drugs in the USA, there might be some force to this argument.

But in Canada, it's an offence to possess drugs for the purpose of trafficking. And it's also an offence to attempt to commit a crime. Nobody acquires 26kg of cocaine for personal use. The only purpose would be to traffick.  Therefore, Mr Hollaus, attempted to possess drugs for the purpose of trafficking.

And that's an offence in Canada.

The police arrested him for (Candian) offence of PPT, as it was happening in Canada.

Defence argued that the underlying purpose of the arrest was to assist an American investigation. The judges didn't care. The arrest was good if the Canadian police arrested him for a Canadian offence that happened in Canada. Their motive to involve themselves for the purposes of a broader American investigation didn't change the lawful arrest into an unlawful one.

For you, it serves as a reminder of some basic principles:

• Attempting to commit a crime is also a crime.
• If you merely suspect your target committed several crimes, but you have reasonable grounds to believe that the suspect committed one, then an arrest for the one crime does not become invalid by reason only that you're rather investigate the other offences.
• Beware of exercising Canadian police powers only to assist foreign police services investigating foreign crimes. Make sure that your help is lawful.
  

2022.08.06 Explaining the Reason for Detention - The Problem with Pretexts

As explained above, after an officer saw Mr Hollaus, 2022 BCCA 272 and Mr Oliynyk load a suitcase into a pickup truck, they had grounds to arrest him for PPT.

They wanted to stop his truck, but they didn't want to tell him the real reason at first because:

• They didn't want him to take flight.
• Doing so might reveal to him the large size and extent of the investigation against him. When he sought legal advice, he might tip off conspirators.

So they told a little white lie: it was a "routine traffic stop".

They got him out of the truck.

Then they "disovered" the suitcase - giving him the impression that the officers on the ground did not know anything about the conspiracy.  Within 4 minutes of the stop, they arrested him for PPT.

it was actually an international investigation. There were compelling reasons to protect it at that vulnerable stage.

But lying to him about the reason for the stop directly offended s.10(a) of the Charter.

In this case, the judges found that excluding the evidence was not appropriate because of the brief and technical nature of the lie.

Unfortunately, I know of no lawful authority for police to tell these lies. In most small cases, they aren't necessary. But in multi-million dollar inter-jurisdictional investigations, failure to tell these lies when arresting the underlings can undermine the investigation, allowing the kingpins to escape justice.

I fear that the day will come that a judge will conclude that it brings the administration of justice into disrepute to have police officers routinely breaching s.10(a) of the Charter in serious investigations.

For that reason, I say that police should be able to apply to a judge for an order which grants them temporary dispensation from the obligation to explain the true reason for the arrest or detention. It will come with conditions, I expect, including a firm obligation to hold off eliciting evidence of the offence.

This requires legislation. A new provision like a warrant provision. I suggested it 15 years ago at a conference in Ottawa. I still think it's necessary. I still think Parliament needs to act.

Defence also argued that s.10(a) required the police to inform Mr Hollaus that he was detained in respect of the American offence of conspiracy. He had some case law to work with. In R. v. Borden, [1994] 3 SCR 145, police arrested the defendant for one sexual offence, and they suspected him of another. But when they arrested him, they only told him about one offence. The court said "Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention".

The court rejected this argument too, but didn't provide a clear dividing line between the situations in which you must mention multiple matters under investigation, and the ones in which you need only mention the matter for which you arrested.

Therefore, if you suspect your prisoner of multiple different crimes, and arrest him for one crime, consider mentioning at least the ones for which you have reasonable grounds to suspect his involvement.

2022.08.01 R. v. Lafrance, 2022 SCC 32 - What's a Detention? - Time to Start Second-Guessing Yourself

If handcuffs bind your hands and a lock secures the door, you can easily determine that you are detained.

Most folks would feel some relief when the man with the gun says "you are free to go". But if the man with the gun does not remove the manacles and unlock the door, that feeling of relief will soon pass.

Canadian law recognizes another kind of detention. It happens when fear of - or respect for - a peace officer's badge, role or power would cause a reasonable person to feel they can't leave. This "psychological detention" concept causes some confusion for police officers. This decision makes it more important than ever to understand.

Police woke Mr Lafrance, 2022 SCC 32 from his bed in the early morning. They told him to get out of his house while they searched it. They had a warrant. An officer explained that they were investigating a murder. The officer asked Mr Lafrance to come to the police station to discuss the stabbing death of his drug dealer. The officer told him he didn't have to come. He accept their offer of a ride in a police car.  He spoke with an officer for 3 hours.

At trial, he complained that the police detained him, but did not give him access to a lawyer. The trial judge concluded that the police did not detain him. Two judges of the Court of Appeal, and 5 judges of the Supreme Court of Canada held there was a detention. 1 judge of the Court of Appeal, and 4 judges of the Supreme Court of Canada held that they didn't.

If you consider all the judges who considered the case, the final score was 7:6. The majority held that Mr Lafrance was detained.

Mr Lafrance won a new trial.

You may find this a surprising result:

• The trial judge found that this 19-year-old indigenous high school graduate chose to speak with the police for the purpose of misleading them in their investigation. A pretty brazen guy. Probably not overwhelmed by police authority.
  
• The trial judge found that the investigating officer told Mr Lafrance many times that he didn't have to come to the police station, and he could leave at any time, if he wanted. The information was clear. How could he be mistaken?
  

Five judges of the Supreme Court of Canada found that police actions can trigger a "detention" even when the subject himself does not feel compelled to accompany police. They relied heavily on an earlier case R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, in which the defendant himself did not consider himself detained, but the judges concluded that the officers had done what would make any reasonable person in his shoes believe was a detention.

The judges explained their interest not in what the subject actually felt, but what a reasonable person in the defendant's position would feel.

But what about telling him "you're free to go"? Doesn't that resolve any confusion?

Although telling a suspect that can leave may prevent him from being detained, it doesn't always work - depending upon what else the police do. Like the handcuffs that stay on and the door that remained locked, the judges found that how the police handled Mr Lafrance would have made a reasonable person feel detained, even though police told him he could go:

• 11 armed cops invaded his home
• Cops supervised him at the scene
• An officer told him they wanted to question him about a homicide.
• The officers drove him to the police station in a police car
• They put him in a room behind two locked doors.
• The told him it was a secure environment, where he could not be permitted
  

The majority of the judges held that even if (the reckless) Mr Lafrance himself was not cowed by the nighttime invasion of his house by armed officers, a "reasonable" 19-year-old indigenous man who experienced what these officers did to him would feel detained, even after they told him he was free to go.

And therefore, the police should have told him about his right to counsel.

Wow.

As the dissenting judges pointed out (para 121), this imposes a challenging burden on police officers. After you tell a suspect "you're free to go", and the suspect responds in a way that makes you think that the suspect understands this freedom, the judge may still conclude that because of his or her race, age or vulnerabilities, a "reasonable" person in the position of your suspect would feel like they are still detained.

In order to persuade the judge that you delivered the message, you may need to repeat information to the suspect, and organize your interactions in a way that gives the suspect a real opportunity to leave.

How far do you go? Doing too much may insult the intelligence of a suspect who understood you the first time you said "you're free to go". Mr Lafrance was reasonably intelligent. If an officer had gone too far to explain and demonstrate his liberty to him, I can imagine Mr Lafrance saying "What's the matter? Don't you want to hear what I have to say?"

You don't want anyone in the public to think that cops don't want information about the crime they are investigating. Least of all the culprit.

Therefore, you need to form strategies by which you can navigate this minefield.

What might work to create such clarity that the judge will find that a reasonable person would understand that they are free to go? Maybe:

• Tell the suspect about their liberty, and then ask they understand "free to go" means.
• During a street check, where you don't have any specific crime to investigate, you should say so.
• When executing a search warrant on the residence of a suspect, give the suspect a real opportunity to walk away if he wants.
• When interviewing a suspect in a secure part of your police station, explain that the security is to keep unauthorized people out, to protect the privacy of your files. It is, not to hold the suspect in the building.
• Instead of offering him a ride to the police station in a police car, you should offer to order him a cab instead. (Imagine the liability issues if the suspected murderer attacks the cab driver!)
  
• If you can, investigate the vulnerabilities of your suspect: racial minority? age? inexperience with police? bad prior experiences with police? mental disorder?  Every "hit" on this list increases the steps you must take to ensure that your subject understands that this is not a detention.

2022.07.26 Reasonable Opportunity to Get Legal Advice - Second-Guessing the One Opportunity

Three weeks after they searched his house, police arrested Lafrance, 2022 SCC 32 for murdering his drug dealer.

When offered an opportunity to get legal advice, Mr Lafrance accepted it. He spoke with "a free lawyer" Legal Aid. He had never spoken with a lawyer before. He told an officer that he had spoken to a lawyer, and that he understood the lawyer's advice.

The interviewing officer started gently, but after several hours, confronted Mr Lafrance with his belief that Mr Lafrance killed the drug dealer.

What Mr Lafrance said next triggered another debate. Should the officer have given him further access to counsel?

Q. Alright so what happens Nigel?
A. Well –.
Q. What – what went on?
A. Well I would – ah I want to talk to my dad before I continue.
Q. Ok wh – why do you say that?
A. Cause well he’s – well he’s my only chance of getting a lawyer and I just – I don’t know.

Mr Lafrance explained further:

A. Well no they told me – they told me to get a lawyer before I continue talking.
Q. Ok what do you mean by told you to get a lawyer?
A. Like someone that can come down and sit with me.
Q. Ok.
A. Instead of just over the phone.
Q. There’s a person that ah you know what – and the way that that kinda goes ah – I won’t say it’s, it’s bad advice but it’s maybe miss – a little bit miss as – miss ah – interrupted. Um there’s not any time or any process during our interview –.
A. Um?
Q. Where we’re gonna have a lawyer sitting in the room with us.
A. No, no I – I mean, no mean like so –.
Q. Ok.
A. Like for me to sit down with them personally.
Q. Ok.
A. To talk to. [Emphasis added.]

Just as they disagreed about the detention issue, the judges disagreed whether this triggered an obligation on the police officer to stop and give Mr Lafrance a further opportunity to get legal advice. A bare majority of the judges found that it did.

Why?

Because it suggested that Mr Lafrance didn't understand his right to get legal advice. It suggested that the lawyer told him that he could get another lawyer to come to the police station and give him legal advice in person.

The dissenting judges felt that Mr Lafrance later indicated a full understanding of his right to silence. Therefore, whether he was confused or not about how many lawyers he could consult with, he knew his rights in the interview.

The majority rules. If, after getting legal advice, your prisoner raises the concern that s/he expects to speak further with counsel before proceeding, stop investigating the offence, and work out whether the your prisoner finished obtained legal advice about the matter for which s/he is arrested or detained.

Your prisoner isn't entitled to get advice from non-lawyers, but is entitled to get help from non-lawyers to contact a lawyer.

Therefore, when your prisoner says "I want to call my dad/mom/brother/cousin/employer/friend/partner", you may want to inquire why.

When the prisoner calls a non-lawyer to locate a lawyer, you can participate. Why? Because it's not privileged. You may want to make sure that the prisoner really is trying to get a lawyer, or to ensure that the prisoner isn't asking a friend to destroy evidence or threaten a witness.

2022.07.26 Refusal

 without Legal Advice - Principles in Conflict

What obligations affect a driver and a police officer after the officer makes a breath demand? Should the driver blow? Should the driver talk to a lawyer first? What do you do with a driver who refuses?

Detention

All of the sobriety-testing demands trigger "detentions" within the meaning of s.9 and s.10(a) of the Charter. In order to avoid "arbitrary" detentions, you must have sufficent grounds (ie reasons) to make them. In order to satisfy s.10(a), you must explain the purpose of the detention to the driver. (Generally, reading the demand explains what's going on.)

Right to Counsel

Analysis demands (breathalyzer, blood, urine, DRE) trigger the right to get legal advice before giving the sample. (Prosper, [1994] 3 SCR 236) But screening demands (SFTS, ASD) do not. (Woods, 2005 SCC 42).

Arrest

Should you arrest a drunk driver? Section 495(2) of the Criminal Code prohibits you from arresting people for hybrid offences if you don't need to. If the only reason you're thinking of arresting the suspect is to get the suspect to come with you to the police station for a breath analysis or DRE, think again. The demand already imposes that obligation. See s.328.28(1)(b)

If you do arrest a drunk driver, section 498 obliges you to release him or her as soon as practicable once you know who they are, have collected all the evidence, and addressed concerns about further offences. Judges call it "arbitrary detention" when you hanging on to a prisoner without justification. This violates s.9 of the Charter

Refusal of a Breath Analysis Demand

What should you do when a driver refuses a breath demand?

Mr Gordon, 2022 BCCA 260 drove while drunk. Civilians complained. Police stopped him. An officer arrested him for drunk driving, and told him he could get legal advice. He responded that he wanted legal advice.

The officer then demanded that he provide breath samples down at the police station.

He told the officer that she was "way out of line". Unequivocally, he explained that he wouldn't provide breath samples because he wasn't drunk.

She arrested him for refusal too, and told him again of his right to get legal advice. Again, he said he wanted to talk to a lawyer.

Instead of arranging for legal advice, or taking him to the police station to blow into the breath testing instrument, she released him on process to attend court.

Afterwards, Mr Gordon complained that she interfered with his right to retain and instruct counsel:

• He was arrested.
• He wanted a lawyer.
• She did not get him legal advice.

Instead, she elicited evidence that could be used against him - his refusal to provide a breath sample.

Without discussing s.498 of the Criminal Code or s.9 of the Charter, the court agreed with Mr Gordon. The judges held that the officer "interfered" with Mr Gordon's right to get legal advice.

I disagree with the court's analysis. By freeing Mr Gordon, the officer gave Mr Gordon every freedom including the ability to get legal advice if he really wanted it.

However, I agree with the court's conclusion that the officer should have done something different.

A long time ago, that court explained what to do with asuspect who refuses an analysis demand but wants to talk to a lawyer.  Until the suspect gets legal advice, the officer should treat the refusal as "conditional". It isn't over yet. After the driver gets legal advice, if he still fails or refuses to comply with the demand, then the refusal becomes unconditional. R. v. Sullivan, 1991 CanLII 656.

Although some courts disagree with the BC approach (eg McKeen, 2001 NSCA 14), I think it's fair. I think this principle  would have helped the officer who dealt with Mr Gordon:

1. The officer wanted evidence of Mr Gordon's intoxication.
2. The demand compelled Mr Gordon to provide it.
3. By refusing, Mr Gordon was making a bad decision
4. The act of refusing was a crime.
5. A police officer's duties include dissuading people from committing crimes. Therefore a police officer should want to persuade people not to refuse a lawful demand.
6. A lawyer's job includes advising their client not to commit a crime.
7. Mr Gordon said he wanted legal advice.
   
8. Independent legal advice would likely have persuaded Mr Gordon to blow. (He seemed to believe that he was sober.)
9. Therefore, keeping him in custody while he got legal advice might prevent him from committing the crime of refusal.
   

I think that section 498 did not compel the officer to release Mr Gordon at the scene:

1. If the refusal was "conditional", then the officer was witnessing an ongoing offence of refusal to provide a breath sample. Further detention was necessary to put a stop to that criminal conduct.
2. One of the justifications for ongoing detention is to obtain evidence. There was evidence to obtain.
   
3. If a lawyer would persuade Mr Gordon to provide breath samples, then ongoing detention was necessary in order to obtain evidence of Mr Gordon's impaired driving.

Because of this difference between BC and Nova Scotia, this analysis works in BC, but might not work in Nova Scotia.

Refusal of a Breath Screening Demand

But what if Mr Gordon refused a screening demand?

There's no legal right to advice after a screening demand. The Sullivan analysis does not apply. An unconditional refusal terminates that part of the investigation.Even if the driver wants to talk to a lawyer (See Woods)

What's the fair thing to do at roadside with a driver who unequivocally refuses to blow into a screening device, but wants to talk to a lawyer?

Here's my suggestion:

If s.495(2) prevents you from arresting him, or if s.498 compels you to release him, then I suggest that you obey your legal obligation first - release the driver and serve process. But before s/he goes, try to help them get legal advice. After they get legal advice, the driver may want to comply. If so:

• Make no new screening demands (your lawful authority to do so has expired).
• Make no promises about what will happen if they comply (it has to be voluntary).
• Regardless of what result flows from the test, the suspect can technicaly be charged with the initial refusal.
• They can not be charged with another refusal for deciding again not to comply.
  
• But if they pass the screening, I expect you will drop the case.
• If they fail, you can continue with your investigation.

Don't Offer Refusal as an Option

After you make a demand, you have a duty to follow through without delay.

All too often, after reading a demand, officers ask the driver about their plan to comply.

• Are you going to comply?
• Are you going to blow into the instrument?
• Do you want to blow?
  

Those questions cause trouble. They suggest that the driver has a choice of complying or refusing.

Don't suggest to a suspect that they commit a crime.

If you found a group of mischievous teens hanging around at 4:00am, you wouldn't ask them "hey kids, are you going to throw a rock through that store window, or are you going to go home?" If they weren't thinking of smashing the window before, they will now.  Why do the same thing with an inebriated driver?

Act as though they're going to comply, even if they mumble disagreement. Promptly present the instrument or do the field sobriety tests. Or bring the driver quickly to the instrument or the DRE.

2022.07.26 R. v. Lafrance, 2022 SCC 32 - Time to Start Second-Guessing Yourself

Last week, the Supreme Court of Canada delivered a split decision which will cause you trouble for at least a decade.

The majority of 5 judges determined that even if you repeatedly tell someone that he is not detained, he may still be detained for the purposes of s.9 or s.10 of the Charter.

They also found that even after an arrested suspect exercises his right to counsel, you may have to give him further access to legal advice if he hints that he got bad legal advice or that he expected to get further access to counsel.

The decision contains much to consider. I haven't finished analyzing it. I will write more soon.

This decision matters to all police officer who interact with suspects. Members of interview teams will need to read it carefully.

2022.07.02 When is the Case Over?

In 2010, a court found that Mr Bailey, 2022 ONCA 507 did, indeed rob and assault his victim, causing bodily harm. His lawyer asked the judge to find him "not criminally responsible by reason of mental disorder". The judge (and prosecution) agreed.

For the next decade he stayed in hospitals and supervised placements in the community.

And after a decade, he applied to appeal his conviction.

The court let him.  If there's a retrial, it's going to be a difficult one to run.

When you're clearing out your exhibit locker after a big case, it might be worth taking a few photographs of the exhibits before you throw them out or return them. Especially if the defendant was found guilty.

2022.07.02 Interviewing Vulnerable Suspects - Voluntariness

Mr Hosack, 2022 BCCA 226 suffered from mental illness when he killed Mr Falardeau. Mr Hosack continued to suffer mental illness when police interviewed him about the homicide.

He asserted his right to silence. Police kept interviewing him. He denied killing Falardeau. Police kept interviewing him.

For 12 hours.

Many hours into the interview, Mr Hosack adopted a weird "grandfather persona". This persona admitted ordering the killing.

The trial judge admitted Mr Hosack's statement into evidence. It, and other evidence led the trial judge find him guilty of murder.

On appeal, Mr Hosack's lawyers argued:

• Police interviews should be limited to no more than 6 hours.
• These cops took unfair advantage of his mental illness and vulnerability
  
• The cops "gated" Mr Hosack

These arguments all failed.

The cognitive abilities sufficient to give a voluntary statement are modest. The evidence need only show that the suspect knew he was speaking with police, that what he says could be used in evidence, and that he exercised his on choice in deciding whether to speak. You may find some value in reviewing the trial judge's review of the interview.

These officers video-recorded their interactions with Mr Hosack. The recordings show that they treated Mr Hosack gently and kindly. His responses to them through showed that he understood what was going on.

The officers did overstate the strength of the evidence they had gathered. That can lead to difficulties if your lies force the suspect into confessing. That didn't happen in this case.

The officers did, however, "gate" him. He was about to be released from jail after serving a sentence on an unrelated matter. Police arrested him for the murder. Defence argued that doing so would dash Mr Hosack's hopes of liberty; this would serve as a psychological hammer to break him down.

The optics of gating suspect are ugly. Avoid proceeding in this manner if you can.

If he was insane, how could he be convicted of murder?

Sanity isn't binary. People who hold delusional beliefs on one topic can simultaneously think rationally on other topics. For example, you likely know people who hold delusional beliefs about COVID, politics or the flatness of the earth. The evidence did not show that mental illness rendered him unaware of the legal and moral wrongness of the killing.

The best-trained officers in interviewing did this interview.  General duty officers don't usually have that much training. These officers took 12 hours to interview Mr Hosack. General duty officers rarely get an hour to talk to the suspect.

Even still, I suggest that general duty officers read the trial judge's review for ideas on how to conduct their own interviews.  Even if you spend only half an hour explaining what you know about the case, you may collect crucial evidence.  Even if you don't get a confession, the defendant may admit background facts which will provide important at trial.

2022.06.26 "Can I have my cell phone" - Right to Counsel

In a routine impaired driving investigation, an officer arrested Ms Cyr-Desbois, 2021 QCCA 305, and took her to the police station.

When told she could call any lawyer she wanted, Ms Cyr-Desbois told the officer that she wanted her cell phone so that she could call her dad, and ask him for name and contact information of the lawyer that her family trusted.

The officer refused to let her have her phone, and did not let her call her father;  but she got to speak with duty counsel.

At trial and appeal, the judges agreed with her complaint: access to duty counsel wasn't good enough. She knew of a lawyer she would trust. Police should have tried to help her reach that lawyer.

In this case, that should have involved calling her dad, or letting her access her cell phone

2022.06.23 Cops Need to Prove Identity

People can make mistakes about identification of strangers. For that reason, judges view with some suspicion the word of an eyewitness "that man over there is the man I saw 2 years ago when the crime occurred."

What evidence should you gather so that you can prove that the person who turns up in court year(s) later is the person you caught committing a crime?

An undercover officer purchased drugs three times, and arranged to purchase them a fourth time. Police arrested Mr Baksh, 2022 ONCA 481 on the fourth occasion.

At trial, the undercover officer claimed to recognize Mr Baksh as the guy he dealt with on the previous three occasions.

Defence argued that the officer's brief interactions, so long ago, raised a risk that the officer might be wrong about who he dealt with.

If in-court recognition were the only evidence of identification, the judge would have acquitted.

But the officer's cell phone communicated with the same cell phone each time. The person he communicated with each time continued a conversation that started with the first call. Other officers tracked a car that the dealer used to the defendant's mother's house.

For police officers, taking photos of the suspect (and looking at them before you testify) really helps you explain how you recognize the person in the court room. If you can't get photographs, then consider what other evidence you can gather that answers the question "how will we prove that the person who comes to court a year from now is the same person we investigated today?"

2022.06.05 Bilingual Justice System - First and Second Choices

In Canada, people facing criminal charges have a right to a trial in either French or English ... or both. But they don't have a right to play games with the justice system over this right.

In British Columbia, the idea of a bilingual nation can seem theoretical. Of uniliingual people here, the vast majority speak Asian languages. Bilingualism in French and English is fairly rare.

But French remains the other official language of Canada. In an Anglophone province, this should affect your practice when arresting and releasing bilingual Francophones for court.

A junior cop arrested Mr Tayo Tompouba, 2022 BCCA 177 for a sexual assault. In English, she told him about his right to counsel.

He could speak Engish and French.

So could her supervisor.

But everyone spoke English, because that's convenient in B.C..

After getting legal advice (in English), Mr Tato Tompouba confessed to the police officer that he did sexual acts to the complainant while she slept.

An officer released Mr Tayo Tompouba on a Promise to Appear, which he signed.

He went to court, as he had promised.

The justice addressed him only in English.

Section 530 of the Criminal Code required the justice of the peace to tell him that he could have a trial in French if he wanted.

But she forgot.

He had an English trial.

After his conviction, Mr Tayo Tompouba wanted a do-over. In French, this time. (Maybe he thought he sounded more innocent in that language.) He appealed, complaining that the justice failed to tell him about his right to a French trial.

You might not find the Court of Appeal's analysis of language rights at trial interesting, but you should be heartened to learn that the investigators helped salvage the case.

They used a standard form for the Promise to Appear.  It contained a notice - in both official languages - informing Mr Tayo Tompouba that he could choose his language of trial.

At the appeal, the Crown argued: "Sure, the justice forgot to tell him about his choices. But the cop did. Mr Tayo Tompouba actually knew what choices he had. The minor error that the justice made means nothing."

Legally, this form didn't cure the mistake that the justice made. But it helped the court of appeal come to the conclusion that the justice system treated Mr Tayo Tompouba fairly. His conviction stuck.

This case reminds us all that in a justice system, every defendant needs to be able to communicate effectively. Get interpreters for folks who need them. But in Canada, French and English are special. Even if the defendant can communicate effectively in one language, s/he choose to use the other.

This case makes us think about pre-printed forms. I don't them very much. Filling the blanks is so boring that many people ignore what the forms say. When you stop thinking about what the document actually says, you may use it for the wrong purpose, and things will go wrong.

But when well-drafted and used properly, forms can save the day.

Now that you know why Promises to Appear should refer to the choice of language of trial, you might want to check to see whether your office still uses bilingual forms which mention the defendant's right to trial in either official language.

2022.06.05 Note-Takers - First and Second Choices

When the recruit arrested Mr Tayo Tompouba, 2022 BCCA 177, she told him about his right to counsel and wrote some notes about it in her notebook. Her supervisor watched, but didn't write the prisoner's answers in his notebook.

The recruit died before trial.

As noted above, the prisoner made a damning confession. But the Crown could not use it at trial unless it could prove that the police told the prisoner about his right to counsel.

So they asked the supervisor to explain what happened.

Not easy if you don't have notes. He didn't remember.

The prosecutors relied on the recruit's notebook and some clever legal arguments. They managed to satisfy the trial judge and the court of appeal. Complicated legal arguments don't always work. Evidence usually works better.

Whether you are supervising, or just providing back-up to another officer, if you watch significant events in the investigation, take some notes.

2022.05.29 Charges Aren't Convictions - Warrant Drafting

I often cross-examine defendants about their criminal records. I am allowed to ask them whether they were "convicted" of the offences on their record. They often agree that they were "charged".

But in a court room, there is a big difference between "charged" and "convicted". "Charged" happens when a peace officer swears that there are reasonable grounds to believe that someone committed a crime. "Convicted" happens when the suspect pleads guilty, or when the judge, having heard sworn testimony concludes beyond a reasonable doubt that the suspect did the crime.

Many criminals don't know the difference. But judges care about the difference. Judges (and prosecutors) do a great deal of work moving from "charged" to "convicted". When you equate the two, you treat the judges' work as if it doesn't matter.

Pissing off the judge does not help the case.

Mr Abdoulkader, 2022 ONCA 354 attempted two bank robberies, and at one, he got away with lots of cash.

This wasn't new. He previously faced charges of attempted robbery and robbery. Of banks.

When investigation of the latest ones led police to Mr Abdoulkader, they applied for warrants for his house and cell phone.

In the ITO, the officer who applied told the justice that Mr Abdoulkader had previously been convicted for similar robberies.

Well, he had been convicted for a similar attempted robbery. But only once.

A justice granted the warrants. Executing the warrants recovered $222,000, and useful evidence.

Mr Abdoulkader was charged. At trial, his lawyer complained that the ITO contained false information. The judges agreed.

But there was so much other evidence justifying the issuance of the warrant that the judges dismissed his complaint. Mr Abdoulkader was convicted, and he lost his appeal.

For the last 20 years, I've seen cases discussing this error more times than I can count. It seems that police officers keep making the same mistake. Next time you draft an ITO, try to avoid annoying the judges:

• Police computer systems tend to report when charges are laid, but not whether convictions resulted. If you think that the charges are worth mentioning in the ITO, then the judge wants to know what verdict resulted. Go find out.
• Judges place no weight on acquittals. Unless there's a special reason, you should avoid listing them in your ITO.
  

2022.05.17 The Intoxication Defence - A Duty to Warn

?

A crime occurs when someone intentionally does something prohibited by law.

After a guy drinks so much that he does not know what he is doing, can it really be said that he "intentionally" did anything? Can extreme intoxication excuse every evil act?

In May, 1989, Mr Daviault [1994] 3 SCR 63 got real drunk and sexually assaulted a friend of his wife. In his defence, an expert testified that his intoxication deprived him of any understanding of what he was doing. He couldn't have acted intentionally.

The trial judge convicted him. The Supreme Court of Canada liked the argument and ordered a new trial.

Today, the science suggests that alcohol can not create an ability to act without knowing what you're doing. But drugs can.

The idea that a guy beat the charges by saying "I was too drunk at the time to know what I was doing" annoyed a lot of people. Parliament responded by enacting s.33.1 of the Criminal Code which eliminated voluntary intoxication as a defence to a crime of violence.

Mr Brown, 2022 SCC 18 got high on a combination of alcohol and magic mushrooms. In a psychotic state, he attacked a stranger, causing terrible injuries. His lawyer complained that s.33.1 offended his Charter rights by allowing him to be convicted of a crime when he never intended to do the harmful prohibited thing (assault).

The judges agreed: he didn't know - at the time that he got high - that he would hurt anyone; and when he did hurt someone, he was too intoxicated to intend to do anything wrong.  Therefore, he didn't intentionally do any prohibited act that hurt anyone. Therefore, it would be wrong to say that he committed an assault.

Mr Sullivan and Mr Chan, 2022 SCC 19 made similar successful arguments. Mr Chan also mixed alcohol and magic mushrooms, which may have aggravated a pre-existing brain injury. After several irrational acts, he stabbed and killed his dad. When Mr Sullivan overdosed on a prescription medication, he attacked his mom with a knife, but didn't kill her.

Note that this analysis only applies to extreme intoxication, where the defendant is a walking automaton. If the offender still has some general idea of what he is doing, then he may be held liable for most offences of violence.

What Parliament Can Do

The judges recognized that Canadians want to hold the extremely intoxicated people accountable for the harm they do. The judges suggested two ways to do it:

1. Create a stand-alone offence of intoxicating oneself excessively; or
2. Create a criminal negligence offence of intoxicating oneself when one knows that doing so creates a dangerous risk of criminal behaviour that one cannot control, and then committing a criminal offence.
   

If Parliament creates only the second type of offence, the next "Mr Brown" would escape liability. Mr Brown testified that he had tried magic mushrooms before. According to him, they gave a "fuzzy but positive feeling". But no homicidal madness. Because he had no reason to expect to behave so badly after consuming 'shrooms, he was not criminally negligent when he consumed them.

Even if Parliament creates both types of offences, some evildoers will escape liability by surprising the Crown with this defence.

Suppose, for example, that excellent security video records a killing. The investigation locates no evidence of intoxication. The only charge that the evidence supports would be murder.  Suppose, at trial, the defendant testifies that he bought and used magic mushrooms shorty before the killing, which put him into a psychotic state. If believed, this evidence now provides a complete defence to the murder charge. And the killer would escape conviction for the other offences because they were not charged.

Therefore, Parliamentarians would be wise to add a section that defines these offences as "included" offences for offences that include violence, property damage, or risk to life.

Parliament might also do well to include a presumption that everyone knows that illegal drugs inspire dangerous behaviour.

The combination of mental disorder and intoxicants complicates the analysis some more. As does the thorny problem of addiction. The analysts in Ottawa have some work to do.

What police can do

If you investigate a case of highly intoxicated violence, you might want to investigate the defendant's past incidents of intoxication.  Did he know what would happen if he used? If it looks like he might beat the violence charges on the basis of extreme intoxication, can the Crown prove that he was criminally negligent?

Users of intoxicants need to know how dangerous they become when they use. If they know, and still use, then they're criminally negligent.

Therefore, if Johnny goes crazy on drugs, then when he regains sobriety, you should:

1. tell him clearly what did,
   
2. try to find out what he was using, and
3. document what you learned and what you told him.
   

If he uses the same drug again, he may be held criminally negligent for the harm he causes. But only because the prosecutor can prove that Johnny knew how dangerous he would become when he used.

2022.05.17 What Digital Logs can Tell You (If you Look)

What did Mr Grandine, 2022 ONCA 368 know about the effects of lorazepam, and when did he know it?

The answers to these questions helped answer a bigger question: was he criminally responsible for his wife's overdose?

During their relationship, his wife did not like his habit of viewing pornography online. As part of ongoing counselling, they installed software on a shared computer which filtered his access to porn and reported to her account what his account had been doing.

His wife did not like his infidelity either. He promised to end his affair with Ms Florentino, a woman from the church.

Searches of his electronic devices suggest that he broke both promises.

Mr Grandine told police that on the night that she died, he left the house around 9:45pm, for a run. He returned an hour later.

But:

• At 10:06pm, "someone" uninstalled the filter software on the shared computer.
  
• At 10:15pm, his phone spent 26 minutes communicating with his lover.

He then called 911 to report that his wife drowned in the bathtub.

Her body contained too much lorazepam.

Did she commit suicide by taking lorazepam?

Someone in her house took great interest in lorazepam. Searches done on their shared computer showed queries on where to buy lorazepam without a prescription, how much would be a fatal dose, and whether it or other drugs would be detected in an autopsy.

In the days before she died:

• The home computer searched for sex-related websites.
• Mr Grandine exchanged 115 text messages with his lover, Ms Florentino.
• The home computer searched for "100 milligrams Ativan" and the Wikipedia page for Lorazepam. Ativan is a trade name for Lorazepam. The daily maximum therapeutic dose is around 6 milligrams.

The searches for sex-related websites occurred within minutes of searches relating to Lorazepam. From this pattern of usage, one can reasonably infer who took such an interest in lorazepam.

But there's more. When emergency personnel arrived after the 911 call, they found Ms Grandine still in the tub. Mr Grandine had not even pulled out the plug to drain the water. Are your suspicions aroused? Yeah, mine too.

The Court of Appeal decision addresses no points of law relevant to police work.

But it does illustrate what you can learn from electronic devices if you search broadly, and how much more you can learn when you create a time line which shows that data in relation to the other evidence.

Doubtless, the investigators needed a search warrant to authorize such broad searching. I don't know how the investigators justified the broad searches that they did.

Recall that an application for a search warrant must explain what relevant evidence the applicant expects will be found in the device to be searched. When a justice grants the search, the searcher must focus the analysis on the data identified in the warrant.

You won't find that data if you don't look for it. You can't look for it in private devices without judicial pre-authorization. You won't get broad judicial pre-authorization unless you consider carefully what you know, and articulate what inferences you can draw from what you know.

2022.05.01 Police Conduct when Providing Access to Counsel

The Supreme Court of Canada delivered a decision on Friday that matters to investigators of every type of crime. If you might detain or arrest anyone in the next 15 years, you ought to read R. v. Dussault, 2022 SCC 16.

Police officers arrested Mr Dussault for murder and arson. He told them he wanted legal advice. He picked a lawyer at random. That lawyer spoke to him for 9 minutes. The lawyer asked to speak to an investigator, and did. The lawyer asked that police to suspend the investigation, so that he could come to the police station to talk further with Mr Dussault.

The officer told him "no problem".

The lawyer told Mr Dussault that he would come to the police station to continue the conversation.

The investigators reconsidered whether Mr Dussault was entitled to further legal advice. Relying on R. v. Sinclair, 2010 SCC 35, they figured that Mr Dussault already got his legal advice, and wasn't entitled to more. They pressed on with their investigation, and told the lawyer not to come to the police station because Mr Dussault didn't want to meet him.

When the lawyer came to the police station, the police officers did not permit him to talk to Mr Dussault. Mr Dussault left an angry letter, explaining that he didn't think his client understood the legal advice he gave.

When Mr Dussault asked whether his lawyer arrived, an investigator asked him who had asked the lawyer to come. Mr Dussault said it was the lawyer's idea. The investigator told Mr Dussault that the lawyer was not in the police station.

A different officer asked Mr Dussault questions. Mr Dussault expressed concern that his lawyer didn't arrive. He then made incriminating remarks.

At trial and on appeals, Mr Dussault complained that the police officers breached his right to get legal advice, and the incriminating remarks should be excluded from evidence.

The trial judge figured that Mr Dussault got sufficient legal advice in the first conversation, or at least that the police could reasonably presume under the circumstances that he did. Canadian law does not grant suspects the right to have a lawyer present during police questioning (see Sinclair).  Therefore, the police did not breach his rights.

The Court of Appeal figured that Mr Dussault did not receive a reasonable opportunity to get legal advice, and the police knew it because of the lawyer's angry note. Those judges felt that the police deliberately attempted to prevent Mr Dussault from getting complete advice.

The judges of the Supreme Court of Canada all agreed with Moldaver J. - a particularly well-respected judge on criminal law.

He ducked the question whether Mr Dussault got a sufficient opportunity to get legal advice. Instead, he looked at what the police knew about Mr Dussault's experience of getting legal advice. The officers knew:

1. Mr Dussault spoke to a lawyer;
2. The lawyer said he would come to the police station to talk with Mr Dussault, and did come.
3. At the beginning of the interview, Mr Dussault expected to see his lawyer.
4. But police told Mr Dussault that the lawyer wasn't there.

This sequence of events would give Mr Dussault the impression that the lawyer let him down. Why should he rely on the advice of an untrustworthy lawyer?

Moldaver J. concluded that the police were obliged to allow Mr Dussault a further opportunity to get legal advice because of the impact that police behaviour had on his trust in the legal advice he received.

You might ask yourself why Waldock thinks this case matters. "I'm not on the homicide squad. I'm not going to investigate the kind of cases in which lawyers rush down to the police station to speak with their clients.".

Judges Care about Prisoners Getting Legal Advice

All of the judges concentrated hard on what police officers did to provide the prisoner with access to counsel.

I write about s.10(b) of the Charter often because it comes up so often.

Whether you arrest murders or drunk drivers, you can expect defence counsel and judges will scrutinize your actions after the arrest.

1. Did you inform the prisoner promptly about the right to get legal advice? (Did you make notes?)
2. Did you hold off asking questions about the crime before the prisoner got the access they wanted?
3. Did you make reasonable efforts to accommodate their desire to identify an appropriate lawyer and contact them?
4. Did you act promptly, or make the prisoner wait unnecessarily?
5. When the prisoner contacted counsel, did the prisoner get a reasonable opportunity to get advice?
6. Did you say or do anything which might undermine the advice that the prisoner got?

Knowing that you will face such scrutiny, do you keep adequate notes and records?

How can police determine when a prisoner received a "reasonable opportunity to get legal advice"?

The trial judge and the Court of Appeal wrestled with this question.Justice Moldaver ducked it. I think he declined to answer that question because it's so important, and because he wanted to highlight his main point.

Despite the absence of an answer, we can draw some useful experience from this case:

• Judges won't like it if you mislead the lawyer about whether the client wants more advice.
• Judges won't like it if you make the client think that the lawyer doesn't care.
• The prisoner isn't entitled to have the lawyer present when you interview.

A single phone call may or may not suffice. Because legal advice is privileged, you must not ask what the lawyer discussed with the prisoner. But you do want to know whether the prisoner got the legal advice he was seeking, or whether he is expecting or needing more.

Undermining Legal Advice

Justice Moldaver focussed on this topic.

Many years passed since the Supreme Court of Canada last directly discussed what a police officer can say about the defence lawyer. In R. v. Burlingham, [1995] 2 SCR 206, the judges didn't like how the police officer explicitly characterized defence counsel as greedy and uninterested in the defendant's best interests.

In this case, even though the police officers said nothing derogatory about the lawyer, their actions had the effect of making him look bad.

This nuanced approach gives defence counsel broader scope to challenge your words and conduct in the future.

How will you respond

From 1995, we know that you must not denigrate defence lawyers.

Notice that the problem arose in this case partly because of the combined remarks of more than one police officer. When one officer hands a prisoner over to another officer, they should communicate about the progress of the prisoner's access to counsel. Beware of making assumptions about what previous lawyers told the prisoner.

Notice that Mr Dussault even alerted the intervewing officer to a potential problem. It may be wise, when you receive a prisoner, to ask him or her about the progress of access to counsel, and to double-check concerns that the prisoner raises.

Seeking Legal advice is Good

What's good for the goose is good for the gander.

Judges like it when people seek legal advice.

If you read the case, you will find that one of the officers sought legal advice before denying Mr Dussault an second interview with counsel. Although that didn't impress the Quebec Court of Appeal, I think it did impress Justice Moldaver. Seeking legal advice when you're not sure is a good idea.

2022.04.27 Home Invasion without Imprisonment - Residential Searches Tend to Trigger Detentions

Suppose 8 men with guns invaded your home at 6 in the morning. Suppose that they told you to go to the living room. Would you feel "detained"?

That's what happened to Mr Scopel-Cessel, 2022 ONCA 316.

Eight police officers turned up at his place, with a warrant to search for child pornography. They wanted to know who was responsible for the file-sharing program running the at the shared IP address at his residence.

The lead investigator told him and his wife that they were free to go, but asked them to go to the living room while the officer searched.  The lead investigator told them that they had no obligation to answer questions or assist; but he asked them questions which they answered, and he persuaded Mr Scopel-Cessel to use his password to log into his computer, so that the searchers could locate evidence.

Mr Scopel-Cessel asked for permission to make coffee for himself and his wife.

The officer never told him of his right to contact a lawyer until the officers found the file-sharing program running on the computer he had logged into. At that point they formally arrested him.

If you read the decision (it's mercifully short), you can see that the investigating officer tried hard to avoid the detention trigger.

The trial judge found that no detention occurred before that arrest. The appeal court disagreed.

Controlling the scene usually involves controlling the people in it. Asking questions about their involvement in the offence tends to focus your interaction on their involvement in a crime. And that may defeat all the comforting words you say that they are free to go.

This case is worth discussing before you execute your next residential search warrant. With the benefit of hindsight, how would you have handled this interaction with the prime suspect and his wife? If you try to assure them that they are not detained, and free to go, perhaps you might also suggest that they can use their freedom to call a lawyer, if they want.

2022.04.24 Incommunicado between Arrest and Search - A Danger Zone

I found a decision which advanced and junior officers might find useful.

Confidential informants told police that Mr Ghousy trafficked firearms. Surveillance established a network of people with whom he associated. Police watched what looked like a firearms transaction. A couple of days later, they saw another transaction between Mr Ghousy and Mr Keshavarz, 2022 ONCA 312. Police officers arrested them both. They found two handguns in Mr Ghousy's car, and cash in Mr Keshavarz's pocket and drugs in his car.

The officers sought applied for search warrants for 3 residences associated to the two men. The officers suspended their access to counsel until after they got and executed their warrants.

At trial, both men complained that the police investigation breached their rights.

Mr Ghousy enjoyed more success than he deserved. The trial judge figured that the officers lacked sufficient grounds to search his car, and excluded all the evidence as against him. (The Court of Appeal felt that there were ample grounds.)

The trial judge convicted Mr Keshavarz of trafficking the two guns that were found in Mr Ghousy's car.

Mr Keshavarz appealed. He complained that the judge should have excluded even that evidence because the police violated his right to counsel: He didn't get to talk to a lawyer for over 7 hours after arrest!

The Crown agreed that the police breached Mr Keshavarz' right to counsel, but disagreed about the 7 hours. The police allowed Mr Keshavarz to make calls about an hour after the searching was done.

The Court of Appeal agreed with the Crown. Must of the delay was justified.

There are times police can suspend a prisoner's access to counsel. This was one of them.

1. Mr Ghousy worked with others trafficking firearms. If his confederates learned of his arrest, they might well hide the rest of his firearms.
2. Those firearms endangered the public.
3. Police could not enter the residences and seize those firearms until they got a warrant.

An officer wisely testified that he had no concern that the lawyers would help hide the evidence; but in his experience, "things as simple as counsel contacting potential sureties or family members could 'inadvertently cause [the] loss of evidence'".

The court particularly liked how the police did not suspend access to counsel as a matter of routine, but because the specific events in this case required it.  Senior police officers should review the discussion at paragraphs 71-81 to get a sense of what justifies the suspension of access to counsel.

Although the court upheld the conviction, they still found that there was a breach of s.10(b).

If you suspend a prisoner's access to counsel, you must grant access to counsel immediately after the reasons for it subside.  In this case, the moment of safety came when the last house was searched. At that point they should have contacted the cell block, and permitted Mr Keshavarz to get legal advice. Instead, they packed up and drove back to the police station.

Junior officers should not often suspend a prisoner's access to counsel. This decision teaches them that judges care about s.10(b). They want to see that you try earnestly to give your prisoner access to legal advice promptly after arrest or detention.

2022.04.13 Police Officer's Duties and Decorum in Public

Mr Hall 2022 ONCA 288 worked as a security guard at a car factory. On his watch, a fire broke out in an electrical cabinet. In the recent past, that factory had suffered copper thefts. The electrical cabinet contained copper. If someone had attempted to remove that copper, it would have caused an "arc flash" explosion which could have started the fire. Coincidentally, after the fire, Mr Hall had physical symptoms consistent with suffering the effects of such an explosion.

Maybe he started the fire by trying to steal copper.

A police officer arrested him for the theft.

The security company fired Mr Hall.

Charges proceeded to trial. The trial judge acquitted Mr Hall, on the basis that the evidence didn't quite prove his guilt.

Then Mr Hall sued the police for malicious prosecution. He complained:

• The available evidence could not lead to the conclusion that probably Mr Hall tried to steal copper. The police should have investigated other leads before arresting him.
  
• At the time of arrest, the arresting officer didn't actually believe that Mr Hall committed an offence.
• The lead investigator demonstrated bias against him at the criminal trial: he did a high-five with a prosecution witness outside the court room, he failed to alert the prosecutor and defence counsel when they misunderstood an important fact, and he mischaracterized some key evidence when testifying.

The trial judge agreed with Mr Hall's complaints, and ordered the police service to pay $686,216.92. The Court of Appeal upheld the verdict.

Ouch.

Regardless whether you agree with the conclusions in this case, it identifies vulnerabilities for busy or enthusiastic cops.

Arrest

All too often, the complaint identifies a crime and a criminal. An objective investigator should not arrest because a citizen demands it, but because the evidence justifies it. Often, the complaint supplies sufficient grounds. But you need to think before you act. The first investigative theory ain't necessarily the best theory. Unless there's urgency - where delay would imperil life or evidence - investigate the available leads before arresting the suspect.

Don't arrest if you don't think the suspect committed a crime.

Obvious? Yes.

Worth repeating? Yes.

Sometimes a junior officer who knows more about the case feels obliged to obey a senior officer who knows less about the case. Rookies: if a senior officer tells you to arrest someone and you don't think the evidence justifies it, ask why. You don't want to cost your police force half a million dollars. Senior cops: listen to the rookie's concern, and if you disagree, explain your thinking

Am I counselling insubordination? Must the rookie refuse an order? No.

If an investigating officer believes the suspect is probably guilty and has reasonable grounds for this belief, that officer can direct another officer to make the arrest. The arresting officer may rely on the investigating officer's work. (Please add the investigating officer to the witness list.) R. v. Hall, 2006 SKCA 19 (Same last name, but an unrelated case.)

Objectivity

The high-five in the court house demonstrated the police officer's allegiance to the company. The judge didn't like it.

Should you stand aloof from the victims in every criminal case?

No.

A good cop seeks justice. A cop who cares will support and encourage the victims of crime, and the witnesses who participate in the stressful business of trial.

I don't think that high-fives are inherently wrong. But they do risk tainting you with an appearance of bias.

Seeking justice also requires caring also about the perpetrators of crime, and ensuring that the process that leads to their conviction is fair, and looks fair.

As investigator, your job is not to secure a conviction, but to present the evidence fairly. Behave in a manner which inspires the trust of both sides of the dispute.

Next time you encounter the defendant, he may have information that he could tell you about a crime. If you prove yourself honest and trustworthy in your dealings with him, he may talk with you next time.

Or maybe he meets a different cop, and remembers how you behaved.

Your objectivity and compassion in one case can ripple far and wide.

2022.04.09 Clearing a Residence - Need for Reasonable Suspicion and Notes

Yesterday, the Supreme Court added some conditions on when you can clear a residence, and how you should document it.

Mr Stairs, 2022 SCC 11 drew attention to himself, which resulted in police discovering his drugs. Mr Stairs complained to judges that police overstepped their authority. The judges disagreed. I previously discussed his complaints to the Ontario Court of Appeal. He didn't like their conclusions, and complained to the Supreme Court of Canada.

The facts

While driving to his father's house, he beat on his passenger, a woman.

Another driver noticed this, and called 911.

Police attended the residence. They knocked and announced themselves.

Nobody answered.

Fearing for the woman's safety, they entered. They announced themselves as police, and asked all present to show themselves.

Nobody appeared.

Eventually, from the top of the basement stairs, an officer saw Mr Stairs moving around down in the basement. But he didn't come up stairs.  The woman did, with fresh injuries on her face. She denied that anything untoward had occurred. Mr Stairs hid. Officers descended to the basement, found Mr Stairs and arrested him.

And then, an officer walked through the basement, looking for people. That's when he found the drugs. At trial, the officer explained that he was clearing the residence - looking for other possible victims or other potential assailants.

The complaint

Mr Stairs complained that the officer had no business snooping through his home: the officers had already protected the victim and secured the suspect. There was nothing more for them to do in the basement. Mr Stairs proposed that police should only be permitted to clear a residence of people when they have reasonable grounds to believe that someone (police or public) will suffer imminent harm if they don't.

The Conclusion

The Supreme Court agreed with Mr Stairs that police can't snoop through a residence just because they made a lawful arrest inside it. They disagreed with him that officers need to justify their search on such strong grounds.

The judges agreed with the Crown that you can still search the vicinity of the arrest. If you find him in a bedroom, you can look for evidence related to the offence, or weapons, in the places to hand where he might have stowed them just before the arrest. But you can't search the rest of the house for those things.

Because of the enhanced privacy of a residence, you can't go digging through the rest of it looking for evidence.

The judges said that you can't even clear it of people unless you have have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search. And when you search, you must restrict your activity to a search for people. No digging for evidence.

But in this case, there were ample reasons for concern. Finding one battered woman does not eliminate the possibility that Mr Stairs hurt another woman. Indeed, it raises a distinct possibility that he did hurt someone else.

Therefore, Mr Stairs lost his appeal. And his drugs.

The Warning

Specialized officers such as tactical squads and dog handlers, beware! The judges strongly recommended that you take fulsome notes about searching residences: what you did, where you searched, how long, and what you searched for. In my experience, those specialized officers often think that because they found nothing of interest, they need not write about it. The judges disagree.

The Gap

The judges did not address what to do when you want to protect evidence in a residence until the execution of a search warrant. In the absence of an arrest, can you enter to clear the residence? I did discuss "freezing the scene" a bit, back in 2019. I don't think that the basics have changed for other contexts. Instinctively, you should think that you need reasons to intrude on private spaces. And then, instinctively, you should record those reasons, as well as how you carefully protected the privacy while performing your duties.

2022.04.09 Reporting the Results of a Computer Search - "5.2" Reports for Data

Head's up!

A trial judge in B.C. recently decided that the results of the non-consensual search of a computer are "things" that need reporting to a justice pursuant to s.489.1 of the Criminal Code, and renewal of detention orders pursuant to s.490

The court has not yet published the decision. Its citation will be: 2022 BCSC 344.

2022.03.09 Arrest for the Sole Purpose of Interviewing

Can a police officer lawfully arrest a suspect for the sole purpose of asking the suspect questions?

If the offence can be prosecuted summarily, I don't think so.

Unfortunately, the only two decisions I know of which address the question directly come from trial judges. I don't know of any answers from higher courts.

An Iqaluit police officer learned that Ms Akpalialuk, 2013 NUCJ 12 was bootlegging. He found her at the air cargo office, receiving lots of boxes of booze. He arrested her and seized the booze. He left her in custody for longer than he should have. He then interviewed her. Five times, she told the officer she didn't want to answer his questions. Finally, she confessed.

But in Nunavut, bootlegging is a summary conviction offence. Section 495(2) prohibits police officers from arresting suspects for summary conviction and hybrid offences unless the public interest requires an arrest. The trial judge found that none of the justifications for arrest set out in that section applied.

In particular, the judge found that you can not justify an arrest for the purpose of taking a statement, or for getting the suspect legal advice. Confession excluded.

But the rest of the evidence proved the defendant's guilt. Therefore, the Crown could not appeal this ruling.

The other decision I know of is R. v. Dieffenbaugh, 1990 CanLII 2282 (BC SC). An officer arrested Mr Diffenbach for assault and interviewed him. Assault can be prosecuted summarily, which means that s.495(2) applies. Again, the officer had no justification under s.495(2) permitting arrest. The trial judge found that the officer breached Mr Dieffenbaugh's right to be free from arbitrary arrest. The judge found that the officer acted in good faith, and Mr Dieffenbaugh would have given the statement anyway. The judge admitted the statement into evidence, and later, convicted Mr Dieffenbaugh.

Again, the Crown won, and therefore, had no opportunity to appeal the finding that the interview breached Mr Dieffenbaugh's rights. (Curiously, in the defendant's appeal, the court said that the accused's statements were ruled inadmissible. R. v. R.A.D, 1993 CanLII 6878 (BC CA) at para 13. I'm not sure what happened there.)

Section 495(2) does not apply to the offences which can only be prosecuted by indictment such as: robbery, aggravated assault, residential burglary, manslaughter, murder etc. Can you arrest a suspect for one of those offences, solely for the purposes of interviewing them? I don't know.

If you know of court decisions which tackle this question of arrest solely for interview, feel free to throw me an email.

Update:

A smart officer pointed out the case of R. v. Viszlai, 2012 BCCA 442. In that case the police arrested lawfully. They had concerns that he posed a risk of reoffence. The officer responsible for the investigation was out of town, and took many hours to get to the police station to interview the suspect. The court interpreted s.498(1.1), which requires police to release prisoners as soon as practicable - unless the "RICE" public interest factors apply. The judges held that after a lawful arrest, police may hold someone for the purposes of interviewing - as long as there is no unreasonable delay.

But the language in s.498(1.1) is exactly the same as the language in s.495(2). How can the same language say it is unlawful to arrest for the purposes of an interview and but also mean that it is lawful to hold an arrested person for the purposes of an interview?

The answer remains unclear.

2022.02.25 Night Search - s.488 of the Criminal Code - Absence makes the heart grow fonder

Section 488 of the Criminal Code prohibits you from executing a search warrant at night unless you satisfy the justice that there are "reasonable grounds" for executing it at night.

A little bit of history

When first enacted back in the 1890's, this made total sense.

Barging into people's residences at night when they're all sleeping can scare them. Sometimes people mistake a police search for a home invasion, and respond with force, which can be bad for police and suspects.

International events highlighted the wisdom of s.488. Night raids by government agents was a hallmark of totalitarian regimes - like the KGB during Stalin's reign of terror, or the Gestapo under Hitler. Nice Canadian police shouldn't raid at night unless it is necessary. Indeed, R. v. Sutherland, 2000 CanLII 17034 (ON CA), the court declared that only in "exceptional circumstances" should police execute search warrants at night.

The concept is great, but the wording of the section did not keep up with the times.

In times past, once an officer seized something, the officer could examine it without judicial authority.

Now, we have cell phones. In most situations, you need a search warrant to search a cell phone that you seized from a suspect or a scene.

Can you execute a search warrant for a cell phone after 9:00pm? Not according to s.488. What about a warrant to search a seized vehicle for guns? Not at night. You need special permission from a justice before you can put in the overtime on that search.

Of course, this is ridiculous. When you plug the cell phone into a data download device, you won't disturb or endanger any people sleeping inside a cell phone. When you start searching the seized vehicle in your secure bay, you won't rouse any people from their beds (but the bound and gagged hostage in the trunk might be pleased that she didn't have to wait until morning for you to release her).

Until Parliament fixes this section, you always need to ask justices for permission to execute at night any warrants you obtain under s487, 487.1 and 462.32 (proceeds of crime).

"Reasonable Grounds" or "Exceptional Circumstances"?

Notice the words I highlit above. The section says the justice needs "reasonable grounds" to grant a night search. The Ontario Court of Appeal said that the justice should grant it only in "exceptional circumstances". At law, those are different standards.

How big an emergency must there be to justify a night search? Last week, the BC Court of Appeal said it needs to be firmly justified, and almost-but-not-quite agreed with the Ontario Court of Appeal on the "exceptional circumstances" test.

It all started in September 2018, when Danny Solomon tried on a $4,000 gold necklace at a Kamloops jewellery store. He ran out of the store without paying for it. On December 5, 2018, images of a matching necklace appeared in advertisements on Facebook Marketplace and Kijiji under the name of his buddy Matthew Carstairs, 2022 BCCA 69.

An officer figured it was the stolen necklace. On December 10, the officer applied for a warrant to search the motel room where he stayed, and asked to be permitted to search by night.

The officer wisely remembered to explain why a night search made sense:

• Urgency - Carstairs might sell the necklace at any moment.
• Transparency - Carstairs had a curfew. Night search would ensure that he would be present when police came to search.
  
• Safety - Carstairs seemed to be a night owl. He was up at 4:00am on December 9.
  

He got his warrant and executed it. He didn't find the necklace. He did find drugs, cash, a stolen drone and an imitation handgun.

The trial judge felt that this night search was justified.The appeal judges disagreed. Factor that mattered to them included:

• The investigation of serious offences justify night searches more easily than minor offences like theft.
  
• Presence of people in the place increases risk. The fact that the police expected Mr Carstairs would be home was a reason not to permit night search.
  
• The fact that the necklace could be sold or transferred easily did not justify the search, because police could have monitored Mr Carstairs until morning.
  

However, the judges were pleased that the officer asked for the night search, and explained his reasons fairly. They felt that the breach of Mr Carstairs' rights under s.8 was minor. They upheld the convictions.

For you, the lesson is reasonably clear: night searches need permission. Always ask. Always justify it.

Judges aren't fond of night searches. But in this context, "absence makes the heart grow fonder" means "absence [of people from the place you're going to search] makes the [judicial] heart grow fonder [of night search]."

That suggests night searches for cell phones or seized vehicles should be easier to justify than night searches of homes.

2022.02.20 "U good for powder?" - Entrapment

For those of you who investigate dial-a-dopers, this case provides a short clear distinction between entrapment and development of reasonable suspicion.

When an anonymous tipster gives you the phone number of a suspected dial-a-doper, your investigation should not start by immediately calling it and offering to buy. That's entrapment. You need to develop a "reasonable suspicion" that the number a drug dealer uses the number. Maybe your databases tell you something about this number. Maybe your tip gives you more information.

After canvassing other sources, you might try calling the number and asking whether the person who answers deals in drugs.

An officer received such a tip. It led him to the information that the number belonged to Mr Zakos, 2022 ONCA 121, who had no criminal record.

The officer texted the number:

Officer: This tj?
Zakos: Who is this
Officer: Scot, got your number from my cousin. You still around the college?
Zakos: Who’s your cousin
Zakos: Yes still close but I moved
Officer: Jay said he got off you at the gas station a while back. U good for powder?
Zakos: How much were you looking for

Defence complained that the question "U good for powder?" constituted entrapment before the officer had formed a reasonable suspicion.

The judges disagreed. It wasn't an offer to buy, it was an inquiry to determine if the suspect was in the business. It was close to the line but did not cross it.

2022.02.18 Storing Digital Evidence

If you don't yet have a convenient and formal method of storing digital evidence, get one now.

In 2011, someone wearing a balaclava robbed a donut shop at gunpoint. Police seized security video, and a balaclava from nearby. They found some saliva 60m from the shop. DNA analysis from the balaclava and saliva did not match known offenders. The robber left a white kitchen garbage bag on the counter in the shop.

In 2017, DNA from Mr Janeiro, 2022 ONCA 118 entered the DNA database. It matched DNA from the saliva, but not the balaclava. He was about the right height and age to be the robber. Of the 5 identifiable fingerprints on the bag, one belonged to Mr Janeiro. He was charged.

As trial approached, officers could not find the security video. After it was first obtained, an officer labelled it, and put it in a filing cabinet - in an unmarked brown envelope. Other officers viewed it. But nobody could find it for trial. The trial proceeded without it.

Defence asked the trial judge to drop the case because of the missing evidence. The trial judge refused, and convicted Mr Janeiro based on the evidence that remained. The appeal court agreed with defence counsel. In this case, the video was too important. The officers did not take sufficient care to preserve it. Losing it undermined the fairness of trial.

General duty police officers routinely take snapshots with their cell phones. Complainants regularly email screenshots, photographs, email and chat chains.  All sorts of electronic evidence pours in.

If you don't yet have a formal, secure and convenient system to preserve it, then evidence will go missing, and judges won't be sympathetic.

2022.02.17 "Holding Off" Eliciting Evidence before Access to Counsel

"Before you talk to a lawyer, please tell me about the drugs in your possession."

Such a question attempts to elicit evidence of a crime. If you arrested the suspect before asking it, then you have an obligation to "hold off" asking such questions.

Relying on a 911 call, police arrested Mr Mohamed, 2022 ONCA 117 at first for sexual assault. On a pat-down, they found a knife and a small quantity of drugs, so they arrested him for that too.  Mr Mohamed wanted a lawyer.

He appeared intoxicated. He talked in circles about what a good guy he was.

At the police station, he suddenly stopped talking.  That happened when an officer asked him whether he was hiding any weapons or contraband. No more rambling. Silence.

From that silence, the officers inferred that he was hiding something.

A strip search discovered 20 ounces of crack cocaine concealed in his anus.

The court found that the question violated Mr Mohamed's rights. Even worse, the officer who asked it testified that he routinely asked that question.  The judges decided to put the word out to police: don't ask investigative questions before the defendant gets (or waives) legal advice. Mohamed beat the charge.

Does this mean you can ask no questions whatever between arrest and access to counsel?

A good discussion of this appears in R. v O’Reilly, 2021 BCSC 766, which agrees with an older case:

"Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited..."

Basically, you can't ask investigative questions. Be wary of asking questions that could, as in the case of O'Reilly, turn out to provide evidence. (In that case, they asked the prisoner if he wanted anything from his vehicle. He described his phone. That phone contained evidence of his involvement in the crime. The court excluded evidence of that conversation.)

But you can ask the suspect if they have weapons or objects that could hurt you when you're searching for such things. R. v. Patrick, 2017 BCCA 57.

2022.02.08 Full Disclosure means More than "Evidence Supporting Conviction"

Ms Bouvette, 2022 BCCA 9 left a a 17-month old baby unsupervised in a bathtub. The baby drowned - or so said the pathologist.

Ms Bouvette pleaded guilty to criminal negligence causing death.

After sentencing, questions arose about the pathologist's competence. The Crown hired an independent lawyer to investigate.

It turns out that 43 pages - a peer review report which criticized the pathologist's conclusions - was not disclosed to defence.

That justified a re-hearing of the case

This time it was the prosecution that failed to disclose relevant evidence. Don't let "next time" be you.

It's surprisingly easy to fall into the trap of thinking that information about the case in your possession is "not relevant". This happens often when the information does not fit your theory of what happened. But that's exactly why it's relevant.

2022.02.07 After Arrest - Preserving and Proving Voluntariness

She told police "my cousin raped me last night."

Police officers arrested Mr S.S.S. 2022 YKCA 2. They (wisely) swabbed his penis and interviewed him.  He told police that he didn't remember putting his penis in his cousin. DNA testing showed that he did.

At trial, his memory returned. He remembered the sex, and particularly how consensual it was. He explained that his statement was wrong because he suffered a seizure. He also told the judge that the police told him that they would not release him if he did not cooperate.

Don't say stuff like that.

Judges exclude confessions if the police apply pressure of this sort to the suspect. This statement was obviously important. The appeal court ordered a new trial because of his claim (and a procedural mis-step).

I rather doubt that the officers in this case said anything of the sort.  But proving what police officers did not say can be tricky:

• The prosecutor needs to know the names of all of the officers that speak to the suspect, from arrest to statement.
• Every one of those officers needs to be able to explain what they did say to the suspect.
  

If you provide security to an officer who arrests the suspect, you may figure that it's not your investigation, and you aren't an important witness.

Surprise!

At trial, the defendant may claim "it wasn't the arresting officer who threatened me, it was the other guy".

Suddenly, your role changes from spectator to key witness. You'll wish you took more notes.

How do you handle this risk? There are two strategies:

• Say nothing, stay out of the action, and make a note - no conversation with suspect.
• Get involved, and document fully. Notes. Audio-recording etc
  

Even if you were a minor player at the arrest, during transport, or when receiving the prisoner at the police station, your name goes on the witness list, and the extent of your interaction appears in your notes.

2022.01.16 Imperfections and Delays in the Justice System

After an evening of drinking with a friend, Mr Girbav, 2012 ABPC 219 drove off the road. The streets in Calgary can be icy in January.

Two police officers saw the car go off the road, and went to investigate. The car was stuck - high-centred on accumulated ice and snow. One officer broke the driver's side window, pulled him out of the vehicle, and arrested him. Finding him too drunk to drive, the officer made a breath demand. He blew 210mg%.

He beat the charges.

He told the trial judge that the police officer attacked him without warning, and that a swarm of police officers jumped on him when he was pulled out of the car, and they beat him close to unconsiousness. He suggested that one of them made a remark that suggested that they needed to invent false charges against him, to cover up their own violence ("You better get something on this guy or you could have a problem.") He complained that he tried to get legal advice from a particular lawyer, but the police only let him talk to duty counsel.  He produced photographs of injuries to his head and to his arm. His long-time friend testified similarly about the bad behaviour of the police. They both mentioned that more than one officer removed Mr Girbav from the vehicle.

The police officers explained that even after they knocked on the driver's side window, Mr Girbav revved the engine. It looked like he was trying to get away. The one officer had to break the window in order to stop him. They disagreed that there was a crowd of police officers present to arrest Mr Girbav. It was just the two of them. The other officers arrived later. They agreed that he suffered an injury, but denied a beating.

The judge believed Mr Girbav and his friend. The judge inferred from differences in the officers' accounts that they had had not given accurate stories.

Did the violent officer and his partner lie to protect themselves?

About 5 years later, a lawyer complained about the officers to the Police Service and the Police Commission. ASIRT - Alberta's independent police watchdog - investigated. That investigation took 5 years. They concluded that the officers likely told the truth, and that Mr Girbav and his friend were the inaccurate ones. Decision of the Executive Director of the Alberta Serious Incident Response Team, January 6, 2022 (2017-32(S)

The most important piece of evidence came from an independent witness that police interviewed at the scene. Her version matched the version of the officers and contradicted the versions that Girbav and his friend gave.

The trial judge never heard her evidence. It would have been difficult to reach the same conclusion if he had.

Why didn't the prosecutor present this evidence? I suspect several reasons. For one, she seemed unimportant: she saw neither the driving before the crash, nor the driver's symptoms of impairment afterwards. I wonder whether defence gave sufficient notice of the details of Mr Girbav's claims. I am troubled by the manner in which they were litigated - but that's a lawyer's problem.

The trial judgement reflected badly on Csts MacGregor and Johnson. It took 10 years for them to receive vindication. I hope the judgment did not harm them.

Mr Girbav was convicted before and since this trial of impaired driving. When ASIRT interviewed him he denied responsibility for drunk driving. Information in the ASIRT report suggests that he is an unrepentant drunk driver. I hope he harms no one.

When the justice system reaches the wrong result, people can suffer.  When it takes too long to reach the right result, people can suffer.

This case resembles the fiasco which led to Ontario (Attorney General) v. Clark, 2021 SCC 18, which I discussed back in May.

Lessons to draw from this case include:

• When you hurt your suspect, even if you followed the use of force model perfectly, you create an opportunity for defence to allege a police coverup. It's even worse when your suspect hurts you.
  
• Interviewing independent witnesses promptly can make a big difference.
• Gathering evidence about how you handled the suspect - whether by audio-recording, cell block video or otherwise - can resolve many problems.
• Sometimes, watchdogs over the police can be your friend.

This was a good case for a bodycam or a dashcam, and audio-recording of the process of offering medical treatment and discussing access to counsel.

2022.01.15 Evidence - Take a Second Look

Four gangsters told police that Mr Vallee, 2022 BCCA 11 murdered Kevin Leclair. Everyone knew it happened at a mall in Langley. Was Mr Vallee there? Some of the gangsters said he went to Tim Hortons with them.

It was a big investigation. Investigators gathered a million documents. Yes. A million.

Buried in that pile was security video from Tim Hortons. Investigators summarized those videos saying that they did not record anything of interest.

They were wrong.

To those who looked closely, images of Mr Vallee could be seen in those security videos.

Relying on the police summary, Crown left the video out of the disclosure package, and ran much of the case without looking at them. Part way through trial, defence asked Crown to admit that the videos showed nothing useful. Crown looked at the video. Crown realized that the video confirmed that the 4 gangsters were telling the truth about Vallee.

The Crown's case changed shape.

At the trial, defence counsel asked the judge to declare a mistrial. (Mistrials can destroy prosecutions.) The trial judge said no. The defendants appealed, complaining that it should have. The Court of Appeal upheld the conviction.

Prosecutorial tactics aren't your problem. Disclosure is.

Prosecutors find that investigators overestimate the value of the evidence they gather. That's natural. You gather it in the context of inquiry. We use in in an adversarial context, where the other side attacks it from every angle. Examined skeptically, much evidence loses its shine.

But sometimes investigators underestimate the value of the evidence. There are times that I have found more in a photograph or a statement than was first apparent. Usually, this occurs when cross-referencing evidence.

In an enormous case like that, an error of this sort is easy to make.

It could have been avoided by taking a second look at the video. The importance of that video would only have become obvious after the gangsters gave statements discussing Tim Hortons.

Uninformed summaries are less likely to be accurate than informed ones. Once you understand how the evidence fits together, you can identify the evidence that merits a second look.

That second look can pay dividends.

2021 Developments

2021.12.29 Warrant Drafting - Reciting the Suspect's Wicked Past

"He sold drugs before. It looks like he's selling them again."

When drafting a warrant application, you may base some of your reasoning on evidence of the suspect's past misconduct.

But there are traps.

A lazy cop will look only at investigative records.

A smart cop will check to see if those investigations led to acquittals, stays of proceedings, withdrawal of charges or convictions, and mention those conclusions in the affidavit.

Judges hate inferences based upon acquittals.

A trial judge convicted Mr Ribble, 2021 ONCA 897 of drug and gun offences. He complained to the Court of Appeal that the cop who drafted the warrant mentioned charges that had been dropped, stayed or resulted in acquittals.

The court rejected his complaint saying:

The facts underlying charges which do not result in convictions, in some circumstances, may be validly considered as a basis for search warrants, though in other cases will be “irrelevant and improper”.

That answer does not adequately explain what information from previous investigations you can rely on.

Here's a rough summary:

Result of previous investigation	What evidence you can rely on in your ITO
Conviction	All the evidence relating to the specific convictions.
Stay of proceedings before verdict	All of the evidence, but mention that the proceedings led to a stay (and why it was stayed - if known)
No charges laid.	All of the evidence, but if you can find out why charges did not proceed, mention why.
Acquittal	Uncontentious background evidence only. Do not rely upon the target's guilt in that incident to support your reasonable grounds in the new investigation.

The Court of Appeal liked this ITO because the author specifically recited the conclusions of the various previous investigations mentioned in the ITO. The affiant did not rely upon the target's guilt of the matters in which he was acquitted.

2021.12.24 Cell Block Security Video - The Forgotten Blessing - The Forgotten Curse

By the time that general duty police officers deliver a suspect to the cell block, they often think that their investigation is over, and all the evidence is collected. It's easy to forget that the security video system may be collecting evidence when you have stopped.

In the morning after the baby died, witnesses told police that Mr K.D.S, 2021 SKCA 84 slept in his baby's crib. Apparently, all the adults got hammered. It seemed that Mr KDS passed out on top of his child, killing her. Police arrested Mr KDS and took him to the police station.

Mr KDS was charged with criminal negligence. Sleeping on the baby. Perhaps while drunk.

Defence asked for full disclosure, including "all videorecordings". Defence did not specify that they wanted cell-block video until long after it was overwritten.

Defence explained that the security video could contradict the police officers on their evidence, and most importantly, it would show that Mr KDS wasn't all that drunk.

The trial judge agreed. Failure to preserve the video of Mr KDS at the police station was "unacceptable negilgece". The trial judge stayed the charges. The Court of appeal agreed.

Consider how many drunks to take to the police station for domestic violence or drunk driving. Did you preserve the security video of them walking or blowing into the breath testing instrument? If not, you have have been "unacceptably negligent" in your failure to preserve relevant evidence.

I know that this ruling is impractical. Security video turns out to be important once in every 1000 arrests. Must you really preserve the recordings in 999 other cases?

There are ways to lighten this load. If you know that the video will relate to the issues, then of course you should preserve it. If the case is serious, consider preserving it regardless whether you think that the cell block video is important. And if you're not sure, you can ask Crown to ask defence whether they want it. If defence informs you that they don't care, they can hardly complain if the video gets overwritten.

Cell-block video protects you from false claims of police brutality. It holds you to account for true ones.  But it also gathers evidence. It's easy to forget, and once forgotten, it can trip you up.

2021.12.24 Affidavits which Explain Documents

Usually, you receive corporate data as information. It takes care and skill to turn that information into useful evidence.

Four teenage girls complained of a creepy guy who did sexual things to them against their will. He communicated with some of them through Facebook. Investigators contacted Facebook who gave the officers data which showed the IP address that the user used to access the account. The investigators properly obtained the physical address of that internet connection. Mr Rashid, 2021 ONSC 3443 lived there. He looked like the creep that the teenagers described.

Case closed? Sure, if someone prepares the evidence properly.

But information is not the same as evidence.

Generally speaking, information only becomes evidence when the right person vouches for its authenticity.

The investigator can't testify that the account used that IP address. The court needs to hear from someone at Facebook who looks into their information systems, and locates the data.

Facebook employees swore affidavits which assured the court that the "attached" records were indeed records from Facebook which identified the IP address from which the user accessed the account.

Great.

But they did not attach the records to the affidavit.

Filing the affidavit was something like putting a witness on the witness stand who says "I photographed the criminal in the act of the crime. The picture shows the felon's face clearly. But I didn't bring the photograph to court today. Sorry."

That testimony is useless without the photograph.

The prosecutor can't produce the photograph later in the trial, and file it, saying "here's the missing photograph". Because the prosecutor didn't take the photograph, the prosecutor can't attest to its authenticity.

The prosecutor tried to file the Facebook information separately from the affidavit.

The trial judge rejected the evidence. Only someone from Facebook could prove the authenticity of the records.

Mr Rashid beat most of the charges. The Facebook evidence could have made a big difference.

I, too, have received affidavits which did not attach the requested records. In one recent case, the author of the affidavit sent me a sworn affidavit which asserted that he attached "to this affidavit" the records of interest. The affidavit came in an envelope that also contained a disk. The disk contained an unsigned copy of the affidavit, the records of interest, and the affiant's (inadmissible) personal notes and correspondence. The disk was in no way attached to the affidavit, and therefore, the affidavit was false. I couldn't file the disk anyway, because it contained inadmissible material. I made him do the affidavit again, but this time, actually attaching the records before swearing the affidavit.

In my experience, because of their experience with wiretap, phone company security personnel prepare pretty good affidavits. But security personnel at other private corporations often draft awful affidavits. They often contain quantities of officialese and verbiage. I'll never forget one truly awful one with a particularly impressive notarial seal. But they often miss the main points:

• I have access to records that the company creates and keeps in the course of its business.
• The company relies on these records to do its business.
• The computer system reliably stores these records.
• The abbreviations and codes the company uses mean the following things...
• I fetched certain records from the computer system.
• I attached those records to this affidavit.
• These records mean the following things....

2021.12.11 Recognition Evidence - When to show a Single Photo

Tyler and Shane Bradley had substantial criminal records. They demonstrated no reluctance to use racist language against black people.

Their attitude and remarks led to a confrontation with two black men. One of the black men shot Tyler. Tyler survived.

Shane called 911. He told the operator that "Rico" shot his brother, and that "O" was with him.

Was Mr Alvarez, 2021 ONCA 851 the shooter?

Both Bradley brothers disliked black people. They also disliked police. They made the investigation difficult.

Police followed up on the information that they received from these two unsavoury fellows. Police quickly found Mr Alvarez at 92 Arizona Drive, a place where "O" had recently been.  They found the gun at that residence too.

But who was this "Rico" person? Police did not find anyone who called Mr Alvarez "Rico".

When police first interviewed Shane he said he did not know the two men. The investigator showed him single photographs of two suspects. Shane said that they were "O" and "Rico".  According to Shane, police also showed him an array of photographs. The investigator could neither confirm or deny that occurred.

Tyler gave a statement 3 weeks after the shooting. He said he knew "O", and had met "Rico" only briefly. He also claimed that the police showed him a bunch of photographs of suspects, but no officer could confirm or deny that. He was a difficult and hostile witness.

Defence complained that the single photo prompted Shane, so that thereafter, Shane would be able to describe the shooter in a manner that matched Mr Alvarez.  The investigator defended his action, on the basis that Shane knew "Rico". All the investigator wanted to know was whether Alvarez was the "Rico" that Shane was talking about.

Both were right.

When your witness knows the felon well, showing the witness a single picture of a suspect should not taint the witness's memory. All you're asking is "is this the person you know so well?"

But the defence counsel also had a point.  The more distant the relationship, the greater the risk becomes that the witness will guess that the person in the photo is the person they're thinking of. The danger is that by showing the witness a picture, you'll cause the witness to believe that the person in the picture committed the crime.

Shane was a bigot -- the kind of fellow who might think that all black men look the same. It's all too possible that he didn't really know Rico well enough to recognize him.  But he might, from looking at the picture, start "remembering" distinctive features, such as tattoos.

Shane also defied the law. He would happily allege that police officers misconducted themselves. He certainly suggested that they followed bad procedures.

In this case, the investigators did not record all of their conversations with him. I'll bet that they wanted to develop rapport. The formality of recorded interviews prevents that.

But in the long run, the lack of formal documentation of the conversations came back to haunt the investigators.

This case offers two lessons:

• If a witness names the felon, and you want to make sure you're investigating the right person, you can show a single photograph to the witness. But use a formal lineup when there's anything that suggests that the witness might not know the felon well.
• When dealing with disreputable witnesses, make doubly sure that you document what you did with them.
  

2021.11.20 Recognition Evidence

"That's my brother," she said.

Ms Deaken saw images from security video of a robbery. Investigators released them in an effort to identify the robber. She contacted police and told them that she thought the robber was her brother, Brian Deakin, 2021 ONCA 823.

An investigator showed her the video. When she saw the first two clips, she said that she could not identify the person in them. But when she saw the "good" clips - which best showed the robber - her heart sank. She knew it was him, in part from the way he walked.  She called it a "thug walk".

The investigator showed her a Facebook image of her brother. She identified the person in that picture as her brother.

The defence urged the court to reject her identification:

• The only reason she identified her brother was because they fell out (over his criminal lifestyle).
• The police tainted her identification by showing her a picture of her brother.
• She didn't explain very well (aside from the "thug walk") what it was that she recognized.

The trial judge convicted Mr Deakin, and the Court of Appeal upheld the conviction. What did they like about this identification?

• When Ms Deakin saw the "bad" clips of video, she said she could not identify the robber from them. Ms Deakin therefore demonstrated that she was not willing to identify her brother unless the video gave her enough detail to do so.
• Her testimony of feeling her heart sink when she saw the "good" clips of video satisfied the court that she did not pick him out because she hated him.
• The good clips provided lots of detail from which she could identify him.

The judges saw no problem with showing a picture of a suspect to a witness if the witness already knows the suspect well.

The probative value of the "bad" clips caught my attention in this case.

When showing security video to a witness who knows the suspect, one may wish to ignore the "bad" clips, and work with the "good" ones. But in this case, the "bad" clips served a valuable function. They proved to the court that the witness wasn't guessing or applying preconceived notions when seeing the clips.

You might want to show all of the clips to your recognition witness, not just the "good" ones.

The defence lawyers made a good point about generic recognition. When your witness identifies the person in the video, ask them how they know. A "thug walk" is good. But what else does the video show?

She and her brother did become estranged over his criminal lifestyle. Her heart sank when she recognized the robber as her brother. After she testified, he got 3 years jail. I hope that her act of tough love works. I hope he changes. I hope that their eventual reunion will be a happy one.

But one can never know what someone's heart will do.

For that reason, take some care to inquire into the relationship between the suspect and the person who claims to recognize him or her.

2021.11.19 Joint Statements

All too often, witnesses want to tell you, together, what happened. Interviewing more than one witness at a time is a bad idea. All too often, I see a transcript of an interview in which another witness starts "helping". This makes it plain that one witness heard the evidence of another.

Joint statements cause trouble. Don't do it.

A girl accused Mr C.G., 2021 ONCA 809 of sexually abusing her when she slept over with his daughter.

Mr C.G's lawyer reviewed the girl's statement with Mr C.G. and his wife. During the conversation, the wife and Mr C.G. discussed all the reasons they knew why the girl's story could not be true. This was a bad procedure. All of that discussion came out in cross-examination. Crown Counsel argued that the wife's testimony had less impact because she knew what to say to match the defendant's testimony. The trial judge agreed, and convicted him.

The appeal court ordered a new trial, not because the Crown's complaint about this tainting was a bad one, but because the trial judge failed to analyze it in the context of reasonable doubt.

But the prosecution's evidence bears much heavier scrutiny. If it's a bad idea for defence counsel to interview witnesses together, it's a worse idea for you to interview complainants and/or witnesses together. And it's wise for you to caution them not to discuss the details between themselves until after the trial is done.

2021.11.14 Inadvertent Detention - Easy to Do, What'

s the Fix?

Mr Tutu, 2021 ONCA 805 lost his guns and drugs, but he beat the criminal charges that they incurred ... mostly because an officer inadvertently detained him.

It ain't what you think, but what you do that counts.

An officer on routine patrol noticed a black rental car parked in a hotel parking lot. Fresh yellow paint stuck to the front quarter panel - suggestive of a collision.

He pulled in behind it, and approached on foot.

As far as he knew, he wasn't detaining anyone because the vehicle appeared unoccupied.

He found Mr Tutu and a woman in the car, sharing a joint.

He knocked on the window. Mr Tutu rolled it down.

The officer asked him to extinguish the joint, turn down the music, and tell him their names.

The woman gave her names. Mr Tutu lied: "Marcus Anthony" he said. The officer's computer showed no no driver's licence in that name.

The officer asked him to spell his name. He couldn't. Mr Tutu offered another false name: "Ben Dan".

The officer arrested Mr Tutu for obstruction, but did not immediately explain to him his right to counsel. Another officer arrested the woman for possession of marijuana (an unlawful arrest, even at that time).

The officers searched the vehicle, and found guns and drugs. That led to more charges.

At trial, Mr Tutu alleged that the officers focussed on him only because he was black. "I'm the victim of racial profiling!"

He also complained that the police detained him from the moment that the police vehicle blocked his car. Because the officer did not explain why his vehicle was blocked (s.10(a)) and that he could talk to a lawyer (10(b)), all the evidence that the officer obtained thereafter was unlawfully obtained.

The trial judge didn't buy his complaints, but the appeal judges agreed that the officer detained him and failed to give him his rights.

The prosecution argued that the officer could not have detained Mr Tutu when the officer first arrived, because the officer wasn't even aware he was in the vehicle.

The judges responded that a detention is not triggered by the officer's intentions, but what a reasonable person would infer from the officer's actions.

This officer blocked Mr Tutu's car, knocked on the window, and started issuing commands.

The officer didn't think he was detaining Mr Tutu. The court found that a reasonable person in Mr Tutu's position would think that he is the focus of a police investigation.

Perhaps the judges might have reached a different conclusion if:

• The officer told Mr Tutu that he was not detained, and was free to leave.
• The officer had not blocked Mr Tutu's car
• The officer had not issued commands, but only asked questions.

I don't think it helped that:

• The officer failed to explain the right to counsel immediately on arrest.
• The other officer arrested the woman without lawful authority.

Therefore, when interacting with "interesting" people, a useful question to ask yourself might be "would a judge watching this interaction think I've detained this person?"

If you discover evidence of an offence, then you can expect the defendant to characterize the your conduct as aggressive or oppressive. "The officer detained me early on, but didn't tell me my rights." How will you answer those allegations in court? Take many notes. Record the central phrases in the conversation, especially how the conversation started, and whether you told the subject that he was not detained, and that he could leave if he wanted.

Actions speak louder than your thoughts or your words.

Saying he's free to go won't mean much if you have already handcuffed him and lodged him in the back seat of your police vehicle. Similarly, your words won't mean much if you surround him with cops who leave no way out. Nor do those words mean much if you block his car from driving away.

2021.11.13 Airbag Control Modules

More and more vehicles contain devices which record how they were operated when they crash.

In B.C., police lawfully seized a vehicle, and obtained a warrant to search it. But they didn't specifically obtain authority to download the "Airbag Control Module" (ACM), which recorded the last 5 seconds of brake, speed and accelerator. The court found that the lawful seizure extinguished a territorial expectation of privacy over the ACM, and the defendant did not enjoy a reasonable expectation of privacy over the data. Fedan, 2016 BCCA 26

Ontario courts continue to find that police need a warrant to download the data from these devices. R. v. Yogeswaran, 2021 ONSC 1242. The Ontario judge was also very unimpressed by the police failure to report its seizure of the vehicle to a justice.

An Albertan judge agrees with the Ontario judges. R. v. Greyeyes, 2021 ABPC 240.

In B.C., police who lawfully seize a car may not need a warrant to search devices which record only a little information. But beware of the devices which record more detailed information about a vehicle's operations. The Fedan case did not bless the warrantless search of GPS devices.

In other provinces, police may need warrants.

In all provinces, police should report to a justice what they seize. Whether it's a broken car, a lost wallet, or a bodily sample, if you seized it you should report it (usually in "Form 5.2").

2021.11.11 Avoid Creating Exigent Circumstances

I missed this decision last year when it came out. It's still interesting this year.

Police planned to get a search warrant for Mr Hobeika's, 2020 ONCA 750 apartment and vehicle because they had good information that he was trafficking from that apartment. They planned to execute it when he went there.

Surveillance discovered he was living in a different apartment. Further investigation suggested that he was trafficking from the other apartment.

When they saw him get into the car, they executed the warrant to search his car. Because this search occurred in sight of the second apartment, they feared that occupants would destroy evidence in it. Therefore, the officers entered it and froze the scene. They found people and lots of drugs.

At trial, defence argued that the police created the urgency. If they had pulled over Mr Hobieka's car somewere away from the apartment, they would not have attracted so much attention. The court agreed that if the police created the urgency then they can't rely on the exigent circumstances to justify the warrantless search. But in this case, the police had good reasons for stopping the vehicle immediately rather than pulling it over someone away from the apartment.

Those of you who plan searches and surveil targets, you may need to make snap decisions about when to reveal your investigation, and whether you can lawfully enter a private location to freeze the scene. This case and the similar decision of Phoummasak, 2016 ONCA 46 may help you understand the constraints.

2021.11.08 'Ullo, 'ullo, what's all this then?  Questions after detention and arrest

When officers arrested a dial-a-doper named Mr Choi, 2021 BCCA 410, one officer him about his right to counsel, and another one patted him down for weapons and drugs.

Mr Choi told the first one that he wanted to talk to a lawyer.

The first officer didn't tell the second one that Mr Choi wanted counsel.

During the pat-down search, the second officer felt a bulge in Mr Choi's shirt, and asked "what is that?"

Mr Choi responded "more stuff".  Indeed, it was. More drugs.

The officer who asked the question expected that he would get an incriminatory answer. He got one. Those words would have helped convict Mr Choi ... if they were admissible.

But anytime you arrest or detain someone, you have an obligation to hold off eliciting incriminatory answers until the prisoner waives or exercises their right to counsel.

The judge at trial and the judges in the appeal court all agreed that the question breached the defendant's rights. They excluded that particular package of drugs, and the comment.

I see this procedural error way too often in the case law and in my daily practice. This officer was too keen. Once you detain or arrest someone, resolve access to counsel before you start asking questions about the offence.

I hesitate to criticize too fiercely. The other failure I see way too often is apathy after access to counsel. Many police officers make no serious effort to interview the suspect.

These keen police interviewed Mr Choi after he spoke to counsel. He confessed. That confession sunk him.

I note that during a pat-down search, if you need to ask questions about weapons for officer safety, keep the questions narrowly focussed only on that issue. Don't ask questions if you don't have to.

On arrest or detention, don't ask questions about the offence until you have resolved access to counsel. But once the defendant waives or exercises his/her rights, it's a good idea to ask the suspect lots of questions (within the bounds of voluntariness).

2021.11.08 What's a "Strip Search"?

After arresting a dial-a-doper named Choi, 2021 BCCA 410, an officer took him to the police station. There, the officer searched Mr Choi, to make sure he would not bring drugs or weapons into the cell block.

The trial judge characterized the search as a strip search, and found that the officer violated the prisoner's rights of privacy. The appeal court disagreed.

At the police station, under the constant supervision of a security video camera, the officer:

• asked Mr Choi to remove his shoes and jacket
• after offering him other drawstrings, cut the drawstring on Mr Choi's pants "for safety reasons" (I'm guessing he did that to prevent suicides).
• asked Mr Choi to face a wall and place his hands on it.
• lifted up Mr Choi's shirt to mid-chest to see if there was anything underneath it.
• pulled Mr Choi's waistband away from his underwear, so that he could see the waistband of the underwear
• patted down Mr Choi's legs, and inspected his pants pockets.

The officer did not see Mr Choi's genitals, nor expose the whole of his underwear. He was surprised to hear counsel calling it a "strip-search", but conceded that he had not read the policy in a long time.

The trial judge said that this re-arrangement of clothing to expose some of Mr Choi's underwear qualified as a strip-search. He did not like the fact that others could watch it.

The appeal court said that this search did not qualify as a "strip search" because it did not expose private parts of the body. It did not violate Mr Choi's rights. The officer did nothing wrong.

Officers who arrest people might find it worthwhile to review their force policy on strip searches. You might also consider camera angles in the police station. It can be very helpful for you to have security video which shows that you respected a prisoner's privacy when you searched him/her. A well-placed camera provides great accountability. But a badly-placed camera which records the prisoner's private parts or intimate underthings will greatly increase the intrusion into their privacy.

I'm sure Cpl Pollock, who did the search, feels vindicated this week.

2021.11.08 What's "Importation"?

When is "importation" of drugs or guns complete?

When authorities detect contraband entering the country, they often track the shipment to its destination, and arrest the people who receive it.

People in those positions often asked judges to acquit them of importing. "Importing is bringing something into Canada. But the product and I were both already in Canada when I received it, therefore, all I did was possess it."

A series of Ontario cases seemed to extend "importing" to include delivery to its ultimate destination.

Lawyers for Mr Okojie, 2021 ONCA 773 and Ms Hudson, 2021 ONCA 772 complained that this was confusing because it differed from past judicial interpretations. The prosecution pointed out that importation often involves more than one player. If one arranges the importation, and others aid in the delivery to the importer, all of the middlemen can be parties to the offence of importing.

When the law needs clarification, appeal courts sometimes convene a larger panel to sort it out. Five judges of the Ontario Court of Appeal - instead of the usual three - heard the appeal. They agreed that importing is complete when someone brings something into Canada, and the government relinquishes control. If there remain import duties to pay, then even if the product is in the hands of a courier waiting for payment of the fees, the importation isn't complete.

The judges went on: Circumstantial evidence can show that other people down the chain of possession were responsible for bringing the product into Canada.

Therefore, if someone picks up the imported product, and takes it to someone else who unpackages it, the court may find - depending on the evidence - that the people who unpackaged the product were the ones who arranged for its importation. If so, they can be convicted of the importation.

In Ms Hudson's case, the authorities removed all of the contraband (fentanyl) before delivering the package. This raised the interesting question whether she could be convicted of "possessing" it. The court found that she could be held liable for constructive possession while it was in transit, if the prosecution proved she was responsible for arranging the importation. But if she was just a minion assisting the importer, then she could not.

Both of these cases make interesting reads for those of you who deal with importation offences.

2021.11.06 When the JP says "No" - Making a Second Application for a Warrant

Four confidential informants told police that Mr Bond, 2021 ONCA 730 was packing a gun, and selling cocaine.

Police applied for a search warrant, relying on that information.

The first Justice of the Peace turned them down, giving four reasons.

The officers evidently disagreed with the JP's decision.  They submitted the application a second time. The second JP granted the warrant.

The confidential informants were right. Police found drugs and a firearm.

At trial, defence complained that the police were "judge shopping". Police should be satisfied with the answer that a judge or justice gives them.

The trial judge and the Court of Appeal disagreed. But you need to know why.

The officers did nothing underhanded. They made full disclosure. Their second application explained that the first JP turned them down. It included first JP's four reasons for rejecting the application. The officers did not try to select a JP, but simply submitted their application again.

The appeal court noted that unlike most judicial decisions, there is no way to appeal a JP's decision to reject a search warrant application. (There is a route to judicial review, but that's slow and technical.) In this case, the judges found that the police action did not constitute judge-shopping.

I don't think that this decision gives you the green light to re-apply every time a JP rejects your application. In this case:

• There was some urgency - it involved a dangerous guy packing a handgun in his belt.
• None of the judges explained the JP's four reasons. I suspect that they weren't very strong reasons for rejecting the application.

I suggest that you pick your battles carefully. If a justice gives you reasons for rejecting your application, consider them carefully. Try to remedy the problem if you can. If you can't, and your matter is urgent, then if you do re-apply, you must tell the second justice what the first one did.

2021.10.30 Charter Still Operates when You Take the Defendant to Hospital

Mr Jarrett, 2021 ONCA 758 fought against the police officers who found him in possession of drugs. The police officers overpowered him, and he suffered injuries.

When an officer told him he could call a lawyer, he asked for one by name.

The police officers took him to a hospital, where he stayed for 30 hours, handcuffed to a bed.

Only after they returned to the police station did the police put him in contact with a lawyer.

Judges don't like this abandonment of duty. The right to retain and instruct counsel without delay does not necessarily mean "you can call a lawyer when we get back to the police station". It's a right that operates where ever the prisoner happens to be. The reason that judges usually let you take the prisoner to the police station before providing that right is because you need to provide that access under controlled circumstances, and the conversation must occur in private.

The judges excluded the evidence of the drugs. He beat the drug charges.

He didn't beat the charge of assaulting a peace officer. That's because the police applied their use of force training. And becase Mr Jarrett's girlfriend wasn't credible. And a civillian nearby generally supported the police version of events. (If your colleague gets into a struggle with a suspect, and especially if the suspect suffers injuries, you might want to get statements from onlookers. And cell phone video, if they took any. But don't make the victim officer investigate. Bad optics.)

Stay safe out there. But once you are safe, and your prisoner is under control, give the prisoner access to counsel.

Several times recently, I have seen reports of officers who read blood demands to drivers who crashed their cars. In some cases, the officers failed to explain to the drivers their right to get legal advice. Oops. Breath and blood demands trigger s.10(b). If the suspect wants legal advice, failure to provide access usually results in exclusion of evidence. Whenever you read one of those demands, make sure you also explain the right to counsel. (Screening demands are different.) And if your suspect goes to a hospital, make sure that you give them access to legal advice at the first reasonable opportunity. Of course, don't interfere with medical treatment. Life and health come before evidence.

2021.10.30 Circumstantial Evidence - Threads bound together make a rope

Mr Humble's home caught fire when he was inside. He died of his injuries. Did Ms Cole, 2021 ONCA 759 set it?

Unlike many arsons, the fire investigation found no evidence of accellerant, and no specific evidence of how it started.

But lots of evidence pointed at Ms Cole.

I found this case interesting because of the abundance of investigative techniques involved.

Mr Humble was 82. Until shortly before he died, he lived alone and independently. But after a knee surgery, he needed some help. Ms Cole stepped into his life. Several weeks later, his house went up in flames.  Ms Cole claimed that she had power of attorney, and his will now named her as beneficiary of half of his estate.

The autopsy discovered that his body contained a powerful prescription sedative ... which was not prescribed to him. But a doctor had prescribed this sedative to her. Mr Humble, a night owl, went to bed unusually early on the night before the fire.

Ms Cole gave a false alibi, and volunteered other false information when challenged about it. For example, she said that in the morning before the fire, she put a TV on a microwave in the garage, but did not enter the house. The TV was in the garage, all right, but the investigators noticed too much dust on it. Nobody could have moved it without disturbing the dust.

Her financial affairs were a mess; investigation of them discovered that she stole money from Mr Humble.  And the will was forged. And someone who had access to the house must have removed the batteries from the smoke detector.

There are legal issues in this case of some importance to court room lawyers. But I think police officers may glean some valuable ideas from reading about the evidence gathered. For example:

Paragraph	Evidence
13	A forensic accountant reviewed Ms Cole's financial affairs, and found that she owed $350,000. Some of the money was due imminently. She needed cash fast.
16, 17	Ms Cole called the deceased's lawyer to inquire about obtaining power of attorney over Mr Humble's money.
18	A forensic document examiner determined that a power of attorney document that did turn up was forged and other documents looked forged, including cashed cheques.
19, 23-27	The POA and the will purported to be witnessed by two witnesses. Both witnesses told police that they signed the document after Mr Humble died, and never saw him sign it. They claimed that she offered them $10,000 to sign.
29	Mr Humble's sister always expected that he would name her as his beneficiary, just as she named him as hers. He never mentioned changing his will.
31	Forensic analysis of deleted files on Ms Cole's computer showed that she had researched and drafted wills just before the fire. And on Google, she researched how to overdose someone using her prescription medication.
35	The post office's barcode markings on an envelope indicated that Ms Cole mailed the "new will" to the lawyer's office days after Mr Humble died.
53	Ms Cole confronted an investigator about contacting her family to check out her alibi. This call likely took the investigator by surprise, but became important evidence at trial. (Take notes of surprising events.)
59	An investigator who examined the garage noted too much dust on the TV for it to have been placed there recenty.
61	An electrician inspected Mr Humble's home during a service call, and checked into the smoke detectors. (How did they find this guy?)
63	Strangely, all of Mr Humble's most important identification and financial documents managed to leave the home before the fire.
64	Ms Cole previously forged documents for the purposes of getting herself out of a financial scrape.

Some of these investigative angles were obvious. Some were not. Some required sharp attention to detail. Some required quick responses to unfolding events. Major crime investigators may find this an interesting case study.

General duty police officers should notice the importance of casual conversations and careful observation (such as the dust on the TV). Note-taking likely mattered in this case.

The evidence was completely circumstantial. Never-the-less, the jury found that Ms Cole killed Mr Humble, and convicted her of first degree murder. The Court of Appeal found that the evidence was so overwhelming that the trial judge's errors didn't matter.

A successful investigation.

May Mr Humble rest in peace.

2021.10.29 Warrantless entry into a Residence

The threshold of a residence poses a legal barrier to every police officer. You need lawful authority to cross it.

Whether that threshold is the door of a tent in an encampment of homeless people (consider R. v. Picard, 2018 BCPC 344), or the portico of a palace in the British Properties or York Mills, you generally require lawful consent, a warrant, or exigent circumstances.

After a couple of armed robberies by four masked men, police arrested Mr Duliepre. He named Mr Reilly, 2021 SCC 38 as one of the other men. Security video and other evidence tended to support this identification. Officers went to Mr Reilly's place to arrest him.

Without a warrant.

Mr Reilly's probation officer told the officers that he had a curfew. During curfew hours, all they needed to do was call him, and he would present himself at the door.

They went to his place. They knocked on the door. He did not answer. But they didn't phone him.

One officer, a big guy, went in to look for Mr Reilly.

Another officer followed, for officer safety. Two more went in.

When the big officer found Mr Reilly in his bedroom, the officer tackled and arrested him. After the arrest, officers cleared the residence. During that operation, they saw items relevant to the robberies: a mask, product from a store.

Overnight, they got a warrant to search for the things they saw during the clearing search. The next day, they found those things, and a gun, and more.

The judges hated the illegal entry. They liked the warrant, but noticed that it asked only for the things that the officers saw during the clearing search. The trial judge and one judge of the Court of Appeal felt that the evidence could be used at trial. (Reilly, 2020 BCCA 369) The rest of the judges of the Court of Apppeal, and all of the judges in the Supreme Court of Canada rejected the evidence found in the search. They did not want to appear to condone the action of the junior officer of barging into Mr Reilly's house without lawful authority. They did not want to condone the conduct of all of the other officers in following him in.

If you have a Feeney warrant, you can cross that threshold to arrest a person inside. If you don't, then you need to follow a plan that results in a lawful arrest.

2021.10.22 Self-defence - The Supreme Court examines the 2013 amendment

Before 2013, the Criminal Code contained definitions of self-defence which few judges could correctly explain to juries. Parliament replaced them. You can find the result of Parliament's work in s.34. It creates three key questions for assessing the claim "I was defendin' m'self". In 2021, the Supreme Court of Canada first fully considered Parliament's efforts after Mr Khill, 2021 SCC 37 killed a man who was stealing from his pickup truck.

Self-defence matters in homicide investigations. Self-defence matters when you handle difficult citizens. This section matters to you.

In the middle of the night, Mr Khill's girlfriend woke him. She heard noises. He looked out the window at his truck in the driveway. He could see the dashboard lights. He grabbed his shotgun and loaded it with two shells.

He sneaked through the dark, his gun at the ready, close to the truck. He found Mr Styres, leaning in through the passenger side. Mr Khill yelled:

"Hey, hands up!

As Mr Styres started to turn, Mr Khill fired.

He racked his gun and fired again.

As Mr Styres lay dying, Mr Khill searched him for a weapon. Nothing in his hands. Only a folded knife in a pocket.

At the murder trial, Mr Khill explained that in the darkness, he mistook Mr Styres' movements. He thought Mr Styres brandished a weapon.

The defence urged the jury to consider how dangerous that moment would have seemed when Mr Styres turned toward Mr Khill.

The Crown urged the jury to consider how Mr Khill made that moment dangerous by sneaking up too close, and creating a killl-or-be-killed confrontation.

The trial judge focussed on the moment. The Court of Appeal ordered and new trial, and the Supreme Court of Canada agreed. The jury ought to consider all of the circumstances, including the defendant's role in setting up the fatal confrontation. In so doing, they analyzed provision for the first time.

Most investigators simply need to know that you should investigate all of the circumstance around the use of force. Whether you investigate a low-level domestic assault or a high-end murder, s.34(2) identifies obvious avenues of interest relevant to almost every use of force:

1. the nature of the force or threat;
2. the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
3. the person’s role in the incident;
4. whether any party to the incident used or threatened to use a weapon;
5. the size, age, gender and physical capabilities of the parties to the incident;
6. the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
7. any history of interaction or communication between the parties to the incident;
8. the nature and proportionality of the person’s response to the use or threat of force; and
9. whether the act committed was in response to a use or threat of force that the person knew was lawful.

Homicide investigators might find the nuances interesting.

The section defines three elements to self-defence:

1. the catalyst - the force or threat that the defendant feared;
2. the motive - whether the defendant used force to defend himself (or someone else), or for some other purpose; and
3. the response - what force the defendant actually used.

Those boil down to three questions to ask the suspect:

1. What did you think was going on? (Were the suspect's thoughts reasonable under the circumstances? If the suspect were sober at the time, would s/he have thought the same thing?)
2. What were you trying to achieve with your response?
3. Was that response a reasonable one?

Homicide investigators should read the decision.  Regular investigators should at least read s.34.

And every officer who will use force in the execution of their duties should consider how this section would apply to you if you draw your weapon and kill someone. See whether it fits into the use of force models you learned in your training.

2021.10.22 Fixing a Broken Undertaking to Appear

Ever released someone to attend court on the wrong date? Common mistake. What are the consequences? How can you fix it?

Jimmie hit Sally.

Cst Rookie arrests Jimmie to prevent him from hitting her again. Cst Rookie figures that the usual no-go and no-contact provisions will protect her. Therefore, s.498 of the Criminal Code compels him to release Jimmie. Cst Rookie uses an undertaking, in order to impose those conditions on Jimmie.

Good work, Rookie.

Section 501 describes the obligatory and optional contents of an undertaking. It must state a specific date for Jimmie to attend court.

Because of Cst Rookie's name and role in this discussion, he get the date wrong.

When does the undertaking take effect? How long does it last? What can be done to fix the problem, so that Jimmie doesn't go back to Sally and hit her again?

A provincial court judge in Alberta answered the first two questions: R v Gladue, 2021 ABPC 50

The undertaking started when Cst Rookie released Jimmie.

It ends when:

1. Someone changes it pursuant to s.502;
2. At the time of the laying (or rejecting) of charges, the justice cancels it;
3. The date for appearance at court arrives, but no charge has been laid.
4. The court acquits or sentences the defendant.

The good judge did not answer the most important question: how do we fix Cst Rookie's mistake?

It depends on the mistake.

If Rookie left the court appearance date blank, then he did not issue an "undertaking" as that thing is defined in s.501(2). Fill in the date, and give the suspect the completed undertaking. If Jimmie hit Sally between the time of release and the time that Rookie fixes this mistake, the defence lawyer can reasonably argue that Jimmie was not yet bound by the conditions, and therefore he can not be convicted of breaching it.

If Rookie entered a date that came and went before any charges were laid, then the undertaking is dead. Lay charges pronto. Whoever swears the charges needs to explain to the justice why there are reasons to fear that Jimmy will hit Sally again, so that the justice will issue a warrant for Jimmie's arrest pursuant to s.512.

If Rookie told Jimmie to come to court on a provincial or Federal holiday (Remembrance Day is coming soon), then s.26 of the Interpretation Act allows that the appearance can be made on the next day.  But it would be wiser to amend the undertaking.

If Rookie told Jimmie to come to court on the wrong day, Rookie might solve the problem by asking Jimmie to consent to amend the undertaking to attend on the right court date. See s.502(1). Don't forget to ask the prosecutor to consent as well.

If Jimmie doesn't want to cooperate, you can ask the prosecutor to apply to court to replace the undertaking. s.502(2). Get that done before the returnable date on the undertaking.

2021.10.03 Affiant Drafting - An Easy Mistake to Make and Strategies to Prevent It

Drafting an affidavit for wiretap or an ITO for a search warrant requires summarizing evidence accurately.

When the evidence compels strong conclusions, we naturally start thinking and talking about the conclusions instead of the evidence.

For example, an officer investigating a drug importation conspiracy received a security video from a witness who worked in a warehouse. The witness told the officer that Mr Duncan, 2021 ONCA 673 attempted to take possession of the shipping container that contained the drugs. The witness gave the officer a video-recording of the event.

In the affidavit, the officer wrote that he watched the video and "observed DUNCAN attempt to take possession of cargo container AKE 2219 TS, within approximately an hour of CBSA seizing and removing cargo container AKE 2290 TS from the Cargo Zone warehouse.”

The video did not show such detail. It showed one man walk up to another man, talk, and then leave. The video was grainy. Nobody could identify the parties just by watching the video. Nobody could hear the conversation by watching the video.

Instead of narrating what the video actually showed, the officer wrote what he believed it showed.

It sounds like a dumb mistake, but it's remarkably easy to make. The officer had good reason to believe that his narration was accurate: the warehouse worker told him what happened. The more firmly you believe your investigative theory, the easier it becomes to fall into this trap.

Fortunately, the officer fully and accurately described in the ITO what the warehouse worker said. Although defence counsel at trial complained loudly about the error, the error did not mislead the issuing judge, nor did the trial judge find the mistake important.

But beware. Many earnest investigators have fallen into this trap.

How do you avoid it? Here are some ideas:

• Make summarizing a separate task from inferring. Write the summary of the thing first. Then go back and identify what parts of it link to other parts.
• Distinguish explicitly between investigative theory and summary of the evidence. For example: "From video recording and what the warehouse worker told me about it, I believe that Mr Duncan attempted to take possession of the cargo container. From the time-stamp on the video, I believe he did this approximately an hour after CBSA seized and removed it from the warehouse."  If you need to place your inferences in the text of the summary, place them in brackets [I believe this to be useful.]

2021.10.03 Search for Officer Safety - Understanding the Principles

This case isn't new. I stumbled on it this weekend. But it provided a clear example of a common problem. A police officer may reasonably want to search a person for officer safety before sufficient grounds develop to search lawfully. What should you do?

In deep Canadian winter, 100km out of town, a car crashed.

Two police officers attended. They found four cold people who needed help. Their car couldn't start. The officers found no evidence of any crime.

The officers recognized a couple of them - from past domestic violence calls. And they recognized Mr Williams, 2020 ONSC 4880, who police suspected, from past information, might be involved in the drug trade.

The officers offered to drive the four back to town. But the officers put a condition on this offer: they must submit to a pat-down search for officer safety. None of the four objected. (How could they? They were in real danger of freezing to death.) But none gave explicit consent.

When an officer checked Mr Wiliams' right side, Mr Williams took a pill bottle out of his left pocket. That seemed suspicious. The officer looked at the botte. It bore a tattered prescription in Mr Williams' name. And even more suspicious, the prescription date omitted the year of issue. An officer looked inside and found oxycodone. Figuring that the prescription was lapsed or fake, the officer arrested Mr Wiliams for possessing narcotics. That led to a search of his backpack, which revealed more drugs, cash and a debt list.

At his trial for drug charges, Mr Williams complained that the search violated his right under s.8 of the Charter to be free from unreasonable search and seizure.

The judge agreed that the officer lacked sufficient grounds to justify a safety search. Read paragraphs 33-42.

When explaining safety searches, I find that police officers often try to justify their actions by identifying what they don't know. For example, these officers didn't know whether these four cold people carried weapons.

That's good risk management. When you invite strangers into your space, you make yourself vulnerable to them. You should assume that they pose you a risk until you discover reasons to trust that they will not harm you.

But it's illegal. There's a gap between risk management and lawful authority to search. As the judge explained, at law, the four cold people had rights to privacy. You can infringe on their privacy only when you know there are reasonable grounds to fear. A lawful search for officer safety depends upon what do know, rather than what you don't know.

If you don't have any evidence or information to justify a safety search, then you need to protect yourself using other strategies. Any good armchair quarterback reading this case can identify alternate strategies these officers could have used. For example:

1. They could have asked for consent to search. (Indeed, the officers tried that approach. But they didn't go all the way. See paras 43-47 for the requirements of an effective consent.)
2. They could have placed any bags or bottles in the trunk of the police vehicle, without searching them.

In this case, the officer opened the pill bottle. If he searched for the purpose of protecting himself from harm, one may reasonably wonder what firearms or knives he expected to find inside the pill bottle. What really happened here was that the officer switched from officer safety to investigation of an offence.

Bad idea. Even if he had sufficient reasons to search for officer safety, or even if he had valid consent, it was only to search for weapons.

Judges who see police officers abusing the power to search for officer safety will respond by tightening up the law. The existing limits already pose risk management problems. You don't want stricter limits.

Therefore, I suggest reading this case to understand the principles, and then discussing lawful risk management strategies to use in situations like this one.

2021.09.18 "What were he thinking?" - Drawing Inferences from Behaviour Before and After the Crime

For all criminal offences, the law demands proof not only of what the defendant did, but also what he thought:

Some crimes require general proof of the defendant's thoughts. For example, when someone drives dangerously, it suffices to prove that the driver didn't think about the dangers he created when he ought to have done so.

Other crimes, such as murder, require proof that the defendant intended a specific thing, such as death.

One way for a defendant to beat the rap is to claim that his brain wasn't working well enough to appreciate the consequences of his acts. "I was intoxicated." "I suffered a brain injury" "I was suffering madness."

Mr Scott, 2019 BCSC 313 loved a woman. But she loved another man. Mr Scott shot that man dead. Four shotgun blasts to the head.

At his trial, he raised all these issues, but the trial judge convicted him anyway. The Court of Appeal found no fault with her logic (2021 BCCA 337).

What made the difference was the police investigation of Mr Scott's actions before and after the killing. If his brain was so addled before the killing, he would not have:

• Engaged in coherent social activities before the killing
• Maintained two concurrent text message conversations with the woman and the victim.
• Gathered his firearms, and tested the shotgun before using it.
• Deliberately blocked his victim's car from escaping
• Aimed the gun consistently at the victim's head

Likewise, in the hour after the killing, he would not have:

• Placed the gun carefully in the trunk of his car
• Driven away normally (there was an eyewitness to the killing)
• Taken an alternate route home to avoid detection by police
• Destroyed his cell phone to eliminate evidence
• Gathered his belongings and cash, and left the country
• Passed through the border inspection without alerting the guard that he was too drunk to drive

Investigation of the defendant's actions before and after the event can shed light whether he was thinking straight during the incident.

That requires investigation of more than just the defendant's actions at the time of the killing. The investigative team gathered evidence from many sources. The work paid off. The prosecution team presented evidence from many sources. The judge wrote over 500 paragraphs to analyze it all.

Homicide investigators may find it interesting to read the trial decision thinking "what were the investigative strategies of this team?" It's a long read, but it reveals impressive work.

General duty officers can also learn something from this case. In Mr Scott's case, the homicide investigators did not get an opportunity to interview Mr Scott shortly afterwards. Often, the homicide team arrives too late for that kind of involvement.

Usually, general duty officers encounter the suspect first. If you do arrest a suspect right after a crime, even what he says about innocuous things can help discover whether alcohol, drugs or mental disorder affects his brain.

As a professional responsibility, you should assess the health of the people you arrest in any case. After serious offences, take notes of everything the suspect says and does. Even casual conversation or minor mannerisms may matter.

2021.09.05 Risking Pinging - When Exigent Circumstances Justify Tracking without a Warrant

A daring officer tested the limits of "exigent circumstances". We can learn from his cliff-edge performance.

It all started when Mr Bakal, 2021 ONCA 584, a drug dealer, annoyed his girlfriend. At around 3:00am, she called Toronto police and claimed:

• He assaulted her repeatedly;
• He threatened to choke her to unconsciousness, and throw her off the balcony;
• He had a handgun, but he didn't threaten her with it this time;
• He always carried the gun with him.
• He left her residence, taking with him:
• her belongings, including her passport
• his gun
• several kilograms of cocaine
• He tucked the gun into the waistband of his pants before he went.
• His brother had been with him earlier.
• His brother might be travelling to Ottawa from Toronto.

Police believed her - he had a history of violence. She gave the police his phone number. The officers looked up the dealer's brother, and learned that he drove a Jeep Patriot.

The daring officer asked his staff to ask the cell phone company to "ping" the phone, to find out where Mr Bakal was. A senior civilian supervisor at the Toronto Police Service refused to do this without a warrant. The supervisor figured that because police were with Mr Bakal's girlfriend, she was safe.

The officer bypassed the supervisor. The officer called the phone company himself, and persuaded them to send him the locations of the cell towers with which the cell phone communicated from time to time.

That information suggested that Mr Bakal was headed east, to Ottawa.

Highway patrol officers stopped a Jeep Patriot on the highway to Ottawa. In the car, they found the two Bakal brothers, two loaded handguns and two kilos of cocaine.

At trial, the Bakal brothers complained to judge that the police violated their privacy rights by tracking them without a warrant. They explained that in exigent circumstances, police can do some things that would otherwise require a warrant. But not tracking people:

• Section 492.1(1) empowers a justice to issue a warrant authorizing police to track things.
• Section 492.1(2) empowers a justice to issue a warrant authorizing police to track people by the things that they carry.
• Section 487.11 permits police in exigent circumstances to do what s.492(1) describes. It doesn't mention s.492(2).
• Therefore, the Criminal Code does not permit police to track people in exigent circumstances, except if they get a warrant.
• All they needed to do was phone up a justice and ask for one, and in 15 minutes they would get a tracking warrant.

All of the judges rejected this argument. First, the telewarrant idea is wrong. Nothing in the Criminal Code applies the telewarrant section (s.487.1) to tracking warrants. Applying for warrants takes time. The judges figured it would take three hours at the fastest. Those of you who are competent at warrant drafting will know that it takes many hours to draft it correctly. Three hours was too long to wait to get started looking for Mr Bakal.

The judges all agreed that even though the Criminal Code does not provide for tracking people in exigent circumstances,  exigent circumstances such as these justify tracking someone by these means, as a matter of common law.

The Bakal brothers argued that there was no urgency to finding Mr Bakal. The girlfriend was with police. She was safe. No risk, no exigent circumstances.

The judges disagreed.

An angry drug dealer with a history of violence may do harm to others. Carrying kilos of cocaine is a great way to find trouble. Packing a handgun gave him the means to do great harm.

The judges found that the police had reasonable grounds to fear for people other than the girlfriend, and that these grounds for fear justified tracking Mr Bakal.

Does this mean cops can do GPS tracking in exigent circumstances? Not necessarily. This case involved only cell tower locations - which provide only the general area, within a few kilometres, of the phone. But this case involved possible harms. If your case involves a high danger of specific and likely harms, this case suggests you might be able to use more precise tracking.

Does this case mean cops should ignore their stuffy policy-bound supervisors? I didn't say that. It may be that the daring officer had a deep understanding of the principles of privacy and exigent circumstances. Deeper than the supervisor. Or maybe he was a loose cannon who lucked out.

The lessons to draw include:

• In exigent circumstances, you can do things that the Criminal Code doesn't provide for.
• Judges don't like guns in the hands of angry dangerous people, and will likely find that you should do something to stop such people.

But wait. There's more in this case...

2021.09.05 Detaining Someone on Imprecise Information - Black can be White

A highway patrol officer in Kingston, Ontario received information that Mr Bakal, 2021 ONCA 584 assaulted his girlfriend, and was now heading east on the highway from Toronto to Ottawa, possibly with his brother in a black Jeep Patriot, possibly in possession of cocaine and a handgun.

He didn't find a black Jeep Patriot on that highway, but he did find a white one, bearing a licence plate registered to a person in Ottawa. Another officer radioed that he had pulled over a black Jeep Patriot. This officer did nothing about the white one. Then, the other officer confirmed that the black Jeep did not contain Mr Bakal. This officer found the white Jeep.

There appeared to be two or more people in the Jeep. The highway wasn't busy.

With backup, the officer pulled it over, and did a high-risk take-down, guns drawn.

He found the Bakal brothers in it. He arrested the one that the girlfriend complained about. He searched the car incidental to arrest.

As described above, it contained guns, cocaine, and Bakal's girlfriend's possessions.

At trial, the Bakal brothers complained to the trial judge that the police officer lacked grounds to stop the car: The officers only had reason to stop a black Jeep Patriot, but not a white one.

The trial judge disagreed:

• It was reasonable to infer from the cell phone pings that Bakal was heading east on the road to Ottawa.
• His brother's destination (Ottawa) matched the address of the owner of the licence plate of the white Jeep.
• The brothers did things together. There were two people in the Jeep.
• Traffic was light - there wouldn't be a lot of Jeep Patriots on the road, and the other officer eliminated one.

It was reasonable for the officer to suspect that this Jeep carried the Bakal brothers, even though the colour did not match.

I observe that the officer received imprecise information - that the vehicle was possibly a black Jeep Patriot. Had the officer received clear-cut information that the vehicle was definitely a black Jeep Patriot, the judge might not have been so generous.

The appeal court judges did not rule on this issue.

A lesson to draw from this part of the case is:

• When stopping a car or a suspect after a crime, you only need reasonable grounds to suspect that this car or person was involved. If you receive imprecise information, you may apply some common sense when deciding whether to stop cars or people that come near to matching the information you received.

But wait. There's more in this case...

2021.09.05 Search Incidental To Arrest - Searching for Supporting Evidence

Relying on information he received from a Toronto police officer, a highway patrol officer in Kingston stopped the car which contained Mr Bakal, 2021 ONCA 584, and arrested him for assault. As described above, the Toronto police officer told him that the complainant reported that Mr Bakal had a handgun with him when he assaulted her, but he did not use it to intimidate her on this occasion.

Could the Kingston officer search the car for the gun?

Most of the judges agreed that he could.

One judge disagreed.

You can only search "incidental to arrest" if you search for evidence of the offence for which you arrested.

This officer did not arrest Mr Bakal for gun or drug offences. Just the assault.

Although Mr Bakal didn't use the gun when assaulting his girlfriend, the gun played a significant part in her story. Finding the gun would tend to confirm her story. Three judges found that the officer could search for it "incidental to arrest". One judge, a renowned legal scholar, thought otherwise.

Several lessons appear from this part of the case:

• If the officer had arrested Mr Bakal for a firearms offence as well as assault, then searching for the gun would not raise concerns. Before you search incidental to arrest, think what offence(s) you arrested the suspect for. Those determine what kind of evidence you can search for.
• When searching for evidence of an offence, you can search for evidence of other offences if that evidence is connected to the offence for which you arrested. See also R. v. Chubak, 2009 ABCA 8.

I'd like to say that's the end of it, but there was still more...

2021.09.05 Dumb Mistakes are Easy to Make

Acting on information from a Toronto police officer, a highway patrol officer in Kingston stopped the car which contained Mr Bakal, 2021 ONCA 584, and his brother. The officer had grounds to arrest Mr Bakal, but not the brother. The officer had grounds to suspect that they possessed cocaine.

Nobody told the brother about his rights. Nobody let him call a lawyer.

Oops.

The Toronto officer who briefed the Kingston officer told him about cocaine. The Toronto officer made no notes about how he knew about the cocaine. The Toronto officer told the prosecutor that before he made the call to Kingston, he had no knowledge about cocaine. I don't know how what really happened, but the trial judge didn't like it, and didn't trust the officer's evidence.

Oops.

Fortunately, everything that was important to the case was documented in other places, such as radio calls, other officers' notes. The judge relied on other evidence, and convicted the defendants.

Lessons:

• Hey traffic cops! When you stop a car at roadside, you should tell the person why. If all you're gonna do is issue a ticket, you don't need to give rights to counsel, but if your stop grows more complex, it's time to give access to legal advice.
• Notebooks can answer the question "what did you know, and when did you know it?" I suspect that the contradictory communication to Crown occurred because the Toronto officer failed to record what he knew when he knew it. Particularly because he went over the head of a supervisor, he ought to have kept good notes.

2021.08.29 Ghosts, Hindsight and Keeping Records for Posterity

On April 22, 1983, someone raped and murdered, 22-month-old Delavina Lynn Mack. That year, at his trial for that offence, Phillip Tallio, 2021 BCCA 314 pleaded guilty to second-degree murder. He protested ever since that he didn't do it. He said he got railroaded into admitting guilt.

In 2009, the UBC Innocence Project at the Allard School of Law took on Mr. Tallio’s case. They asked for re-examination of bodily samples to see whether DNA analysis would identify the real killer.

His team hoped that DNA analysis might clear him. On that hope, they launched an appeal of his conviction, 34 years after the guilty plea.

Using advanced techniques experts managed to extract DNA from some samples taken during the autopsy. It neither exhonorated or identified Mr Tallio as the killer.

Tallio's lawyers attacked the adequacy of the original police investigation. They produced affidavits from residents of the community which asserted that the officers failed to interview the people that they should have interviewed.

To answer the appeal, police, defence counsel and prosecutors wanted records of what happened decades earlier. Most of the files were destroyed pursuant to records retention policies. That meant that they had to find as many original investigators prosecutors, defence counsel and witnesses as they could who were still alive, and ask them what happened all those years ago.

Ultimately, the court rejected Mr Tallio's appeal. The DNA did not exhonerate him. He could not produce evidence that showed that either the investigation or the trial was unfair. And there was some pretty strong evidence that incriminated him.

Mr Tallio went back to jail.

This review of an old conviction cost lots of money. What can we learn from it?

My secret source told me that this case turned on evidence, not law. Good evidence answers questions.

Complete your investigation - the more serious the case, the more important it becomes to investigate all leads.

A code of silence makes this difficult. This murder occurred in the reserve at Bella Coola. At that time, residents there did not generally cooperate with police. Citizens have that right. You can't force them to talk (and it's dangerous if you do). But you gotta try to get them to open up, with all of the best social skills you can muster.

Getting good evidence solves even the seemingly little cases. The complainant in a domestic disturbance may tell you that her partner hit her.

• You look for injuries and find none. Bruises often don't develop until the next day. Consider coming back.
• The neighbours don't always come forward to tell what they heard unless you ask. Try knocking on doors.
• Memories fade, but photographs don't.

Is it worth the extra effort? Yes. A "he-says she-says" case won't go far in court. But corroboration changes the equation.

Is it worth it? If he hit her this time, I wonder what he will do to her next time.

Documentation matters - Even if your investigation is complete, your report is incomplete until you document all that you did - including the dead ends you reached. If someone declined to give you a statement, you record that fact.

As Mr Tallio's case illustrates, record destruction can cause headaches years later. [So did exhibit preservation.] We can't keep everything; but we need to make wise choices about what to destroy and when. If you make such decisions, you need to take cases like Mr Tallio's into account when determining what risks are acceptable.

It Never Ends - Even if an investigation is complete, it is never "over". Mr Tallio's litigation lay dormant for 34 years, and now, 38 years later, it may even carry on to the Supreme Court of Canada.

Plea bargaining comes with risks - Why did Mr Tallio plead guilty if he was so innocent? He blamed his lawyer. The judges found that the evidence did not support his complaints.

But there was another dynamic. He was 17. The Crown charged him (quite properly) with first-degree murder. He faced life imprisonment, with no eligibility for parole for 25 years. When the Crown's case looked strong, pleading guilty to second-degree murder - with eligibility for parole at 10 years - must have looked like the best option.

If you were innocent, but you faced such bleak prospects, what would you do?

Although plea bargains clear a great many trials out of the courts, we must take some care not to make the offers too sweet. We should never get into the business of racking up convictions for their own sake.

2021.08.17 Right to Counsel on Arrest or Detention - Cell Phone call at the Scene

Many of you learned from your training to give your prisoners access to counsel at the police station.

But s.10(b) of the Charter gives your prisoner the right to retain and instruct counsel "without delay".

Most adults in Canada now pack cell phones, so that they can communicate with who they want, when they want. Arrests make many adults want to talk to a lawyer.

Why can't they use their cell phone?

Ms Tremblay, 2021 QCCA 24 swerved all over the road. A police officer stopped her. She confessed to texting while driving, but her red eyes and the odour of liquor on her breath gave her away. The officer demanded that she blow into a screening device.

It said she had too much booze in her.

At 11:40pm, the officer arrested her for impaired driving, and offered her access to counsel. She wanted a lawyer. At trial, she claimed that she wanted to call immediately, but the officers would not let her use her cell phone to make that call.The investigating officer said she wasn't in such a hurry. The judge believed her.

The officers waited for a tow truck, then took the Ms Tremblay to the police station. She reached her lawyer at 12:28am.

The officers explained to the judge several reasons why they did not give her immediate access to counsel at roadside:

• The usual policy was to give access at the police station.
• The officers couldn't monitor how she used her cell phone - she might call someone else.
• The location - at the side of the road - exposed the officers to some (slight) danger from other vehicles passing by.
• The officers couldn't monitor her for regurgitating or consuming something that might affect the reliability of the test.

The trial judge and two levels of appeal judge rejected these explanations. Ms Tremblay beat the charge

They held that you don't always have to give your prisoner access to counsel by cell phone at the place of arrest. But if you don't, you must have good reasons.

Since then, for similar reasons, that court threw out two more convictions for drinking and driving. Ms Freddi, 2021 QCCA 249 and Ms Cyr-Desbois, 2021 QCCA 305.

They aren't alone. Other courts reached similar conclusions. Rover, 2018 ONCA 745; Taylor, 2014 SCC 50.

What are good reasons for preventing your prisoner from using a cell phone immediately at the scene of detention or arrest?

• Safety first - you need to get control of the scene. Strachan, [1988] 2 S.C.R. 980
• Fear, based on evidence, that the suspect will summon others who will compromise your safety. Montgomery, 2009 BCCA 41; Patrick, 2017 BCCA 57
• Concern, based on evidence, that the suspect will cause someone to destroy evidence. Learning, 2010 ONSC 3816

I've heard stories about people who call their friends, who then make false 911 calls in the hope that the officer who caught a drunk driver will rush away to deal with a gun complaint. Such stories don't suffice to delay access to counsel. You need reasons which arise from the circumstances of the specific arrest or detention.

Prisoners and detainees frequently need access to counsel at the scene of arrest or detention. How do you control such abuse of cell phone access to cousel? Here are some suggestions. I'd be interested in your ideas.

1. Get management to install cell phones in your cars that you can control.
2. Supervise the suspect when s/he dials the numbers.
3. Listen to all calls except the call to counsel.

2021.08.15 Document The Obvious

Police arrested Mr Choudhury, 2021 ONCA 560 for drug trafficking. They got a warrant to search the place where they bought drugs from him. Inside, they found one bedroom contained women's clothing, and a locked bedroom contained man's possessions. The woman's room contained no drugs (but it did contain needles). The man's room contained an open safe, and drugs.

Oh, yeah. And Mr Choudhury's OHIP (health insurance) card.  The officer who found the card planned to return it to Mr Choudhury. And so the officer didn't record it in the list of exhibits seized in the bedroom. Nor did he list it in his notes.

The trial judge was so unimpressed by this lack of documentation of a key exhibit that she ignored the officer's evidence about the OHIP card. That made proving that he possessed the drugs in the safe a bunch harder.

What should you do if you seize something because it has evidentiary value, but you want to return it right away?

If we ignore the irrelevant bits, s. 489.1(1) tells you quite clearly:

where a peace officer has seized anything under a warrant issued under this Act or under section 487.11 or 489 or otherwise in the execution of duties under this or any other Act of Parliament, the peace officer shall, as soon as is practicable,

(a) where the peace officer is satisfied,

        (i) that there is no dispute as to who is lawfully entitled to possession of the thing seized, and

        (ii) that the continued detention of the thing seized is not required for the purposes of any investigation or a preliminary inquiry, trial or other proceeding,

return the thing seized, on being issued a receipt therefor, to the person lawfully entitled to its possession and report to the justice who issued the warrant or some other justice for the same territorial division or, if no warrant was issued, a justice having jurisdiction in respect of the matter, that he has done so...

So the general rule is: Seize it. Document it. Get a receipt from the suspect when you give it back. Report it to a justice.

2021.08.05 Statements of Victims of Property Crimes

Good paperwork busts bad guys.

I missed this decision last year when it came out. It remains just as relevant today as when I first encountered this issue ...  30 years ago: you should take proper statements from victims of property crime.

"Someone" stole a truck from a residence in Stettler, Alberta. "Someone" stole stole a bunch of firearms from a residence in Big Valley, Alberta.

Mr Shaw, 2020 ABCA 86 crashed the truck near Red Deer. It contained the stolen firearms.

Did Mr Shaw know the truck was stolen? Did he know it contained stolen firearms?

Inference of Recent Possession

Considering the distances involved, you would want to know how much time elapsed between the thefts and the crash. If they occurred within hours of each other, you would figure he stole them. But if months elapsed, then you can imagine scenarios in which Mr Shaw might innocently possess these things. The judges call this the inference of "recent possession". If the theft occurred really recently, then the person holding the goods must know about it.

Inadequate Formal Statements

The prosecutor filed statutory declarations from both victims. Attached to those statutory declarations were statements from both victims. Unfortunately, neither the declarations nor the statements stated clearly when the crimes occurred, nor where the property was when it was stolen.

I infer from the way the wording in the declarations that the thefts likely occurred within hours of the crash. But the documents did not clearly say so.

In my experience, this usually occurs because at the time of investigation, everyone involved knows exactly when the thefts occurred, and so nobody bothered to document it formally. The victim knew. The 911 dispatcher knew. The investigating officer received a dispatch which spelled out when the victim complained. The officer probably interviewed the victims on the day after the theft. The date of the theft seemed too obvious to mention in the formal statement. The location of the property when stolen was just as obvious, and so nobody talked about it.

The poor trial prosecutor, a year later, had no admissible evidence to offer the trial judge about these key (but obvious) points:

• Because the statutory declaration was admissible, nobody subpoenaed the victims.
• Neither the witness statements nor the statutory declarations supplied the necessary information.
• Although the investigator knew the answers, the investigator could not properly testify about those answers. Coming from him or her, it was hearsay.

What's Required?

So when you catch someone possessing stolen property, what evidence will the prosecutor need at trial?

1. To prove that the property was stolen, we need an owner's evidence that the culprit had no right to possess it. Where there are multiple owners, this can get tricky: can we establish that no other owner lent the thing to the suspect? Sometimes you need statements from multiple owners.
2. To prove when the the property was stolen, we need a witness to say when they discovered that the thing was missing and a witness to say when and where it was last seen. These may be different people than the owner.
3. To prove that the thing you found belonged to the owner, we need the owner to recognize it or to recite its serial number and/or licence plate.

Inexperienced investigators often assume that because they know the answers to these questions, the prosecutor will be able to prove those facts.

Not true.

Your computer system may tell you the Vehicle Identification Number of the victim's vehicle. That's hearsay. It isn't evidence that the trial judge will accept as proof that you found the victim's car. If you rely on a serial number, get the victim to give you that serial number in a formal statement, or obtain formal certification of ownership.

Your dispatcher may tell you what time the felon took the car. That's hearsay. The judge needs to hear from the person who saw it taken. Get a formal statement about what the witness saw.

Often, this key evidence can be established by way of a statutory declaration pursuant to s.657.1 of the Criminal Code. But that declaration must include all the key facts - especially the obvious ones. Don't assume that the standard form property owner's affidavit that your office uses will suffice.

Triggering the inference of Recent Possession

Notice item #2 in the list above. Many investigators overlook an obvious fact: the discovery of the theft usually occurs after the theft. The inference of recent possession only works if the theft occurred recently. We need to know who last saw the thing in its proper place. For the purposes of "recency", the clock starts ticking when that person turns their attention away from the thing.

Consequences

Mr Shaw beat the charges relating to the stolen truck and guns. From the way the report reads, I'm pretty sure he committed them.

What went wrong in that case is nothing new. Investigators (and some prosecutors) have been making those same mistakes for decades. On the day of the arrest, when cops catch the felon red-handed, documentation seems unnecessary. A year later, the absence of formal documentation causes the case to collapse.

Good paperwork busts bad guys.

2021.07.30 Independence of Crown

Back in May, I wrote about Ontario (Attorney General) v. Clark, 2021 SCC 18. In that case the Supreme Court of Canada held that prosecutors have no obligation to protect the interests of police officers when prosecuting criminal cases.

Some folks in law enforcement found that decision disappointing.

This week, police may find some comfort in that decision.

A police officer responding to a 911 call arrested Mr Klassen, 2021 BCCA 294 for assaulting his wife. Mr Klassen and his wife responded forcefully. The Crown prosecuted the Klassens for assaulting the officer. In criminal court, the judge acquitted the Klassens. The judge found that "probably", Mr Klassen did not assault his wife, and therefore, the officer did not act lawfully.

The Klassens sued the officer for arresting them without lawful authority.

In the civil court, the officer's defence team argued that the officer acted lawfully because Mr Klassen actually did assault Mrs Klassen.

The Klassen's lawyer objected: "A judge already decided that question. We don't need to litigate it again!"

The judges disagreed.

Because the prosecutor is independent of the police, and because the prosecutor had no obligation to defend the interests of the police, it would be unfair to the police officer to rely on the criminal decision. If the police officer controlled the criminal trial, maybe the police officer's version of events would have come out differently.

2021.07.27 "Look, Ma, No Hands" - Distracted Driving in BC

Mr Rajani, 2021 BCCA 292 drove a car. According to him, he wedged the cell phone between his right thigh and the seat of the car, in a manner that allowed him to see the screen. (The officer said it was on his lap.) It was plugged-in and charging. The screen was black.

Was he "using" an electronic device while driving?

Section 214.1(a) of the BC Motor Vehicle Act defines "using" to include “holding the device in a position in which it may be used.”

Mr Rajani argued that "holding" requires the use of hands. Because he did not use his hands to secure the phone where he could see it, he was not "holding" the phone, and could not be convicted of distracted driving.

The judges disagreed. Within the meaning of the Act, one can "hold" a phone with a chin, or an arm, or a knee.

According to ICBC, distracted driving causes lots of car crashes. Warnings and tickets may save some lives.

2021.07.27 Breadth of Search & Breadth of Disclosure

I encountered a case which caused me to consider the limits of some basic principles.

Which principles?

1. An investigation is complete when you have canvassed all reasonably available sources of information.
2. A report about the investigation is complete if it provides all of the evidence that you gathered.
3. When charged with an offence, the defence is entitled to disclosure of the fruits of the investigation.

Which case?

Women complained that Mr Dadmand, 2021 BCCA 250 sexually assaulted them. He pretended to operate a modelling agency, and by this pretence, met women that he photographed and video-recorded, even while he engaged in sexual acts with them.

Investigators prepared an Information to Obtain a search warrant, based on information received from six women. They searched his electronic devices, and discovered evidence of more offences against other women. The officers discovered lots of sexual material, some of which involved women they could not identify.  The Crown pursued charges relating to offences against only two of the first six women, and four of the newly discovered victims.

Limits of Disclosure - Relevance

Crown disclosed to defence all of the material relevant to the charges laid, but withheld data that related to the women who complained, but were not the subject of charges.

Defence complained that the police officers scrutinized too much data from his devices: overbreadth of search.

Defence demanded disclosure of the withheld material so that he could prove that the police searched his devices too broadly.

The Crown observed that some material had no relevance to the prosecution, nor to the defence of the case. Sure. But defence claimed that they needed it in order to prove a breach of a Charter right. Yes, the judges held, the defence is entitled to disclosure of evidence tending to establish that police violated his rights.

But what good was this material even to prove a breach of Charter rights? For example, there was a video of Mr Dadmand having sex with a woman who had nothing to do with the charges laid. The prosecution wouldn't use that video to prove the case. The defence would not use that video to show that Mr Dadmand had a defence. The judge would not find that video useful in determining whether the police searched too much.

The court agreed with the Crown. In a challenge to the breadth of a search, the court examines how widely the police searched, not the data that they took away. In this case, the notes and evidence of the people who searched the devices explained what data they examined, and what they ignored. Neither the defence lawyer nor the judge needed copies of the data that police saved from Mr Dadmand's devices in order to determine whether the police limited their searching to the kinds of data authorized by the search warrant.

What the judge and defence needed was a full accounting of what the searchers did to look for data responsive to the warrant, to determine whether they looked further than they should have. Police were able to supply a list of all the keyword searches done on the devices.

Some obvious lessons emerge from this:

• Before you search, read the warrant. Figure out how deeply you can search, and search no further.
• Searchers should keep detailed notes of how widely they search, particularly when searching electronic devices.

Breadth of Search of an Electronic Device

As part of their complaint about the breadth of the search of Mr Dadmand's devices, defence complained that the police did not restrict their data searches by date.

Defence counsel urged have judges to require police to specify in advance precisely which search terms and techniques they should use when searching the target device. So far, judges refused. They appreciated that when the technician starts finding relevant data, the technician may think of new search terms or techniques.

Following that line of thinking, the judges disagreed with defence. Limiting your searches by date may be a good way to keep the search focussed on the searching that warrant authorizes, but it's not the only way.

2021.06.16 "Trust me, I'm a Pro" - When to Express Opinions about the Defendant's Guilt

Mr Daou, 2021 ONCA 380 confessed to murdering Jennifer Stewart. At the time he made this confession, he suffered from a mental disorder; but many of his claims matched hold-back information about the killing.

During the trial, the prosecutor asked the investigator to describe his impressive career in criminal investigation. Then, the prosecutor asked the investigator to identify what parts of the confession convinced him that Mr Daou's confession was true. The investigator reviewed the holdback and compared it to descriptions that Mr Daou gave. The officer explained to the jury that at first he was skeptical, but was eventually convinced by the details that Mr Daou gave that he was telling the truth.

The jury convicted Mr Daou.

Mr Daou appealed to the Court of Appeal: The prosecutor should not have asked the investigator to explain his belief in truthfulness of the confession.

The judges agreed. The officer should not have testified about his opinion on the guilt of the accused.

Hang on!

Police officers often testify about why they stopped or arrested someone, or demanded breath samples. What's wrong with telling the court why you think that the defendant is guilty?

It depends on the issue. When the judge needs to determine whether you acted lawfully, your beliefs about the guilt of the accused justify your actions. The judge needs to hear evidence about what you thought.

When the judge needs to determine whether the defendant acted lawfully, then your beliefs are worse than irrelevant. Your opinions about the guilt of the defendant undermine the justice system.

If the judge permits you to tell the him or her what conclusion to reach in the trial, then an independent observer gets the impression that the cop, not the judge, decides the case. All the money we spent on hiring an independent decision-maker is wasted.

Same problem with a jury.

We go to significant efforts to select jurors who are independent of the investigation. When deciding the case, those jurors had the duty of reviewing the defendant's statement, and comparing it to the hold-back to determine if the defendant was telling the truth. As you well know, sifting through evidence is hard work. The prosecutor tendered impressive evidence of the officer's career, and then the officer said, effectively: "Trust, I'm a pro. The defendant is guilty." It's very tempting for a bus-driver, a cashier or short-order cook to say in the jury room "I don't know much about criminal investigation. That cop has more experience than me in comparing statements to hold-back evidence. I trust his opinion". A juror who reasons this way fails to do the task of deciding the case by analyzing the evidence. Stakeholders like the defendant and his family lose faith in the fairness of a trial in which the jury does what the police officer tells them to do.

Of course, there are exceptions. For example, people qualified as experts can offer opinion evidence within the area of their expertise.

"Okay Waldock," you ask. "You're saying sometimes I must tell the judge my opinions, and other times, I must not. When I'm testifying, how can I tell whether I should or shouldn't?"

1. Listen to the question. If the question doesn't ask you to explain your thoughts about the guilt of the accused, then don't. Questions that start with "Why did you...?" or "What opinion did you form...?" generally requires explanations about your thoughts.
2. Ask. "Do you want me to explain what I thought at the time about whether Mr Defendant had done something wrong?"
3. Communicate with the prosecutor beforehand.

The way this decision reads, the prosecutor bears the responsibility for the legal error. It looks like the investigator followed all three steps.

2021.06.15 "Home Free" - Preventing Random Traffic Stops

Six years ago, I wrote that in Ontario, an officer who sees a vehicle driving on a driveway may stop the driver for a random safety check even if the driver first pulls into a private driveway. But the officer must make the decision to stop the car before it leaves the highway. I relied on R. v. Heer, 2013 CarswellOnt 18962, 2013 ONSC 7257, [2013] O.J. No. 6432, which is still, unfortunately, not available on CanLII.

The Ontario Court of Appeal now disagrees. The omission of Heer from the databases matters less now.

Mr McColman, 2021 ONCA 382 stopped at a gas station. Police officers noticed his vehicle, and followed it for 200m, intent on stopping it for a sobriety check, pursuant to s.48 of the Highways Traffic Act. Before they turned on any lights or sirens, Mr McColman turned into his private driveway. The officers pulled in behind him.They approached him, and noticed a remarkable absence of sobriety. Although he drove just fine, Mr McColman had trouble walking. He stunk of booze.

At his trial for drunk driving, he complained that the police had no authority to stop him. The Ontario Highway Traffic Act authorizes police to stop drivers who are driving on a "highway" for random sobriety checks. These officers could have stopped him when he was driving on the road, but they didn't. At the time they stopped him he was no longer driving on a highway, but on a private driveway.

The Crown reminded the court that in R. v. Lotozky 2006 CanLII 21041 (ON CA), they decided officers in similar circumstances could walk up the driveway and stop the driver. Surely, Mr McColman's situation was the same.

No, said the court.

In Lotozky, the officers responded to a 911 call. The complaint was of an intoxicated driver. They saw the car in question drive into a driveway. They already had grounds to suspect an offence. In those circumstances, those officers could stop the driver even on his own driveway.

The officers who dealt with Mr McColman had no reason to think that Mr McColman had committed a driving offence. In those circumstances, the court found that the officers could not exercise the random stop power granted by s.48 of the Highway Traffic Act if the driver was no longer driving on a highway. By reaching home before the officers turned on their lights, Mr McColman was "safe". Olly, Olly, oxen free

Did they need to stop him?

Perhaps you're wondering what all the fuss is about. Mr McColman had stopped his car all by himself. If he wasn't driving any more, then the officers didn't "stop" him. They didn't need to exercise the power granted by s.48 of the Highway Traffic Act to stop him. Maybe. But I can see why - in this case - the prosecutor didn't want to make that argument. If the officers weren't relying on their power under that section, then what authorized them to enter private property?

What if the driver parks in a driveway that is not private property, like the parking lot of a bank or a liquor store? You may not have authority under s.48 of the Highway Traffic Act but if the driver stops himself and gets out, then you don't need it. You can watch the driver get out. You can talk to him or her if you want.

What are your powers?

Did you notice that I pasted the link to s.48 of the Highway Traffic Act into this comment six times so far? Why did I do that? Surely, once was enough.

Nope. It's a hint that I want you to read s.48 of the Highway Traffic Act (Oops. I did it again.) Even if you don't work in Ontario. Why?

Because you need to know your powers.

If you work in Ontario, and you're going to use this section, then read it again while thinking of this case. If you don't work in Ontario, read this section, and then compare it to the legislation you use in your province.

What's a "highway"?

When you review your legislation, you'll probably see the word "highway". What is a highway? Your mileage may differ. Different provinces define "highway" differently. For example, in Saskatchewan and Ontario, a business parking lot is not a "highway". Lux, 2012 SKCA 129; Tresham, 1998 CanLII 14756. In BC, it is. Cyr v. Koster, 2001 BCSC 1459.

2021.06.12 "Recent Possession" - A Soft Concept

You can infer a person's involvement in a theft if the person possesses property from the theft shortly afterwards.

For example, if you catch Jimmy driving a stolen car 2 minutes after someone stole it, you may confidently infer that Jimmy stole it.

If you catch Jimmy driving that same car 4 hours after someone stole it, the inferences vary more. If you find him 4 hours' drive from the place where the thief took it, you may still confidently believe that Jimmy stole it. But if you find him driving it closer to home, you may reasonably suspect that Jimmy stole it. But he may have received the car from the thief. If he received it from the thief, you can still be fairly sure that because so little time passed, that Jimmy knows it was stolen, either because he stole it, or because he dealt with the thief so shortly after the theft, that he must have known what was going on.

Of course, the strength of the inference declines with the passage of time and the type of property.

When you apply for a warrant, this inference works in reverse.  You can infer that after a short time after a theft, the felon will still possess the loot.

How long can one expect a thief to hang on to stolen property?

It depends again on the type of property, and whether there are special circumstances. You can expect a thief who steals cash to dispose of it sooner than a thief who steals a unique artwork. A junkie will likely consume quickly the drugs taken in a drug-ripoff. A stalker will likely keep the undergarments he took from his victim's dresser.

Two months after a home-invasion robbery, police located the stolen van which the robbers used to commit the crime. First they found it parked outside one residence, but it moved to a spot outside the residence of Mr Fuller, 2021 ONCA 411. The investigators obtained a warrant to search that residence for property stolen during the robbery.

Defence argued that after two months, there was no reason to believe that any property taken in the robbery would remain in the residence. The warrant should never have issued.

The judges disagreed. They held that although reasonable minds might differ about whether the search would recover stolen property, this warrant was properly issued.

Your mileage may vary. This decision does not establish that 2 months after every theft, you can get a warrant to search the residence of a suspect.

Why did the judges think 2 months wasn't too long? This robbery involved a jewellery box containing earrings and other items. If you sought to profit from such booty, how would you do it without drawing attention to yourself? An obvious strategy would include finding different buyers, and moving slowly.

If time passed between the crime and your discovery of a likely felon, consider your suspect's motives and likely courses of action. In your ITO, a careful articulation of the difficulties involved in disposing of the stolen items may cause the issuing judge or justice to see why you think that the property is still there.

2021.06.03 Search and Seizure - Documenting the Search

How methodically do you search? How do you document it?

Mr Wragg, 2021 BCCA 214 got into a car accident and left the scene. He came back after a while, and grabbed some things from the car and put them in a bag. Two police officers arrived while he was still in the area. One of them arrested him for failing to remain.

At trial neither could recall who did the arresting.

One officer searched the bag, and found 24 packages of drugs. That officer couldn't clearly recall where he did that search. The other officer remembered that he emptied the bag onto the hood of the police car.

At trial, Mr Wragg explained that he didn't know about the packages of drugs. They must have been in his girlfriend's purse, which was one of the things that he grabbed from the car.

The big question at trial became whether the packages of drugs were in the purse or not.

The officer who found the drugs couldn't remember all of the details of the search clearly. He did make some notes of the search. Some of those notes differed from his testimony at trial. He remembered things a bit differently. The defence lawyer highlighted this variation in memory during cross-examination.

Don't laugh at the police officer. This could happen to you. If you do lots of searches, then years later, they will blend together, and you may find yourself struggling on the witness stand to remember find details about the case.

How do you avoid this?

Documentation.

The notes that the officers did make helped greatly. The trial judge didn't laugh at the officer. The trial judge believed him. The appeal court found that the conviction was reasonable, and upheld it.

    With the benefit of hindsight, you can learn much from this case.

For example, why couldn't the officers remember which one of them arrested Mr Wragg?

I'll bet they wrote their reports in the passive voice: "Mr Wragg was arrested." Do you think there would have been any confusion if they wrote their reports in the active voice? "Cst X arrested Mr Wragg."

I hate the passive voice. I use it, but sparingly. When I read the passive voice in police reports, it irritates me. The passive voice conceals the responsible person. "The bag was searched" - who did the searching? "20 small bags of meth were found." - Who found them? Which thing contained them? The active voice answers those question. "Cst Jones searched the bag. He found that it contained 20 small bags of methamphetamine."

What can you do to avoid the problems that these officers encountered? I'll bet some photographs would have helped jog memories. If you're searching a collection of interesting things, you might want to document clearly which container(s) held the objects of interest.

If you apply hindsight to this case, you may discover other investigative angles you might have considered. When I read the decision, I thought about handwriting comparison. You might think of other things you could do next time you encounter a similar situation. That's one of the values of reading case law.

2021.05.23 Delaying Access to Counsel

A couple of weeks ago, I wrote about giving the defendant access to counsel at the scene. No delay!

But you can delay, where you have reasons specific to the case.

Police watched Mr Griffith, 2021 ONCA 302 because a tipster told them he sold drugs. What they saw caused them to believe the tip.

When they arrested him, he tried to flee. He carried lots of cocaine, and a loaded handgun.

The officers told him promptly about his right to counsel - they even video-recorded it. He wanted a lawyer. But the officers were getting search warrants for his house and storage locker. They worried that he might abuse the phone call. They didn't know who occupied his apartment, but they did know that Mr Griffith carried a loaded gun, and they had reason to suspect that he sold drugs from there. This sufficed to stall his access to counsel until the officers went in.

It didn't justify delaying his access to counsel for an hour and twenty more minutes. That was a problem which arises all too often.

When you get a warrant, you should always brief your team. Perhaps that briefing should always address how access to counsel will be granted once officers enter the location.

2021.05.23 Explaining the Right to Counsel & Documenting what you Did

Police officers often arrest suspects and explain the right to counsel. One can easily forget routine events.

Most suspects get arrested rather less often. For them, the experience stands out as memorable.

Therefore, when the defendant claims that you failed to explain the right to counsel properly, the defendant has an advantage over you. The defendant's lawyer can often get you to agree that you have no specific memory of what you "usually do". Then the defendant's lawyer will point out to the judge that the defendant has a specific memory of you doing things wrong, and all you can say is what you usually do.

But Cst. Price of the OPP told the court of very specific memories of arresting Mr Luu, 2021 ONCA 311. It was raining heavily when Cst Price arrested him. Cst Price read from card. He noticed that Mr Luu spoke with an accent. He backed up and explained the rights again in everyday language, to make sure that Mr Luu understood. Mr Luu indicated that he understood, but didn't know whether he wanted a lawyer.

How did Cst Price remember those specific details?

I don't know. The decision doesn't say.

• Perhaps the moisture from the rain blurred the ink on the pages of his notebook, and that reminded Cst Price of the weather.
• Perhaps he made notes about Mr Luu's accent.
• Perhaps he made notes about explaining the right to counsel twice.
• Perhaps he turned on an audio-recorder.
  

I do know that Mr Luu didn't dare contradict him about what happened at the roadside.

Instead, at court, Mr Luu complained that he didn't understand what Cst Price was saying. He complained that Cst Price failed to figure out this comprehension gap.

Mr Luu's complaints didn't impress the judges. Cst Price went further than reading the card. He listened to the answers he got. What he heard made him take another step. Everyone knows that the best communicators are the ones who listen. Because Cst Price took that second step, the judges could be confident that Cst Price wasn't just going through the motions, but he was actually communicating.

How could Cst Price remember all this detail? My guess is that he wrote it down. Maybe in a wet notebook. Or maybe he recorded the interaction.

Investigators should document the interesting stuff that they find. Smart cops document the routine stuff too.

Cst Price busted Mr Luu for conspiracy to traffick drugs. Mr Luu had half a kilo of meth on him when arrested. The conviction and sentence survived appeal. Whatever Cst Price did to record his interaction with Mr Luu, I bet he'll do it again next time, and maybe even better.

2021.05.23 Impaired Driving - Another Document to Give the Driver

In routine impaired driving cases, before you release a drunk driver, you usually give him or her a handful of documents, including:

• Appearance notice or Undertaking - "Come to court"
• Administrative Driving prohibition - "Don't drive"
• Certificate of Qualified Technician - "This is how much booze your blood contained"

But there's one more document that you need give the driver.

• Certificate of Analyst - "The instrument used a good alcohol standard."

"We never used to give the driver a copy of that certificate. Why now?"

Because the drunk driving legislation changed in 2018.

"That's a couple of years ago now. Why did Waldock wait so long to tell us?"

Because the answer wasn't clear. Lawyers disagreed about what those changes meant. Judges disagreed too. When judges disagree, lawyers appeal. It takes a while for those appeals to work their way through the system. This week, the first provincial Court of Appeal delivered its opinion on this issue. R v Goldson, 2021 ABCA 193. That provides some clarity.

Judges in your province may disagree. The Supreme Court of Canada may disagree.

If they disagree, then this is a make-work project. Nothing will happen if you fail to serve the extra document. But if they agree, then some prosecutions will fail if you don't do the extra work.

I think the Supreme Court of Canada will agree with the Alberta Court of Appeal. Until the judges give a final answer, I think you're better safe than sorry. The safe route is to serve too many documents rather than too few. For that reason I think you should give the driver a copy of the analyst's certificate, along with notice.

"Notice"? What's that?

There is actually one more document on that list of documents that you usually give the driver.

• Notice of Intention to Produce Certificate - "The prosecutor is gonna use this document at court."

In my jurisdiction, the "Notice of Intention to Produce" is printed on the same page as the Certificate of Qualified Technician. Some people think it's one document, but the page actually contains two different documents, signed by different people, and saying different things.

Because of the Goldson decision, I think that you now need to give notice that the prosecutor will use two certificates at court.

Therefore, the complete list of documents for service looks like this:

• Appearance notice or Undertaking - "Come to court"
  
• Administrative Driving prohibition - "Don't drive"
  
• Certificate of Qualified Technician - "This is how much booze your blood contained"
• Notice of Intention to Produce Certificate #1 - "The prosecutor is gonna use the breath tech's certificate at court."
• Certificate of Analyst - "The alcohol standard that the qualified technician used was good."
• Notice of Intention to Produce Certificate #2 - "The prosecutor is gonna use the analyst's certificate at court."

"Bloody heck, Waldock! That's an awfully long list of documents!"

I agree. But we can reduce it by one.

In my view, there is nothing wrong - and much right - about combining the two notices into one document that says "The prosecutor is gonna use the breath tech's certificate and the analyst's certificate in court." Some people may resist that suggestion because it's a bother to re-program the breath testing instrument to print a notice that mentions both certificates.

Yup. It's a bother.

The process of investigating and prosecuting drunk drivers is already pretty complicated. Complications in investigations tend to lead to complications in prosecutions. And from there, it's a short walk to acquittals. 

If I managed the alcohol testing programme, I would ask the manufacturers to program the instruments with the following features:

• every time a technician changes the alcohol standard, they can upload a scan of the certificate that says that the alcohol standard is good.
• every time that the analyst finishes testing a subject's breath, the instrument prints copies of the technician's certificate and the analyst's certificate, along with a single notice that declares that the prosecutor will use both certificates at court.

Um, what's this "alcohol standard" you keep talking about?

In case you were afraid to ask, I thought I might explain.

The instruments measure the amount of alcohol in the air that the driver blows into the instrument. In order to show that the instrument's results are trustworthy, the manufacturers design them with a quality assurance cycle. In addition to measuring the driver's breath, the instrument measures air laced with a known quantity of alcohol. Scientists refer to this as a "control" sample. If the instrument finds the right amount of alcohol in the control sample, then it must be working properly. That control sample is the "alcohol standard". (It actually does other things to make sure that it's working properly. Let's not get into that right now.)

The new legislation (s.320.31(1)) says the judge must accept the instrument's measurement of alcohol in the driver's breath if the prosecution proves that the instrument used a good alcohol standard. That's new. In the past, judges accepted the breath tech's word or certificate that the alcohol standard was good. Many lawyers and judges figured that was still okay under the new legislation. The court disagreed. Read the decision to understand why.

2021.05.17 Authenticating Electronic Data - A Story of Scorn

"There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is." Nordheimer J.A. at para 30.

Mr Aslami, 2021 ONCA 249 had a wife. When their relationship ended, she was angry. Very angry. In order to hurt him, she arranged to have sex with a man he hated. She sent him pictures of herself in bed with his nemesis to make sure that Mr Aslami felt some pain.

Shortly afterwards, someone firebombed that man's house.

Who threw the bomb?

The ex-wife testified that she recognized Mr Aslami in a brief and blurry security video of the firebomber.

Before and after the firebombing, the ex-wife and the guy Mr Aslami hated both received several messages, both by text and on social media platforms. Some of those messages suggested that the sender was involved in the firebombing.

Police got those messages only from the phones of the ex-wife and the new guy. They did not recover Mr Aslami's phone.

The ex-wife testified that the phone number and social media account belonged to Mr Aslami.

Did Mr Aslami send the the messages, or was he framed?

In her phone, the ex-wife attached Mr Aslami's name and photograph to several phone numbers, including the one that sent these text messages. But police found no evidence of a phone that Mr Aslami used at the time with that number.

The social media accounts were in pseudonyms which the ex-wife said were Mr Aslami. But the police gathered no communications which clearly identified the sender as Mr Aslami.

Electronic messages on a cell phone can be deceiving. Many systems display a photograph of the sender beside the text. But who associated the photograph to the phone number? Can you attach the wrong photo to a phone number in your phone? Can you set up a fake social media account? Would this woman do such a thing to punish Ms Aslami some more?

Oh yeah. There's one more thing. Before the fire-bombing, the new guy split up with his partner, and moved out of the house. The fire-bombing didn't hurt him.

Was he complicit in framing Mr Aslami?

The trial judge convicted Mr Aslami. The Court of Appeal ordered a new trial. The judges worried that the trial judge had not considered the scorned woman theory sufficiently.

What does this mean for your investigations? When you review electronic messages that prove a case, you want to authenticate them. That means finding evidence that proves who typed them.

If you can seize and search the target's cell phone, that will solve the authentication problem.

Another way is to examine the content. Yesterday, I reviewed the statement an officer took from a woman complaining of harrassing messages from her ex-boyfriend. I was pleased to see that he took the time to ask her "but how do we know these messages came from him?" She identified topics in the messages that were important to the ex-boyfriend, topics that they had discussed over the course of their relationship.

Notice that this may require extra seizure. You want more than the harassing messages, but also the ones that tend to identify the person who sent them.

Sometimes that will suffice. Sometimes you need more. What if the woman in my case were framing him, as was proposed in Aslami's case? In the messages I looked at, the sender described something he was about to do. I have independent evidence that the defendant did exactly that.

2021.05.12 Arrest Procedures that Protect You

Some police officers had reasonable grounds to believe that Mr Scala, 2021 ONCA 297 committed criminal harassment, and so they arrested him.

He resisted arrest. The police officers took him to the ground.

Afterwards, he sued the police. A decade after the arrest, he testified in court that the officers beat him up. So did a buddy of his, who said he saw the brutal attack and tried to stop the officers.

Naturally, the officers denied inflicting any violence.

Lots of evidence rebutted Mr Scala's version: cell block video and photographs; Mr Scala's medical records; audio recordings of what Mr Scala said shortly after the arrest.

The trial judge rejected the claim. So did the Court of Appeal. If you read the decision, it all seems so simple.

But the decision refers to lots of evidence. That evidence made all the difference. Where did the evidence come from?

Much of it came from following good booking procedures. Cell-block video recording system. Photographs. Audio-recording the defendant as he goes through the booking process.

There are people who will make false allegations about police officers for their own gain. The cumbersome processes of documenting the prisoners in your custody can protect you against false claims. Even a decade later.

2021.05.12 Independence of Crown - Ontario (Attorney General) v. Clark, 2021 SCC 18

In 2009, some officers arrested Mr Maharaj and Mr Singh for armed robbery. At their trials, each alleged that the police beat them up during the arrest. The Crown dropped the case against Mr Maharaj, but pressed on with the case against Mr Singh. During that trial, Mr Singh asked the judge to stay the charges because of the police brutality. Both Singh and Maharaj testified that the police beat them up.

The Crown did not ask the police officers to explain their side of the story at the trial.

The trial judge convicted Mr Singh. The Court of Appeal found that that the police brutality should have resulted in a stay of proceedings. The judges condemned the officers' brutality, naming them in their decisions.

But Ontario's Special Investigations Unit, and Toronto's Police Service Professional Standards Unit investigated the police misconduct. Mr Maharaj didn't cooperate. Those agencies concluded that likely, the officers did not assault the two robbers. Maybe the prosecutor should have told the judges of the Court of Appeal.

The police officers sued the prosecutors for failing to contest the robbers' claims properly.

The Supreme Court of Canada rejected the officers' claims. The judges found that the prosecutors did not owe any duty to the police officers to protect them from false Charter claims in a criminal trial.

Why?

Because Crown Counsel aren't your lawyers.

To ensure the independence of the prosecutor, the prosecutor must not bear any duty to protect police officers' interests.

Does that mean that the results in this case were just? I don't think so. Two robbers beat serious charges by making false allegations against police officers. The Crown didn't fight those false allegations hard enough. The false allegations hurt the careers of some police officers. I don't know exactly why things went wrong. I suspect that there were trust or communication problems between the officers and the prosecutors, either personally, or institutionally.

There are two ways to apply this decision to every-day police work. You can view it as proof that prosecutors are aloof, and not to be trusted. If the relationship between police and prosecutors in your area is bad, then I think this approach will exacerbate the problem.

Or you can recognize and affirm the independence of Crown, but work with them to improve communications, so that they don't lose cases like this one on false allegations.

On of the main reasons I write this website is to promote a good working relationship between police and prosecutors. There are deep reasons why prosecutors and police must remain separate agencies; but there are equally deep reasons why police and prosecutors need to be able to work side by side, with good cooperation and communication. Knowing each others' roles helps us understand what we can and can't do for each other.

2021.05.08 Right to Counsel - Cell Phones at the Scene

"[T]he case law could not be clearer on the issue of when an accused is entitled to avail himself or herself of his or her right to counsel. The right applies immediately following arrest and reading of constitutional rights, insofar as the circumstances of the case allow." LeBlond J.A. in R. v. Landry, 2020 NBCA 72 at para 3 (The report is in French first, then English.)

A police officer stopped Mr Landry just before 3:00am, and investigated him for impaired driving. When Mr Landry (eventually) blew a "fail" on a screening device, the officer arrested him, and took him to the police station for a breath analysis.

When should Mr Landry get to speak to a lawyer? He asked to use his cell phone at roadside. The officer made him wait until they got to the police station. That took 30 minutes.

Unsurprisingly, most lawyers didn't answer their phones in the dead of night. The officer spent almost an hour trying to contact lawyers for Mr Landry. Eventually, the officer called Legal Aid. Mr Landry refused to speak to the Legal Aid lawyer that was available. Shortly after that, the officer gave up and made Mr Landry provide his breath samples.

Why not give Mr Landry his cell phone at the roadside, and let him call his lawyer right away?

The officer had no explanation.

The judges didn't like that.

This officer also read the "Supplementary" (aka "Prosper") warning to Mr Landry. This was a mistake. One reads that warning when your prisoner starts to waffle after first saying he wants a lawyer. But Mr Landry never changed his mind. Nothing triggered a need to tell him that he was entitled to a reasonable opportunity to get legal advice.

It wasn't a bad mistake - it merely re-affirmed that Mr Landry was entitled to a reasonable opportunity to get legal advice.

Very shortly after telling Mr Landry that he was entitled to a reasonable opportunity to get legal advice, the officer told him he had to stop calling lawyers, because it was time to provide breath samples.

The judges didn't like that either. They excluded the breath test results, and Mr Landry beat the charges.

Why do you take prisoners to the police station before letting them call for legal advice? I know of several explanations:

• That's the way we used to do it, before cell phones became common.
• Some suspects have arranged for friends to make false 911 calls, in the hope of distracting the police officer from the investigation.
• Sometimes officers have reasons to fear that the suspect will summon violent people to spring him free from the officer.
• Some prisoners are too violent. You can't let them use a cell phone, they'll smash it.
• Sometimes, the only phone available belongs to the officer, who doesn't want to catch diseases from the prisoner.

Times have changed. Cell phones are everywhere.

Most of these concerns can be addressed.

• Don't want the guy calling his friends? Then make the call yourself.
• Don't want the guy handling his phone? Don't want him breathing on your cell phone? Put it on handsfree, in a part of the the police car where he can talk, but he can't touch his cell phone.

If the sound quality in the police car is poor, then ask the lawyer to be available when you get your suspect to quieter place - such as a police station.

After you make a breath demand, you need to test the subject's breath "as soon as practicable". If the subject wants legal advice, one of the necessary steps is contacting the subject's lawyer. Calling right away may reduce delay at the police station.

Even if you didn't read a breath demand, s.10(b) of the Charter guarantees the prisoner legal advice "without delay".

Decisions like this one suggest that if you can provide the suspect with access to counsel at roadside, then you must. If you can't, then you need to be ready to explain the reason(s) that prevented it.

Police cars weren't designed for providing access to counsel. Maybe they should be.

2021.05.05 Confidential Informants - It Seems Easy until Later

Two years of service teaches a police officer only the rudiments of the job.

With two years of experience under his belt, an officer received a confidential tip about Mr Dawkins, 2021 ONCA 235 packing something illegal.

The officer had never handled a confidential source before, but he knew that he had an obligation to protect the source from being identified. (Good. He got one fundamental correct.)

Police information suggested that Mr Dawkins as a dangerous guy. He had a history of firearms offences, and he was prohibited both from possessing firearms and - as it turns out - driving cars.

One night, the officer saw Mr Dawkins get into a car, so he pulled it over.

The officer first violated s.10(a) of the Charter: he lied about the reason for pulling over the vehicle.

He did so for officer safety. He was working alone. He didn't want to arrest Mr Dawkins for driving while prohibited until backup arrived. So he told Mr Dawkins that he saw the vehicle swerving. That didn't turn into a problem in the case; but don't make a habit of lying about the reason for detaining someone.

When backup arrived, the officer arrested Mr Dawkins for driving while prohibited. A search of the vehicle discovered a loaded handgun under the driver's seat.

What should the officer do about the confidential source information? Even though the source information formed part of his reason for pulling the vehicle over, he said nothing about it at the scene, and wrote nothing about it in his notes and report. He figured he could sort it out with the Crown if there was a trial.

Defence launched a Charter application. The main point was that the officer lacked grounds to stop Mr Dawkins' car - a breach of s.9. I don't know from the reasons of the Court of Appeal why defence thought this argument would work, but it may have had some substance.

Two weeks before trial, the officer met with the prosecutor, and explained how the source information formed part of his justification for stopping Mr Dawkins. The prosecutor immediately disclosed to defence the fact that the officer acted, in part, on source information.

Things could have gone wrong:

• Late disclosure can trigger adjournments. When the prosecution produces new evidence close to trial, defence often complain that they need to change their strategy. They ask for an adjournment, but because of the late disclosure, the prosecution takes the blame for the delay. If the case delays long enough the court will stay the charge. Lesson: don't delay disclosure to the prosecution. If delay is necessary to protect a source, get the prosecutor involved early. Don't wait until trial.
• Late disclosure can undermine credibility. Recall that the defence lawyer asserted that the officer lacked sufficient reasons to suspect Mr Dawkins' vehicle. After defence complained, the officer explained "actually, I had confidential source information, but I didn't write anything about it down in my notes or report."  If you do this, defence counsel will suspect that you concocted this explanation in order to answer the complaint. The lawyer will reason this way: "The officer lied to Mr Dawkins when he first pulled Mr Dawkins over. Maybe the officer is lying again."

Handling confidential sources gets tricky fast. As you can see from this case, failing to write anything down can backfire. But writing things down in the wrong places (like disclosure to defence) or failing to redact it can also backfire. Beware of shortcuts. Read a manual. Take a course. Learn the procedures that your police force follows.

In this case, the judge found that the officer's inexperience explained why he acted as he did. The judge believed the officer and convicted Mr Dawkins.  If it works, that excuse of inexperience works only once. If you don't know how to handle a source, then get some formal training.

2021.05.02 "Why would she lie about this?" - Interviewing Danger Zone

Mr Bernier, 2021 ABCA 27 had with a young woman at a house party. She said so. And when an officer interviewed him, he agreed. But they disagreed about whether she consented. She said that his sexual acts woke her up. He said she was awake from the beginning and she enthusiastically participated.

During the interview, the police officer repeatedly asked Mr Bernier to explain why she would lie about what happened.

Although you can ask this question in your interview, don't make it the central theme of your interview.

At a trial, the question is improper. At law, the prosecutor can't ask the defendant to explain why another witness might lie, and if the judge relies on the defendant's inability to give a satisfactory answer to the question, then the Court of Appeal will order a new trial. And that's just what the court did in this case.

The court said that the prosecutor ought to have edited those questions and answers out of the interview before tendering it in the trial.

If your interview is going well, perhaps you should simply avoid that topic altogether.

2021.04.27 Victimizing Cops - Investigating Your Own

A drunk assaulted a cop in downtown Vancouver. His name was Eddison, 2021 BCCA 168.

It went badly. The officer took Mr Eddison down, but he fought and struggled.

When the officer's partner stepped in, something broke her leg. Either the drunk fell on her the wrong way, or he kicked her during the struggle.

Once the officers got the drunk under control, other officers canvassed the area for security video and witnesses. They found witnesses, but did not secure any useful video.

Everybody who saw the incident described it differently. Even the two officers gave different accounts. Video would have helped.

But one witness gave a different account. He claimed that he saw the event, and the video security system at the place where he worked recorded the whole thing. He said that two officers came and looked at it, but did not request a copy. A different officer testified that she actually did look at that recording, but found no useful evidence.

At trial Mr Eddison's counsel used that as an opportunity to attack the cops: The witness proved that the one video was probative. Three cops looked at it, but they didn't want anyone to see what it contained. "Negligent investigation!" By failing to secure the video, those three cops were covering up the truth.

It's a common tactic to accuse police officers of inadequate investigation or cover-up, and it sometimes works. Here's why: when police fight with civilians, all the investigators look biased.

Remember when Iran shot down a commercial airplane. When Iran released its official investigative report, critics found the investigation inadequate. The lack of independence of the investigators from the investigated undermined the credibility of the report.

When you investigate the circumstances of an assault of a police officer, or any other victimization of your brothers and sisters in blue, your critics may suspect you of bias, or even cover-up.

The judge in this case rejected the notion that there was a police conspiracy to frame Mr Eddison. He had good reason. The two main police witnesses had quite obviously not colluded. They provided different accounts of what happened. But the independent witnesses generally agreed that Mr Eddison was the aggressor, and the police reacted appropriately.

The judges concluded that Mr Eddison was guilty.

Think how much harder the case would have been without independent witnesses.

The trouble is, when someone hurts you or your colleague, there are no independent investigators you can call on to perform a credible investigation. The only resources available are the people you work with.

What do you do?

Don't make the victim, or the an officer who witnessed the crime take the role of investigator. That aggravates the problem of apparent bias.

Get other officers to investigate the crime ... and document the investigation.

What do I mean "document the investigation"?

A good example can be drawn from the Eddison case. Remember the one officer who looked at the security video, and concluded that it was not relevant? She behaved like it was a routine investigation. Suppose, at that moment, she thought to herself "I am a cop investigating an assault on a cop. Someone will claim I am part of a conspiracy." What would she do to show she was not? Perhaps she might take a copy of the useless video. Or photograph the screen of the video system to show that it recorded the wrong area.

In these situations, if you can't bring in an independent investigator, then investigate transparently.

On the witness stand, you might get asked "why did you do something different than a routine investigation?" You can answer, "it wasn't an routine investigation. I knew the victim. I knew someone might suspect me of slanting the evidence. So I took extra steps to show that I didn't."

2021.04.19 Innocent Possession - "I'm just holdin' it for a friend"

Mr Faudar, 2021 ONCA 226 found a handgun and ammunition in his makeshift music studio. That wasn't cool, in part because a judge had prohibited Mr Faudar from possessing firearm. So he moved it to his bedroom. A friend texted him, asking him to hang onto the gun until the friend got back into town.

About a week later, before the friend returned, police raided Mr Faudar's place, and seized the gun.

At trial, Mr Faudar said he was innocent. He was just hanging onto the gun until the friend took it back.

There is such a thing as innocent possession. If a citizen finds a kilo of cocaine in the playground, the citizen can grab it, take it home, and call police for assistance.

But it ain't so innocent, if the citizen holds it for the drug dealer.

Same thing for Mr Faudar. He didn't try to turn it in. He was going to put it back into the hands of the guy he got it from. His "defence" was not a defence, but evidence of guilt.

For lawyers, the case got somewhat more interesting.

Why did the police raid Mr Faudar's place? They had a confidential informant.

Who did Mr Faudar suspect? His friend.

Mr Faudar retained a lawyer to help him. Who did he retain? His friend's former lawyer.

Was the lawyer acting in conflict of interest? For lawyers, there's some interesting discussion about conflict of interest. In this case, the answer was "nope, not a conflict".

Mr Faudar's conviction stuck.

2021.04.16 Entrapment by a "Cutie"?

Police logging onto a chat site as jail bait is not entrapment.

In November 2012, a police officer logged onto a chat site using username "mia_aqt98". This suggested that "she" was 14, and a “cutie”. Mr Ghotra believed "her". Mr Ghotra, 2020 ONCA 373 chatted with "her", and "she" confirmed that "she" was a 14-year-old girl. He turned the conversation rapidly towards sex. Within a few days, he proposed that she meet him. Police arrested him at the meeting place.

He called this entrapment. Most of the Court of Appeal disagreed with him. So did all of the judges of the Supreme Court of Canada. R. v. Ghotra, 2021 SCC 12

Why?

Because the officer merely provided the opportunity for Mr Ghotra to lure a 14-year-old girl. Mr Ghotra is the one who took the initiative.

2021.04.11 Digital Forensic Experts Don't Know Everything

Let's talk about a narrow technical point and a broad philosophical idea.

Narrowly, when a computer forensic expert examines a computer or phone, don't assume that they have all of the expertise necessary to interpret the data. The field of computer science now has many areas of specialty.

But broadly, when you investigate a crime, should you investigate innocent explanations for the evidence you have found?

When a forensic expert examined a cell phone and computer seized from Mr Gauthier, 2021 ONCA 216 she found evidence of child pornography, including Skype chats containing child pornography.

A fair bit of evidence linked Mr Gauthier to the chats. Heck, the user name of the Skype account used his mother's maiden name.

Defence asked some difficult questions about Skype:

• Skype accounts are designed to synchronize across devices?
• That means your cell phone Skype and your computer Skype will show the same chat history?
• Even only one of those two devices was used to engage in a pornographic conversation, if the user logs onto the other device, Skype will synchronize the history so that the chat will show up there.
• How do we know that these devices are the only two that signed onto this Skype account?
• If Mr Gauthier shared his username and password with a another person, couldn't that person engage in pornographic chat from anywhere in the world?
• Whenever Mr Gauthier logs onto Skype with his phone or his computer, won't his account synchronize, and his devices will then contain the same chat history, including the other person's pornographic chat?

The expert didn't know enough about Skype, how it worked, and what data to look for in the logs to say whether this theory was right or wrong.

Fingerprints don't stick to digital information.

When investigating digital information in a computer or cell phone, it isn't enough to find the data of interest in a computer or cell phone. You want to know how it got there. And you may need to consider all alternative means for it to get there, like this defence lawyer did.

The best investigation of a digital crime involves investigating inside the box and outside the box. What does the computer or the cell phone hold? What human evidence outside that box can you gather to eliminate (or establish) innocent explanations?

I'm not dissing these investigators. It's clear from the report that they investigated outside the box. But they didn't know what their expert didn't know.

But perhaps the investigators would have found out more if they pressed their expert with the question: are there any other ways for this data to get onto these devices than Mr Gauthier putting it there?

They'll get a second kick at the cat. The Court of Appeal ordered a new trial. The prosecution may need the help of a Skype specialist. I hope they don't ask me. Although I have a B.Sc. in computer science, I lack the knowledge to be of any assistance.

2021.04.11 Section 10(a) - Keeping the Investigation Alive by Stopping a Suspect on a Ruse

Hells Angels are known for making their money by breaking laws. You make your money by upholding laws. The Charter says that when you stop someone or arrest them, you must tell them why. That law applies to you even when you are arresting someone who breaks laws.

Mr Bielli, 2021 ONCA 222 belonged to the Hells Angels. Police had good reason to believe that he and his gang made money from illegal online gambling. The investigators learned of a day when he would deliver a quantity of cash. They wanted to relieve him of the ill-gotten gains without alerting the gang that the police were on to them.

The lead investigator wanted to stop Mr Bielli on some pretext, and then "discover" the cash as if by accident.  But he realized that the plan required police officers to lie to Mr Bielli about the reason for the stop. He asked a lawyer, Andrew Sabadini, whether he could get a General Warrant which would authorize him to stop Mr Bielli on a ruse. Mr Sabadini told him:

Nope. General warrants authorize searches. Lying to someone isn't a search.

Mr Sabadini gave good legal advice. He answered the question in 2011. The Ontario Court of Appeal delivered a decision 5 years later that showed that the lawyer was right. (Poirier, 2016 ONCA 582)

The officer decided to proceed with the plan, without a warrant.

He instructed two officers to detain Mr Bielli for a traffic matter, give him access to counsel, search his car, and scoop the cash. And then give him access to counsel all over again. He instructed them not to mention in their notebooks what they knew about the big project he had running against Mr Bielli and his friends.

They stopped Bielli but they didn't tell him all about why. They scooped $75,000 cash and a laptop. A subsequent audit suggested that the gambling operation grossed $100M over 5 years.

The trial judge found that the officers breached s10(a), but admitted the evidence.

The Court of Appeal noted that the officers deliberately breached s.10(a), and even made misleading notes and reports. That wilful disobedience of the law led them to exclude the evidence from the trial.

I've long felt that there needs to be a judicially-granted authorization like a general warrant by which police may arrest or detain a suspect on a ruse. But it still doesn't exist.

In the mean time, don't give false reasons for stopping or arresting someone.

2021.04.09 Measuring the Prospects of a Search Warrant - "Might" differs from "Will"

The bearded prospector heads out into the wilderness filled with hope. He leads his donkey, packed with tools for mining gold.

Hope is no substitute for knowledge. Unless he knows what he is doing, his wanderings in the wilderness will not enrich him.

He must dig in places where gold will likely be found.

The same principle applies to police officers who apply for judicial authority to violate privacy.

In R. v. Muddei, 2021 ONCA 200, the cold squad had a problem investigating a bar-room murder. When it happened, lots of people were present. Nobody wanted to talk to police. Well, almost nobody. A couple of witnesses who weren't present told police what they heard from people who were present. The stories didn't exactly line up. Tipsters told police a few more details. 7½ years passed, without substantial breaks in the case.

The investigators decided to try wiretap. "Let's tell all the suspects and likely witnesses that we've reopened this case. Put out press releases asking for witnesses. And then let's listen to what they say to each other."  A common stimulation technique.

They put together an affidavit explaining this plan, and a judge granted them authority to listen to private communications between the main players.

The interceptions didn't dig up the gold they were looking for. No evidence about the murder. But they did find gather some precious stones: the intercepted communications included key evidence which proved two different offences. Two guys trafficked drugs. Two other guys did a home invasion.

At the two trials of each of those cases, the defendants complained that the authorization should never have been granted. The affidavit explained only a hope that listening to these conversations would reveal new information about the murder, but not reasons why it was likely.

• When the murder happened, nobody at the bar talked. Why would they talk now?
• When the murder happened, there was evidence suggesting that the suspects associated with each other. But there was no evidence that they continued to associate 7½ years later.

The two trial judges disagreed whether the authorization was properly granted. The traffickers were convicted. The home invaders beat the rap because the trial judge threw out the wiretap evidence. The two trial judges can't both be right. Both cases went to the Court of Appeal, and were heard together. The Court of Appeal agreed with defence. Everybody walked free.

For affiants, the learning point is a simple one. Most of the interesting warrants and authorizations require that you show reasonable grounds to believe that evidence or information will be obtained by the intrusion into privacy that you propose. You don't need to be certain, but you must show that you will likely strike gold.

For managers, the learning point is also simple.

Every prospector needs hope of success to motivate them. Prospecting involves hard work.

Likewise, in tough cases, you need keen investigators. They also need hope of success to motivate them.

But hope is also a problem. An ignorant prospector will toil in places where he has no chance of finding gold. Hope will keep him working until his food runs out.

Hope is a problem in investigations too. Hope of success sometimes causes keen investigators to believe that a search will bear fruit even when, objectively, it's a shot in the dark.

That's why, in your group of keen investigators, you may need a contrarian, a devil's advocate, whose job it is to distinguish hope from reasonable belief.

2021.04.03 Interviewing Witnesses doesn't Breach s.8 of the Charter

I first saw this case over a year ago. When I revisited it this morning, I thought it worthy of mention.

A mom left her 4-year-old daughter with Mr Molyneaux, 2020 PECA 2 for a short time. Afterwards, while he slept, she snooped through his cell phone because she doubted what he said about his past relationships. To her surprise, she found pornographic photographs of her daughter, evidently taken that evening.

She told a social worker, who told police, who invited her to give a statement. And she did.

Mr Molyneaux complained to the judges that the mom violated his reasonable expectations of privacy by snooping through his phone. (She sure did.)

And the police knew about this violation from what the social worker told them. (Yup.)

Therefore, asking her to recount what she saw violated his right under s.8 of the Charter to be free from unreasonable search.

Nope.

The Charter restrains government action. If a police officer searched Mr Molyneaux's phone, without a warrant, while he slept, the police officer would violate his right to privacy. (R. v. Fearon, 2014 SCC 77)

But the officer didn't search his phone. The officer merely probed her memory. And that didn't violate his rights.

So if a citizen violates the Charter rights of a suspect, you are free to ask the citizen about it.

But this does not create a warrantless back door into the private lives of your suspects.

If you ask a witness what they saw, you're generally safe. But if you ask a witness to snoop on your behalf - whether into a phone or onto property - then you turn the witness into your agent. If the witness does what you ask, then the Charter applies.

(I note that you can't ask a nurse or a doctor or a psychologist to reveal what they know from their treatment of a patient. Doing so violates s.8 because you cause the professional to violate a professional obligation of confidentiality. R. v. Dyment, [1988] 2 SCR 417)

There's another lesson to draw from this case: To obtain a consent search, you must give the suspect a real choice to permit or deny the search.

When the police got a statement from the mom, they contacted Mr Molyneaux, and asked for his consent to search his phone. He agreed. The officers searched, and found the pictures.

I gather that the officers did not obtain consent in a way that left Mr Molyneaux any meaningful choice. Probably, they said "We can do this the easy way or the hard way. You can consent, or we can get a warrant. Do you consent?"

At trial, Mr Molyneaux's lawyers sought exclusion of the pictures on the basis that the consent wasn't truly voluntary. The Crown agreed. Pictures excluded.

So be careful about how you ask for consent to search.

That error was not fatal on this occasion. The prosecutor relied only on the testimony of the mom. The trial judge convicted Mr Molyneaux, and he lost his appeal.

2021.03.28 Accounting for What You Seize - Preserving Evidence

Mr Hillier, 2021 ONCA 180 ran when he saw police officers.

There were warrants for his arrest. And besides, he had some drugs on his person.

But was he also carrying a ball of heroin-fentanyl-meth mixture for the purposes of sale?

A police officer tackled him, and they fell into a puddle. Officers searched him for safety, during which Mr Hillier volunteered that he had drugs in his sock. He did. 5.53 grams of fentanyl mixed with other drugs. In a pill bottle.

They searched his shoulder-bag. They didn't find more drugs.

Then, they put him into a police car.

When the police car arrived at the police station, there were dime bags scattered in the footwell, and meth on the back seat. The officers found a wet pouch on the floor of the cruiser, containing various drugs. And in Mr Hillier's mouth was a 28 gram ball of heroin-fentanyl-meth mixture.

Simple, right? Just prove that the officers searched the car before putting him into it, and it was clean, and then show what it contained after they took him out.

Not so simple.

The two officers who searched the car at the beginning of their shift gave differing testimony about whether they searched it. And they didn't have notes about this mundane task.

But worse, the exhibit officer discarded half of the things that officers seized in this investigation. Without taking any pictures.

At court, Mr Hillier complained: "There's no way I could have possessed the pouch. Police searched me on arrest, and didn't find it. They took my bag away. My clothing was too tight to conceal it. That pouch must have been in the car before I was placed in it. But by destroying so much of the evidence, I can't show how big that pouch was, so as to prove I wasn't carrying it."

He claimed that the 28 gram ball was lying in the cruiser when the officers put him into the car. For fear of being accused of putting it there, he popped it in his mouth. He claimed he did not know what it was.

The judges did not like the destruction of evidence. They found that any evidence obtained from after placing Mr Hillier into the vehicle had to be excluded. Including the big ball of drugs.

Though he's probably guilty, Mr Hillier beat the PPT charge because the exhibit officer failed to document what was seized.

What does this mean for investigators?

1. Those routine things you always do at the beginning of the shift matter. Do them, and make a note. In 99 shifts, it means nothing. In the 100th shift, it will be essential.
2. The exhibits you seize are not only for proving guilt but also for establishing innocence. Even if the thing doesn't inculpate the suspect, it might be relevant in exculpating him. Document what you seize. Destroy with care.

2021.03.28 Following the Money - Private Parts of the Trail

An old man fell for a classic fraud. He received a letter informing that he won a big lottery prize. He followed the instructions. He paid fees for delivery of his big prize. And more fees. And more. The fees exceeded $150,000. The big prize never came.

It took four years to bust the fraudster, Freddy Mawick, 2021 ONCA 177. It took a couple of years to convict him. Naturally, he asked the court of appeal to overturn his conviction.

That big prize never came either.

The investigators followed the money. The victim sent certified cheques by UPS. The fraudster instructed him to keep the tracking numbers. The victim followed that instruction too.

The police used those tracking numbers. Even without a warrant or production order, UPS told them where the packages went and who signed for them.

Mr Mawick complained that he enjoyed an expectation of privacy over that information. The court said he didn't.

That makes sense to me. The victim paid for the UPS service. The victim received the tracking number for the purpose of tracking the package. The fraudster could only expect that the victim would eventually use that tracking information to determine where his money went. No expectation of privacy.

As the investigator closed in on the prey, things got trickier. Some financial agencies revealed information about the the accounts through which the cheques were negotiated. Without a warrant or production order.

That could have derailed the case. People generally enjoy pretty high expectations of privacy in their financial records.

Lucky for the investigator, Mr Mawick cashed some cheques through an account that belonged to someone else. Mr Mawick did not enjoy an expectation of privacy in someone else's account.

I think the investigation reveals the value of the old adage "follow the money". But be careful when you follow the trail into the banking system.

Those of you who do follow the money should beware of expectations of privacy. Your investigation may require stepwise production orders before it reaches the prize.

I've never been a big fan of criminals who prey on vulnerable elderly people. I think the investigators deserve kudos for sticking with it over the years.

They pursued the prize of busting Mr Mawick by following the money.

Their big prize did come.

2021.03.20 No-knock Entry - Search and Seizure

The Supreme Court of Canada set the rules for no-knock entries into residences:

When executing a search warrant, always knock before you enter (and wait for someone to answer).

Except.

If knocking would endanger you or result in the loss of evidence, you can enter without knocking.

R. v. Cornell, 2010 SCC 31

Normally, we call it "home invasion" when armed people burst uninvited into a residence to imprison the occupants and take their property. The usual sentence for this crime is a federal sentence.

Even if you had a warrant authorizing you to enter and search a house, a judge will review carefully whether you executed the warrant reasonably. If you entered without knocking, the judge will want to know why.

At 1:43pm, police raided Mr Pileggi's 2021 ONCA 4 house. They had a warrant, and good reasons to think he trafficked oxycodone. During the raid they found oxycodone, and cocaine.

But they didn't knock first.

At trial, defence cross-examined the officers, trying to get them to agree that they had a policy of always doing hard entries without knocking.

All the officers denied it, but the defence came pretty close. When explaining why in 90% of the drug warrants his team executed, they did not knock on the door, one officer said:

"If we were knocking on drug trafficking doors, I’m going to suggest that we would never seize cocaine."

If defence established that the police had a standing policy of hard entries when searching for hard drugs, the judge would have excluded the evidence.

Junior officers may not appreciate the legal obligation to knock. Unless someone educates them, they may agree with suggestions that police never knock when searching for hard drugs.

Whoever makes the decision to enter without knocking needs full information about the investigation, and what risks may lie on the other side of the door.

If you're thinking that you might need to enter without knocking:

• Investigate whether it's necessary.
• If at all possible, document why you think its necessary before going in.
• Brief the team.
• Remind the inexperienced officers of the policy to knock before entering.
• At the briefing, explain the dangers which require you, in this case, to enter without knocking.
• Write those reasons down.

At the scene, keep investigating whether you need to enter without knocking. Change the plan in response to what you discover.

You don't need judicial pre-authorization for a no-knock entry. (Al-Amiri, 2015 NLCA 37)  If you don't discover the reasons for the no-knock entry until you arrive on scene, you can still execute the warrant. But once you have the scene under control, document why you didn't knock.

This Pileggi doesn't change the law. But it explains existing law quite well. It illustrates some common problems that arise during searches. I recommend it as worthy of discussion at police training sessions.

2021.03.20 After Arrest, Offer Access to Counsel Promptly

Prisoners are like exhibits. At trial, you must account for what you did with them. (And to keep them in your custody, you must promptly ask a justice.)

Police raided Mr Pileggi's 2021 ONCA 4 house. They had a warrant, and good reasons to think he trafficked oxycodone. During the raid they found oxycodone, and cocaine. I don't know how carefully they handled the exhibits, but they did not handle the suspect with care.

The first officer found him in a bedroom with his wife. That officer arrested him for PPT. The officer handcuffed him and made him kneel on the floor.

The second officer stayed with him while other officers cleared the house.

Seven minutes later, a third officer told him that he could get legal advice.

At trial, Mr Pileggi complained that police did not explain him his rights sufficiently promptly. The officers explained to the judge that they were busy getting the scene under control: once the officers knew they were safe, they explained to their prisoner his right to legal advice.

The trial judge and the appeal judges agreed with the officers on this point.

When Mr Pileggi learned he could get legal advice, he told the third officer that he wanted to call his father, and ask him to arrange a lawyer. The third officer promised to call the father on Mr Pileggi's behalf.

When the third officer started taking Mr Pileggi out the door, a fourth officer intercepted them. The fourth officer read the search warrant to Mr Pileggi. Mr Pileggi responded "my wife has nothing to do with it". The fourth officer then asked Mr Pileggi if he would like to tell police where "anything" was. Mr Pileggi said "no".

At trial, Mr Pileggi complained that the fourth officer tried to get him to incriminate himself before Mr Pileggi got the legal advice he wanted.

The appeal court judges agreed with Mr Pileggi. After an arrest, you have a duty to "hold off" eliciting evidence until the person has exercised or declined to exercise the right to legal advice. When cross-examining the fourth officer, defence counsel noted that there was no law requiring the officer to read the search warrant to Mr Pileggi. The lawyer accused the officer of reading the search warrant for the purpose of eliciting a response. The officer disagreed. The judges leaned toward the defence view. They said reading the warrant to the suspect was risky. It did look like an effort to get Mr Pileggi to talk about the drugs before he got access to counsel.

A fifth officer drove Mr Pileggi to the police station.

A sixth officer received him, and arranged for him to speak with duty counsel. That officer didn't know about the promise to call Mr Pileggi's father.

Transferring a suspect from one officer to the next renders it unlikely that the last officer will know what conversations the earlier officers had with the suspect. This causes two problems:

1. What access to counsel did Mr Pileggi ask for? The last officer won't know. What promises did earlier officers make about arranging it? The last officer won't know.
2. If Mr Pileggi makes incriminating remarks about the crime to the last officer, the prosecution will want to prove that those remarks were voluntary. Ordinarily, that requires producing every officer in the chain, and asking them to recount what conversation they had with Mr Pileggi. The weakest links in the chain are the officers who did the least. They tend to make no notes. Those officers have a hard time a year or two later explaining what they did with the prisoner.

When processing exhibits, you would try to avoid passing them through the hands of six different officers. That's because accounting for what happened to the exhibits afterwards would require all six to testify about what they did with the exhibit.

With humans, you must answer questions about conversation and physical treatment. What discussions about right to counsel did you have? Did you tell the next officer? Did you discuss the offences at issue? Did you raise the prisoner's hopes of liberty or softer sentence by hinting that he should talk about the offence. Did you feed the prisoner? Tend to his wounds?

Accounting after the fact is easier if you reduce the number of officers involved in the chain.

Respecting the prisoner's requests for counsel is easier if each officer informs the next what legal advice the prisoner requested.

If some officer gives you a prisoner to transport, ask the officer (and the prisoner) what access to counsel the prisoner wants. And make some notes.

2021.03.14 After Arrest, Explain the Right to Counsel Promptly

Mr Mann, 2021 ONCA 103 called 911 saying "I'd like to report a murder". He explained he choked and beat his girlfriend to death with his hands. The dispatcher heard a loud banging, consistent with someone's head being banged against a wall. The dispatcher asked him if he was sure that the victim was dead. He replied "Uh pretty sure, she’s going to be [unintelligible] anyway."

She didn't die, but she suffered brain damage.

When police attended and arrested him, he started talking about how he was considering killing himself, and then he "lost it on her".

It took the officers 5-10 minutes to get around to telling him about his right to counsel and his right to silence. All the while, Mr Mann kept talking.

The trial judge thought it might be okay to admit this "spontaneous" evidence. The appeal court didn't:

"It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached."

The judges did not mind that the officer, on seeing blood on Mr Mann, first asked if he was hurt. He was not. But the judges did mind that the officers delayed in explaining his rights.

2021.03.14 Don't Talk to Jurors During Trial

A juror asked an innocent question of someone wearing a uniform. The juror had trouble understanding a statement of admissions. The juror wanted to know more about it, and whether a witness would come to court and explain it.

The juror asked a deputy sheriff.

Instead of telling the juror to ask the judge, the sheriff asked the prosecutor about the exhibit.

The prosecutor explained the exhibit. Before the sheriff could explain the exhibit to the witness, defence counsel asked for a mistrial.

The judge turned down the application, but removed the sheriff from the case. R. v. Athwal, 2021 BCCA 84

Nobody should ever explain anything about the case to a juror, except in open court. The sheriff should not have attempted to get answers about the case for the juror.

Things might have gone differently if the sheriff had returned to the jury and explained the exhibit. The entire murder trial would have gone off the rails.

In other cases, police officers who were involved with or connected to the investigation thought it wouldn't be a problem to have dinner or drink a beer with a juror. They were wrong. The trials had to be done again.

After a trial, you can discuss the evidence with jurors, but you tread dangerous ground. A juror who discusses the jury's deliberations commits an offence under s.649 of the Criminal Code. A police officer who engages in such a conversation will usually be in contempt of court.

But during a trial, any conversation about the case could cause a mistrial. Even the possibility that you discussed evidence will cause the judge to worry. If defence learns that you, a witness, talked with a juror, during the trial, they will assume that you discussed the evidence until satisfied that you didn't. If a juror asks you to directions to the washroom, you can answer, but a wise officer will report that conversation to counsel.

2021.02.28 Spousal Privilege ends with Divorce

Wiretap might record what the killer told discussed with his wife about the killing. But s.189(6) of the Criminal Code and s.4(3) of the Canada Evidence Act prevent a court from admitting the recording. It's privileged. Indeed, the prosecution can't even compel the wife to testify about those conversations.

But if the killer and his wife divorce, spousal privilege ends. R. v. Al-Enzi, 2021 ONCA 81.

You don't need to read the whole decision to follow the reasonably clear explanation which starts at para 168.

2021.02.27 Paperwork that can Kill Your Career

In British Columbia, police officers who catch drunk drivers send reports to the Superintendent of Motor Vehicles, which generally results in significant penalties including driving prohibitions.

Those reports include a thing we lawyers call a "jurat". It says that you solemnly affirm, or declare or swear that the contents of the report are true.

Be careful of any document that contains one of those. You stake your credibility on it.

If you deliberately assert false information over a jurat, you are committing the crime of perjury. That will end your career quickly.

If you mistakenly assert false information, you could find yourself seriously embarrassed in a court room.

Q: Officer, today you say you saw my client was unsteady on his feet at the roadside?
A: Yes.
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?
A: Yes.
Q: You were required to explain to the Superintendent why you thought he was too drunk to drive?
A: Yes.
Q: You understand that the Superintendent uses these reports to determine whether a driver should be prohibited from driving?
A: Yes.
Q: So you told the Superintendent all of your observations that day?
A: Yes.
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?
A: Yeah!
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 Recorded?

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.

To summarize:

• 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 undercover officers.

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 Developments

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:

1. 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.
2. When searching intimate parts of a person, minimize the number of observers.
3. 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.
4. 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 Runs

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?

Why?

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.

Nobody answered.

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?

Yes. Easy.

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?

Yes.

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
• both?

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 Statements

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:

"My dick"

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.

Catch-22.

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.

1. Does the officer believe that an offence occurred, and that evidence will be obtained by the proposed search or production order?
2. What evidence or information makes the officer believe these things?
3. 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:

1. swear the charge,
2. apply for an arrest warrant, and
3. apply for an assistance order.

R. v. TS, 2019 ABQB 161

Danger!

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:

1. Bail terms must be the fewest and least restrictive necessary to achieve the goals of bail.
2. Each restriction of liberty must relate to a real concern in the case (paras 83-84)
3. Modifying bail terms or revoking bail should be the default approach to breaches of bail.
4. 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.

Why?

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:

Date	Event	Source

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?

A couple of weeks ago, the Ontario Court of Appeal released its decision that s.33.1 of the Criminal Code violates the Charter of Rights and Freedoms. Sullivan, 2020 ONCA 333

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 wasted.

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.

It worked.

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:

Ahmad	Williams
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: Alright.	Male: Hello. Officer: Jay? Male: Yeah. 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:

1. offering someone an opportunity to commit a crime without any good reason to think that the person would commit a crime, or
2. 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:

Ahmad

Williams

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.

Why?

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".

Information package

Evidence package

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 dealer.

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:

1. She knew that Mr P.W. took non-pornographic pictures of his daughter. She had seen them on Facebook.
2. She understood that the sexual abuse occurred in a spartan room which contained Mr P.W.'s bed and three computers.
3. She knew that the 6-year-old girl complained of sexual touching.
4. She knew that Mr P.W. had a prior interest in child pornography.
5. In her experience and training, when people who like child pornography also sexually abuse children, they often take pictures of it.
6. Therefore, she believed that searching the computer would discover pornographic images of the girl, which would corroborate the girl's complaint.
7. 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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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:

1. too many people in the room;
2. stripping Mr Cortes Rivera completely naked wasn't necessary either;
3. the police failed to make a complete record of the process followed.

After that investigation, the Supreme Court of Canada explained how to do such an unusual investigative step properly. See R. v. Saeed, 2016 SCC 24 at para 78.

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.

2020.05.04

 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.

Holdback

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:

1. arbitrarily detained Mr Thompson when they boxed his car in;
2. unlawfully searched his vehicle;
3. failed to advise Mr Thompson of his rights when they first spoke to him;
4. 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.

Simple? No.

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.

Nope.

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?

It depends.

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?

Yes.

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?

1. Whether your are on surveillance, drafting ITOs or speaking with drunk drivers, try to distinguish between observation and inference.
2. Whether you write for, or as, an affiant, double-check your descriptions of the evidence to ensure that you accurately stated the evidence.
3. 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.
4. 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.

Oops.

To avoid this confusion, many police officers prefer to call themselves as the "affiant". I agree with them. But I wish Parliament would discard the phrase "Information to Obtain" and "informant", and call these things what they are: "affidavits" and "affiants".

I do not expect Parliament will listen to this wild-haired lawyer standing on his soap-box shouting at the world. Perhaps I am the April Fool.

I do hope to guide you away from looking like a fool.

If you apply for warrants, you probably use "precedents". Prefab ITOs containing lots of language to cover the boring stuff.

Beware. That's the stuff that judges hate. Like the judge in this case. That's the stuff that makes you look foolish.

Like the law firm in this case.

When you finish drafting your ITO from the prefab ITO, you can't see the flaws. The process of writing renders the writer blind to the errors in the document. But you can ask the person who reviews your ITO to check the boilerplate for errors or unnecessary information.

This concept applies more widely than warrants. The officer in this case solemnly affirmed the truth of his report about the impaired driver. Some officers who deal routinely with impaired drivers draft their reports by copying and pasting from prior reports, and modifying the language to match the event. I'm not sayin' you must not do that. But know the dangers of this practice. Judges notice. Doubtless, the lawyers in this law firm will notice. Lawyers may use this decision against you.

2020.03.31 What's Dangerous Driving?

When investigators attend the scene of a terrible crash, the destruction and injury naturally draws attention. Broken cars. Broken people.

If there was a crime, it happened before the crash.

An investigator needs to investigate what happened before the crash.

It's usually easiest to figure out what happened in the seconds before the crash. Skid marks on the road. Eyewitnesses at the scene.

All too often, the only evidence that reaches the court room describes what occurred in those few seconds.

Unsurprisingly, Canadian law developed a defence to dangerous driving based upon the idea that a "momentary lapse in attention" should not be criminal.

Admit it: All drivers take their attention from the road for short periods. To change the music. To locate that snack. To type a licence plate into a mobile terminal. Either all drivers are criminals, or the standard for criminal driving requires something more than briefly taking your eyes off the road.

The Canadian answer is that driving isn't criminal unless the driver does something that's objectively dangerous, and the driving was a "marked departure from the standard of care of a reasonably prudent driver".

At trial, Mr Chung, 2020 SCC 8 convinced the trial judge to acquit him based upon this idea: a brief period of bad driving isn't criminal.

The Supreme Court of Canada disagreed. A momentary lapse in attention is one thing, but a brief period of intentionally awful driving is quite different. Over a period of about 4-5 seconds Mr Chung accelerated his vehicle to 140km/h in a 50km/h zone. There were vehicles ahead of him, in a busy intersection. He dodged one, but hit another. The dash-cam of another vehicle recorded much of the incident.

That's not inattention but intentional risk-taking.

What does this case mean for investigators?

Specifically, if the evidence shows that the driver deliberately undertook serious risk, then a short period of driving may be criminal.

But generally, the state of the law requires you to look at more than the crash scene.

You should, of course investigate the crash. But if you suspect that a driver committed a crime, you need to back up, and investigate the driving before the crash.

• What would the driver have seen before the crash? Back up and take photographs or video of the view that the driver would have seen on the route to the crash.
• What was the driver doing before the crash? What do the contents of the vehicle tell you? Can you discover where the driver came from and when?

It's relatively easy to investigate the crash scene. You can see it.

It's harder to investigate the crime scene. In dangerous driving cases, it may stretch over many kilometers. The eyewitnesses are often driving, and leave the scene long before you get there. Tougher to investigate, but necessary for finding the evidence of the crime.

2020.03.21 Disclosing Investigative Information

A woman went on a first date with Mr Razavi Zadeh, 2020 BCCA 93. They planned to go out, but he asked her to stop in at his place while he changed his clothes. They didn't leave. He gave her drinks. She drank willingly, including shots of Tequila. She became groggy. He wants sex. She didn't. She passed out. When she woke up he was getting what he wanted, and she was too weak to do anything about it.

Afterwards, she told police that she thought that she had been drugged. At court she said she thought it was GHB (which she had used before). At court, she said she thought she drank some of the Tequila from a bottle in the fridge.

After she complained, police searched his residence. They found a Tequila bottle in the fridge. Toxicologists found it contained GHB.

Her testimony appeared to be confirmed.

Except.

Before court, a police officer told her mother that the bottle contained GHB. Mom told the complainant.

Did the complainant say she drank from the Tequila bottle in the fridge because she remembered it, or because her mom told her that bottle contained GHB?

The judge wasn't sure. He was not prepared to find, based on her word, that she did indeed drink the Tequila that came from that particular bottle.

Sometimes, for the health of the victim or to further your investigation, you need to reveal information you discover in your investigation. It does not appear that revealing this information to the mother was necessary.

At first, it feels fun to know the whole story. But with knowledge comes responsibility. Sharing what you know with one witnesses can undermine the credibility of another.

That's one way publication of an ITO can undermine a prosecution.

Careful who you tell what you know.

As a footnote, the trial judge accepted other aspects of the complainant's testimony, and convicted the defendant. The appeal court upheld the conviction. For lawyers, it's an interesting case on how drunk is too drunk to consent.

2020.03.03 Relying on Warrantless Searches by Civilians

Several readers sent me decisions in which civilians violated the suspect's rights of privacy, and thereby obtained key evidence. The civilian told police, and police acted. The emai I received today puts them together nicely.

A mom left her 4-year-old daughter for a short time in the care of Mr Molyneaux, 2020 PECA 2. She didn't know Mr Molyneaux well, and after contemplating what he told her about himself, she decided to peruse his phone to see how much of it was true.

She found photos of her daughter's genitals and buttocks in his phone. She deleted the photos, and later, confronted him. He explained that the phone must have fallen out of his pocket and accidentally taken the pictures.

A few weeks later, she mentioned her discovery to a social worker, who told police. The police interviewed the mom, learned about the pictures, and invited Mr Molyneaux in for an interview.

They told him what they knew and offered him a choice: sign a consent to search, or police would get a warrant. He signed the consent, and police found 18 pornographic photographs of the child.

At trial Crown didn't even try to tender the photographs. Good choice. The "consent" was not voluntary; therefore it did not give police lawful authority to search the phone. If the Crown had sought to tender the photographs, the court would have excluded them.

But was the mom's testimony admissible? She violated Mr Molyneaux's privacy when she searched the phone. By interviewing her, police obtained private information which they could not have obtained themselves without a warrant. Therefore, defence argued, her testimony violated Mr Molyneaux' right under s.8 to be free from unlawful search.

Rubbish.

The Charter protects Mr Molyneaux from unreasonable intrusions on his privacy by the state. The interview stage did not involve searching the phone. The mom did the intruding. All police did was interview her.

No breach in an intervew.

In contrast, consider Mr Vey, 2019 SKQB 135. His wife suspect he was cheating on her. She set up an iPod to record conversations in their residence while she was out. It recorded her husband talking with his lover. But worse, in the key recording, Mr Vey seemed to talk with his lover about their plans to kill their respective spouses.

This alarmed Mrs Vey. She played the recordings to family members, and then brought them to police. After debating whether or not to get a warrant, police listened to the recordings without a warrant.

Let's be clear here. Mrs Vey committed a crime. Covertly recording a conversation between two (or more) people without their knowledge offends s.184 of the Criminal Code. That crime may have saved her life. But the recording violated the part of the Code which protects privacy.

The court concluded that the recording remained private to Mr Vey and his lover, even after Mrs Vey recorded them and listened to it.

The police could interview Mrs Vey without a warrant. They could ask her what she heard on the recording. But they needed judicial pre-authorization to listen to the recording itself.

The trial judge conceded that in exigent circumstances, police could have listened to the recordings if they needed to protect life or preserve evidence. But in this case, the police did not otherwise act as if life or evidence were in peril. Exigent circumstances were not at play in this case.

The trial judge found that the police violated the expectations of privacy of Mr Vey and his lover. The judge excluded the evidence of the recordings from the trial.

These two cases suggest that if a witness tells you that she intruded on a suspect's privacy, you can interview the witness, but you need a warrant to get the fruits of the witness's search. Even if she hands the digital device to you.

This leaves me wondering what you should do with physical evidence. Suppose a vigilante breaks into the residence of a murderer, and recovers the bloody knife used to kill the victim. The vigilante delivers the knife to your desk, and explains how he got it. Naturally, you should seize the knife pursuant to s.489(2) of the Criminal Code. But do you need judicial authority to analyze the blood or fingerprints on it? A prudent officer might now ask a justice.

I thank both of the kind readers who alerted me to those two interesting decisions.

2020.02.28 Cop Exhonorated

Way back in 2017, I wrote about Mr Dunstan, 2017 ONCA 432. He was a drug dealer under active investigation by a team which included S.Sgt. Gillis. The investigation made no headway until police received an anonymous tip that somebody was breaking into Mr Dunstan's residence.

Police officers attended to investigate the B&E. Somebody had kicked in the door, but left the drugs and cash in the house. Pretty weird.

Defence alleged that S. Sgt Gillis staged a break-in and made the call, so as to give the police an excuse to enter the place without a warrant. If defence were correct, then the entry would have been made in bad faith, and unlawfully.

In 2017, the Court of Appeal ruled that if the defence could show reasons to suspect that S.Sgt Gillis made the call, then the Crown had to prove that S.Sgt. Gillis didn't make the call.

Proving that something didn't happen is usually much harder than proving that something did happen. This was a challenge for the prosecution.

I learned today that at the retrial of Mr Dunstan, 2020 ONCA 145, the prosecution met that challenge: the evidence proved that S.Sgt. Gillis didn't cheat.

As I explained in 2017, courts are very sensitive to unlawful police activity, and will permit defence to explore it. When you exercise police powers, you are accountable. You are paid to uphold the law. Therefore you, more than anyone else, must obey the law. To prove your lawful conduct, it helps to keep good records.

2020.02.25 Possession - Who knew?

When you find contraband, you automatically infer that the person or people near it possess it. But to convict a person of possessing contraband, a judge will require proof that the person knew what it was.

A day after he returned from a trip to the Dominican Republic, Mr Lights, 2020 ONCA 128 had some friends over. Police raided his place. When the officers entered, he tucked a silver handgun under his legs. It was loaded.

He was charged with possessing a loaded handgun under s.95(1) of the Criminal Code. He beat the charge.

How?

Although the evidence proved that the possessed the handgun, nothing established that he knew it contained ammunition at the time he tried to hide it.

Sure, the apartment contained three boxes of ammunition for it. Sure, the act of hiding the gun made it clear that he knew he shouldn't possess the gun. But there were other people in the apartment, and he shared the place with his girlfriend. Somebody else could have loaded it, and he might not know.

Proof of the offence of possessing a loaded firearm requires proof that the person who possessed the firearm knew it contained ammo.

But wait. There's more.

A bag containing marijuana and cocaine sat in the front hallway.

Mr Light's apartment contained clues that he dealt in drugs: A vacuum sealer. A money counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and two cellphones.

The trial judge inferred that Mr Lights knew what the bag contained because drugs were necessary for his drug business. The appeal court rejected this inference. Mr Lights beat that charge too.

Who would a drug dealer associate with? Maybe other drug dealers. Maybe one of his friends brought some drugs over. Maybe one of his friends had not yet told Mr Lights about the drugs in the bag.

At law, "possession" = control + knowledge.

Could these officers or the prosecutor have done more to prove Mr Lights' guilt? I don't know enough about that case to criticize them. It may be they did all that could be done.

When you investigate contraband - be it drugs, child pornography or weapons - it's great to seize the stuff, but even better to discover who knew about it and how much they knew.

2020.02.17 Searching a Person for Weapons - What to Ask

When you detain a suspect - if you have reason to fear that the suspect might hurt you - you can search the suspect for weapons or other objects that the suspect could use against you. R. v. Mann, 2004 SCC 52.

One way you can do that is by asking the suspect if they have weapons or objects that could hurt you. R. v. Patrick, 2017 BCCA 57.

Usually, when you search a detained subject, you search before giving access to legal advice. At that early stage, you must hold off eliciting evidence about any criminal offence. You must focus your questions specifically on the safety issue: objects that could hurt you (or other officers).

An officer detained Ms Fead, 2018 CarswellAlta 3243 (Alta Q.B.) on a traffic matter, and because it appeared that there were warrants for her arrest.

The officer asked her a question during the initial safety search, to which she responded that she had cocaine and syringes in her shoe.

At her trial for possessing those drugs, her lawyer complained that the question violated her rights.

The summary conviction appeal court agreed.

The officer couldn't remember what question he asked. It could have been any one of the following:

1. "Do you have anything that would hurt me, poke me, stab me?"
2. "Do you have anything on you?"
3. "Do you have anything that I need to be aware of?"
4. "Do you have anything on you that you should be concerned about?"

Number 1 is fine. The others are a problem. Even if the officer thought he was asking about his safety, the detainee could reasonably believe that the officer asked about evidence.

If the officer had made complete notes, he might have been able to say what question he asked. He didn't.

Many of you ask this sort of question every day. I suggest that you draft a lawful question, and then always use the same wording in every safety search.

Unfortunately, I did not find this decision on CanLII. If you require a copy, email me.

2020.02.16 Prompt Disclosure

Late disclosure can blow up a trial. New disclosure can also blow up a trial, but nobody will blame you.

From time to time, inexperienced officers show up on the day of trial with some new information. Some new pictures. A document. A statement from a witness that was not previously disclosed.

Sometimes the new material actually matters. During the murder trial of Mr Jiang, 2018 ONCA 1081, the prosecution obtained some documents relating to the health of the defendant's mother. This mattered. His mother had the opportunity to commit the crime. But did she have the strength? The records touched on the answer. But Crown did not disclose them until after the defendant started testifying.

After the jury convicted him, he got a new trial. The appeal court judges agreed that the defence team might well have presented their case differently if they had known what those records contained. The fact that the prosecution team held the information back for several days annoyed the judges.

Don't emulate those prosecutors.

You and the prosecutor have duties to disclose all evidence promptly.

If your file contains relevant information, and you first disclose it to your prosecutor for the first time on the morning of trial, expect trouble. Judges hate late disclosure of information, and will heap scorn upon you.

But sometimes, you can't help it. Sometimes, you discover new evidence at the beginning, or even at the end of trial. Trial publicity sometimes stirs reluctant witnesses into action ... other evidence becomes available.

Nobody will blame your for disclosing new evidence when it arrives, as long as you disclose promptly. New evidence can also disrupt trials, but judges are more forgiving if they know you did your job.

So what's relevant?

Inexperienced officers think "relevant" evidence is the stuff that will help convict the defendant.

Sorta.

If it would help the defendant beat the charge, it's also relevant.

2020.02.15 Reviewing the Evidence

I don't know why Mr Al-Enzi, 2020 ONCA 117 first went to jail. While he was there, he assaulted a guy. Two other inmates, Mr Ali and Mr Elenezi also assaulted the victim. The victim suffered slashes to the face. Security video recorded much of the event. As usual for prison inmates, the victim claimed to have little memory of what happened to him.

Who slashed him?

The security video showed pretty clearly that Mr Al-Enzi carried something in his hand when he approached the victim. The video showed motions like slashing.

At the trial, the other two guys testified. They claimed that they wielded weapons which must have cut the victim.

Beware of such fellows, especially the ones serving life sentences. They aren't afraid of being charged with perjury because the only penalty is jail. And they are already in jail, serving life sentences.

The trial judge looked very closely at the security video. He watched the hands of the other two inmates, and could see that they didn't carry any objects before the fight, and they didn't dispose of any objects after the fight.

Neither the defence lawyer nor the prosecutor examined the video with the same care.

The judge's careful examination of the video led him to reject the evidence of Ali and Elenezi, and convict Mr Al-Enzi.

The lesson for for all of us is simple: after you collect evidence, spend some time considering it. You'd be amazed what you will learn if you read the victim's statement carefully, or watch the video carefully.

I've watched a fair bit of security video recently.

When security video records multiple views of multiple subjects of interest, I ask police to separate clips which track each subject from all the various views and put them into separate compilations. If I want to know what subject 1 did, I watch the compilation of clips that depict that guy. If I want to know what subject 2 did, I watch that compilation. This saves time: I don't need to watch the blank bits. Judges like compilations too. Court time is precious. Judges don't like watching long blank sections of video to see what happens next.

Whenever you collect security video, always:

• Get the name of the person who downloaded the recordings from the system. This witness is necessary for authenticating the video. (Best of all, download it yourself.)
• Check the accuracy of the system against a reliable timepiece such as your cell phone. The clocks in these things always vary. Getting the time right really matters.

2020.02.07 Interviewing Suspicious Witnesses - Kids under 18

Somebody stabbed Michael Cocomello-Mandino to death. Shortly before the stabbing, his phone exchanged 29 text messages, and connected 4 times for telephone conversations with a phone that Mr Joseph, 2020 ONCA 73 carried.

Mr Joseph was 17.

If you were investigating this killing, would you want to talk to Mr Joseph?

The investigating officers did not know what the messages said, but they knew they wanted to talk to Mr Joseph. They invited him to come to the police station. He came. With his mom.

The officers told him he did not have to give a statement. They told him that he could call a lawyer if he wanted.

Mr Joseph said things that that were provably untrue.

At trial, the prosecution used his statement to show how much he lied to the investigators at the beginning of the investigation.

After a jury convicted him, Mr Joseph complained that the trial judge should have excluded the statement. He said that the officers should have given him the waiver which section 146 of the Youth Criminal Justice Act requires officers to give when officers:

• detain a youth,
• arrest a youth, or
• have sufficient grounds to arrest a youth.

The court rejected the complaint. The police didn't detain or arrest Mr Joseph, nor did they have sufficient grounds to arrest him.

That last point is the tricky one.

A "person of interest" can rapidly morph into a suspect. When a young person of interest says enough to give you grounds to arrest, you must break your interview and deal with the young person the rights required by that section.

I noticed that the appeal court judges specifically commented on the fact that the police told the youth that he didn't have to give a statement, and that he could talk to a lawyer if he wanted. They liked that.

2020.02.02 Impaired Drivers - Right to Counsel - How Many Calls?

At 10:30pm, Mr Tahmasebi, 2020 ONCA 47 parked his car in a stranger's driveway and took a nap. Perhaps it was the painkillers he was taking. The stranger called the police. A police officer woke him and talked to him. He appeared confused. When the officer returned to his police car to turn on the dash-cam recording system, Mr Tahmasebi released the brake, which allowed the car to roll back into the officer, pinning him against his cruiser and injuring him.

An officer arrested him for dangerous driving. At the police station, he told another officer he was using an opioid analgesic. That officer re-arrested him for impaired driving and dangerous driving, and offered him an opportunity to get legal advice.

He took it.

Later, an officer demanded that he provide urine for analysis, pursuant to the demand sections of the Criminal Code.

He refused to pee.

At trial, he said that after such a demand, he ought to have been given further access to legal advice.

The judges all said "no".

Once you have told a driver that he's under investigation for driving / operation while impaired by drugs, he knows enough to get legal advice. If he does get legal advice, the lawyer should advise him what to do if officers make the routine demands for bodily samples for the purposes of investigating that offence. Therefore, you should not need to stop your investigation each time you make an additional demand.

This is the second appellate court to reach this conclusion. See also R. v. Fogarty, 2015 NSCA 6.

What does it matter? What harm could there be in offering the subject further access to counsel after every demand?

Delay.

All of the screening, analysis and evaluation demands in sections 320.28 require prompt action. "Immediately" or "as soon as practicable". No delay. No dilly-dallying.

Offering the subject unnecessary legal advice delays the gathering of evidence, and could result in exclusion of the results.

Particularly when investigating drugged driving offences, you want to get your bodily samples done before 2 hours expire, because that is the way that the offence is defined.

But if subject fails or refuses to comply with an analysis or evaluation demand, then offering them more legal advice may be appropriate:

1. By failing or refusing, the subject causes delay. If you think that giving the subject more legal advice will get results faster than cajoling him, then pick up the phone and call the lawyer.
2. When your suspect fails or refuses to provide you the sample(s) you lawfully demanded, he commits a new offence. Hey! You are in the business of preventing people from committing offences. If you think that giving the subject more legal advice will dissuade him from committing a new offence, then pick up the phone.

If your difficult subject does get further legal advice, make sure you give the subject another chance to comply.

2020.02.02 Exclusive Opportunity - Forensic Photography

Two men went into a room. One came out. The other died of a stab wound. What killed him?

Mr Camille, 2020 BCCA 32 shared a room with Mr Adolph. Security cameras in the building showed both went into the room. Only Mr Adolph emerged.

Did he kill Mr Adolph?

Mr Camille reported to the building manager that Mr Adolph died. Police attended, and found a stab wound in Mr Adolph's side.

Maybe he killed himself by accident?

Police found a knife of about the right size in a dresser, under some clothes. It had Mr Adolph's blood on it, as well as some of Mr Camille's DNA.

Mr Adolph's blood contained 400mg%. Really drunk. Really clumsy. A pathologist said Mr Adolf would have died in minutes.

There were no blood stains on the floor between the dresser and where the body lay. It wasn't likely that he put the knife in the dresser himself. Somebody else did that.

If Mr Camille removed the knife from Mr Adolph's side, why did he hide it other than to cover up his own misconduct?

The trial judge convicted Mr Camille, and the Court of Appeal upheld it.

I found the facts of this case interesting from an investigative standpoint. Getting the details right made this case stand. It's a short decision. You might find it interesting too.

"Exclusive opportunity" - we use this phrase when the evidence shows that nobody but the suspect could have been present when the crime occurred. When investigating whodunnit, it helps if you can account for every person. Video cameras sometimes provide this evidence. Other times, neighbours can give this evidence.

But exclusive opportunity didn't tell the whole story. In this case, subtle pieces of evidence made a huge difference:

1. The absence of bloodstains on the floor tended to show that the deceased did not walk around after the stabbing. How do you investigate something that isn't there?
2. the presence of clothing on top of the knife in the dresser tended to show that the killer hid the knife. The clothing was important. How do you know when innocent things matter?

Photographs help.

If taken properly, they preserve the scene so that after you figure out what's important, you can go back to them and look.

But they help only if you photograph the whole scene. With experience, officers tend to focus their cameras on more than the interesting thing. They photograph the area around it.

Inexperienced officer	Experienced officer	Forensic photographer
The dead body	The dead body and the bed where it was found	The bedroom, the floor, the bed and the body
The knife	The knife in the drawer	The clothing in the drawer on top of the knife
The wound	The wound and some of the body for context	The whole body - injured and uninjured parts

I don't suggest that first responders should spend hours photographing the whole residence where a domestic assault occurred. But a couple of shots of the crime scene will make it easier for the victim in court to describe the place where the assault occurred. I don't ask first responders to strip a battered wife naked and photograph every inch of her skin, like an autopsy. But you might photograph the absence of injuries on the suspect. Or if you're interested in a bruised left cheek, you might take another photograph comparing right and left cheeks.

2020.01.19 Cell Tower Dumps - Minimizing the Private Information - Who Correlates the Data?

A gang robbed commercial truck drivers. The investigators figured that the gangsters needed to follow their targets in several vehicles, and to communicate using cell phones.

Therefore, police sought cell tower dumps for all cell phones in the vicinities where the robbers went to track the their victims.

Once police got the data, they combed through it to find which cell phone numbers showed up in the dumps of each tower.

That led the investigators to Mr Baskaran, 2020 ONCA 25 and his buddies.

Once busted, they complained that the police obtained too much private information. Police didn't need to know the identities of all the people in the areas of those cell towers - that could amount to thousands of people. Police only needed to know the identities of the people whose cell phones connected all of the towers. That would be just a few.

The judges agreed that cell tower dumps do deliver large quantities of personal information. Production orders should minimize intrusions of privacy as much as possible, while still permitting police to pursue proper investigations.

The judges liked the fact that the police sought data relating to narrow windows of time: 40 minutes of data from one tower, 10 minutes of data from another, 15 and 20 minutes from the other two. The judges agreed that in future, police who seek tower dumps should try to narrow the data even more.

If the cell phone companies are willing to do a little bit of data sorting, there is a way.

If you think your felon used a cell phone in the vicinity of four different cell towers, your production order might ask for tower dump information and subscriber information for only those cell phones that two or more cell towers logged. That could dramatically reduce the amount of personal information you receive and sort through, without losing leads.

As a computer guy, I know of easy ways to do this kind of sifting. The telephone companies likely employ people who have greater proficiency in this than me.

2020.01.19 s.25.1 Authorization - Getting it Right

In order to investigate a drug operation, police staked out a residence. They trespassed on a neighbor's property to do it.

From there, and from a ditch, police officers heard gunshots, and saw people carrying guns. They got a warrant and busted Mr Roy and Mr Biesinger, 2020 ONCA 18 for guns and drugs.

At trial, defence attacked the investigaton. The police gathered evidence by breaking the law. They trespassed on the neighbour's land! Defence asked the court to stay the charges.

The investigating officers considered this. A senior officer got some advice about s.25.1 of the Criminal Code. It turned out to be bad advice, though I'm still not clear from reading the trial and appeal decisions what they got wrong. (I'd be grateful if someone who knows could fill me in.)

In any case, the ITO failed to mention this reliance on s.25.1. It should have. For some reason, the officer in charge didn't explain it to the affiant.

The trial judge found that the police acted in good faith by getting legal advice, and that the omission wasn't a big deal. The court of appeal agreed. The defendants remained convicted.

Section 25.1 authorizes police to do things that would otherwise be offences. It's exceptional. Those of you who use it should follow its requirements carefully. It requires public accountability. Write out your authorization carefully. Follow it. Make reports afterwards. Don't cover it up. Tell the courts what you did.

2020.01.19 Affiants and Subaffiants - Preparing for Cross-examination

When drafting the warrant to search a place, the affiant in R. v. Roy, 2020 ONCA 18 phoned officers who staked the place out, and saw interesting events.

Smart.

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.

Smart.

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.

Ooops.

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:

1. 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.
2. 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.
3. Investigators should always seek independent evidence that confirms or rebuts what the witnesses say in their statements.
4. 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 Developments

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.

I agree.

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.

Appearance Notice
Undertaking

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; and

(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.

495.1 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.

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,
(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

(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.

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.

Licence plate

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.

Watch

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?

Second warrant

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.

Conclusions

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 here for an explanation of "it depends".)

Okay. For those of you who clicked the button, here's what it depends on:

You.

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:

1. It isn't a "firearm" because it can't cause injury or death (or because its muzzle velocity falls below 65-75 m/s).
2. 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)
3. 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 the Peace

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 Later?

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.

Why?

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.

Backing Orders

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.

Wrong	Right	Why
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. Q: Why? 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.

2019-06-16

 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"?

	Omar	Le
Location	Public street	Private property
Time	1:00am	10:40pm
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.

Don't:

• make or use statements which suggest that the suspect "must" confess, regardless of the truth.

Do:

• 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".

2019-04-28 Road Rage - Intimidation

I rarely see charges under s.423 of the Criminal Code. It lives under the heading "Breach of Contract, Intimidation and Discrimination Against Trade Unionists", which hints at its coloured history as a tool used against organized labour.

But it applies to other conduct too.

Mr Orton, 2019 ONCA 334 didn't like how another driver nearly cut him off. Mr Orton yelled at the driver to pull over. When the other driver kept going, Mr Orton attempted to block his truck with his car. The other driver drove around him. To catch up with the other driver, Mr Orton overtook other vehicles by driving on the wrong side of the road. When he caught up with the other car, he tailgated the other driver's vehicle "for a considerable distance".

That section defines the offence of intimidation 7 different ways. The core of it involves doing bad things for the purpose of compelling someone else to stop doing something they have a lawful right to do.

The Court of Appeal agreed that Mr Orton intimidated the other driver within the meaning of this section.

Don't lay that charge for every instance of road rage you encounter. Save it for the cases where one driver does scary or nasty stuff for the purpose of preventing the other person from doing something lawful. But if the charge fits, maybe we should use it a little more.

2019.04.22 Impaired Driving Regime - Applying the New Alcohol Screening Power

A reader from Lethbridge emailed me a series of questions about investigating impaired drivers. They're sufficiently interesting that I thought I should post my thoughts here.

1. A driver appears grossly intoxicated by alcohol. Should I use the ASD?

No.

Why?

There is no obligation to use a screening device, just because it's available. R. v. Beaudry, 2007 SCC 5 at para 45.

Heck, the legislation itself says that you shouldn't.

Section 320.28(1) governs breath analysis demands. It says:

"If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable..."

If you're gonna make a demand for breath analysis, you must make it "as soon as practicable". If you already know that this driver is too drunk to drive, then screening this driver's breath with an ASD will waste several minutes. All it will tell you is what you already know: this driver has too much alcohol in his/her body.

Using a screening device in these situations introduces doubt into what should be a clear situation. The defence will argue "the officer claimed that my client looked grossly drunk, but the officer wasn't sure enough of his/her opinion, and used the screening device to make certain. Therefore, my client didn't look as drunk as the officer suggests."

Please note that I phrased this question as "appears grossly intoxicated". That standard differs from the usual "reasonable and probable grounds". If you form your opinion from subtle indicia - a slurred word, some fumbling with a licence, an odour of liquor - then there's no harm confirming that opinion with an ASD. When the defence lawyer challenges your procedure, you can explain it this way.

Q: Officer, you told us that you formed the opinion that alcohol impaired my client's ability to operate a motor vehicle?

A: I did.

Q: But after you formed that opinion, you screened his breath with an ASD?

A: Yes, I did. But I'd like to explain why. The indicia of impairment that I observed weren't gross impairment. I was pretty sure your client had too much alcohol in him, but I used the ASD as a double-check, just in case I was wrong. Because if I was wrong, analyzing his breath was going to waste an hour of his day and mine.

2. After I form grounds to make a breath analysis demand, should I arrest or detain the driver?

The law says you should always detain, except if you should arrest. But if you turn your mind to it, in most cases, you will arrest. This apparently contradictory answer comes from careful consideration of the legislation.

If the driving caused no injury or death, then s.495(2) says you should never arrest ... except if you have a reason specific to this case.

In almost all cases - if you turn your mind to it - you will notice a reason to arrest.

You don't need to arrest the driver in order to get the breath demand. The demand itself lawfully requires the driver to accompany you.

But you might be concerned about identity, or the prospect that when you release this driver, he will drive, or assault someone. The computer might tell you that this guy is bad about attending court. Or perhaps you're concerned that there may be evidence relating to his impaired driving in the vehicle ... and you'll lose that evidence if you don't arrest the driver, and search the vehicle incidental to arrest.

Whatever your reason(s) for arrest, they must be specific to the case at hand.

3. I suspect the driver has alcohol in his/her body, but I don't have an ASD with me. Do I need the device in my hands before I read the screening demand?

No.

You should read the demand without waiting for the device to arrive.

Before she was elevated to the Supreme Court of Canada, Madam Justice Arbour concluded that the former screening device section required police to make the demand "forthwith". R. v. Pierman, 1994 CanLII 1139 (ON CA) aff'd R. v. Dewald, [1996] 1 SCR 68. The new legislation is so similar that I expect judges will continue to hold that your screening device demands should be made immediately.

Which should you do first, read the demand or radio for the device?

In my opinion, the difference is not sufficiently important to amount to a legal requirement. However, I think you should make your radio call first, then make the screening demand. Here's why I think the call precede the demand:

1. Roadside screening interferes with the liberty of the driver. You should strive to keep that interference as brief as possible. If you call for a device first, then it will be on the way while you make your screening device demand. But if you make the demand first, then the overall delay will be just slightly longer.
2. If you call first, you will discover whether or not a device can be brought to you within a short time. If no device is coming, you won't waste time making ASD demands, and will choose some other technique, such as Standardized Field Sobriety Tests.

4. How long can I wait for an ASD to arrive? How long is "as soon as practicable"?

5-10 minutes is about the maximum that most judges permit for you to wait for an ASD to arrive. There are lots of cases. Here are a couple: R. v. Janzen, 2006 SKCA 111; R. v. Singh, 2005 CanLII 40877 (ON CA)

5. ASD or MAS (Mandatory Alcohol Screen)?

The reader wrote: "if you approach a vehicle with the intent to conduct a mandatory alcohol screening, but you then gain a reasonable suspicion that they have alcohol in their body (ie: odour), would you revert to the ASD demand, or continue with the MAS?"

As drafted, this question raises several different questions:

1. When may an officer approach a vehicle 'with intent' to conduct a mandatory alcohol screening?
2. Which demand should should the officer prefer: ASD or MAS?
3. If the officer starts with a MAS demand, and then develops grounds for an ASD, what should the officer do?

I think you should use this legislation cautiously. Many prominent members of the defence bar assert with confidence that the courts will strike down this legislation. Don't expect that the judges will give you an easy ride. In these early days, I suggest that you read the section carefully, and apply it only to clear-cut situations.

Under s.320.27(2), you may make a MAS demand only when:

• you are in "possession" of a screening device;
• you are in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law; and
• the driver "is operating" the vehicle.

If you don't have an ASD in your pocket, you better have one in your police car. Use this power in the context of motor vehicle enforcement - such as speed traps or seatbelt or alcohol checkstops.

MAS is controversial. ASD is not. The controversy arises because MAS permits random virtue testing. But if you have reason to suspect that a driver has alcohol in his/her body, then an ASD demand is not random, but justified.

Therefore, I suggest that you choose ASD in preference to MAS whenever you have sufficient grounds.

In my opinion, if you made an MAS demand, and then, before the suspect blows, you detect an odour of liquor on the suspect's breath, you should make an ASD demand as well.

2019.04.19 Undercover Operations Online

- Police Catching Creeps

An officer created a fake online profile of a 14-year-old girl. Mr Mills, 2019 SCC 22, aged 32 started communicating with "her" about sex, even sending her a picture of his penis. He claimed to be 23. He invited her to meet him in a park. "She" agreed. When he arrived, the officers busted him.

At trial, he complained that the undercover officer used software to make permanent "recordings" of his online communications. He claimed this violated his rights under s.8 of the Charter. He had taken particular care to encourage the 14-year-old to delete his messages and pictures. He said that by saving screenshots of everything they violated his expectation of privacy.. He complained that the undercover operation as a whole violated his expectations of privacy.

The Newfoundland Court of Appeal didn't agree. He appealed to the Supreme Court of Canada.

Back in 2017, I wrote "I do not think the judges of that court will find this case as simple as the Newfoundland Court of Appeal did."

They didn't. The judges found three rather different ways to conclude that his conviction should be upheld. Because of that, this is a difficult decision to figure out.

In brief, this case says that you don't need judge to authorize you to go online and pretend to be a child for the purposes of catching adults who are luring kids they don't know. And you don't need a warrant or authorization to make a permanent record of the conversations you have with those people.

But there are some limitations and gotchas:

1. The adult and the child must be strangers. Suppose a child's adult relative sends electronic communications to the child grooming her for sex. You might want to continue the conversation, collecting evidence. Four of the seven judges would seem to say you need a general warrant to do that.
2. This does not necessarily bless all on-line undercover operations. If you're pretending to be an adult for the purposes of catching an adult - perhaps an adult pimping a child - some of the judges might say you need judicial pre-authorization.

I'm still working on my understanding of this case. My comments here may change as I review it.

2019.04.18 Unreliability of Accomplices - Corroboration

A masked man attempted to rob a liquor store. He carried a pick-axe and a gym bag. The clerk fled, leaving the robber with an empty safe to loot. Security video recorded him.

The robber left in a van that belonged to a Mr Buxton. Police arrested Mr Buxton and searched his house. They found a pick-axe and a similar gym bag that contained clothing resembling the robber's clothing. When interviewed, Mr Buxton told police that he drove the van. He claimed that the robber was Mr Newsham, 2019 BCCA 126.

That story became more believable when police found Mr Newsham's DNA on an item of clothing from the gym bag.

At trial, Mr Buxton testified that "forgot" everything he knew about the robbery. "I used too much meth" he claimed.

Unless the judge would accept his recorded statement, the prosecution had no case.

The officers who interviewed him took the steps recommended in R. v. B. (K.G.), [1993] 1 SCR 740. They

• recorded the entire statement
• asked him to give a solemn affirmation of its truth
• cautioned him that he would be criminally prosecuted if he lied.

Those steps helped the trial judge conclude that he should admit Mr Buxton's statement at trial. The appeal court judges ordered a new trial, because the trial judge didn't follow the analysis that the Supreme Court of Canada described in the subsequent case of R. v. Bradshaw, 2017 SCC 35. The appeal court judges wanted corroboration.

Judges don't like the testimony of accomplices: maybe Mr Buxton was the robber; maybe he named Mr Newsham as the robber so as to escape prosecution for the robbery himself.

Corroboration of Mr Buxton's story made this case stronger. Someone saw a man that looked like Newsham near Mr Buxton's place just after the robbery. (Too bad nobody showed that witness a photo lineup.)

Lessons to learn from this investigation include:

• Getting a statement from a key witness is the start of the investigation, not the end.
• Don't expect the word of an accomplice or career criminal to prove the case

I observe that the police in this case made a real effort to find corroborative evidence, and they did go to the trouble of a KGB statement. Had they not taken these steps, there would have been no case.

2019.04.14 Traffic Stop - Detention of Passengers

When you pull over a vehicle for a traffic offence, do you "detain" the driver for the purposes of s.10(a) of the Charter? Of course. You need to tell the driver the reason of the stop, but if it's only a brief traffic stop, you don't need to offer access to counsel. Schrenk, 2010 MBCA 38.

Does a traffic stop detain the passenger? Nope. Mooiman 2016 SKCA 43

But what if you take the passenger's identification away from him and spend half an hour doing research on it? That's what a police officer did to Mr Loewen, 2018 SKCA 69.

Unsurprisingly, the court came to the conclusion that in those circumstances, Mr Loewen would not have felt free to go. And the length of this interference with his liberty was not brief. The officer triggered a detention, and during the detention, discovered the drugs that Mr Loewen carried for the purposes of selling.

There were extenuating circumstances that dragged this detention out. Parole authorities first told the officer that Mr Loewen was breaching his parole -- but they were incorrect.

Although the trial judge admitted the evidence, the appeal court disagreed, and Mr Loewen beat the charge.

2019.04.14 Arresting Parolees breaching their Conditions

The Parole board told Mr Loewen, 2018 SKCA 69 not to associate with known criminals.

A police officer pulled over a speeding car. He recognized the driver as a known criminal. The officer didn't know Mr Loewen, nor that Mr Loewen had drugs hidden in his pants.

The officer took Mr Loewen's identification, and did some investigation to find out who he was. Corrections Canada’s National Monitoring Centre told him - incorrectly - that Mr Loewen's condition was still live. It wasn't. It came to an end two days before. Mr Loewen explained this to the officer, but the officer arrested him anyway, believing that he was breaching his conditions.

I was surprised to learn that even if Mr Loewen's condition had been valid, the officer did not necessarily have the power to arrest him.

Of course, if the Parole Board issues a warrant, you can arrest a parolee. S. 137(2)  of the Corrections and Conditional Release Act reads:

137 (2) A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody.

But there was no warrant. The officer believed that he found Mr Loewen violating a parole condition. Section 137.1 sets out the power to arrest in these terms:

137.1 A peace officer may arrest without warrant an offender who has committed a breach of a condition of their parole, statutory release or unescorted temporary absence, or whom the peace officer finds committing such a breach, unless the peace officer

(a) believes on reasonable grounds that the public interest may be satisfied without arresting the person, having regard to all the circumstances including the need to

(i) establish the identity of the person, or

(ii) prevent the continuation or repetition of the breach; and

(b) does not believe on reasonable grounds that the person will fail to report to their parole supervisor in order to be dealt with according to law if the peace officer does not arrest the person.

The "gotcha" was (b). The officer didn't have reason to believe that Mr Loewen would stop reporting to his bail supervisor. And therefore, this arrest was unlawful.

I didn't know about this limitation on the police power to arrest disobedient Federal parolees. Now I do, and if you didn't know about it before, now you do.

2019.04.12 Executing Search Warrants - Knock and Announce - Interviewing Suspects

Mr Robertson, 2019 BCCA 116 installed security cameras on his house. He had a good reason. He wanted to protect his illegal gun collection, which he probably acquired in his drug-dealing business.

Police knew about the drug dealing. They obtained a search warrant for his house. Not knowing of the main entrance to his house, they knocked on the door to his garage.

The video system recorded them. They didn't wait long enough before forcing their way in. The judges didn't like that. The officers were pretty sure that the house was empty. The judges used that as a reason to believe that waiting was a safe option.

When Mrs Robertson attended the house, police detained or arrested her. She asked to speak with a lawyer, but the officers asked her questions about the guns and drugs that they found instead of acceding to her request. The judges didn't like that either.

Knock-and-announce rule requires you to exercise patience at a time when your adrenaline is running. It's hard to measure time in your head. Law requires patience and the prevalence of cameras may provide hard evidence when you act precipitously.

2019.04.12 Warrants to Search and Analyze Electronic Devices - When does the Sun Rise and Set? *

* I re-posted this story because I received an interesting email from a smart guy in Ontario. He agreed with me on some things and disagreed on others. He might change my mind, but he hasn't yet succeeded. I added asterisks to the debatable points.

After a judge or justice authorizes you to search a cell phone, when does the authority to analyze its contents cease? If your warrant authorizes you to search a phone for data today, can you re-analyze the data a year from now?

I repeat from another story (see "Life and Limb, Lies and Evidence"), Mr Nurse, 2019 ONCA 260 owed rent. But Mr Nurse was broke. He owed lots of people.

Mr Nurse's landlord suddenly died. On a busy road. In a pool of his own blood. Someone had stabbed him 29 times. Mr Nurse was at the crime scene. He told police conflicting stories about who killed his landlord.

Police arrested Mr Nurse. They seized his cell phone. They got a warrant which authorized them to enter their own exhibit vault, and search his phone for evidence of the offence. The warrant specifically authorized them "between the hours of 6:00 a.m. to 9:00 p.m. to enter into the premises" and search for the evidence.

Police did enter the vault that day and fetched the phones, but they didn't even give the phones to forensic analysts until 5 days later. Those folks extracted a digital copy ("image") of the data from the phone. However, the phone used password protection which mostly defeated analysis. From the image, the experts got only a little bit of of the contents of the phone. A year later, their software improved. They analyzed the data again, and discovered text conversations in which Mr Nurse plotted with another guy to kill the landlord.

Defence complained: The justice authorized only a 15-hour search. To re-analyze the data a whole year later, police needed a new warrant. Police didn't get an open-ended authority to search cell phones. They had 15 hours. The sun set on this search at 9:00pm. Even if the sun set later than that, it didn't continue to shine a year later.

The judges rejected this idea. The words used in the warrant authorized a 15-hour window to fetch the phones. But the ITO made it clear that the purpose of fetching the phones was to extract data from them. Even if the warrant didn't specifically say that the police could search the data later, that's what the justice implicitly authorized.

Ug. Warrants and ITOs are separate documents. They serve different purposes. In my opinion, even if an ITO explains everything, a warrant should clearly state what search the justice authorizes.

It appears to me that the problems in this case arose from:

1. the antiquated drafting of s.487(1) - which mostly contemplates the searching of "places";
2. the antiquated drafting of police precedents - which amplify the problems in the legislation.

At para 133, the judges accepted that digital devices aren't really "places". For residences, it makes sense to put time limits on police interference. When police are done searching, police should vacate the residence and let the people who live there move back in. If police want to search some more, they should get new permission from a justice.

But digital evidence is different. A phone or hard drive can be "imaged" (copied), but it may take a long time to analyze the data in the image.

The judges overlooked the badly-drafted warrant. They held that after lawfully obtaining the data, police may continue to analyze it even after the warrant expires.

In my view, section 487 needs redrafting to reflect how we use it today to search digital devices.

• A phone in your exhibit locker isn't like a house on private property. A police officer doesn't need judicial permission to enter his or her own exhibit vault. You need judicial permission to examine the private information of the person whose phone you seized.*

• A phone in your exhibit locker isn't like a house. People don't use phones to shelter them from the cold and rain. Section 488 of the Criminal Code properly protects people from unnecessary night-time searches of their residences. But that section applies to searches of cell phones too, which I think is ludicrous. Even guilty people shouldn't be subjected to night raids unnecessarily. But nobody cares what time of night your expert starts analyzing the data in the phone.

Similarly, in my view, your precedents for searching electronic devices should differ from your precedents for searching houses. Review them now. When you're in the middle of a murder investigation, you won't have time to fix the forms you use.

Don't:

• Rely blindly on police precedents and forms.
• Forget to report your exhibits to a justice.

Do:

• In your ITO, tell the justice what kind of data you think the cell phone contains, and why you think it's there.
• In your ITO, tell the justice how you're going to find that data. For example: "I intend to deliver the cell phone to a forensic analyst, who will copy the data in it, and in the weeks or months following that, will analyze that copy for the evidence I described above."
• Make sure the warrant specifically describes the electronic evidence you seek, and specifically authorizes you to search the contents of the electronic device for that evidence.
• If your warrant authorizes you to obtain an image (copy) of the data in the device for later analysis, then report that image/copy to a justice*, and get continuing detention orders (until charges are laid), to ensure that retain lawful possession of it. (Reeves, 2018 SCC 56)

* My correspondent and I disagree over the ideal form of the warrant, and whether you need to file a second report to a justice for the data you dredge out of a device. In Ontario, for examination of digital devices, they teach police to search the locker for the device, rather than to search the device for the data. They feel that if the exhibit has already been reported to a justice, there is no need to file another "Form 5.2" regarding the data obtained from it. Beware, though. Section 487.1(9) requires officers who execute telewarrants to report to a justice about the execution of the warrant - WHETHER THE WARRANT IS EXECUTED OR NOT.

We agree that the warrant itself should describe what kinds of data you intend to look for in the device. We agree that the legislation needs updating.

2019.04.08 Detention - All for one and one for all

Can you conduct a non-custodial interview with someone who is another police force's custody?

Generally, no. When one lawful authority arrests or detains someone in Canada, other officers from other law enforcement agencies can't evade the obligations of s.10(b) by telling the prisoner that he's free to leave the interview room. Police and prosecutors have tried several times with this argument, and failed. They tried again in the case of Mr Heppner, 2019 BCCA 108. It still didn't work.

Ms J.W. went partying, drinking and using cocaine. She woke up in a hotel room, in bad shape: fractures in her mouth, evidence of strangulation. Someone had beaten and raped her, but she had no memory of the events.

In August, shortly after the event, police interviewed him over the telephone as a possible witness. He denied involvement.

In September, before the DNA results tied him to the rape, West Vancouver police arrested him on a Wildlife Act charge. They gave him access to counsel, to get advice about that matter. They were going to release him, but noticed information that Vancouver police wanted to talk to him some more. Although the two cities have different police forces, the West Van officer called the Vancouver officer, who hurried across the bridge to chat with Mr Heppner.

Mr Heppner was the only suspect in the hotel assault case, but the officer still lacked sufficient evidence to arrest him.

The officer told Mr Heppner - who was still in West Vancouver Police's custody - that:

• they were investigating an assault in the hotel room;
• he was a suspect;
• he did not have to answer their questions;
• he was free to leave the interview room at any time, and he was not detained in relation to the investigation.

The officer didn't tell him he could call a lawyer about the hotel room case.

Mr Heppner wanted to talk. He told more lies, again asserting that he had never set foot in the hotel. Video surveillance established that he had.

At trial, Mr Heppner admitted having sex with J.W. at the hotel. But he claimed it was consensual, and she was uninjured when he left her. Crown Counsel used his lies in the August and September interviews to discredit him. The trial judge disbelieved Mr Heppner's innocent explanations, and convicted him.

Mr Heppner appealed. The September statement was inadmissible, because the Vancouver officer interviewed him about a different crime than the Wildlife Act matter. If the officer had waited until after the West Van police released Mr Heppner, the interview would have been okay. But while a suspect is detained for investigation for one matter, he is detained for all investigations.

The judges agreed. When police detain or arrest a person for one matter, he is detained or arrested for all matters for which police then interview him as a suspect. He needs to be offered legal advice about all the offences that police will investigate.

Some exceptions may apply to sentenced offenders, who you interview at the prison while they are doing their time.

Mr Heppner's counsel won the battle, but lost the war. Overall, the judges found that the case against Mr Heppner was so strong, that they upheld his conviction.

2019.04.07 Privacy of Medical Information - Investigating a Drunk Driver

Somebody drove a car in the wrong direction, and crashed into a car driven by Ms Campbell, 2019 ONCA 258. The other driver died. Ms Campbell suffered serious injuries. When police attended, they noticed evidence that Ms Campbell consumed alcohol. How much? Was she too drunk to drive?

At the hospital, someone analyzed Ms Campbell's bodily fluids. A nurse caring for Ms Campbell noticed a high level of alcohol in Ms Campbell's urine.

The trial judge found that a police officer asked the nurse for this information, and that's how he learned about it.

The judges didn't like that. There are legal ways for police officers to gather information. But informal requests for the information that goes into medical records isn't one of them. It's a breach of confidentiality.

At the hospital, don't ask the medical staff for the kinds of information that goes into medical records. If you do get medical test results "informally", do not rely on that information in an application for a search warrant.

Suppose you're writing an application for a search warrant, to get those medical tests and records legally. Suppose one of your colleagues proudly tells you that he persuaded a nurse to tell him the results.

Your ITO, must provide give full, fair and frank disclosure of the information you obtained in your investigation. But you can not rely on the illegally obtained information to support the application for the warrant. What do you do?

I suggest that you write a paragraph which discloses and discards the information: "Cst Ignorant told me that he obtained from a nurse the results of medical testing of Ms Campbell's urine. Because I fear that this information may have been unconstitutionally obtained, I the issuing justice not to rely on it in support of this application."

2019.04.06 Life and Limb, Lies and Evidence - Keeping your Head in Crisis

Mr Nurse, 2019 ONCA 260 owed rent. But Mr Nurse was broke. He owed lots of people.

When Mr Nurse's landlord came to collect rent, someone had stabbed him 29 times. The landlord fell onto a busy road, where he lay bleeding to death.

Police officers attended quickly, and started tending to him. One officer asked "who did this to you?" The dying man could not speak, because of injuries to his throat.

Mr Nurse approached. He said he knew the dying man, and that they were friends. He told one officer that he saw three guys dump the man from a van. He told another officer that the landlord came to his house to collect rent, and afterwards Mr Nurse saw a black man chasing him.

Although the dying man could not speak, he used his hands. He pointed at the stab wounds and then he pointed at Mr Nurse.

Because Mr Nurse claimed to be a friend, the officers interpreted these hand motions as reaching out to a friend. They were wrong. As explained in the next story, Mr Nurse was the killer, and that's what the victim tried to tell them.

Nobody can blame the officers for misinterpreting the hand gestures.

The judges understood that the officers - quite properly - focussed on saving the dying man's life. At the time that the dying man tried to tell them who the murderer was, the officers were distracted by the horror of the scene, and fooled by Mr Nurse's lies. The judges noticed that the two officers remembered parts of the same story differently. The judges forgave these inaccuracies: this was a traumatic scene.

The case does not mention officer safety. As armchair quarterback, I could not help but notice that the officer who bent over the dying man had a murderer at his back.

I mean no criticism of any mistakes they may have made. In this situation, I would have performed much worse than these officers.

You folks signed up to respond to emergencies. Your priorities are first to protect life and limb; but also to protect property, to uphold the law and to gather evidence. I can't teach you how to keep your head in a crisis like this one. You have other experts for that. Take their training, so that you can save lives - including your own. Repeat your training, so that you can think clearly when others lose their heads. Maybe, if you stay calm, you'll interpret crisis situations better too. Maybe, if you stay calm, you can avoid PTSD.

And here's the selfish side of the prosecutor: if you can keep your head, you'll probably remember the evidence better too. After the crisis, your notes will be more useful to me and my peers.

Thank you for taking on a job I could not do. Take care out there!

"building, receptacle or place"?

Opinions differ whether you should draft the warrant to authorize you to enter a "place" (your exhibit locker) or to search a "receptacle" (the electronic device). Section 487 empowers a justice to authorize entries into "a building, receptacle or place". Because you don't need authority to enter your own exhibit locker, I don't think you need a warrant to search a "building" or a "place". Because you do need authority to intrude on the privacy of the information in the device, I think "receptacle" comes closest.

Sunrise and Sunset - the period within which to execute the warrant

Naming the "receptacle" as the target of the search causes problems with drafting the sunrise and sunset on the face of the warrant. When should the search of the receptacle start? It's not when you take the cell phone out of the locker, but when the technician first starts getting into the phone. When will the technician first start imaging or downloading the data from the receptacle?

This case suggests that you need a warrant that authorizes the time frame when the technicians start getting into the phone, but you don't need to spell out when they should finish their analysis. The analysis of the data may continue after the warrant expires.

If you draft it like the precedent for a warrant in the Criminal Code (Form 5), the warrant need not set a deadline for the technicians to finish their task.  Beware. Because of the absurdity of s.488, the technician can't start that search at night without specific judicial authorization. I copied and pasted from Form 5, and, in italics, inserted some language which might work:

This is, therefore, to authorize and require you between <start date> and <end date>, between the hours of 6:00am and 9:00pm to enter into the said receptacles and start searching for the said data or evidence and when you find it, to bring it before me or some other justice.

Give your technicians a wide window between "sunrise" and "sunset".

But don't blindly copy and paste what I wrote. When drafting warrants, you take responsibility for the words in them. Make sure what you write actually means what you intend.

Postscript

The jury convicted Mr Nurse, and the other guy with whom he conspired. The Court of Appeal upheld the convictions.

2019.04.03 Right to Counsel - Facilitating Access

Mr Ector, 2018 SKCA 46 wanted to call his mother.

He said so after the police arrested him for impaired driving. Mr Ector explained that he wanted legal advice, but didn't know which lawyer to call. But his mother knew lawyers because she involved them in her land transactions.

"No," the officer said. "You can't call your mother, but I'll call her for you."

At trial, the officer said that the mother gave him the name of a law firm. He told Mr Ector, and Mr Ector wanted to call the law firm. It was after 10:00pm, when the officer called the law firm. An answering machine listed the names of the lawyers, and offered the option of leaving a message for any one of them.

Mr Ector wanted to call his mother again. The officer directed him to choose one of the lawyers. The officer dialed the number again, and Mr Ector chose a name at random. He left a message. No lawyer called back.

Mr Ector spoke with Legal Aid Duty Counsel for 30 minutes, after which he wanted a second opinion. The officer said "no", and took him for breath testing.

At trial, the mother testified. She claimed that she told the police officers the names of specific lawyers at the law firm. Mr Ector complained that if that's what happened, then the officer breached Mr Ector's rights by failing to tell him the names that his mother recommended.

The trial judge didn't think this was a problem, but the appeal court did, and ordered a new trial.

The right to retain and instruct counsel includes the right to get advice from someone about who to call. To the extent that you control the process of finding the lawyer, you are accountable for facilitating access. If mom named a lawyer, the officer had to pass that information along, correctly, to the prisoner.

The court did not say you must give the prisoner free use of the telephone to call anyone he wants. But if you become intermediary between the prisoner and the people who will help him choose and contact a lawyer, then beware. Someone, such as a loving and doting mother may contradict you about the information you received and conveyed to the prisoner.

2019.03.24 Child Luring - "Reasonable steps" to ascertain the age of a child on the internet

Mr Morrison, 2019 SCC 15 posted an ad on ad on the “Casual Encounters” section of Craigslist:

Daddy looking for his little girl – m4w – 45

"Mia" responded, telling him that she was 14. Mr Morrison soon turned the conversation to sex. He invited her to watch pornography and touch herself. He asked her for photos of herself. Eventually he suggested that they meet.

They never did. "Mia" didn't exist. A police officer played the role, carefully typing mistakes and expressing herself as a 14-year-old girl would.

Mr Morrison told the police officer who arrested him: “I was only talking to one girl.” But Mr Morrison also commented that he didn't know for sure how old the girl was. On the Internet, “you don’t really know” whether you are speaking to a child or an adult.

The prosecutor wasn't worried. Section 172.1(3) required the court to presume that Mr Morrison believed that "Mia" was under 14 just because "Mia" said so.

The judges found that section to be unconstitutional.

From now on, in such cases, we can expect every such defendant to make the same assertion: "on the internet, you never really know who you're communicating with."

Therefore, officers doing these investigations will need to provide much more convincing evidence that they are underage. Mr Morrison asked "Mia" to provide a photograph. Of course, the officer never did. In future, you may need photographs or live video feeds of what appears to be children.

Should you use real children to investigate people engaged in luring?

I don't recommend it.

But it might be worth investigating artificial images to use in these investigations. Recent AI developments are showcased at https://thispersondoesnotexist.com/. Refresh your browser a few times: it will generate children

I note that obtaining convictions without the presumption is not impossible. R. v. Harris, 2019 ONCA 193

2019.03.16 "Retain and instruct counsel without delay" - Section 10(b)

 of the Charter

When police officers executed a search warrant they didn't expect to arrest anyone. But Mr Nguyen, 2019 ONCA 178 turned up, so they arrested him. Mr Nguyen said he wanted to talk to a lawyer.

They kept him on scene for 50 minutes because they didn't have anyone to take him to the police station. When they got him there, they forgot to tell him that they had no luck reaching his lawyer. Instead, the officers released him.

The judges didn't like the delay in providing Mr Nguyen with access to a lawyer. After a prisoner says he wants to get legal advice, there need to be good reasons why you delay it. Section 10(b) says that your prisoner has the right to retain and instruct counsel "without delay".

In this case, the police obtained no evidence during the time that the prisoner was prevented from calling a lawyer. Furthermore, the judges didn't think it was a common police practice to delay access to counsel. The appeal court judges upheld his conviction.

Don't let it become a common police practice. Bad guys will find sympathy from the judges if you routinely ignore this right.

2019.03.09 Murder by Multiple assailants - Who "Causes" Death?

Mr Hong, 2019 ONCA 170 and his henchmen planned to rob a drug dealer at his residence. When they got there, one of his henchmen hit a guy twice in the head, using a baseball bat. The victim fell to the ground, and made noises which a pathologist identified as the noises of a dying man.

Mr Hong didn't like the noises. He told someone to stop the noises. Another henchman hit the dying man on the head with the butt-end of a pellet gun. That didn't stop the dying man's noises. Mr Hong said he would show them how to silence him. He took the pellet gun by the barrel, and swing it like a golf club at the dying man's head. The impact broke his jaw, and he stopped making noises.

The pathologist didn't think that the last impact inflicted the injuries that killed the victim.

At trial, the jury found his henchmen guilty of manslaughter. Although the jurors were convinced that the henchman caused death, they must have doubted that the henchman intended to kill or inflict mortal wounds.

But they convicted Mr Hong of murder.

Considering that the henchman inflicted the injuries that killed the victim, was this a legal route to follow? Mr Hong didn't "cause" the death.

Yes. Even though the golf swing did not inflict the fatal injuries, it did accelerate death. And if Mr Hong intended that the victim die or suffer injuries that could kill, then that's enough causation for liability for murder.

2019.03.08 Impaired Driving - Breath Testing - Belches, Burps and Regurgitation

After you demand breath analysis, you must take your suspect without delay to the breath tests. And you must offer access to legal advice, and provide that access without delay.

And in the last 15 minutes before the subject blows into the instrument, you should watch in case the subject belches, burps or regurgitates.

When investigating Mr Ruest, 2019 QCCA 335, the investigating officers didn't watch for that. The breath-testing instrument recorded concentrations of 111 and 103mg% of alcohol in his blood. At trial, Mr Ruest testified that he consumed only a little alcohol. Based on his claims of alcohol consumption, an expert calculated that his blood-alcohol concentration should have been 18mg%.

Defence asked the court to find that the police failed to operate the instrument correctly because they did not watch for belches, burps or regurgitations. The judges rejected this argument - but only because it involved speculation.

If Mr Ruest had also testified that he regurgitated just before the breath tests, he might have been acquitted. According to an expert, such mouth-alcohol could really affect the accuracy of the breath testing.

Interestingly, the expert said that burps are not a big deal. If the stomach contains undigested alcohol, then a burp may bring concentrated vapours of alcohol into the mouth, but this dissipate quickly. But regurgitation can bring the alcohol itself into the mouth, and that's a problem.

I'm not an expert in these things. Don't take my word for it. For reliable science, talk to a toxicologist.

But after a breath demand, your duties include:

• giving the subject reasonable access to legal advice without delay;
• testing the subject's breath without delay;
• watching the subject to ensure s/he does not consume any alcohol nor belch or burp before the breath testing.

2019.02.16 Sexual assault - intoxicated victim

Ten thousand years after people started making it, humans still like alcohol. As we all know, it:

1. Anaesthetises - people feel less pain;
2. Disinhibits - people dare to break out of their usual behaviours; and
3. Obliviates - after enough, people don't remember the things they chose to do;
4. Incapacitates - after too much, people can't think for themselves at all.

We can laugh about it, but these properties cause lots of trouble in sexual assault cases.

A 14-year-old girl went to the beach with a 15-year-old boy. They were friends, but not close. His initials were C.P., 2019 ONCA 85. They stopped a liquor store and persuaded an adult to buy them vodka. The girl drank heavily. At the beach, the boy and the girl kissed for a while. They also had sex. She could not recall the sex and didn't think she consented. Was she too drunk to consent, or just too drunk to remember things she now regrets?

Another friend of the girl, E.G., testified that after the sex, the girl was intoxicated to the point of incoherence. Too drunk to consent.

Did the girl get that way before or after the sex? Did E.G. arrive immediately after the sex or a substantial time later?

If E.G. arrived much later, then perhaps the girl's intoxication increased by reason of vodka she drank just before or just after the sex.

The trial judge convicted Mr C.P. of sexual assault. He appealed. The majority upheld the conviction. What's interesting in this case is the dissent.

One judge would have acquitted him because in his view, the evidence wasn't strong enough to be sure that E.G. didn't just recklessly say "yes" to the sex, before she got too drunk to decide anything.

When you investigate cases of sexual assault where the complainant doesn't recall the sex, the prosecutor wants more from the complainant than her assertion "I wouldn't have consented to sex with that guy". It's too easy for the judge to reason "maybe not when you are sober, but what about when you were drunk?"

This case demonstrates one way to get there - gather evidence of the complainant's condition just before or just after the sex. That judge complained that there were lots of people at the beach. Why didn't they testify too? Was this a failure of the investigators to locate all witnesses, reluctance of witnesses to talk, or failure to recall because they were too drunk to remember? I don't know because the decision doesn't explain. But I do know that a good investigator would try to get the evidence of the other witnesses, and anything else that would tell how much liquor (or other drugs) the girl consumed.

2019.02.12 Voyeurism - Reasonable Expectation of Privacy

Back in 2017, I wrote about Mr Jarvis, 2019 SCC 10, a teacher who used a camera hidden in a pen. He aimed it down the cleavage of his female students, and recorded video of their breasts.

Was it voyeurism?

The trial judge felt this violated the expectations of privacy of the students, but the evidence didn't prove that he did it for a sexual purpose. Mr Jarvis beat the charge. The Court of Appeal disagreed. Of course it was done for a sexual purpose, but the teacher only recorded what the girls displayed to everyone around them -- even the security cameras. Mr Jarvis beat the appeal.

Mr Jarvis lost in the Supreme Court of Canada. They concluded that the recordings did violate the expectations of privacy of these students. They might expect that the people around them might glance down their shirts, but they didn't expect someone to walk away with video recordings of their breasts.

This decision matters for two reasons.

It expands the interpretation of the luring offence to capture surreptitious recording of people in mostly-public places. Video-recording differs from just looking at people because it makes a permanent record.

But it also shifts lawfully-protected expectations of privacy.

Last week, if you were considering setting up a video-recording system in a mostly-public place for the purposes of investigating a suspect, you had less to worry about. This week, think some more. This decision does not say that you need judicial pre-authorization for every video camera you deploy in public. But trial judges are more likely to find that lawfully-protected expectations of privacy even in semi-public places. We can expect more debate about whether you need judicial authority to install video-recorders that observe places like underground parking lots of apartment buildings or residential back yards.

2019.02.13 Preserving Evidence during Investigation

Who wants to be a terrorist? Mr Hersi, 2019 ONCA 94 did. He quit his job and bought plane tickets to Somalia. But police arrested him at the airport.

He'd been talking about his radical and violent ideas for a while, including with his new friend at work.

That guy was an undercover police officer, who started working there after Mr Hersi's employer alerted authorities to Mr Hersi's scary ideas.

Mr Hersi even encouraged the officer to join the Jihad. The officer took careful notes.

Mr Hersi sent him text messages. The officer deleted the uninteresting ones.

At trial, defence complained that the missing text messages contained the key evidence that showed that Mr Hersi wasn't serious about terrorism. Because the police officer destroyed them, Mr Hersi wasn't getting a fair trial. Defence asked the judges to stay the proceedings.

The argument did not succeed. Mr Hersi got 10 years.  But the judges agreed that the undercover officer should have preserved all the text messages.

Preserving innocuous text messages seems like a waste of time and effort.

Not if it's evidence.

Is this case relevant to you? Most of you aren't working in undercover operations. But minor communications are often relevant. For example, many of you arrange to meet defendants for non-custodial interviews. Your communications arranging such interviews can become central evidence in a voir dire to determine voluntariness of the accused's remarks. Those text messages should be preserved because they will tend to show what wasn't said.

Just like in Mr Hersi's case.

2019.02.10 Evidence of Intoxication - Video-recordings

"How drunk was he at the time of the offence?"

The question arises often. In an impaired driving case, was she too drunk to drive? In a murder case, was he so drunk that she did not realize that by stabbing someone, he would probably kill them?

Mr Williams, 2019 BCCA 49 stabbed someone, and the victim died. At his murder trial, he said he could not remember the night: he was too drunk.

Homicide detectives obtained his bar bill, which showed he drank heavily up until 9:30pm. The stabbing occurred at around 11:00pm.

Nobody knew whether he kept drinking. Was he too drunk to form the specific intention to kill the deceased?

The officers that arrested him shortly after the stabbing took him to the police station. Security video showed him walking fairly normally. But security video doesn't capture everything.

A jury convicted Mr Williams of murder. The appeal court found errors with the judge's instructions to the jury, and ordered a new trial.

You can bet that at the second trial, the prosecution will play the security video again. But they'll wish they had something more. And the defence will wish they had more evidence to prove that Mr Williams drank lots more booze after leaving the bar.

In cases like this, first responders have too much to think about: "Who did what to who? Is everyone safe? Does the suspect need medical attention? Legal advice? Is the scene secure? Is there other evidence that needs capturing or preserving right now?"

In a case like this, the lawyers want reliable evidence of the accused's sobriety. Video-recordings of the suspect walking and talking can help.

Even the judges wanted more. The court observed "Unfortunately, no post-arrest investigative steps were taken to obtain a breath or blood sample from the appellant."

Hmm.

The court made it sound as if that was an investigative failure. If the accused is uninjured, getting those breath or blood samples is pretty tricky: if he's really drunk, he's in no position to consent; if he's sober enough to understand what's going on, he'll likely follow legal advice, and refuse to permit you to take them. Except in drunk driving investigations, the law does not permit you to compel him to produce breath or blood samples.

That doesn't mean you shouldn't try. But you'll need to step very carefully to get bodily samples by consent.

But you don't need consent to video-record your prisoner. For the purposes of documenting sobriety or drunkenness, can you video-record the suspect's conversation before access to counsel?

You can certainly do so for the purposes of documenting how you treated the suspect, how you explained the right to counsel, and the right to silence. During the period before the suspect gets access to counsel, you must be scrupulously careful not to ask the suspect for evidence about the offence. Even asking how much he drank is out of bounds until he has had access to a lawyer. But it's clear that even the judges appreciate good evidence which measures intoxication.

Do you whip out your video camera only when the suspect looks drunk or stoned? No. Immediately after a killing, evidence of the accused's intellectual functioning matters to all parties. The Crown wants to prove that the accused was sane and sober. The defence may hope that it shows him to be intoxicated or insane. Immediately after the suspect blows a "fail" on the screening device, the respective lawyers will hope for the opposite. Your job, as neutral investigators, is to capture the evidence, whatever it may be.

Whether you investigate an ordinary impaired driver, or a murder suspect, if you catch the suspect immediately after the offence, consider making a video-recording which documents the suspect's symptoms of alcohol or drug intoxication. Or at least preserve the security video from your police station.

2019.02.07 "Did you Detain my Client?" - Testifying about an Interaction

The defence lawyer asked Officer Stratton whether he "detained" the defendant. It was a dangerous question. Officer Stratton said "yes". It was a dangerous answer.

A police officer who "detains" a person triggers duties under the Charter. But the courts give a different meaning to the word than people in ordinary conversation. R. v. Mann, 2004 SCC 52 at para 19:

‘Detention’ has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to ‘detain’, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

The question was dangerous because the answer would determine whether Mr Reid 2019 ONCA 32 went to jail.

Was Officer Stratton correct? Was it a detention?

Officer Stratton went to public housing complex with other officers. The management of the complex invited them there because the crime problem in the area. Strangers would come and cause trouble.

Officer Stratton and another officer were talking with some children when two men approached them. The officers engaged the two men in conversation. One was Mr Reid. Officer Stratton talked with him.

The officer asked Mr Reid whether he lived at the property, his name, whether he had been in trouble in the past, and his purpose for being there. Mr Reid gave his name and volunteered his date of birth and home address. He said that he did not live on the TCHC property, but that he had family in the “area”. He also said that he had been arrested a long time ago and that he was at the property to produce music and help children to not go down the “same path” as he once had.

"Officer Stratton used his portable radio to run a record check on the appellant’s name. The appellant could hear Officer Stratton speak into the radio, and the replies he received. Officer Stratton thinks that he told the appellant that he would be “on his way” once the record check was complete. Officer Stratton said that the purpose of the check was to determine whether the appellant was subject to any court-imposed conditions forbidding him from being on the TCHC property. As the check was being done, Officer Stratton recorded the appellant’s name, date of birth, and address on what was referred to as a 208 card."

Then the radio blurted out that Mr Reid had a weapons prohibition. Mr Reid turned, tapped an object on his hip and ran. He threw away a loaded handgun. The entire encounter lasted 5-7 minutes.

The trial judge found that that the interaction wasn't a "detention" within the meaning of the Charter.

The defence appealed: "Hey! It must have been a detention. Even Officer Stratton called it a detention!"

The Court of Appeal responded:

I agree with the trial judge that little weight can be placed on Officer Stratton’s use of the term “detention”, particularly in light of the officer’s qualification about what he meant by detention: “I was talking to him. If that’s ‘detain’, then, yes, then I was”. Clearly the officer was not using the legal definition of detention.

Officer Stratton was wise to qualify his words like that.

Because the legal meaning of "detention" differs from the everyday meaning of the word, you want to be careful answering the legal question with everyday language.

2019.02.01 Facebook Fact or Fiction - Authenticating Digital Evidence 

Who set fire to Mark's house and garage? A girl named Carmen showed police some Facebook communications from Jonathon Ball, 2019 BCCA 32, in which Jonathon claimed responsibility.

Did she fake them?

Mark's rock band practiced there. Jonathon - a member of the band - had a complicated love life. He had an on-and-off again relationship with Carmen. Without telling Carmen, he was also seeing a young woman named Brooklyn. But Brooklyn was Mark's ex-girlfriend. Jonathon's dalliance with Brooklyn broke up the band.

Jonathon got most of his equipment back from Mark's place, except an amplifier.

And then someone set fire to the place.

Two weeks after the fire, Carmen - the deceived girlfriend - told police that Jonathon admitted setting it. She showed them some Facebook messages:

"I was at Marks. There’s nothing left of the garage. I broke in the basement of the house and looked for anything of value, couldn’t find anything so I lit the basement on fire."

The timestamp was 2 hours after the fire - at a time when only the police, the firefighters and the arsonist could have known those details.

She showed the police those messages by signing onto her account from a computer at the police station. A police officer photographed the messages.

At trial, the prosecutor asked Carmen to explain how she received the messages. Carmen was no expert. She looked at the photographs of the computer screen. She remembered the messages, but could not confirm the timestamps. Nobody explained how the Facebook worked. Nobody checked Carmen's computer, to see if she had signed on as Jonathon, and faked the messages. Nobody got records from Facebook to discover what device signed into Facebook on the date and time the messages were made.

The Court of Appeal ordered a new trial. They said the prosecutor, the defence lawyer, the police and the trial judge all made errors.

The primary mistake everyone made was to assume that an exhibit speaks for itself. A photograph of a computer screen showing Facebook messages proves nothing. People establish exhibits by testifying about them. Testimony proves that the exhibit is "authentic". Testimony explains what the exhibit means.

The photographer can testify "this is what the screen looked like on the day I took that photograph". But that doesn't prove how the timestamps came into existence, or who put the messages there.

Someone familiar with Facebook needed to testify "Facebook creates the timestamps you see beside each message. They specify when the messages were posted onto Facebook." But that doesn't prove who typed the messages.

Carmen's testimony in this case was central ... and suspicious. She had reason to hate Mr Ball. She might have had access to his Facebook account - particularly if he ever used her electronic devices to sign onto it. She could have typed the messages, and framed him.

The appeal court said that the investigation needed to go a bit deeper - to confirm her allegation about who typed the messages. (I understand that the defence counsel made admissions, so the prosecutor told the investigators not to worry about that sort of investigation.)

This idea applies to all exhibits. If you have data, or a picture or an exhibit, don't just send it to the prosecutor. The prosecution needs witnesses who can explain the continuity and meaning of the thing.

2019.01.29 Ion Scanner - Unjustifiable Snooping or Electronic Dog?

If you swab a surface, an ion scanner will report whether it detects specific drugs. Is it lawful for a police officer to swab the door handle of a suspected drug-dealer's car, and submit the swab to an ion scanner?  Two judges recently disagreed.

R. v. Wong, 2017 BCSC 306; R. v. Wawrykiewycz, 2018 ONCJ 199

In both cases, the cars were in public places. In both cases the police had reasonable grounds to suspect that the drivers dealt with drugs.

Both judges agreed that testing a car for traces of drugs violated the driver's expectations of privacy. But the Ontario judge went one more step. She found the technique analogous to deploying a drug dog.

The Supreme Court of Canada held that deploying a drug dog to sniff for drugs intrudes on privacy, but when the officer has a reasonable suspicion that there are drugs to be found, the search is lawful. R. v. Kang-Brown, 2008 SCC 18; R. v. Chehil, 2013 SCC 49.

She felt that swabbing the exterior and using the ion scan violated Mr Wawrykeiwycz's privacy less than deploying a drug dog. Because the officers had reasonable grounds to suspect Mr Wawrykeiwycz of dealing in drugs, this search was lawful.

With respect to both judges, I prefer the reasoning of the Ontario judge. The B.C. judge did not consider the drug-dog case law.

I am aware of no decision in BC which overrules Wong. It states the law for the time being. Until this decision is overruled or clarified, police officers in BC who want to use ion scanners in this manner should seek legal advice.

I thank Jason Anstey for drawing these two decisions to my attention. Usually, I don't comment on trial decisions. But the Wong case has some impact on police investigations, not only on this topic, but also the deploying of cameras in public places.

PS: The Ontario Court of Appeal sided with the BC judge. You need a warrant to swab door handles and run the swab through an ion scanner. R. v. Wawrykiewycz, 2020 ONCA 269

2019.01.13 Drug Recognition Experts - Rolling Logs - Disclose your Performance

With the legalization of marijuana came increased enthusiasm for drug recognition experts (DREs).

Are they any good at recognizing drug intoxication?

DREs keep logs of the evaluations they perform.

When a DRE concludes that someone's impaired by drugs or drugs and booze, section 320.28(4) of the Criminal Code requires the DRE to "identify the type or types of drugs in question". Testing of bodily samples thereafter may confirm or rebut their opinion.

Naturally, defence will want to learn how many times a DRE got it wrong. Crown wants to emphasize how many times they got it right.

So the lawyers want copies of the DRE's log. Not only at the time of the initial disclosure, but also updated close to trial. The Ontario Court of Appeal says that the defence is entitled to a copy of the DRE's log. Stipo, 2019 ONCA 3.

If you are a DRE with a good track record, defence will then challenge your record-keeping. Is there any way that you could doctor your log to cover errors revealed by testing of bodily samples? Your log better be something more permanent than a word processor file.

If you are a DRE with a bad track record, consider getting out of the business.

If you are a beginner DRE, to conserve your reputation and protect your log from an accumulation of mis-identifications, you might want to make your assessments carefully.

2018 Developments

2018.12.31 Strip Search in the Field

Mr Pilon, 2018 ONCA 959 tended to carry drugs in his crotch. And police who knew him knew of this tendency.

Those officers executed a CDSA warrant to search for drugs in a room at a motel. In the room, they found Mr Pilon and two other guys. The officers arrested the three men - I gather they had grounds. The other two guys put up no resistance, but Mr Pilon struggled and resisted. He kept trying to put his hands down his shorts, even after the officers handcuffed him.

An officer pulled his waistband away from his body. To his surprise, he saw that Mr Pilon wore no underwear, but a rubber band was attached to his penis.

A pat-down search did not discover any weapons. To prevent Mr Pilon from concealing evidence, the officer decided to search him at the motel. He put on gloves, and in the bathroom, away from the observation of anyone else, he searched Mr Pilon, and recovered drugs.

At trial, Mr Pilon complained that the officer who searched him violated his s.8 rights by strip searching. The trial judge rejected this complaint, but the appeal court found a breach.

Even if Mr Pilon had been wearing underwear, pulling his waistband away from his torso to look into his groin area constituted a "strip search". Police must not do so except according to the strict limits of such searches (read the decision to remind yourself). That was a breach of Mr Pilon's rights.

You can pat someone down for weapons. At the scene, you can search under clothing if you have reasonable grounds to believe that there are weapons that pose you or others a risk. But you can't search for evidence unless there are strong reasons to expect it will be destroyed or hidden before you can get the suspect to the security of your police station.

This officer didn't believe Mr Pilon had weapons. He knew Mr Pilon carried drugs in his crotch, and Mr Pilon was acting like he had drugs in his crotch.

The judges felt that a handcuffed suspect would have great difficulty concealing or destroying drugs in his crotch. Therefore, there was no urgency to searching him. He should have been carefully watched until he arrived at the police station, and there, searched for the evidence he was carrying.

But the judges also agreed that the breach of rights was not outrageous. After the initial breach, the officer did take steps to limit the intrusion on Mr Pilon's privacy. They found that the drugs could be admitted into trial. Mr Pilon's conviction stuck.

I found this case interesting because many officers may think "strip search" means taking off clothing. But it includes less overtly embarrassing searches. It includes pulling away outer garments to look at underwear.

2018.12.13 How Sharing affects Privacy in Computers and Privacy in Houses; Oh yeah, also Form 5.2

Every so often, the Supreme Court of Canada delivers a decision which declares broad principles that affect police work. This is one. It expands upon the idea that nobody can waive the privacy rights of another person. That idea can complicate police work. I recommend that you read this decision and debate it.

Mr Reeves, 2018 SCC 56, and his common-law Ms Gravelle owned a house together. Ms Gravelle and her sister complained that he assaulted them. As a result of his charges, a "no-contact" order prevented him from entering the house without Ms Gravelle's permission. She revoked that permission, and she told a probation officer that a computer she shared with Mr Reeves contained child pornography.

A police officer came to the house to ask her about the child pornography. She welcomed the officer in. She signed a consent which permitted the officer to take the computer away, which he did. He did not report to a justice that he took the computer, but 4 months later, the officer persuaded a justice of the peace to issue a warrant to search the computer for child pornography. And it did, indeed, contain child pornography.

At the time that he took the computer, the officer did not believe he had sufficient grounds for a warrant.

The first judge decided that the police officer violated Mr Reeves' rights three ways:

1. Although the officer entered the home with Ms Gravelle's permission, he did not have Mr Reeves' permission. Therefore, he violated Mr Reeves' reasonable expectation of privacy in the residence.
2. The officer "seizure" of the computer, and failure to report it to a justice, as required by s.490, violated Mr Reeves' expectations of privacy in the computer.
3. The application for the search warrant gave a falsely strong impression of the evidence that the computer contained child pornography.

1. Consent of a Resident isn't Enough?

The first finding should frighten you: if a resident invites you into a shared house and you accept, you may be violating the Charter rights of other residents.

Most of the judges of the Supreme Court of Canada realized that this idea was complicated. They'd worry about it some other time. This wasn't the right case for them to express an opinion.

Côté J. - all alone - suggested that consent of one resident lawfully permits you to enter the common areas of a residence.

Moldaver J. - also alone - said it might be okay to enter a residence to take a witness statement if:

1. you give the resident an alternative to inviting you in,
2. the resident invites you in anyway,
3. for the purpose only of talking to the resident or getting a statement,
4. in a common area or an area private to the resident who invite you in, and
5. you stay only as long as you are welcome.

The judges may have the luxury of time to decide what's proper for a police officer. You don't have that luxury.

I can't accurately predict what rules the judges will ultimately set for you.

Even before this decision, you required clear authority to enter a residence without the permission of the residents. After this decision, you should be thinking twice about entering shared residences, even with the permission of one of the residents. Your obligation to save lives obviously overrides privacy concerns. But this decision gives greater force to the complaint of the other residents "I didn't let that cop into MY HOUSE. My rights are violated!!"

2(a) Taking the box without looking into it affects reasonable expectations of privacy

Because this officer did not believe, at the time of the seizure, that the computer contained child pornography, he could not seize it pursuant to s.489(2). His idea of asking the woman to sign a consent was a good one, but it turns out that step was not good enough.

Most of the judges agreed that one computer owner/user can't give you permission to take away a computer that contains the private data of another owner/user. Even if you don't look at it until later, with the authority of a warrant.

The officer didn't seize the computer from the woman. She gave it away freely. But by taking the computer away from her, he also took the computer and its data away from Mr Reeves without his permission. But for the officer's actions, maybe Mr Reeves could have made his peace with Ms Gravelle, and deleted the data.

2(b) Report to a justice and detention order

A seizure happens when you take something without consent. After you seize something, you must report it to a justice. This officer probably thought he received the computer from Ms Gravelle, and therefore, he "seized nothing". A reasonable thought. But the Supreme Court of Canada says there was a seizure -- from Mr Reeves. That's why the officer should have completed a Form 5.2.

So get used to filling out form 5.2. When in doubt, fill it out.

3. Warrant Drafting

It's really easy to exaggerate the strength of the evidence justifying a warrant. Any officer pursuing a lead should be enthusiastic, but enthusiasm generates confidence. Overconfidence can cause one to state inferences as facts.

The investigating officer learned that the women saw files that they believed were child pornography.

The officer who wrote the ITO:

• forgot to mention in the ITO the history of conflict between Mr Reeves and Ms Gravelle and her sister. The women might have exaggerated their information. (It turns out one did.)
• said the women watched videos of concern. (They didn't)

To ensure that your application is correct, return to the source material, and check what it really says, instead of the conclusions you draw from it.

2018.11.26 Apologies

I posted no new material over the last month. I promise I will, but not for a couple more weeks. I've been busy. The new impaired driving legislation comes into force in 3 weeks. I worked up a presentation for lawyers. This week and next, I'm preoccupied with a lengthy trial.

I have lots to tell police on the topic. Here's a tidbit for today:

Police officers used to tell drivers that the penalties for failing the breath analysis are the same as the penalties for refusal. That's not true any more. After December 18, 2018, for first offenders, the fine for refusal is higher than the fine for impaired driving, and depending on whether the Blood-Alcohol Concentration is double the legal or lower, the fine is the same or lower if the suspect blows into the instrument. But the penalties for repeat offenders are the same.

2018.10.27 Identification Evidence - Showing a Single Photo

Mr Ali was talking on his cell phone with his cousin, when someone shot him. At the hospital it looked like he might die, but Mr Ali survived.

Mr Ali told police that the shooter was "Gucci" from Jamestown, a guy he recognized from high school. Police looked up this nickname in their files, and found Mr Jimaleh, 2018 ONCA 841 used it. Fearing that Mr Ali would die, police sent a single photo of Mr Jimaleh to an officer at the hospital, and that officer showed it to Mr Ali. Mr Ali confirmed that this was "Gucci".

Mr Jimaleh was charged with attempted murder, and convicted.

Defence appealed: those dumb cops should have used a proper photo lineup procedure!

The judges rejected that argument.

When the victim does not know the culprit, then showing a single photograph can cause the victim to remember the face in the photograph instead of the face of the culprit.

But when the victim knows the culprit well, showing the victim a photograph of the wrong person won't change the victim's memory.

Only because Mr Ali knew Mr Jimaleh did the judges find no fault with this police procedure.

2018.10.25 Non-Custodial Interview of a Suspect - Do You Have to Say "you're a suspect"?

You don't always know who dunnit. When you have some strong suspicions, do you have to tell them?

Police interviewed Mr Campbell, 2018 ONCA 837 about a missing person. He told them the deceased did not come to his house. That was a lie. He told them he was concerned about people driving by his residence.

Then the officers found the victim's body. Dead in his car. Four bullet holes in his upper body.

They went back to interview Mr Campbell some more.

Like Mr Campbell, the officers didn't tell the whole truth. They suspected him of killing the deceased, but they didn't say "you're a suspect in a murder". They told him that they wanted to talk to him because they were having trouble reading the notes of the first officer who interviewed him. They said they wanted to ask more questions about the people driving by his place.

And then the officer gave this stumbling explanation:

Um, I am a police officer. Um, I am investigating a murder. Um, so anything that you say to me could be used. If your were gonna be charged ... for murder. .. what you'd tell me I could use. Um, and I can use that in court. Um, and then the other thing is, is that if you spoken to any police officer or anybody in authority that says you know, if the police come by you have to talk to them ... don't pay any attention to that, okay?

It was a horrible way to say something simple:

I'm investigating a murder. If you were charged with that murder, what you tell me now could be used as evidence in court. You don't have to talk to me.  And if any other officer told you that you have to talk to me, they're wrong. You don't."

The officer did not offer him an opportunity to get legal advice. The officer did not give him any document to sign explaining that he understood his rights.

The officer just asked him more about the victim. And Mr Campbell said some things that helped get him convicted.

Defence appealed. They pointed out that the police lied about their motives. And they never told Mr Campbell he was a suspect. The trial judge should have excluded the second statement.

How did the appeal court judges respond to these complaints?

What a dirty trick! Officer should have told Campbell he was a suspect! No problem. The right to silence was adequately explained.

2018.10.20 Warrantless Safety Search of a Residence

 - The 911 Call

Someone called police from a pay phone. He said something like this:

"My dad is alone in my house. He's 80, and he speaks only Romanian. He just called me, and said he's afraid because he thinks intruders are trying to break in."

The caller named his father as Pavel Serban. The caller gave the address to the operator. When 911 operator asked for the caller's name, he hung up.

On the way to the residence, officers learned that previous tips asserted that marijuana grew in the residence.

When they arrived, nothing seemed amiss, except for the strong smell of marijuana and the sound of fans. Romeo Serban, 2018 BCCA 382 emerged from the house, and asked what was going on. He denied making any 911 call. An officer asked him for identification. Mr Serban invited the officer in while he fetched some identification. When the officer stepped in, he smelled a much richer odour of growing marijuana. The officer arrested Mr Serban. Several old Romanian people occupied the upper floor of the house. None could speak English. Nobody appeared in distress. Two people produced identification; but the last one could not. Was he Romeo Serban?

Could they search downstairs, to be certain that nobody was in danger?

They went down and looked. Instead of finding victims to rescue, they found a large-scale grow operation.

At the trial, the defence argued that the officers had no authority to search the basement.

The officers themselves conceded that when they saw the old people upstairs, they realized that probably the 911 call was false. A ruse. But they went downstairs just in case.

Csts Prihar and Shaw explained their reasoning very well. Read the decision for a quotation.

The duty to preserve life triggers when you have "reasonable suspicion" that life or limb is in danger. This duty trumps privacy rights.

An officer may hold still a reasonable suspicion of danger even when presented with more persuasive evidence that everyone is safe. Although peace reigned upstairs, and nothing appeared amiss, there was still a real possibility of harm downstairs. The 911 call raised a concern of violence. Grow operations make attractive targets for violence. Even though probably nobody was in danger, there remained a reasonable possibility that downstairs, an 80-year-old man was struggling to survive.

The judges all agreed with these officers: the possibility that an old guy was downstairs in terrible danger justified the search. It wasn't likely, but it was reasonably possible.

But good articulation in the court room only works if you turn your mind to the correct issues at the scene, and act on them.

These officers determined that their concern was life and safety. That was the only justification for searching the residence without a warrant. Even though they knew they had a grow operation to bust, they searched the basement only for people, not evidence. They did not stop along the way to photograph or seize exhibits.

Don't mess with this warrantless search power. Use it for its purpose - saving people. Don't invoke it as an excuse to search for evidence, because you'll look like a liar. On the other hand, if you have reason to suspect that someone needs saving, exercise that power. It's your duty.

Don't use this power to search a house if you have alternatives by which to determine that everyone is safe. The judges would have agreed if there were a practical alternative. But in this case, there wasn't one. The defence suggested that the officers could have questioned the occupants that they found. That was silly. Only one of the residents spoke English. And if the one who did speak English was an accomplice, questioning him would not assure the safety of the potential victim.

2018.10.17 Search & Seizure - Drafting ITOs in a team - Writing in the Third Person for the Affiant

Cst Dyck and Cst Chetwynd worked as a team investigating a grow operation at a residence belonging to Mr Beaumont, 2018 BCCA 342. Cst Chetwynd drafted the Information To Obtain the search warrant. Cst Dyck drafted summaries of his part of the investigation for Cst Chetwynd to include in the ITO.

To save re-drafting, Cst Dyck wrote his summaries in the third person, in paragraphs designed for Cst Chetwynd to copy and paste into the ITO. For example, Cst Dyck wrote his report using this language:

On February 22, 2013, I was advised by Cst. DYCK of the Royal Canadian Mounted Police, Kelowna Municipal Drug section, that he is a trained thermographer and utilized a thermal imaging device, also known as Forward Looking Infa Red (“FLIR”) while conducting an examination of [the appellant’s residence].

Defence were outraged. Cst Dyck's report was misleading!

"No it wasn't," the judges replied. Cst Chetwynd received Cst Dyck's paragraphs, read them, and included them in the ITO. The fact that Cst Dyck had drafted them for Cst Chetwynd to copy and paste was just fine.

As long as you read what you copy and paste, you can do this too.

As long as you read it.

Read it.

Really, I mean that. Read it.

In this case, Cst Dyck wrote a line of his own opinion:

"In my experience, a hot hydro box is typical with a higher than normal hydro consumption, causing the box to heat up."

Cst Chetwynd copied and pasted that part into the warrant, and failed to modify it so that it said "Cst Dyck informed me that in his experience, a hot hydro box..."

That was embarrassing. More than one of such errors could be embarrassing.

Read what you write, and make sure that it's true. Ask someone else to read it too.

If you write in the third person for the purpose of copying and pasting into an ITO, then you might make an annotation for the purposes of disclosure of what you did:

I, Cst Subaffiant, took the steps described below. I described my work in the third person so as to assist another officer in preparing a Information To Obtain.

2018.10.17 Welcome to Weed - Changes to Impaired Driving Investigation

As part of the Liberalization of marijuana, Parliament passed "Bill C-46" and associated regulations which changed the investigation and prosecution of driving offences. It comes into force in stages June 21, July 11 and December 18, 2018.

How does it change investigation of impaired driving?

New Offence

To start off, it added a type of offence.

Section 253 - the current "impaired driving" section - traditionally defined two driving / care or control offences:

1. Impaired by alcohol or a drug or a combination.
2. Exceed a specified concentration of alcohol in the blood (80mg%).

They're different. A judge can convict someone of driving while over 80mg% even if there's no evidence that the alcohol impairs their ability to drive. Likewise, a judge can convict someone of impaired driving even if they have less than 80mg% in their blood.

In June, Parliament created an offence of having too much drug in your blood. The judge doesn't have to find that it impaired the you, only that the concentration of the drug exceeded the legal limit. Except Parliament didn't publish the legal limits until July.

But marijuana is special. If the driver has between 2 and 5 ng/ml of Tetrahydrocannabinol (THC) in his or her blood, then it's a crime, but it has a lower penalty than regular impaired driving. If the driver has 5ng/ml or more of THC in his or her blood, then it's punishable by the same penalty as impaired driving or over 80mg% of alcohol.

And driving with a combination of 50mg% of alcohol and 2.5ng of THC in the blood also carries the same penalty as impaired driving.

Within 2 hours instead of time of driving

With drug concentrations, Parliament defined drugged driving differently than alcoholic driving. The alcohol offence is driving while having a blood-alcohol concentration (BAC) of 80mg%. The driver commits the drug offence if their blood contains the prohibited concentration of drug anytime in the 2 hours after driving.

There's a reason for that. Even if it takes more than 2 hours to test a driver's blood-alcohol concentration, there are simple calculations we can do to figure out how much alcohol was in the driver's blood at the time of driving.

Although the legislation always did require you to test for alcohol "as soon as practicable", if unavoidable events - like legal consultation - delay you past two hours, it's not a disaster. Even if we test the driver's BAC 4 hours after driving, we can calculate the blood-alcohol concentration at the time of driving.

Drugs don't work that way.

Calculating a person's blood-drug concentration at the time of driving isn't simple.

Therefore Parliament defined the offence in terms of the blood-drug concentration in the 2 hours after driving. (They added a defence for the innocent consumption after driving.)

That means if you're going to test blood for drugs, there is greater urgency to get it done no later than 2 hours after driving. It sounds simple, but it ain't.

The only people who can draw blood are medical doctors and qualified technicians.

That means after a blood demand you need to take the suspect to someone qualified to draw blood. And if the suspect wants legal advice you need to give the suspect access to counsel in private before anyone takes blood. It seems to me that you'll be arranging access to counsel by cell phone while the suspect sits in the back of your cruiser.

New Drug Screen Demand

How does an officer get that blood? By demands similar to breath demands.

As of July, at roadside you can, on reasonable suspicion that the driver has drugs or alcohol in their blood, demand pursuant to s.254:

• coordination tests (for alcohol or drugs)
• breath screen (for alcohol) using an approved screening device.
• drug screen (for drugs) using an approved drug screening device. (Currently s.254)

Even if you have no special Drug Recognition training, if you have reasonable grounds to believe that a driver is impaired by alcohol or drugs, or has more than 80mg%, or an illegal concentration of drug in their blood, then you can demand:

• (alcohol) under s.254(3) breath samples for analyzing BAC
• (alcohol) under s.254(3) blood samples for analyzing BAC, but only if the suspect is incapable of providing breath, or it's impracticable to get to a breath testing instrument.
• (drugs) under s.254(3.1) an evaluation by an "Evaluating Officer" (Drug Recognition Expert)
• (drugs or drugs and blood) under s.254(3.1) blood samples for analyzing drugs (including alcohol) (** new **)

If nobody did an alcohol screen, DREs can, after forming reasonable suspicion that a driver has alcohol in their body, demand the driver to blow into a screening device

DREs can, after forming reasonable grounds to believe that drugs or drugs and alcohol impair the driver, demand saliva, urine or blood.

Probably blood gives the most precise results, but DREs must consider how long it will take to get blood tested.

More changes on December 18, 2018

On December 18, 2018, all the section numbers will change. You need to update your cards.

On that day, the over 80mg% offence changes to match the drug offences. It will be a crime to have too much alcohol in your blood in the 2 hours after driving - unless you drank after driving, not expecting that a police officer would want to test your BAC.

Because of changes in the presumption sections, breath technicians will need new certificates which detail the results of blank and standard alcohol tests. If you're a breath technician, and you haven't seen the new certificates, start asking for them. In my view, you should be using them now.

Some changes will certainly generate constitutional litigation:

• Ordinary police officers doing ordinary traffic enforcement will be empowered to demand breath screens even without reasonable suspicion.
• Where legislation compels drivers to report accidents, police can use that information to form grounds for demands.
• Because the drug screening equipment isn't perfect, and gives false positives, defence will argue it's unconstitutional to use it.

Suggestions

How will all this change police work?

Demands and testing are more complicated, and for drug testing require more steps. Complication leads to error and litigation. Multiple steps take a long time to complete, and that may result in blood testing more than two hours after driving.

How does a practical officer respond to those complications?

It's good to know the technical steps. But don't forget to investigate impairment!

As a prosecutor handling one of these cases, I'd much rather present a video of a driver who can't walk or talk straight than get the following witnesses to say:

• First officer on scene formed suspicion on reasonable grounds that the driver had drugs in her body, and promptly demanded field sobriety tests
• The officer promptly conducted those tests
• The driver failed those field sobriety tests
• The officer formed the reasonable belief that the driver was impaired by drugs
• The officer correctly and promptly demanded a Drug Evaluation
• The suspect got sufficient access to legal advice
• A DRE evaluated the driver promptly and correctly
• A DRE formed reasonable grounds to believe that a drug impaired the driver.
• The DRE promptly demanded blood
• The officers took the driver promptly to a medical doctor or qualified technician, who took the blood promptly.
• Analysis discovered too much drug in the suspect's blood.

2018.10.14 Expert Reports - Drafting & Peer Review

Judges and lawyers worry about experts. When discussing their topic of expertise, they know more than everyone else in the court room. It's hard to for the rest of us to know when they're slanting their evidence for one side or the other. But if a lawyer can show that an expert is biased, then the court may reject or distrust the expert's opinion. One way lawyers search for bias is by examining earlier drafts of the expert's final report.

When Ms Natsis, 2018 ONCA 425 drove away from the bar, her car collided head-on with an oncoming vehicle. The other driver died. Police attended. Ms Natsis told them that the other car crossed the centre-line and came into her lane. It turned out to be a high-profile case.

An officer trained in reconstructing accidents noticed that marks on the road and certain damage to the vehicles suggested that Ms Natsis was to blame: her vehicle crossed into the oncoming lane before the collision.

That officer prepared a preliminary report, but wanted some technical data downloaded from one of the vehicles. He submitted his draft report to another expert, who noticed some errors but not others.  For example, the body of the report said that Ms Natsis' vehicle was on the wrong side of the road, but the conclusion said that she was in her own lane. They both missed that.

After making some changes, the expert destroyed the preliminary report.

The final report still contained the erroneous final opinion. It omitted key information, for example there were other marks on the road that the expert thought other vehicles placed before the accident. But if they occurred during the accident, then his opinion would be wrong.

Defence attacked from several angles: disclosure, bias and competence.

The judges agreed with defence that the draft report which the expert sent for peer review should have been preserved. Because the draft report was no longer available, Crown disclosed the expert's emails which showed what discussions the expert had with other experts. Those emails contained language that made the expert look biased against the defendant.

The judges agreed that there were reasons to suspect that the expert was biased. His emails contained, for example the following remark: "NATSIS may claim that [the deceased] was in her w.b. lane", and then discussed ways to rebut this claim.

On the question of bias, the judges agreed that the evidence exhibited indications of bias.

Defence attacked the quality of the expert evidence. The expert testified that Ms Natsis' vehicle was in the wrong lane, but the conclusion of his report said it wasn't. Worse still, the second expert who reviewed the report failed to notice this contradictory conclusion. If peer review never noticed that the report came to the wrong conclusion, then how good was the peer reviewer anyway?

Despite these mistakes, the trial judge admitted the expert report and convicted Ms Natsis of dangerous driving causing death and impaired driving causing death. The appeal judges upheld these conclusions.

Although this case discusses accident reconstruction, the principles apply generally. For experts of any kind, the trial decision and the appeal decision provide cautionary tales about what can go wrong:

• If you write many reports, the one that you do under the most pressure with the least time and resources is the one that will face the most scrutiny.
• Proof-reading differs from peer review: proof-reading is about getting the language right; peer review requires the second expert to apply his or her own expertise to the facts, and determine whether the first expert got to the right result. If a colleague asks you to review a report, carefully distinguish between proof-reading and peer review. The latter puts your credibility in issue.
• Drafts you submit for proof-reading probably don't need to be preserved and disclosed. Drafts you submit for peer review do.
• Bias or appearance of bias can harm your credibility. The emails you receive may urge you to reach a particular conclusion. The emails you send may use language that suggests you reached a conclusion before receiving all the evidence.

2018.10.10 General Warrant - Limits

Section 487.01 confers on a judge the power to authorize a wide variety of intrusions into privacy. But it's not a blanket authority.

Officers in Cornerbrook, Newfoundland applied for a creative new use for s.487.01. It didn't work. Let's look at why.

Someone committed an aggravated assault. For some reason (the decision doesn't say), this suspect wound up in a hospital. The officers believed he posed a great public danger. They wanted the hospital to alert them if it appeared that the suspect would be discharged.

They sought a general warrant which compelled the hospital staff to alert the officers in advance of the patient's release, and to update police about changes in his medical condition.

The judge refused to grant the warrant. In the matter of an application for a General Warrant pursuant to section 487.01 of the Criminal Code of Canada, R.S.C. 1985., 2018 CanLII 39387 (NL PC).

What seemed like a great idea falls apart when you actually read the section of the Criminal Code that defines general warrants. I added some relevant emphasis:

487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if

(a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;

(b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and

(c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

A general warrant authorizes peace officers to do things. But these officers asked the judge to command the hospital staff to do things. It was really a kind of ongoing production order. Maybe the officers should have added an assistance order. Even so, the warrant needed to identify things that it empowered the officers to do.

A general warrant can only be granted for the purpose of gathering information about a specific crime - even a crime that hasn't yet been committed. The decision does not recite what the officers said about future crimes. But this application was based upon a past crime. The proposed warrant would not gather information about that past crime. It would only help prevent a future crime.

The judge commented that there was no explanation why the police had not arrested the suspect. I speculated why not: Maybe his medical condition complicated the process of arresting him. Maybe Cornerbrook police lacked sufficient officers to post an officer at the hospital to guard the prisoner for however long it would take him to recover. If so, this was a creative solution to a practical problem. It failed because it didn't fit within the legislation.

Creativity is good. Sometimes, you can solve problems in new and efficient ways. But when being creative with legislation, read the legislation carefully first.

2018.10.08 Eyewitness identification - Photo Lineup for an Alternate Suspect

When a drug rip-off goes bad, and someone gets killed, police officers must work with unsavoury witnesses.

Someone shot Husam Degheim dead in the course of a marijuana sale. Did Shawn Vassel, 2018 ONCA 721 or David Grant pull the trigger?

Two of Degheim's associates who were with him believed they could identify the shooter. Police showed those guys photo lineups containing Mr Vassel's image. Neither picked him out. When shown a lineup which contained an image of one of the guys with the shooter, both picked out a guy named Agba, and said he was not the shooter, but was present. Mr Agba admitted being present, but denied pulling the trigger.

At trial, Mr Vassel testified that David Grant went on the drug rip-off expedition, not himself. His lawyers pointed out that  David Grant resembled Mr Vassel. The features of the shooter which the victim's associates described matched Mr Grant as much as Mr Vassel.  Defence argued that Degheim's associates had good memories for faces. They didn't pick out Mr Vassel's picture because the real shooter was Mr Grant.

This evidence didn't work at trial, but the appeal court ordered a retrial. Their decision relied in part upon the alternate suspect theory.

The judgment doesn't indicate whether the police considered Mr Grant as an alternate suspect during the course of the investigation. But I'll bet they now wish they had showed photo lineups containing Mr Grant to the victim's associates.

In identity cases, always investigate the alternate suspects.

2018.10.08 Computer Searches - Focus and Documentation

A police officer applied for a warrant to search a computer belonging to Mr John, 2018 ONCA 702 for child pornography. The officer promised that the technicians who searched it would "focus and minimize the scope" of the search, but warned that to do it properly, the technicians would "mirror" the computer's hard drive, and search all types of files. Child pornography can be hidden in innocent-looking documents.

The warrant asked to search for:

• Data relating to child pornography [footnote omitted] as defined by the Criminal Code.
• Data relating to the Gnutella 2 Peer to Peer Network.
• Data relating to use, ownership and access of the seized items.
• Data relating to the configuration of the seized items.

Smart work. The warrant targeted not just child pornography in the computer, but also evidence of who put it there.

The technicians found child pornography and evidence that linked Mr John to the computer at the times that the child pornography was sought or accessed.

Defence complained that the technicians snooped into too much data on the computer. Defence asserted that the application should have specified exactly what kind of searches the technicians were permitted to undertake.

The court rejected these arguments. The witnesses satisfied the judge that it's impossible to know before looking at the computer what searches will be needed to locate the data. But more importantly, the witnesses were able to recount for the judge the exact steps they took to locate the data, and why those steps were appropriate.

When applying for a warrant, consider carefully what to look for, like these folks did.

When executing the warrant, make sure you look only for the data you got permission to look for. Document each step, so that you can explain to the trial judge why that step was necessary.

2018.10.07 Suspending Access to Counsel pending Execution of a Warrant

Drug raids need planning.

When police arrested Mr Rover, 2018 ONCA 745, they prevented him from calling counsel until they executed a search warrant on his house. At trial, the officers explained that this was routine in cases like his. The Court of Appeal rejected their explanation, and Mr Rover beat the charges.

It started, as many drug investigations do, when an anonymous tipster described a black man dealing drugs from a particular residence. Police watched the residence for 5 hours, and saw a pattern of traffic come and go, consistent with drug dealing. Police arrested two women who came and went. The women admitted buying drugs from the house.

The officers arrested Mr Rover when he left the building at 10:41pm. They told he he could talk to a lawyer, but they gave him no access to a lawyer until after they got a search warrant and finished searching the building.

The trial judge said that the officers could have given Mr Rover access to counsel at 3:01am, when they first entered the building. There was no reason to delay his access until 4:20am, when the search completed.

Not only did the officers prevent Mr Rover from talking to a lawyer, they also prevented the two women from talking to a lawyer until after the search of the residence. And they didn't even tell Mr Rover why he couldn't talk to a lawyer.

The police explained at trial that they routinely delayed access to counsel in investigations of this sort.

Doherty J.A. roundly rejected this idea. Police may delay access to counsel only for reasons specific to the particular case, and not for a general possibility that in some cases, someone might destroy evidence before police arrive with the warrant. It bothered him that police did not choose to execute the search warrant before arresting the suspect. And he didn't like how the officers kept Mr Rover in the dark about his access to counsel.

If you're planning a raid, try to organize it so that key events - searching the place and granting access to counsel - occur in parallel, rather that one after the other.

If you fear destruction of evidence, identify the reasons, specific to this case, which underpin that fear. The person with the most information should make decisions about warrantless entry to preserve evidence or suspending access to counsel. That person will need to justify those decisions at trial. That person must identify reasons specific to the particular case.

If you suspend access to counsel, then your search team needs to assign a person to inform the officer holding the prisoner when to permit access to counsel.

PS: see also La, 2018 ONCA 830

2018.10.04 Arrest - Explaining why - Too many cooks spoil the broth - A s.10 trap

When you arrest someone, s.10(a) requires you to explain why. Once the prisoner knows why they lost their liberty, they can get advice from a lawyer about what to do.

In a rural community, Mr Lance, 2018 BCSC 1695 attacked a police officer. He and another officer pepper-sprayed him and hit him with a police baton, and eventually subdued him. The victim officer told him he was under arrest for assaulting a peace officer, but did not tell him that he caused bodily harm to the officer, nor that he was arrested for uttering threats.

Arranging access to a lawyer took some time because Mr Lance was drunk, the officers needed to get him medical treatment, and they had to move him to a larger centre. But he did get legal advice.

A different officer took over the investigation next morning. I think that was very wise. When someone assaults a peace officer, a different officer should investigate, so as to preserve the independence and objectivity of the investigation.

But introducing someone new to an arrest can create a problem.

The next morning, that officer told him he was under arrest for assaulting a peace officer and threatening, and tried to interview him. Mr Lance balked. He wanted more legal advice. The officer - thinking that Mr Lance had already got legal advice for this incident - did not let him. Then the officer got a confession from him.

The defence complained that the police had not told Mr Lance of his specific jeopardy - assaulting an officer causing bodily harm, and threats. Therefore, when Mr Lance first got legal advice, he lacked some of the information he needed. The interviewing officer should have given him a second opportunity to get legal advice.

The judge disagreed that the bodily harm part was a problem. You must give your prisoner a general idea of what he's under arrest for, but you don't need to identify the specific charges. But the judge agreed with defence that Mr Lance needed to know about the death threat allegation before he got legal advice.

Considering that the threats were part of the assault, I'm not sure I agree with the judge on the specifics of this case. But I do agree with her about the overall principle.

It's not enough that a prisoner speaks to a lawyer after an arrest. Someone needs to tell the prisoner all about the trouble he faces.

When one officer arrests a prisoner, and a different officer interviews him, the second one needs to be sure that the first one fully explained the prisoner's jeopardy before the prisoner exercised his right to counsel. If the jeopardy differs, then the second officer must explain it, and give the prisoner further access to counsel.

2018.09.30 Dial-a-Dope - Orders for Drugs after the Arrest

When you bust a dial-a-doper, his phone may ring. If you answer it, someone may order some drugs.

In R. v. Baldree, 2013 SCC 35, the court found that a single such call should not be admitted into evidence because it was hearsay. Why didn't the police investigate the caller, and have that person testify at the trial about how he or she knew that the defendant sold drugs?

A police officer answered that question when he testified in the trial of Mr Omar, 2018 ONCA 787.

The background was simple. Following up on a tip, police had followed Mr Omar drive to a bunch of drug hotspots. He stayed at each location for a short time. When they arrested him, he had four cellphones, $1,175 in cash, and crack cocaine in his underwear. And his phone kept ringing. Three or four people ordered drugs. No officer tried to interview the three or four customers.

Why not?

An officer explained that they tried in other cases, but none of the customers would cooperate. The trial judge said it was a "common sense reality" that such customers would not help police.

Where does that leave you?

Baldree suggests that if the phone rings once, and someone orders drugs, the court will pay no attention to that piece of evidence. Omar suggests that if it rings several times, then a court may pay attention to that evidence ... but but the judge may still require you to try to contact the callers for statements, or at least be able to explain why attempts to interview them would not likely produce evidence.

Baldree changed the law because it determined admissibility of those calls by recourse to the hearsay rules instead of treating it as circumstantial evidence. I've always had trouble with that decision. Omar nibbles at its edges.

2018.09.29 Arrest and Bail - Maximum of 24 hours to bring a prisoner to a Justice

At 7:30am, police officers arrested Mr Burroughs, 2018 ONCA 704 for a serious robbery. He wanted to talk to his lawyer, but it took till 10:30am to arrange access to counsel. In that jurisdiction, bail hearings could only be done at 1:00pm. Police started interviewing Mr Burroughs at 12:33pm, and didn't finish until 4:34pm. By then it was too late to get him before a justice. They had to wait until the next day - long after the 24-hour deadline required by s.503 of the Criminal Code.

At trial, Mr Burroughs asked the judge to stay proceedings. It didn't work, but it could have.

Beware of that deadline.

2018.08.26 Warrants - Drafting Your Application - Confidential Source's Criminal Record

In an application for a warrant or other judicial pre-authorization, the law requires you to summarize the investigation, but give full disclosure of the important things. "Keep it short but don't leave anything important out."

You can achieve this difficult balance of short-and-complete when you know what's important.

Obviously, you need to tell the judge or justice what evidence and information supports your application. But you must also disclose evidence and information in your possession that weakens it. You owe the judge or justice all the information, not just that which helps.

Confidential sources complicate the task. You need to reveal what's important, but you must also prepare to redact anything that would tend to identify the source. "Tell all, but reveal nothing." Another difficult balance.

Investigation and trial is a two-step process. The judge or justice who issues your warrant needs to see all the important information you have. The trial judge and the defence lawyer need to see as much as possible of your ITO, to understand why the first judge or justice issued your warrant.

When summarizing a confidential source's tip, what's important includes:

• what the tip said about the suspect or target
• whether the judge or justice can trust the tipster

Because of these difficult balances, Mr Szilagyi, 2018 ONCA 695 beat some drug charges.

A source told the police that Mr Szilagyi had a firearm and trafficked drugs. The ITO explained that the source:

"had no convictions for perjury or lying to the police",

but did not spell out what the tipster's criminal record contained.

The judges didn't like that language. Maybe the source had convictions for fraud or false pretences. Because the source provided the key information to justify the warrant, the issuing judge needed more information about the source in order to assess whether to rely on him/her.

Generally, the source's criminal record is important.

But if you describe every conviction in your ITO, won't that tend to identify the source?

There's another way. If the record is important, then reveal it to the issuing judge, and summarize the parts you can reveal:

Source A has a criminal record, which I attach and mark as appendix B to this ITO. That document tends to identify Source A. In order to honour the police agreement to withhold his/her identity, I ask that it be sealed, and not disclosed to anyone.

At trial, nobody can suggest you withheld negative information from the issuing judge or justice. Because you included the record, nobody can say you mislead the issuing judge or justice in any way.

But don't just rely on CPIC. Here in BC, I find that CPIC rarely lists all of the offender's criminal convictions. Look to other databases. In BC, that means JUSTIN.

The judges had another complaint about the ITO. It did not explain how the main source knew about the gun and the drugs. It recited the source's fairly detailed description of the gun. It repeated the source's assertion that the suspect dealt drugs. It did not say whether the source claimed s/he saw this, or heard about it on the street.

Suppose he said:

"I saw the gun on Wednesday morning at 9:15 when I asked him for an 8-ball from him. At that time Mr Szilagyi pointed a gun at my head and said 'you better pay your debts by the end of the day or else this gun spits the next ball into your head'. On the table he had about half a kilo of cocaine he was cutting. He said it was fresh from Colombia. I'd seen that gun before. It's a sawed-off shotgun with a black stock and a silver barrel."

Leaving this quote in your ITO would identify your source. Redacting it removes all information. Try creating a summary that the defence can see, and providing the quote for the issuing justice. If it does not endanger the source, something like this would make the judges happier:

"The tipster told me that he knew from personal observation and/or remarks that Mr Szilagyi made in the tipster's hearing that Mr Szilagyi possessed a sawed-off shotgun, and he had cocaine for sale. The tipster explained the exact circumstances under which he obtained this knowledge. S/he reported:'...'."

Of course, before disclosing to defence, you would redact the exact quote. The issuing justice sees all the information. The defence lawyer and the trial judge learn that the tipster claimed to have pretty good information and the ITO makes it explicit that the issuing justice got the full tip.

2018.08.25 Inventory Search - a Duty to Protect Property in Police Custody

"Where a vehicle is lawfully taken into police custody (in this case, pursuant to statutory authority) the police have the authority, if not the duty, to conduct an inventory search of its contents."

The night when Mr Russell, 2018 BCCA 330 drove his car back to Summerland, BC, his tail-lights weren't working. That caught the attention of a police officer. Mr Russell wasn't supposed to be in Summerland. Indeed this officer previously released him on his undertaking not to return.

When the officer pulled him over, Mr Russel stopped his car so that it straddled the fogline of the highway. Not a safe spot.

After arresting Mr Russell for breaching his undertaking, the officer considered the car. Because it posed a hazard to other drivers, the motor vehicle legislation empowered the officer to move the car or take it into his custody by having it towed. He chose the latter.

The officer then searched the car for property. He found a wallet and a laptop bag. Mr Russell told the officer to put them back. The officer didn't. Instead, he looked inside for valuables. He found drugs in the bag.

At Mr Russell's trial for the drugs, he complained that the law did not empower the officer to search his laptop bag:

• The officer agreed that he did not search incidental to arrest.
• Mr Russell told him not to search it.
• The office had no warrant.
• An inventory search should not permit an officer to look inside bags and containers.

The judges agreed that it was not a search incidental to arrest, but disagreed about looking inside the bag. The law permits officers to make an inventory of valuables when seizing property, so as to ensure that the owner gets his valuable stuff back afterwards.

Beware. If you're going to use this power, make sure you use it properly.

When an inventory search discovers contraband, defence lawyers are quick to suspect that police used the power for ulterior motives, and they complain of unlawful search.

If you have suspicious circumstances, but not reasonable grounds, your "inventory search" will be attacked.

Read this decision. You will see that the officer gave very clear reasons why this was an inventory search, and nothing else.

If you have suspicions, try to separate the inventory search from your dealings with the suspect. If you have backup, perhaps you should explicitly assign the task of towing the car and checking it for valuables to another member. Both of you should write down in your notebooks your respective roles in the investigation before any searching occurs.

Only according to its purpose and limits.

For example, s. 251(6) of the Motor Vehicle Act says:

(6) Personal property present in a motor vehicle that has been impounded under subsection (1) or section 215.46, other than personal property attached to or used in connection with the operation of the motor vehicle, must be returned to the owner on request.

The inventory search is to protect and preserve property. If Mr Russell had asked for his laptop bag, I don't think the officer could have searched it as part of the inventory search. (Of course, for officer safety, I think the officer might have been able to check it for weapons before putting it in the police car with Mr Russell.)

2018.08.25 Circumstantial Proof - Alternate Theories

In April, man walking his dog came across a woman's corpse lying in the flood plain of the Grand River in southeast Kitchener, Ontario. Her mother had reported her missing back in January. Although the autopsy could not determine the cause of death, police suspected that Mr Thomas, 2018 ONCA 694, her intimate partner, killed her.

They had good reason. She went on alcoholic binges. He suspected that she cheated on him. He beat her up often. He threatened to kill her and dump her body in the woods. She sometimes needed medical treatment. She told many people about his violence.

Police executed a search warrant on his residence. They watched him approach the residence. When he saw police cars around it, he turned and went the other way, instead of inquiring what was going on.

The last people to see the deceased also saw Mr Thomas with her. It was New Year's Eve. He and she went to a bar. She danced with another man. He confronted her, yelling. The bouncer made him leave. Later, he returned, and apologized. They hugged, and left together.

Mr Thomas told people several different versions of his last contact with the woman. He did say that the last time he ever saw her was that New Years' eve, at the bar. He claimed that they quarrelled and parted ways.

Police found traces of her blood in the passenger side of his car.

The Crown presented a circumstantial case of motive and opportunity.

The jury convicted Mr Thomas of murder. He appealed on technical grounds. The court of appeal upheld the conviction.

When I first read the decision, I noticed that the evidence pointed towards guilt. Then I noticed alternative explanations for major parts of the evidence:

• The blood stains could have come from some previous incident of violence, rather than a killing.
• The victim often left the defendant to go drinking. Maybe she met someone violent.
• The accused's odd conduct and contradictory explanations could have been because he was ashamed of his own non-lethal violence, and feared that police suspected him of killing her.

Then I noticed that the judges' decision did not discuss alternative theories and what evidence set those alternative theories to rest.

Perhaps the officers did try to find anyone else in the woman's life who had a reason to harm her. Perhaps the prosecutor presented evidence to the jury that those efforts failed. Perhaps the officers did try to find evidence that the woman expressed suicidal thoughts, and but found instead evidence that she had much to live for. Perhaps that part of the evidence was so boring that the Court of Appeal never mentioned it.

But the absence of discussion of these things made me think of echo chambers and tunnel vision.

Investigating alternate suspects and alternate explanations may be boring, but it matters. Failing to do so sometimes leads to disaster. Just ask Thomas Sophonow. But usually, the extra investigation makes the case stronger.

This principle applies to investigations large and small. After the woman alleges her partner attacked her, did you check to see if he suffered any injuries? If you suspect a guy of committing a B&E because you found his fingerprint at the scene, did you consider innocent explanations for how it got there? For example, if the print is on a pop can in the residence, maybe your suspect works at a corner store, and sold the can to the burglar. Or if the print is on a window outside the window, maybe your suspect worked as a window-washer, and left his print there.

Tunnel vision can happen to anyone. Just look at our American neighbours discussing Trump. Many are trapped in echo chambers that promote or denigrate their president. There are intelligent people on both sides who fail to consider the evidence from the opposing perspective.

How do you avoid tunnel vision? Here are some ideas:

• See if you can think of ways that the main suspect could be innocent, and still leave behind the evidence that you gathered.
• Try assigning a contrarian to find all the weakest parts of the investigation.

2018.08.23 Jurisdiction - Crossing Borders - Transporting Children for Sex

Warren Jeffs, the Prophet of the Fundamentalist Church of Jesus Christ of Latter-Day Saints,  directed James Oler, 2018 BCCA 323, a bishop of the sect, to bring Oler's under-age daughter from Bountiful, British Columbia to the USA, where Mr Jeffs, aged 48, would marry her to a man of Mr Jeff's choosing.

The next day, another man drove Mr Oler's wife and daughter just across the border to the USA, where Oler met them in a secluded park. From there, the group drove to Mesquite, Nevada, where Jeffs presided over a marriage of the girl to a man.

Section 273.3 of the Criminal Code made it an offence to transport a minor to another country so that acts will occur to the minor which would be a sex crime in Canada.

But section 6(2) of the Criminal Code prevents the court from convicting people for crimes that occur "outside Canada".

Could a Canadian court convict him? No evidence established that Mr Oler was in Canada when he received the direction from his prophet. No evidence established that Mr Oler was in Canada when he gave directions to his wife and daughter. Everything that could be proven against him occurred in the USA.

The judges held that they could convict him because there was a "real and substantial link between the offence charged and Canada". He must have communicated to his wife in Canada, and organized the removal of his Canadian daughter from her home in Canada. The transportation crime directly affected people in Canada - but hurt nobody in the USA. Even if he orchestrated it entirely from the USA, Canadian courts could take jurisdiction.

Why do you care? s.273.3 hardly ever comes up.

I'm not sayin' that Canadian courts assert jurisdiction over everyone who does something in another country that hurts Canadians. But section 6 isn't as simple as it appears. If part of the offence you're investigating occurs in another country, don't always shrug and say "Canada doesn't care". This decision reminds us that Canadian courts do care about some foreign activity that affects people in Canada.

2018.08.11 Warrants - ITO drafting - Conclusions and Judicial Duty to Inquire

I fell down a rabbit hole.

Ordinarily, I write about recent decisions. A paragraph in a recent decision caught my attention, and led me to Restaurant Le Clémenceau Inc. v. Drouin, [1987] 1 SCR 706. Judges sometimes refer to that case when rejecting "conclusory statements" in ITOs. Here's a loose translation of the ITO in question. Can you spot the "conclusory statements"?

1. As an official of the Ministère du Revenu du Québec, I conducted an investigation in the "Restaurant le Clémenceau Inc." concerning evasion of a meals and hotels business tax of Québec.
2. As a result of certain facts revealed by this investigation, I have reasonable grounds to believe and believe that "Restaurant le Clemenceau Inc." made false or misleading statements in a PR4 report for the month of August 1977 by failing to include in the said report an amount of $ 299.20 of tax collected, thus committing an offense under section 62 (a) of the Act respecting the Ministry of Revenue, RSQ, chapter M-31.
3. I also have reasonable grounds to believe that documents, books, records, papers or other things that may be used as evidence of an offense under a tax law or regulation made by the Government under such a law, are kept in the premises and outbuildings of "Restaurant le Clémenceau Inc." located at 649, boul, Laure, Sept-Iles, province of Quebec.

Except for paragraph 1, the whole ITO was a conclusion. The Supreme Court of Canada did not like it.

When you apply for a warrant, the judge or justice who receives your application must determine for him- or her-self whether there are good reasons for your belief that a crime occurred and the proposed search will recover evidence of it. How can the judge do that if the application does not explain the "certain facts" which led the applicant to believe that the crime occurred and that the evidence sought would be in the place to be searched?

To be clear, paragraphs 2 and 3 are not wrong. Indeed, they make a fair summary or introduction. But the ITO needs to explain the evidence or information the investigator gathered or received which led him to those beliefs.

But that's not why this decision caught my eye. The court said:

In order to perform his duty of supervision, the judge had to determine whether the facts on which the informant's belief was based were such that his belief was indeed reasonable. None of these facts are disclosed by the information. The judge then had a duty to ask for further information, which he elected not to do.

The issuing judge or justice has a "duty" to ask for more information when your ITO fails to spell it out.

For justices and judges, this leads toward a danger zone. If they advise you how to draft your application, then they compromise their independence. Gray 1993 CanLII 3369 (MB CA) and Gordon,1999 CanLII 18640 (MB CA)

But they can ask questions relevant to the exercise of their powers, Clark, 2015 BCCA 488. They ought to give reasons when they reject an application, so that if you apply again, the next judge or justice can know what went wrong in the first application. Duchcherer and Oakes, 2006 BCCA 171.

If they do ask you questions, disclose what they asked and what you answered in your report to Crown. If you do apply a second time, then disclose in your second application the fact that you previously applied and the reasons the first justice or judge gave for turning you down.

2018.08.06 Plain view, s.489(2) and "lawfully in a place" - photography during the seizure

Five days ago, I worried that photographing what you seize pursuant to s.489(2) might be seen as a "search". (See the next article.) Two days later, the Ontario Court of Appeal addressed that concern. I'm grateful.

A 15-year-old girl told police that her friend's father, Mr A.H., 2018 ONCA 677, lured her using Facebook. The interviewing officer saw Mr A.H. hurrying away from the police station, and worried that Mr A.H would destroy evidence. The investigator sent police officers attended to Mr A.H.'s residence to arrest him. They did so, at the door of his apartment. Mr A.H. "told the officers he needed to get his shoes, turned around and went back into the apartment. The officers followed him in. One accompanied him into his bedroom while the other stayed in the kitchen where he observed the open computer and the cell phone. He took a photograph of the screen of the computer, which showed an open Facebook page, which displayed the appellant’s email address and read: 'Your account has been deactivated'. The officer then seized both items." (para 28)

Mr A.H. argued that the officer needed a warrant to enter his house and seize the computer.

The court disagreed. Because the officers had already arrested him, they had him lawfully in custody. When he re-entered the residence, they could lawfully follow, to keep control over him and prevent him from destroying evidence. The power to seize under s.489(2)(b) does not include a power to search, but these officers did not "search". Photographing the thing and then seizing it was not a "search" but a "seizure".

2018.08.01 "Plain view" and s.489(2) of the Criminal Code

"He's in the house, drunk. There are lots of guns laying about in there. I'm scared for my safety, and the safety of the children."

That's what she told police when they responded to her 911 call regarding domestic violence. The attending police couldn't help but notice that Mr Warren, 2017 MBCA 106, the man she complained about, came out of the house a couple of times, agitated and belligerent.

The officers arrested him outside the house because they feared he would assault her.

One of the officers went into the house, with the complainant's sister, to check on the children. As soon as he went in the front door, he saw four unsecured firearms and ammunition in plain view. He seized them, and Mr Warren was charged with firearms offences.

At trial, Mr Warren convinced the trial judge that the officer should have secured the residence and got a search warrant. The judge agreed with the officer that he was entitled to enter the residence for the purpose of ensuring the safety of the children. But when the officer's purpose changed from protecting life to gathering evidence, he lost his authority to remain in the house. The trial judge felt that the common law "plain view" doctrine didn't apply, because it requires that you encounter the evidence "inadvertently". This officer knew, going in, that he would find guns.

The Court of Appeal disagreed. Section 489(2) of the Criminal Code authorized the search. It works similarly to the common law power of "plain view", but does not require "inadvertent" discovery of the evidence.

The officer lawfully seized the guns.

This scenario of domestic violence and guns in a residence arises often. But the details bedevil any effort to create a standard operating procedure. I see lots of mistakes, because general duty officers often work under too much pressure to assess all the principles which apply. Here is a list of the main ones:

1. A police officer can not enter a private residence without one of:
1. lawful authority or
2. consent of a person who as authority to give it
2. Reasonable suspicion that a person inside my in in danger of serious physical harm ("exigent circumstances") provides lawful authority to enter and put those fears to rest. However, you may not search for evidence when doing so.
3. Reasonable belief that evidence inside the residence may be lost or destroyed if you don't enter also provides authority to enter and search. However, you should minimize the intrusiveness of this entry. Generally, the best procedure is to freeze the scene, and get a warrant.
4. Section 117.02 and 117.04 authorize you to enter into the residence and seize the firearms where there are exigent circumstances. Generally speaking, by arresting the guy who poses the danger, you generally terminate the exigent circumstances.
5. If you do have consent or lawful authority to enter, then you can seize evidence that you notice while inside. 489(2) But you can't search for evidence unless you have lawful authority or consent from a person who can give you that permission.

Before you seize the gun pursuant to s.489, perhaps you should document carefully where you saw it. Careful! If you photograph too much, there's a good argument that you expanded the seizure into a search for evidence. If you don't photograph, then the defendant will allege that you could not have just seen the gun, because it was stored in a hidden spot.

2018.07.29 Impaired Drivers who crash - Right to Counsel

Ms Culotta, 2018 ONCA 665 aff'd 2018 SCC 57 didn't drive drunk. She operated a boat.

She and her friends were holidaying at the family cottage, on an island in Lake Muskoka. They attended a social event at a yacht club, where she drank.

At 2:00am, they headed home ... in the dark, with rain pouring down. Ms Culotta went fast. The boat hydro-planed.

There are hundreds of islands on Lake Muskoka. Her boat hit one of them. The crash injured her and her passengers. Help came. A boat took them to a marina, where ambulances met them at about 3:00am. A police officer attended.

The officer asked the less-injured women "who drove the boat?" Ms Culotta said "I was the driver".

The officer saw some ambiguous indicia of alcohol consumption: Ms Culotta slurred her words - but her face was injured. She had watery eyes - but she had been out in the rain, and crying. The officer arrested her for impaired operation of the boat. The judges found that his grounds were insufficient.

The officer did not tell her about her right to counsel because he did not want to interfere with the medical treatment that the ambulance attendants were giving her. Only after arriving at the hospital did he tell her she could get legal advice. When asked if she wanted to consult a lawyer, she answered:

“No, my parents should be here soon. We have a family lawyer.”

The hospital staff took extra samples of her blood, because they expected police would need them. The officer sealed the extra vials.

At 5:30 am, after Ms Culotta received treatment, the officer released her unconditionally, but explained she was still under investigation. He explained her legal rights to her. She declined another offer to get legal advice, and gave a statement. The officer did not have recording equipment, and so he simply wrote down questions, asked them, and wrote down her answers. When it was done, he asked her to review it, and sign it. She did.

The officer investigated further. He developed good grounds for a search warrant, and with it, he obtained medical records and blood samples from the hospital.

The hospital's tests showed that Ms Culotta's blood contained more than 80mg% of alcohol. So did the police analyses.

At trial, Ms Culotta's lawyer's arguments included:

1. The arrest breached her right not to be arbitrarily detained - s.9 of the Charter - because the officer lacked reasonable grounds.
2. Failing to tell Ms Culotta about her right to counsel before the hospital staff took blood samples violated her rights under s.10(b) of the Charter.
3. The investigating officer persuaded the hospital staff to take extra blood samples. That was a seizure. Sealing the extra vials of blood constituted a seizure of her private bodily fluids. Because the officer lacked grounds to believe that Ms Culotta committed an offence, this violated s.8 of the Charter.
4. The statement should not be admitted because it was not audio- and video-recorded.

Reasonable grounds

Vehicle crashes complicate the task of determining whether you have reasonable grounds to believe that alcohol or a drug impaired the suspect's ability to control the craft. Did booze, injury, or shock cause the suspect to slur their speech or stagger? Sometimes, you can examine the crash scene for clues that suggest that bad driving caused the crash. This officer couldn't. Sometimes passengers or rescuers can tell you about bad driving or other symptoms. The decision indicates none of that.

Serious vehicle crashes arise sufficiently infrequently that many officers don't know what to do. If you're not sure, I suggest that you read the demand quietly to yourself before reading it to the suspect. The demand language contains a checklist which covers most of what you need to know:

• identity - the suspect
• operation - drove a car or boat or flew a plane;
• impairment - at the time she drove, something so affected the suspect that she wasn't safe to drive. Despite the injuries after the crash, you need to figure out how drunk the driver was before the crash;
• by alcohol/drug - impairment from other causes don't count.
• when - To make a breath or blood demand, under the current legislation, you need to know that the driving occurred within the preceding 3 hours. After December 18, 2018, the legislation will drop those time limits. I think that you shouldn't make a demand if you don't think you'll get any evidence.
• confidence - To arrest or make a demand, you need evidence which leads you to think that probably a crime occurred. (The evidence does not need to convince you beyond a reasonable doubt of guilt, but mere suspicion that the driver was drunk doesn't cut it.)

Right to Counsel

All the judges agreed that the officer disobeyed s.10 of the Charter by failing to tell Ms Culotta about her right to counsel right away after the arrest. The judges (and the prosecutor) agreed that the police analysis of the extra blood samples should not be evidence in the trial. One judge felt that this breach of Ms Culotta's rights was so serious that the court should exclude all blood-analysis results.

The judges disagreed whether Ms Culotta's comment about her family's lawyer was a request for legal advice.

You can draw two things from this:

1. After a detention or arrest, you want to move quickly to telling the suspect about legal rights, if at all possible.
2. Some judges will find that quite ambiguous remarks are actually requests for legal advice. It doesn't matter what you think the prisoner meant, but what the judge thinks. Therefore, when you get an ambiguous remark, you would do well to clarify.

I noticed that the officer put Ms Culotta's health ahead of his investigation of her crime. I think he got those priorities correct. I suspect that the judges felt unsympathetic because he didn't get around to telling her about her rights for 45 minutes. The judges probably felt that the officer could have found the 20 seconds necessary to mention lawyers earlier than he did.

Extra blood samples

Don't ask medical people to gather evidence for you while they treat your prisoner, unless you have lawful authority to gather it yourself. This officer testified that he did not ask the technician to take extra samples. Nor should you.

Putting bits of tape over the hospital's vials and marking them with your initials for the purposes of continuity is not a seizure - if you give control over the vials back to the hospital. I don't know why this argument had any traction. R. v. LaChappelle, 2007 ONCA 655 at para 41.

Handwritten statement

None of the judges found that the investigating officer erred by handwriting Ms Culotta's statement - because the circumstances prevented him from recording it any other way.

But if you can video-record a suspect's statement, then do so.

If you can't, follow this officer's procedure. Write the questions. Write the answers. Ask the person to review the written statement to ensure that it is correct.

But hey! Don't you carry a smart phone on duty? Most phones - even the dumb ones - can record audio. Learn how to make your phone record audio - or even video.

2018.07.27 Informer Privilege

When someone offers you information on the condition that you not reveal their identity, it seems simple: you get information that will help you bust bad guys. It's not simple. Your obligation to protect their secret is a heavy burden, which you must carry even to your personal prejudice.

When police investigated "the Surrey Six" and their involvement in a high-profile murder, 80 people gave information to police on condition that police not reveal their identities.

Something went wrong. Sgt Brassington, 2018 SCC 37 (and several other officers) are now charged with breach of trust, fraud, obstruction of justice. Publication bans prevent disclosure of the details.

In order to make full answer and defence, these officers wanted to tell their own lawyers details about what they knew about the confidential sources. The lawyers (quite properly), asked the court if that would be okay.

Nope.

The Supreme Court of Canada required the officers to keep these secrets even from their own lawyers, unless they could show that disclosing the identities of the sources was necessary for the purpose of showing the innocence of the officers.

That's hard to do. I have not yet seen a case in which the defendant succeeded in showing it.

I doubt that any of you will find yourself in former Sgt Brassington's position. I sure hope not. But this case is relevant to any officer who receives information from a confidential source. The take-home message is: this stuff is messy and dangerous.

If you rarely handle such information, get advice and read your procedural manuals. If you often handle such information, review your procedures, read your procedural manuals, and seek advice.

Don't identify confidential sources unless you know you must.

2018.07.25 Arrest and Detention - Right to Counsel

A town north of Regina held a country music festival. Lots of people went. An experienced officer went there to help.

He caught Mr Knoblauch, 2018 SKCA 15 driving over .08.

The officer recorded in his report that after he explained the right to counsel, Mr Knoblauch declined to call a lawyer.

An in-car video camera recorded the event. It showed that the officer did explain the right to counsel, but never asked whether Mr Knoblauch wanted to call a lawyer. Mr Knoblauch never "declined".

The trial judge convicted Mr Knoblaugh. The appeal court found that by failing to ask the question, the officer breached Mr Knoblauch's rights under s.10 of the Charter.

The appeal court restored the conviction. The Charter imposes on you a duty to explain the right to counsel to a prisoner, and to facilitate the prisoner's access to counsel if the prisoner chooses to exercise the right. The Charter does not impose on you any duty to force the prisoner to choose.

But it's a really good idea to ask "Do you want to call a lawyer?" The answer helps show that the prisoner understands his or her right, and it shows the judge that you were actually interested in facilitating the prisoner's access to counsel - if that's what the prisoner wants.

The video recording proved that even an experienced police officer can make mistakes. How does one maintain the vigilance necessary to avoid making such errors? Fear of humiliation might help. I don't think this officer enjoyed discovering on the witness stand during cross-examination that his report asserted a fact which the video recording proved was false.

2018.07.24 Police investigative technique privilege

A "Stingray" (cell site simulator), helped police bust Mr Truax, 2018 ABQB 113. It assisted their judicially-preauthorized wiretap operation collect conversations that inculpated him.

At trial, Mr Truax sought technical details about the device. The trial judge ordered disclosure. Police objected on the basis of police investigative technique privilege. Basically, they argued:

"If we disclose how this device works, then the bad guys will build a device that detects or defeats it. That that will harm law enforcement efforts."

The superior court agreed with the police argument because the technique:

1. is used by police in their law enforcement functions,
2. is not publicly known, and
3. if disclosed may assist offenders to interfere with or defeat police investigative functions.

However, this privilege must yield to fair trial rights. If the defendant needs this information in order to ensure that his trial is fair, then the judge will order disclosure.

This device did not intercept conversations. It identified phones. The court found that the accused's right to a fair trial did not depend upon receiving information about how it worked. Mr Truax didn't get the disclosure he asked for.

2018.07.24 Execution of a Search Warrant - Empty House

When you execute a search warrant, s. 29 of the Criminal Code requires you to bring a copy along with you, if possible, and show it to people in the place, if they ask to see it.

Do you have to leave a copy of the warrant at the place when you're done? If the place was empty, and you got the warrant by telewarrant, then s.487.1(8) requires it.

What if you applied in person to a justice, you get a warrant, and you find the place empty when you execute it? No legislation says you need to leave a copy. Some would say it's just good practice, but the judge in Boekdrukker, 2018 ONSC 266 held that it's a legal requirement too.

When you execute a search warrant, and someone in the place demands to see the warrant, then s. 29 of the Criminal Code also requires you to show it to him or her.

Do you need to show it to the homeowner if you arrest her outside the house, before the search begins?

The same judge concluded that you do.

Because the officers in that case failed both requirements (and strip-searched her in a room which had no door), the judge excluded evidence of drug trafficking.

2018.07.24 Expectations of Privacy - Hallway in an Apartment Building

Hallway cameras in apartment buildings will usually require judicial pre-authorization.

Mr Batac, 2018 ONSC 546 complained that police video-recorded the hallway leading up to an apartment where police found lots of drugs. He asked the judge to exclude evidence because the video-recording violated his expectation of privacy.

He didn't own the property, but he did have a key. It was a large apartment building, which recently installed lots of surveillance cameras and electronic locks. Police didn't get a warrant to record who came and went from the apartment. When the door to his apartment opened, the camera could record activity as far as 10-12' into the apartment.

The trial judge agreed with Mr Batac: the police did violate his expectation of privacy. The judge did not say that all hallways in all apartment buildings enjoy an expectation of privacy. It depends upon all the circumstances.

If you want to use electronic equipment to watch such areas, you might want to read this decision and the decisions it refers to, to see what factors persuade judges whether people in the apartment enjoy a reasonable expectation of privacy in those areas.

Mr Sandhu, 2018 ABQB 112 complained of pretty much the same thing, for pretty much the same reasons. This camera did not view any of the interior of the apartment. None-the-less, the judge excluded evidence of the drugs found in the apartment in question.

2018.06.29 Three Ways to Identify the Felon - Recognition Evidence

Two men took a taxi to the Surrey Central Inn. Shortly after the taxi arrived, two men in masks robbed a clerk inside. Next, just outside, two men attempted to car-jack a car. Evidence suggested that the two men in the taxi were the robbers.

The big question was "whodunnit?"

At trial, the taxi driver and the victim of the car-jacking pointed at Mr Field, 2018 BCCA 253 in the dock and told the court that they recognized him as one of the two men in question.

The judge ignored the identification evidence from the two eyewitnesses. The judge knew that eyewitness identification of strangers often goes wrong. He had good reasons. The taxi driver meets way too many customers for these guys to make any real impression on his memory. The car-jacking victim saw two masked men, under highly stressful conditions, for only a short time. Both of these guys came into a court room and saw one prisoner in a dock. It was easy for these witnesses to believe that the guy that looks like a criminal was the criminal.

The in-court identifications didn't prove the case.

But there was more evidence.

A video-recording system inside the taxi captured images of the two men who went to Surrey Central Inn.

The trial judge compared Mr Field to the taxi security video. Although he probably noticed some resemblance, he also knew from other testimony that Mr Field's appearance changed between offence and trial. Therefore, he refused to rely on his own impression of the similarities between the robbers and the defendant.

Showing the video to the judge didn't prove the case.

But there was one more kind of evidence.

Early in the investigation, police suspected Mr Field. They sent pictures from the security video to probation officers who knew him, but they didn't say who they suspected. One probation officer recognized Mr Field. That probation officer forwarded the picture to another probation officer, again not naming Mr Field. The second probation officer also recognized him.

That persuaded the court beyond a reasonable doubt that Mr Field committed the robbery.

Mr Field's appeal failed.

The court noted the three ways to prove identity:

1. Eyewitness identification of a stranger.
2. Judge's comparison of the defendant to images of the offender.
3. Recognition by people who know the defendant.

The eyewitness identification would have been much stronger if the eyewitnesses picked Mr Field from a photo pack shortly after the offence. Showing a witness one person and asking "is this the man?" can have the effect of telling the eyewitness "this is the man." This kind of eyewitness identification formed part of many wrongful convictions. Judges don't trust it. As an investigator, you want to show eyewitnesses lots of faces to choose from, not one suspicious one.

If security cameras capture really clear pictures of the felon, then the judge can compare the defendant to the culprit. Beware. Some defendants change their appearance while in jail. To prevent that problem, take good pictures of your suspect, and supply them to Crown as part of your report.

As this case demonstrates, recognition evidence can prove the case, if you do it correctly. When you send images to the person who knows your suspect, don't supply the suspect's name. And ask that witness not to name the culprit to any other potential recognition witnesses.

As Steve Jobs used to say: and one more thing....

In some police reports, when describing video of the offence, officers will write a summary of what the video captured "the accused" or "the suspect" doing.

Sloppy thinking!

Security video captures "the culprit" or "the felon" or "the robber" or "the assailant" or "the exhibitionist" committing the crime. "The suspect" is the person you think did it. "The accused" is the person on trial. Don't mix 'em up. The big question in an identification case is whether they are the same person. Even if you believe that they are, use different words for "the felon" and "the suspect", to show that you understand the issue.

2018.06.16 Impaired Drivers - Serving Documents

Mr Fitzpatrick, 2017 CanLII 85809 (NL SC) drank too much to drive. Police busted him. After he blew into the instrument, the technician who analyzed his breath prepared a certificate which could be filed at trial, proving how much booze was in him at the time. The investigating officer served him with a copy of the breath technician's certificate ... or at least ... the officer thinks he did, based on his "usual practice".

Section 258(7) of the Criminal Code prohibits the court from accepting such a certificate "unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate."

The trial judge refused to accept the certificate because the officer didn't give sufficiently persuasive evidence that Mr Fitzpatrick received a copy. The appeal court agreed.

Routine events are easily forgotten. Some officers routinely swear an affidavit of service of the certificate. Doing so - or at least making notes of the event - may help you when such a case comes to trial.

2018.06.16 Youth Statements

After consuming ecstasy, 16-year-old N.B., 2018 ONCA 556 went for a walk with his cousin to a convenience store. He returned without his cousin, and got changed. He went to a friend's residence where he told everyone that his cousin was in trouble and needed help. Someone "told" him that his cousin had been attacked and dragged into "Lackie's Bush". He took some friends and relatives there, and found his cousin, dead. He freaked out, and hugged the body.

Police were called, and they attended.

N.B. pestered one of the officers for information, interfering with his efforts to investigate. The officer punched him and arrested him for causing a disturbance. A different officer took N.B. back to the police station for questioning about the death of his cousin. They put him in a locked interview room.

When they started a witness statement, N.B. asked if he was arrested. The officers told him he was arrested for breach of the peace, and he would be released. They knew that the cousin died, but they did not tell N.B., for fear of upsetting him.

N.B. gave conflicting statements about what happened. At first, he told police that he and his cousin split up at the convenience store. When the officers told him (falsely) that there was security video, N.B. changed his story. He said he went to Lackey's Bush with his cousin to smoke pot, and a group of guys attacked his cousin, and N.B. ran away.

The change of story led the officers to arrest him for murder. The trial judge convicted him, but on appeal he got a new trial.

Why? The officers didn't follow the requirements of s.146(2) of the Youth Criminal Justice Act. At no time prior to the interview did the police tell N.B.:

• he did not have to make a statement to the police as a witness;
• he was free to leave at any time;
• he could consult with a parent, adult, or counsel, and have any of these people present for the interview.

The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.

The appeal court made several main points.

• For such a statement to become evidence, the Crown must prove beyond a reasonable doubt that police did what that section requires.
• Three things trigger s.146: arrest, detention, or the investigating officer has reasonable grounds to believe that the young person committed an offence.
• "Detention" includes psychological detention. Even when the officer thinks the kid is free to go, the kid reasonably believes he isn't free by reason of what the police officers said and did.

The officer who punched N.B. was later convicted of assault causing bodily harm and obstruction of justice. Those events occurred in the execution of his duties on some other occasion, but his explanation of that event resembled his description of events with N.B.

What lessons emerge?

• Police officers need to keep calm when others aren't. I know that's easier said than done.
• In the chaos when you first arrive, everyone's a witness, and everyone could be the culprit.
• As suspects, young people get special treatment, whether you detain them or not.

2018.06.16 Statements & Corroboration - Exception to the Rule against Hearsay

General duty policing teaches young officers some bad habits.

In the daily rush from file to file, the duties of an officer who first responds to a call for service make it seem that an investigation ends when all the witnesses give statements.

When a suspect or an important witness reveals what happened, that's not the end of the investigation, but the beginning. The good investigator asks "What parts of these statements can further investigation confirm or refute?"

Corroboration matters.

Mr Larue, 2018 YKCA 9 and his girlfriend Christina didn't like Christina's previous boyfriend Gordon Seybold. Gordon Seybold died when fire consumed his grow-op. The forensic pathologist couldn't say what killed him - heart attack, fire or violence? But his blood on the business end of a baseball bat tended to suggest violence. Mr Larue's blood turned upon the handle of that same bat.

Christina found a great new job with an organization run by Mr Big's sister, Ms Big. She told Ms Big that she and Mr Larue killed Mr Seybold. Mr Larue fought with Seybold first. Then both of them hit Mr Seybold on the head with a baseball bat.

Mr Seybold also got involved in the organization. He told a similar story.

Mr Larue and his girlfriend underwent separate murder trials. At Mr Larue's trial, the girlfriend refused to testify. Could the Crown use the girlfriend's statement?

The trial judge said "yes". Then the Supreme Court of Canada gave its decision in Bradshaw, 2017 SCC 35. To admit hearsay statement of an accomplice, generally the courts will need corroboration of "material" parts of the accomplice's statement. Was there independent evidence that confirmed her assertion that Mr Larue participated in the assault?

Yup.

His DNA on the handle of the bat, and his admissions of involvement to Ms Big made the difference.

You only find corroboration if you look for it.

A uninterested investigator merely interviews witnesses. A biased investigator tries to find evidence which matches the complainant's version (and ignores anything that doesn't). An interested investigator makes a real effort to capture all the evidence, and ask the suspect what happened. A good investigator reviews what the witnesses and suspect said searches for evidence which confirms or rebuts their various versions.

That takes more time that general duty likes to give. Rarely does general duty teach young officers to become good investigators.

2018.06.16 DNA - secondary transfer

The remarkable sensitivity of forensic DNA testing becomes a curse to police.

When police officers examined the crime scene in Larue, 2018 YKCA 9, they seized some guns and a baseball bat. The officer who handled the exhibits did not change gloves. That opened the door for defence to argue that police transferred the suspect's DNA from one exhibit to another during exhibit processing. That mistake caused one judge to dismiss the value of a forensic discovery of Mr Larue's blood on the handle of the baseball bat that killed the victim. Other judges took a different view.

Have you recently checked your supply of disposable gloves?

2018.06.15 Entrapment - Confirming Tips about Dial-a-Dopers

A tipster gives you the phone number of a drug trafficker. You call it, arrange a purchase, and bust the guy. Simple.

Not so simple.

Your job as a police officer is to prevent crime, not encourage it. If you persuade someone to commit a crime that they would not otherwise have committed, then the courts call your behaviour an "abuse of process".

Except.

Where you have a real reason to suspect that a person, or place, or phone line is involved in the commission of crime, you may create an opportunity for someone to commit a crime, and then bust them if they do.

Doesn't the tip give you real reason to suspect a phone line?

It depends a bit on the quality of the tip, and the conversation you have with the person who answers when you make your call.

Separately, police got tips about Mr Williams and Mr Ahmad 2018 ONCA 534. Investigators did minimal investigation of the Williams tip, and no investigation of the Ahmad tip. The trial judge in Williams case found that the police entrapped him, and stayed the trafficking charge. The trial judge in Ahmad's case relied upon the conversation during the call to find that the police used the phone call to investigate the tip, found no entrapment, and convicted.

The loser in both cases appealed.

The Ontario Court of appeal analyzed what makes for entrapment in dial-a-dope cases. They found no entrapment in either case. But the judges disagreed on the analysis.

If you engage in such operations, you need to read this decision, because it highlights the ground rules.

After you get a tip, and before you make the call, consider investigating the tip:

• How recent is it?
• How credible is the informant?
• Do your information systems contain any information about the phone number or the suspect?

If, after that effort, all you have is a bare suspicion, you can still make the call, but you need to let the person who answers establish that there are drugs for sale.

Read the decision to see how that's done.

2018.06.14 Cupid's arrow in the Workplace - Stinchcombe and the Secret Affairs of the Heart

Police suspected Mr Biddle, 2018 ONCA 520 of three rapes committed in 1986. By 1987, he was convicted of all three. He successfully appealed two convictions: the Supreme Court of Canada ordered new trials. That process took so long that by the time the court ordered the new trials, one complainant didn't want to proceed again, and the other case was too weak to go on its own. The prosecution gave up.

Mr Biddle's third conviction depended upon the complainant's identification of Mr Biddle. That wasn't done very well. A police officer took her to a courthouse where he was appearing on his other matters, and asking her if she recognized him.

Not exactly a great lineup.

He lost the appeal on that conviction in 1993, but he never gave up fighting.

In 1999, the complainant and the officer who showed her Mr Biddle revealed that through the course of the investigation and prosecution, they fell in love. They married, and later, divorced. But they never revealed their blossoming relationship through the course of the prosecution.

Both swore up and down that the officer did not reveal information about the investigation to the complainant. But there are hints in the proceedings that he did. Those hints could have been used effectively by defence counsel to create doubt.

And so, 25 years later, the Ontario Court of Appeal ordered a new trial.

I can not imagine that it will proceed.

There are some tough lessons here.

Identification: It seems simple to show the suspect to the victim and ask "is this the culprit?" If the incident happened months before, you create a suggestive event which may cement a false identification. Even if the identification is correct, the evidence looks weak.

Disclosure: The defendant is entitled to know all information which may assist in the defence of the case. The existence of a romantic relationship between an investigator and a key witness is something defence needs to know.

In the early stages of a romance, the lovers rarely know where the relationship will go. It seems like a fragile flower - the chill of outside criticism might kill it like a late frost. It seemed offensive to these two new lovers that professional obligations should require disclosure of such a personal matter.

And yet the court ruled that they did. The professional obligations of a police officer intrude into personal life.

2018.06.03 Note-taking - Never enough

A police officer stopped Mr Lotfy's 2017 BCCA 418 pickup-truck because it speeding between Whistler and Vancouver. The cab stunk of air-fresheners, and the driver was nervous. A computer check indicated that other police officers arrested Mr Lotfy with a large quantity of marijuana a few months earlier. Then the officer smelled the smell of fresh marijuana. He arrested Mr Lotfy, and found lots of marijuana in the truck.

At trial, defence challenged the officer's grounds for arresting Mr Lotfy.

The officer wrote in his notebook only one of the things that made him think Mr Lotfy's truck contained marijuana: the odour. No note about the nervousness. No note about the air fresheners.

Defence attacked: if the officer didn't write a note about these things, then they may not have happened. Maybe the officer is making up observations after the fact to justify jumping to conclusions at roadside.

The attack failed: the officer could point to notes he made about these topics in the report to Crown Counsel. He wrote that within days of the incident.

But I bet he wishes he made more notes.

When your investigation moves from innocent interaction to search to discovery of contraband, what you observed at the beginning of the interaction makes all the difference. After the excitement of arrest and discovery, you need to take your mind back to the beginning, and record all the observations which led you to take action.

2018.06.02 Loose lips sink ships - Revealing evidence to Witnesses

On July 26, 2005, someone murdered Mauricio Castro. At trial, the Crown argued that it was a killing related to drug trafficking. One of the witnesses was Mr Khananisho.

Mr Khananisho told police that he put Mr Deleon and Mr Restrepo in touch with Mr Allen, 2018 ONCA 498.

On the witness stand he was pretty reluctant.

Years after the conviction, after a meeting with Mr Allen's girlfriend, Mr Khananisho recanted.

He claimed that the police told him enough detail about the killing that he could invent a story that matched. He said police told him to tell "the truth" (meaning their truth), or he would be charged with conspiracy to commit murder.

On the strength of this recantation, the defendants appealed a second time. Had Mr Khananisho been a more important witness at trial, or a more consistent witness on appeal, the court might have permitted a second appeal.

Several lessons for officers flow from this case:

• Avoid telling witnesses what other evidence you have before - or after - you take a statement.
• Keep a complete record of the conversations with important witnesses.
• Applying pressure on a witness to get a statement may backfire in the long run.

2018.05.26 "Person of Interest" - What does it mean?

At the morning briefing, four officers learned of a homicide that occurred the night before. They saw images from security video of people of interest. Although one officer thought he recognized someone, he did not identify that person at the briefing.

The four officers went to the crime scene to pick up more security video. On their way back they talked with two guys who looked like the people in the video.

Those two guys were later charged with murder. They asked the judge to exclude the evidence that those officers obtained during their conversation. They said that they were "detained", and did not receive information about access to counsel.

The four officers testified poorly. They did not make notes at the time. They reconstructed events. They contradicted each other.

All of them tried to assure the court that this was not a "detention" because the defendants were only "persons of interest", not suspects.

It didn't work.

The judgment is pretty clear: "Person of interest" isn't a magic phrase that turns a detention into an innocent encounter. (R. v. Jama, 2017 ONSC 470 at para 47). These officers were investigating a homicide. The judge found that these four officers stopped these two guys and talked to them for quite a while. The officers did not tell them why, nor did they offer an opportunity to get legal advice.

I think this case provides a good example how routine work can go wrong quickly, when done in a "routine" fashion. General duty officers, read and beware!

2018.05.24 One-party consent to prove Lack of Consent - Date Rape - Sexual Assault Invevstigation

Date rape allegations arise often. Proving them is hard because:

• There are usually only two witnesses - the complainant and the defendant
• The interaction begins with consent
• The defendant claims the consent continued

When an 18-year-old woman complained about Mr Colling, 2017 ABCA 286. She said that when she told him she didn't want to have intercourse right away, he told her he would wait 14 dates. Investigators encouraged her to call him in a recorded conversation, and discuss the incident. The conversation went like this:

Her:	I don’t know. I’m just . . . I don’t know. I’m kind’a upset. I said no. It has been bugging me. I said no. Why did you do it?
Him:	Yeah, there’s a difference between no, don’t and no, okay, go ahead.
Her:	I didn’t say no, okay, go ahead. I just said no, don’t. And you said we wouldn’t. You said we’d wait for the fourteen dates or whatever.
Him:	Yeah. So it happened. I wasn’t really thinking. It was in the moment. I’m sorry.

That proved pretty compelling at trial. Even though he said she consented, this recording persuaded the judge that she didn't.

The decision doesn't say much about the work that went into setting up this conversation. I infer from the phrase "lawfully intercepted telephone call" (para 82), that the police applied for an authorization to intercept ("wiretap") the conversation, based on her consent.

If she had recorded the conversation of her own accord, it would be admissible. s.184(2)(a) of the Criminal Code. But when police suggested that she make this call, they turned her into an agent of the state. When an agent of the state records a private telephone call, the state needs judicial pre-authorization. R. v. Duarte, [1990] 1 SCR 30. You get that if you ask a judge for it pursuant to s.184.2 of the Criminal Code.

This sort of evidence can a huge difference - if you can get it. Many "date-rape" complaints come from minors.

Getting consent from an adult to record her conversation with her rapist is one thing. But there are legal and ethical impediments to involving a minor in a criminal investigation. Don't embark on such an investigation without getting legal advice from your lawyer.

(The Supreme Court of Canada upheld the conviction. The legal arguments did not relate to 1-party consent.)

2018.05.21 Search of a Residence - Exigent Circumstances - Mental Health

Mr French, 2018 BCSC 825 possessed a restricted handgun, a prohibited assault rifle, a silencer for the handgun, and some prohibited magazines. Police found them in his apartment, but at trial, the judge excluded all the evidence. Why?

Police first attended Mr French's apartment in response to a 911 call that people broke into his apartment, and someone got punched in the face. Officers who attended discovered that there was a party next door; the neighbors were drunk. One of them explained that Mr French sent suicidal texts. A group of partiers broke into his house. Mr French punched one of them in the face. Another neighbor also told police that Mr French suffered from mental illness. A police database confirmed that at some time in the past, Mr French had been diagnosed with a mental illness.

Police asked Mr French to come out and talk with them. He did. Although sweating profusely, he denied feeling suicidal.

Police searched the residence for the safety of anyone who might be in it, and for officer safety.

The trial judge found that they lacked sufficient reason to go in:

• If they wanted to investigate Mr French's mental illness, they had him outside his residence. They didn't need to go in.
• if Mr French punched anyone, it was in response to an unwanted invasion of his home.
• there was no reason to believe anyone remained in the residence that needed police protection.

Efforts to justify the intrusion into his residence under s.117.02 or 117.04 foundered. The officers had no reason to believe that the residence contained guns, nor that Mr French's current condition endangered anyone.

The trial judge's decision highlights many common failings of police responses to ambiguous situations:

• Although the officers handcuffed Mr French, nobody told him why they detained him.
• The officers did not give him prompt access to counsel.
• Some officers took no notes at all.
• Some officers contradicted others in testimony.
• One officer correctly felt that they needed a warrant to enter. Another officer overruled him.

This situation became complicated. These officers made common mistakes.

I recommend that general duty officers and their supervisors read this decision. It's  a good decision to discuss and consider. Ask themselves: "How should I handle a similar situation if it came up?"

This decision does not give you answers for every possible situation that will arise. Your next mental health call differ from it. But the decision does help you identify when you should enter a residence to check on the safety of people inside, and when you shouldn't.

2018.05.21 Impaired Driving - Drugs

Mr Jackson, 2018 ONCA 460 fell asleep in his car with his foot on the brake pedal. He left the engine running and the transmission in drive. His vehicle was at an intersection.

Police officers tried to wake him up. It took considerable effort. When he woke, he couldn't put the transmission into park. Mr Jackson's car rolled forward and bumped into the police cruiser. When they got him out of his vehicle, he moved slowly, slurred his speech, and stood and walked unsteadily.

Drunk driver?

Nope. He consumed no alcohol.

But on the passenger seat were several bottles of prescription pills.

He told one of the officers that he had ingested Diazepam and Benzodiazepine, but had not consumed alcohol.

Lengthy delays in giving him access to counsel and conducting a DRE exam resulted in exclusion of significant evidence of his drug consumption. Even his remark about drug consumption was excluded because he had not received access to counsel before he made it. Defence pointed out that nobody tested the pills in the bottles to see if they matched the labels.

But the judge convicted him anyway.

Why? Because:

• the police officers at the scene observed many symptoms of intoxication.
• the police officers seized the pill bottles.
• an expert matched the symptoms observed at the scene to the effects of the prescribed medication.

If you delay access to counsel, or delay DRE exams, you won't always be so lucky. If you suspect impairment by medication, perhaps you should get the medication tested.

What led to this conviction was careful observation of the suspect's symptoms, and the match to an expert's description of the effects of the drugs.

If drug-impaired driving is on the rise, then you should get into the habit of making careful observation at roadside of all the symptoms and behaviours of the driver. And as time passes, continue observing and recording those symptoms. And interview the suspect after he gets access to counsel. The judge will generally not admit evidence of what he told you at roadside before access to counsel. Video cameras are your friends. Security video cameras in police detachments continuously create disclosable evidence.

2018.05.20 Impaired Driving - Screening Device & Mouth Alcohol

Is the possibility of mouth alcohol a detail which you must "eliminate" before you can rely a "fail" result from a screening device?

No. But you should go slow when mouth-alcohol is a real concern.

Three months ago, I wrote that some judges give the defendant some surprisingly favourable treatment relating to mouth-alcohol.

Judge Paciocco of the Ontario Court of Appeal brought some common sense back into this area of the law.

An officer stopped Mr Notaro, 2018 ONCA 449 at about 2:10. She smelled the odour of liquor in his car. Mr Notaro admitted drinking in a bar. The bar was 2-3 minutes' drive from their location. The officer suspected he had alcohol in his body, and demanded that he blow into a screening device. He did. At 2:18, it registered a fail.

She never turned her mind to the possibility that he drank just before leaving the bar, and that mouth alcohol affected the reliability of the result. She didn't think to ask what time he last drank. And at the trial, when defence challenged her, she agreed that it would have been prudent to ask that question.

At roadside, she made a breath demand. Mr Notaro went to the police station. There, analysis of his breath showed he was over the limit.

The trial judge convicted Mr Notaro because the possibility of mouth alcohol was just a mere possibility. The officer knew of nothing that raised it to a likelihood or a strong possibility that mouth-alcohol produced a false "fail".

The summary conviction appeal judge and the Court of Appeal agreed with the trial judge. They all agreed that an officer who screens breath should consider any information which suggests that the screening device would give an unreliable result. But they all agreed that you don't have to wait for mouth alcohol to dissipate unless you have a real reason to think that mouth alcohol is there.

The simplest way to solve that problem is by asking the driver.

You don't have any legal obligation to ask. If you do ask, the driver has no legal obligation to answer.

Section 254(2) also requires you to proceed with breath screening "as soon as practicable". No unnecessary waiting. But you should wait if there's evidence of a real risk of mouth alcohol affecting the result.

• If the driver holds a beer can in his hand when you first stop him, you should wait for mouth-alcohol to dissipate unless very compelling reasons lead you to believe that he didn't recently drink.
• If the driver just left a drinking establishment, and there is a yeasty fresh-from-the-tap smell of beer on his breath, then you should spend a little time investigating the recency of his drinking.
• If the driver just left a drinking establishment and there is an odour of liquor on his breath, then you should ask. But if you don't get answers, this decision says you may get on with screening the breath if you honestly believe that the screening result will be reliable.

Some of you always wait for mouth-alcohol to dissipate, even if you have no information suggesting recent consumption of liquor. That's a bad idea. S.254(2) requires you to test breath "as soon as practicable". You should wait only when the circumstances of the particular case suggest the screening would be unreliable if done immediately.

2018.05.07 Impaired Driving - What are the Units?

At roadside, Mr Charest, 2018 ONSC 1719 blew into a screening device. It registered a "fail". Mr Charest provided breath samples at the police station. That went badly for him too.

The investigating officer told the judge that the screening device he used registered a "fail" at .100 milligrams of alcohol per 100 millilitres of blood. If that were true, his screening device was 1000 times more sensitive than it should have been.

The officer got the units wrong. He meant:

• .1 grams of alcohol per 100 millilitres of blood; or
• .1 grams of alcohol per decilitre of blood; or
• 100 milligrams of alcohol per 100 millilitres of blood.

In s.253, Parliament chose the third way of expressing the lawful concentration.

The judges in this case convicted Mr Charest, because they figured they knew what the officer meant, despite what he said. As set out in the judgment, other officers have made similar mistakes, and other judges have not been so generous.

Units matter. Would you rather receive a milligram or a kilogram of gold?

Learn Parliament's way of expressing the concentrations of alcohol, and you won't look silly on the witness stand.

2018.04.23 Workplace Conduct of Police - Private or Public?

Sex is touchy. Especially in the chain of command.

The Chief Constable of the Victoria Police exchanged some racy Twitter messages with a police officer. It became public and turned into a disciplinary nightmare. He resigned. Elsner v. British Columbia (Police Complaint Commissioner), 2018 BCCA 147

Flirtation between married people isn't a problem - if they're married to each other. These two were married, but not to each other. The officer wasn't under the chief constable's command, but her husband was. The Chief Constable could - if so inclined - use that power to facilitate the affair.

People who carry heavy responsibilities, and who work under pressure need a time and place to laugh and develop camaraderie. That describes every police officer, even the most lowly. But people in positions of power fall into conflicts of interest very quickly when the jokes become intimate.

Part of being human is sexuality. We carry it with us everywhere. But where we work, freedom of expression comes with limits.

2018.04.08 Arrest and Interview - Explaining the Whole of the Investigation

You can't arrest someone for an offence unless you have reasonable grounds to believe that they did it. When you arrest a target, sometimes you have reason to suspect that they committed another offence too. What do you tell them?

Microsoft reported to the authorities that someone was storing child pornography on their servers. They provided the physical address of the account involved. Based on the complaint, police believed Mr. Watson, 2018 BCCA 74 possessed the images, and they suspected he might be distributing it.

The interviewers did several smart things.

1. Before giving him access to counsel, the investigator told him he was under arrest for possession of child pornography and under investigation for distributing it. Part way through the interview, Mr Watson asked to speak to the lawyer again. Because he had full information of the offences under investigation, his jeopardy never changed through the interview. Because his jeopardy never changed, he had no right to a further discussion with counsel.
2. Mr Watson told the police officer that the lawyer told him not to talk about the offences. The police officer told him words to the effect “that was fine” but he, the police officer, would continue talking. The judges saw nothing wrong with this response: it did not undermine the legal advice, it did not compel the suspect to speak, and yet the officer could continue to investigate.
3. The officer spent 4 hours talking with Mr Watson, and drew out of him all essential admissions:
• he was the owner and only user of the computer the police had seized,
• on the morning of the search he had been looking at pictures on a USB the police had found inserted into his computer desktop tower,
• he knew the images he collected were illegal but that he could not stop himself from looking at them,
• the only reason to keep such a collection was for sexual gratification.

Reading between the lines, I see some good police work:

• A fulsome s.10(a) explanation of the investigation forestalled problems later in the interview.
• Understanding the elements of the offence and the evidence required to establish them resulted in clever questioning.
• Persistence in the interview paid off, but only because the officer knew how to respect the right to silence and the right to legal advice.

2018.04.12 Exhibit Retention

How long after a brutal rape do you keep the exhibits?

It happened in 2001. After the rape, the victim underwent a "rape kit" exam. Police seized her clothing. They cut fabric out of the crotch of her jeans. The lab found a man's DNA in that fabric, but his profile didn't match anyone in the DNA database.

A year later, to make room in the exhibit storage area, the investigator directed that the clothing be returned to the victim, and the rape kit destroyed. In 2008, the DNA databank received a profile from Mr Garnot, 2018 BCCA 107, which matched.

At trial, he argued that destruction and return of the exhibits prevented retesting them for DNA, and that undermined the strength of the evidence. The trial judge agreed that this breached Mr Garnot's right to full answer and defence.

Mr Garnot asked the judges to stay the charges. They all disagreed. It wasn't necessary because the loss of the evidence hurt the case for the Crown plenty.

Don't think that the judges approved of the destruction of the evidence. This conviction was a near thing.

Most of the exhibits languishing in your exhibit storage system have little forensic value. Some of them matter deeply. The decision to destroy exhibits comes with a risk. Make that decision carefully.

2018.03.29 Reasonable Grounds - After the Arrest

An experienced drug cop doing surveillance on someone else noticed something weird happen in the back corner of a parking lot.

Two vehicles went to a deserted parking lot. The drivers moved two bins from one trunk to another. One guy passed the other a brick-shaped object in a clear plastic bag. The side of the "brick" looked like a $20 bill. Although CPIC checks of the licence plates came back clean, the officer was sure it was a drug transaction because:

1. two vehicles parked in a remote part of a parking lot;
2. no markers on the vehicles that might suggest that they were connected to a legitimate business;
3. bins of a kind that he had previously seen in clandestine chemical drug labs containing Class A CDSA precursors, being moved from one trunk to another;
4. labels ripped off of the bins, causing Sgt. Fuhrman to believe that the bins were not involved in what he described as a “legitimate” transaction;
5. a man emerging from a vehicle carrying a brick-like package in a plastic bag, looking similar to cash the officer himself had packaged for undercover drug deals in the past; and
6. a noticeable $20 bill showing through the plastic bag.

Defence attacked the reasonableness of his conclusions. Only because of the officer's extensive experience could he assemble these observations into a compelling collection.

But I found what happened next particularly interesting.

The officer arrested the men and seized the money ($14,000) and the bins. Inside the bins he found 220,000 pills he did not recognize. He still believed it was a drug transaction.

He released the two guys, and told them he would get the pills analyzed. If they turned out to be drugs, they'd be charged. If not, they could get their stuff back.

Defence argued that this showed uncertainty.

If the officer no longer believed that the bins contained contraband, then he should return them. But this officer was sure. And it turned out he was right.

Naturally, defence attacked his grounds for arrest. The court found that releasing the prisoners was a reasonable exercise of discretion, and did not occur because the officer doubted his conclusions, but because it was a reasonable exercise of discretion under the circumstances.

The conviction stuck on Mr Canary, 2018 ONCA 304.

2018.03.29 Drug Analysis Certificates

When you ask for a substance to be tested for drugs, have you carefully read the analyst's certificates which come back from the lab?

Mr Canary, 2018 ONCA 304 exchanged 220,000 pills for $14,000 cash in $20 bills. A toxicologist's certificate asserted that the pills contained steroids.

After trial, the defence argued that the court could not know how much steroid each pill contained: they could contain only trace amounts.

It's a clever argument, and identifies a flaw in scientific reporting.

A $50 or $100 bill can bear tiny traces of cocaine. Some chemical tests can detect those tiny traces. But ordinary people who possess such bills should not be convicted of possession of cocaine, even if those folks know about those tiny traces.

We should criminalize only the possession of such quantities of a drug that can be used to get people high.

The judges didn't buy the defence argument in this case ... but it seems to me that honest convictions should be based upon better evidence than "there's a bit of illegal drug in that sample you sent me".  How much drug are we talking about? A tiny trace, a hit that gets the user high, or a lethal quantity?

2018.03.24 Confidential Sources - It All Seems so Simple until it gets Complicated

When someone offers you information about criminals so long as you promise not to identify them, the deal seems simple ... until a little later when it gets complicated.

If you agree to such an arrangement, your deal binds you, all other police officers, and the Crown, not to reveal to anyone - even the informant's lawyer - that he is an informant.

Mr X made such a deal with officers of a Source Handling Unit in Alberta. (R v Named Person A, 2017 ABQB 552) Those guys kept their end of the bargain. They didn't even tell other officers about him.

Later, other police officers busted Mr X for a criminal offence. They asked Mr X to talk about the offence. He did. And he talked about being a confidential informant.

Clever.

If the prosecution discloses his statement to his defence lawyer, then the prosecution violates the deal. That would be a gross breach of their duty, and a significant violation of Mr X's privacy. The judge should stay the charges. If the prosecution fails to disclose the statement to defence counsel, then the prosecution violates Mr X's right to full disclosure. Again, the court may stay the charges.

It's a get-out-of-prosecution-free card.

Too clever.

The prosecutors applied to court for a solution. They suggested that Mr X's criminal defence lawyer can automatically be told about the privilege.

The judge said "no": sometimes, the same lawyer will defend a source and the guy he ratted out.

Instead, the Crown may apply to a judge for a hearing at which the defendant/informant may tell the court whether he wants his lawyer to know about his status, and the prosecution may seek direction on how to disclose the investigative materials.

In this case, Mr X wanted his lawyer to have full disclosure. That judge's decision was relatively easy. I'm not sure how a court will solve this when the source says he does not want his lawyer on the criminal trial to know that he is a confidential informant.

Sources are more complicated than it seemed when you first met them.

2018.03.20 Interviewing Children - Instructions and Promises

Adults find children make challenging witnesses. Understanding what works with children helps you interview them better.

Today, I read this research paper which identified several interesting patterns among children aged 4-9:

1. Asking the older children to promise to tell the truth tends to elicit more accurate evidence, but only when they're old enough to understand what a promise is.
2. Asking the children yes-no questions about the offence tends to elicit more information, but at the risk of eliciting more false allegations.
3. The way to elicit the most true allegations - without eliciting false ones - is to tell the child that the suspect has already told the interviewer everything that happened, and wants the child to tell the truth.

The third technique raises interesting issues. Suppose Mommy says Daddy sexually abuses their child. You really want the truth. Can you tell the child, "Your daddy has told me everything that happened, and he wants you to tell me the truth about it too"?

Suppose he never said anything of the sort. When the parents are betraying each other, is it ethical for a police officer to lie to their child?

Suppose Daddy comes in for a full interview, and denies ever doing anything to his precious daughter. Suppose he tells you that he wants to do everything in his power to prove his innocence. According to this research, you might give Daddy a script to read to a video-recorder:

"Tina: I talked with Constable Careful. I trust her, and you should too. I told her everything that happened, and I want you to tell her the truth too."

You play the video for the child at the start of the interview, and then (if the child is old enough) ask the child to promise to tell the truth. Then interview the child about the allegations.

According to this research, if there are sordid secrets, this would be a better way to start the interview with the child.

Don't take this one research paper as gospel. It reviews past work, and then describes one experiment involving 217 children. It is not definitive, and may even be wrong. But it gave me ideas about how you might interview children.

2018.03.19 Continuity - Paperwork or Essential Evidence?

She said she got drunk. She said she was raped. She didn't know who did it. Forensic examination of her underwear produced profiles that seemed to match Mr J.S., 2018 ONCA 39.

Mr J.S. testified that he had been biting his nails. He heard the complainant crying out, and went to help her. According to him and his girlfriend, he picked up the complainant's underwear after the incident, and gave it to her. And that must be how his DNA got onto her underwear.

The "match" was not very precise - there was very little DNA to work with. The Crown's case worked partly by process of elimination - the other guys in the house either didn't touch the underwear, or their DNA could be excluded.

Therefore, strict continuity of the underwear, from the time of the offence to the testing actually mattered.

Because DNA transfer can happen innocently, continuity really matters.

Continuity of the exhibit starts at the time of the offence and ends when court proceedings are over. Documenting your handling of exhibits is only part of the story. Often, you seize exhibits after other people had opportunities to touch them (ambulance and firefighting personnel are notorious for this). When you interview witnesses, you don't know what the lab will detect. When the lab finally reports its findings, re-interviewing witnesses about the exhibits may come too late for them to remember with clarity.

Therefore, not only should you track what you did with each exhibit you seize, but you should consider asking each witness what they and the suspect handled before and after the crime.

The jury convicted Mr J.S.. The court ordered a retrial. His girlfriend will doubtless give the same testimony at the next trial. We'll never know what she would have said if asked about this underwear when police first investigated.

2018.03.09 Expert Testimony - Fingerprint Comparison - Articulating Evidence

On important issues, Judges don't like to be told: "just trust me, the answer is X".

If the question is "Was the driver's ability to operate a motor vehicle impaired by alcohol?", the judge wants you to explain more than a strong smell of booze about the driver. The judge wants you to explain why you thought that the driver couldn't drive a car safely. An odour of liquor doesn't cause a person steer badly, but coordination problems do. Bloodshot eyes don't cause collisions, but delayed reaction times can. You can link such observations together, to explain a conclusion: "The odour of liquor and bloodshot eyes made me think that the driver drank a lot of alcohol. His lack of coordination when locating his driver's licence made me concerned he might not be able to steer accurately. His slow, drowsy responses to my questions made me think he would not brake quickly in response to a sudden danger. Because these observations suggested he drank a lot and could not safely operate a car, I thought alcohol impaired his ability to drive."

It's the same when explaining expert testimony. You need to go beyond "just trust me". You need to show the judge why you reached your conclusion.

A fingerprint examiner told the court that a palm print on a plastic bag matched a palm print from Mr Campbell, 2018 ONCA 205. That plastic bag tied Mr Campbell to a loaded sawed-off shotgun in his residence. Mr Campbell's counsel attacked the fingerprint examiner's opinion.

There were similarities between the known print and the print from the bag. There were differences too. A single significant difference in ridge features would result in Mr Campbell's acquittal. The defence lawyer urged the court to find that the differences between the print established that they were made by different hands. But the expert carefully explained why he thought that the differences did not come from a different hand touching the bag. For example, he explained away a difference from the known print by observing that the plastic bag was "crinkly" in that spot, and left a different line than the known print. After explaining the differences, he pointed to the similarities and concluded that there was a match.

Fingerprint examiners may find the testimony of the other expert in this case interesting.

Explaining your inferences differs from explaining your observations. I suggest that you break down your explanation into little steps, and blame the evidence for each inference. Here's my formula for articulation:

Repeat often: "<<observation>> made me think <<minor conclusion>>."

Finally: "Because  <<minor conclusion>> + <<minor conclusion>> + <<minor conclusion>>, I thought <<major conclusion>>."

2018.03.07 Nomenclature - "Suspects" and "Culprits"

When we don't think clearly enough, we use the wrong word to describe the right idea. Everyone does it once in a while. But clarity of thought helps clarity of language, and vice versa.

When applying for a warrant to search the residence of Mr Stewart, 2018 BCCA 76, the officer who drafted it described what eyewitnesses said about a targeted killing. One of the "suspects" was taller and the other "suspect" was shorter. (para 62)

Wrong.

A "suspect" is a person whose identity you know, and who you have reason to think may have committed the crime.

A "culprit" (or "felon", "rapist", "killer", "offender" or "thief") is the person who actually did the crime.

The more strongly you believe that the "suspect" is the "culprit", the more likely you are to forget that identity of the culprit is the very question you are investigating. If you use the wrong words, you'll never notice when you've developed tunnel vision.

Choosing the right word helps you think clearly about what you're investigating.

If you think I'm being pedantic, I sympathize. Like you, I once thought that such precision was unimportant. There was a time I used "suspect" and "culprit" interchangeably. I was wrong. Experience and a lot of research taught me to express myself more accurately.

The sloppy thinking became an issue at trial and on appeal. That's something you'd like to avoid.

2018.03.07 Experiments - Test Drives

When you have information about where the prime suspect was shortly before or after the offence, then you can test whether the suspect could travel between known location and offence location.

Mr Jones was living in a half-way house. One day, after Mr Jones signed out of his half-way house, two men shot Mr Soomel dead just outside another half-way house. Twenty minutes later, Mr Jones signed in at his half-way house. Did he and Mr Stewart, 2018 BCCA 76 pull the triggers?

Police drove the route between the two half-way houses twice: once in the early afternoon, and again at mid-morning. The two trips took 12.5 and 14 minutes - easily within the 20-minute time-frame.

Defence attacked this evidence:

• The officers did their test driving at the wrong time of day. The killings happened at 10:00pm. Therefore, the officers did not drive the route in the same traffic as the killers would have driven.
• The officers did not investigate road conditions for the night of the murder. Was there any road construction or traffic jams on the night of the killing? Nobody could know whether the test drives really measured the driving time on the night of the killing.

The appeal court did not find these arguments compelling enough to undermine the jury's guilty verdict. But these complaints should make you think about how you should go about test-driving routes in similar situations. Make the experiment as similar as you can to the event you're investigating.

2018.03.07 Search & Seizure - Examination of Electronic Devices

If you ask a judge for permission to search an electronic device like a phone or a computer for all evidence it contains, the judge should generally refuse your request. Unless you can establish that all the data in it is likely relevant, such a request is over-broad.

Beware also of requesting too little.

If you ask a judge for permission to search the device for only a certain kind of evidence, then that's all you can look for. If you only search for text messages between William and Mary, then you can not look at text messages from Edward. If you ask only to look for child pornography, then that's all you can search for.

Last week's decision in the case of Dan Akenna, 2018 ONCA 212 illustrates how probative a broader search can be.

Police found child pornography on his computer system. He claimed he did not put it there. Forensic analysts looked for more than child pornography, and found some good evidence:

• The registered owner of the Windows operating system on the computer was “dan”. The user enters that information when he or she installs the operating system.
• The user account only showed one active user registered on the computer and that account was in the name of “dan”.
• The profile “dan” was the only active user on the hard drive where the child pornography was found, in an encrypted folder.
• The encrypted folder was password-protected. The password required to access the encrypted folder was the same password that was required to log into Windows on the profile “dan”.
• The child pornography videos were downloaded to a separate hard drive from the one on which the peer-to-peer file sharing programs were downloaded.
• Non-criminal usage of the computer by someone using an account "dan.akenna" immediately preceded the installation of peer-to-peer file-sharing programs.
• In the hours that followed, the file-sharing programs downloaded the child pornography. While that was going on, the user logged onto an email account that used Dan Akenna's name, address and postal code.
• The search history on the computer in the days leading up to the downloading of the child pornography was consistent with the search history during the time the child pornography was downloading. Similar searches were also conducted the day after the child pornography was downloaded.

Despite other flaws in the trial, Mr Akenna was convicted, and after appeal, stayed convicted.

Key ideas you should draw from this are:

1. Even if the suspect owns or possesses the electronic device at the time of arrest, that does not prove that the suspect used the electronic device at the time of the damning evidence. That goes for drug dealers, robbers and killers as much as child pornographers.
2. You want to search for more than the child pornography, or the communications which made the deal or planned the heist.
3. You want to search for non-criminal evidence which establishes who used the device before, during and after the criminal evidence.
4. To do such a search lawfully, you need to get a judge to permit you to search for these kinds of non-criminal data. That requires some explaining in your ITO.

2018.03.05 Voluntariness - Promises or Threats

When persuading a suspect to speak, if you make explicit promises or threats, you will render the statement you get inadmissible. For example:

"Johnny, tell me what happened, and I'll put a good word in for you with the prosecutor."

"Johnny, if you don't tell me what happened, I'll make sure the judge knows you're a cold-hearted killer."

But implicit threats have the same effect.

Mr Wabason, 2018 ONCA 187 participated in a home invasion, during which one of the robbers stabbed a man to death.

The officer that interviewed Mr Wabason repeatedly told him he did not think that Mr Wabason stabbed anyone, but that the appellant should not take the blame for something he did not do. But unless he spoke up immediately, he would “go down” for first degree murder. At first, Mr Wabason insisted on silence, but eventually broke down and told his story.

That story helped convict him of manslaughter.

The officer didn't purport make any deal with Mr Wabason, but the themes he developed contained both a promise and a threat. Out goes the evidence.

When talking with the suspect about the offence, avoid discussion of the court consequences of conviction, and especially avoid discussing the legal pros and cons of confessing. It's okay to talk about how "people" will think of a guy who "mans up", but not okay to talk about how the judge would feel.

2018.02.22 Right to Counsel - Eliciting Information after Arrest or Detention

Back in September, I wrote about Mr G.T.D., 2017 ABCA 274. This week, the Supreme Court of Canada unanimously affirmed the main point of that case. I'll repeat what I wrote, and add some comments.

What can you say to a suspect after the arrest but before you give him access to the lawyer from whom he wanted advice?
 
For good - but now historical - reasons, the standard police warning used in parts of Alberta contained this language:

You may be charged with <offences>. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

When an officer arrested Mr G.T.D., 2017 ABCA 274 for sexual assault, the officer dutifully advised him of his right to counsel. Yes, Mr GTD wanted legal advice. Next, the officer recited that warning.
 
Mr GTD responded that he "did not think it was rape", because he and the complainant had a prior relationship.
 
That comment hurt him at trial.  He appealed. He complained that the officer asked him to talk about the offence before he got a chance to get the legal advice he required. That violates his right under s.10(b) to legal advice without delay.
 
All three judges of the Alberta Court of Appeal agreed. So have all 5 of the judges of the Supreme Court of Canada.
 
The history behind the Albertan card is interesting. Long before the Charter, judges recommended that police ask the suspect if he had anything to say, just in case the accused had something exculpatory to say about the offence, like "no no, I wasn't there. You need to talk to my twin brother Harold" or "Sleasy Simon lent me this car. I didn't know it was stolen."
 
That was then, this is now.
 
Right after you arrest someone, avoiding discussion about the offence is like not discussing the rhinoceros in the room. It's hard to find some other subject of conversation.  After arresting a person for a crime, many an officer has asked "why did you do it?"

If the suspect wants legal advice, that's a bad idea.
 
Lots of people want to start talking about the crime. But if the suspect wants legal advice first, then the police officer can't ask about the crime until after the suspect gets legal advice.
 
Opinions vary whether you need to shut down a guy who just keeps talking on his own.  Some argue: if you didn't ask him questions, then you didn't breach his rights. Others say: to show the judge how fairly you treat the suspect, you should stop him from talking about the offence until after he gets legal rights.
 
I think both answers have merit. To help you decide which choice is the better one, you might appreciate knowing how this case turned out. Two of three judges of the Alberta Court of Appeal thought that the officer's question wasn't a terribly serious breach, and they said the remark was admissible. All five of the Supreme Court of Canada judges felt the question was a serious breach, and excluded the remark.

I suggest that you choose your path depending upon how vulnerable the suspect is. If she's a seasoned offender with lots of experience with cops, let her talk if she wants to. If he's a rookie, or suffering a mental disability, or drunk, maybe remind the suspect that he needn't say anything before getting legal advice. Whichever you do, take abundant notes (or audiorecord) what the two of you said.

2018.02.18 Impaired driving - Screening Devices - One for the Road

Mr Schlechter, 2017 SKQB 189 drank too much to drive. A police officer caught him as he drove away from the bar, but he beat the charge. What went wrong?

When first speaking with Mr Schlechter, the officer observed symptoms suggesting alcohol impairment. Rather that jump to a demand for analysis of breath, the officer decided to make a screening demand. Where the symptoms aren't overwhelming, this is a prudent course of action.

Before screening Mr Schechter's breath, officer didn't ask when Mr Schlechter had his last drink (or if he did ask, he didn't record the answer). Mr Schlechter blew a fail. The court saw that as a problem: if Mr Schlechter had a recent drink, then mouth alcohol could cause the screening device to "fail" even if Mr Schlechter had a legal quantity of alcohol in his body.

I have long felt this is a silly concern. The purpose of the screening device is not to prove guilt but to separate the plainly innocent from the probably guilty. I think if the driver was foolish enough to drink just before driving, then the driver deserves a trip to the police station to measure his blood-alcohol concentration. The Supreme Court of Canada seemed to take this approach in 1995. (Bernshaw at para 38.) The mere possibility that he may have had a recent drink doesn't matter, but if it's probable that mouth-alcohol will affect the screening device, then you should wait a bit before using it.

Subsequent courts have been more generous to drunk drivers. If the suspect just emerged from a place of drinking, many judges feel that the officer who makes a screening demand must take steps to eliminate any possibility of a recent drink before screening the driver's breath.

This arises from the individual nature of litigation. Each drunk driver who emerges from a bar will say that the officer who demands a breath screen must satisfy him or herself first that the drunk did not recently drink, otherwise the officer will violate his s.8 right not to have his breath tested without reasonable grounds.

But screening devices must be operated "as soon as practicable". You must not waste your time investigating irrelevancies, lest you violate the s.9 right of the driver not to be delayed without reason.

Therefore, ask the question early "when did you have your last drink". Write down the answer.

In this case, after blowing a "fail", the driver told the officer that he had a drink 5 minutes before the test. The officer ignored that information. He should have re-tested the suspect's breath once the mouth-alcohol dissipated.

2018.02.17 Investigative Techniques

After a robbery, the felon dumped his jacket and some gloves near the scene.

Police found DNA from Mr Goulbourne, 2018 ONCA 153 on the jacket.

Case closed? No way. They found DNA from some other dude on it too.

Police found his DNA on the gloves.

Case closed? Well, that makes it much stronger.

These investigators located a book-in photograph which showed Mr Goulbourne wearing a jacket that matched the one from the scene.

Ahh. That's better.

Many investigators stop looking when the evidence satisfies them of the guilt of the accused. The test is higher than that. Keep looking. An investigation is complete when you have canvassed all available sources of evidence. A good investigator thinks of more sources of evidence.

2018.02.17 Trespass and Reasonable Expectations of Privacy

Is it okay to step into someone's back yard to have a chat with people lounging there?

Mr Le, 2018 ONCA 56 visited the residence with the bad reputation, in a rough part of town.

Some police officers patrolling the area walked down a path that led behind the fenced back yards of the neighboring properties. The path ended at a gap in the fence that opened into the back yard of that residence. It was a low fence. They found Mr Le socializing with the resident and others.

Two officer stepped onto the property, and started asking questions. Mr Le acted suspiciously, and when the police asked him what he carried in his bag, he fled. It turned out to be drugs, cash and a loaded handgun.

But did the police violate his Charter rights?

Because the officers lacked both judicial authority (ie a warrant) and consent from a resident, Mr Le complained that the police breached his expectations of privacy. The trial judge and two Court of Appeal judges rejected that complaint: it wasn't his back yard, therefore the police didn't violate his privacy.

If the police found the gun on the resident, it might have been a different story.

The third judge found it offensive that police walked onto the property without lawful authority. He would have excluded the evidence and acquitted the drug dealer.

He has a point. Don't annoy the judges. Try to act lawfully at all times.

2018.02.17 Keeping the Peace between Rival Protesters - Breach of the Peace

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, 2018 ONCA 160 carried a flag that would inflame the opposing group. He carried it towards their location. Some of the opposing group started running toward him. Trouble was coming fast. Police officers got close to Mr Fleming and told him to back off. He kept going. An officer 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.

Police appealed, and the appeal court ordered a new trial.

People can protest in public places, but if it's likely to cause violence and harm, you can intervene.

Public protests put police in dangerous legal and tactical positions. Balancing civil liberties and public safety requires police restraint in the face of unrestrained emotions. But keeping officers safe requires some pro-active tactics too.

Where necessary, you can create buffer zones. You can lawfully prevent people from going where the public are normally permitted to go.

If there is even a small possibility that you would find yourself in a difficult situation like this, I recommend reading the facts of this decision, and thinking for yourself "how would I have handled this situation?" The mental exercise may help prepare you for the real thing.

The answers are complicated. The decision itself is about civil law - not my field. Therefore, I can only recommend that you review your own policies about protests and civil disobedience.

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.

2018.02.10 Detention & Delay

How long can you keep someone detained on "reasonable suspicion"?

It depends.

A tipster told police that a guy boarded a VIA train in Vancouver, carrying two black suitcases that smelled of marijuana. The guy was going to get off at Parry Sound, Ontario. The tipster gave a detailed description. Police officers saw Mr Barclay, 2018 ONCA 114 get off that train at Parry Sound. He matched the description.

If you had received that tip, what would you do?

These officers detained him for possession of narcotics. They gave him immediate access to counsel, by cell phone in the police cruiser. They sniffed his suitcases, but detected nothing.

They called for a drug dog.

Parry Sound is small, pretty and rustic. I'm sure that some fine and noble dogs with excellent noses reside there; but none were trained to detect drugs. The nearest drug dog was 90km away - nearly 2 hours' drive.

They took Mr Barclay to the police station, where he could use a bathroom and a landline for access to counsel while they waited for the drug dog.

When at last it arrived, it indicated drugs in the luggage. The officers arrested Mr Barclay, searched the luggage and found 33 pounds of marijuana.

At trial, Mr Barclay complained that investigative detentions were supposed to be "brief", and this one was lengthy. The trial judge didn't buy it, but the appeal court did: this delay was too long.

How long is too long? In this case, the judges figured that 26 minutes from the moment police first set eyes on him was about the time limit. But how long a "brief" detention lasts depends upon the circumstances. They gave a list of factors other judges might consider:

• intrusiveness of the detention - Handcuffing the suspect and removing him from the scene increases the impact of the delay.
• seriousness of the offence - Minor offences require quicker decisions; you can go slower when sorting out serious ones.
• complexity of the investigation - "brief" is pretty quick if the issue is simple.
• public or individual safety concerns - "brief" may expand to permit you to keep people safe.
• alternatives - if you can complete your investigation without holding the suspect, then "brief" shrinks to a short, short time.
• indifference - an investigative detention should be brief. Expect little sympathy from the judge you could have finished your inquiries faster.
• practicality - if - for no fault of your own - you lack the equipment needed to resolve the issue immediately (not every officer has a drug dog in their patrol car) then judges will give you more leeway.

The judges let the evidence in anyway. They liked how the investigating officers gave Mr Barclay immediate access to legal advice. They didn't treat him like a criminal: they let him sit - without handcuffs - in an interview room while he waited.

For police officers, this stands as a reminder that during a "detention" based upon reasonable suspicion, you need to move swiftly to confirm the issue or release the suspect.

I suspect that the judges might have allowed a longer investigative detention if the investigating officers had called for the drug dog before the train arrived in Parry Sound. But can you fault the officers? Their tipster told them that people should be able to smell the dope. When they headed to the train station, they may well have believed that they did not need a drug dog to accompany them.

2018.02.10 Disclosure & Delay

Mr D.A., 2018 ONCA 96 faced charges of sexual misconduct. Several times, when his lawyer attended court to set a trial date, the prosecution released new packages of disclosure.

Each time, the defence lawyer declined to set a trial until he had a chance to review the new material.

Those delays, combined with the court's calendar, delayed the trial over the tipping point, and the court stayed the charges.

I can't say why police delivered new disclosure just before each court appearance. Crown argued that the new materials weren't important. But the defence lawyer who receives them doesn't know their importance that until he or she reviews them.

I can say that many police officers still entertain the notion that delivering disclosure "in time for court" is good enough.

Nope.

Disclosure of police materials needs to happen well before court, so that the lawyers can read and understand it, and decide how to respond to it when they get to court.

2018.02.05 Compelling the Suspect to Help - Assistance Orders to Unlock Phones

Some encryption technologies offer pretty good privacy. That means the fastest current computer systems in the world won't break them in the lifetime of the universe.

You need another way in.

What if you have good evidence that your prime suspect stored evidence in an encrypted device. Think child pornography, stolen bitcoin, the terrorist cell's membership list, or any other digital information of evidentiary value.

Can a judge make him decrypt it?

In some countries, a judge can. Apparently not in Canada. Boudreau-Fontaine, 2010 QCCA 1108 Talbot, 2017 ONCJ 814.

If you click the link for Talbot, you won't find the reasons. That case is on appeal to the SCC. Stay tuned.

2018.02.04 Text Messages in the Recipient's Phone - Sender's Expectation of Privacy

The case of Marakah returns to visit us already.

Whistler is a party town. Tipsters told police that Mr Vickerson, 2018 BCCA 39 sold cocaine. Following up on those tips led police to watch his place. Lots of visitors, but few wanted to stay for long.

Police arrested one of those visitors, searched him and found him in possession of cocaine. They also looked at that guy's cell phone. Without a warrant. They found messages between him and Mr Vickerson which helped justify the granting of a search warrant. A search of Mr Vickerson's residence produced drugs and cash.

At trial, Mr Vickerson complained that the police search of the customer and his cell phone violated Mr Vickerson's rights. The trial judge found that the police had reasonable grounds to arrest the customer. The drugs were admissible against Mr Vickerson.

The trial judge assumed that the senders of text messages always enjoy an expectation of privacy over them. For that reason, he excluded that evidence.

The Court of Appeal disagreed. They said that the judge should have heard evidence on that topic, to work out whether Mr Vickerson enjoyed any expectation of privacy over the messages. Because there was no evidence on the point, they didn't conclude whether he did or didn't.

What does this mean for you?

1. The judges are still giving little guidance about how to determine when a sender of text messages still enjoys an expectation of privacy over the messages when they arrive in the recipient's phone.
2. "Standing" is a dangerous game. These officers searched the customer's cell phone with dubious legal authority. You are paid to uphold the law. Make sure you have legal authority whenever you intrude on anyone's privacy - suspect or victim.

(I observe that these officers searched this customer's cell phone before the Supreme Court of Canada set the rules for those kinds of searches. See Fearon, 2014 SCC 77. Now that the rules are clear, I don't expect judges to be so kind to officers who search cell phones contrary to those rules.)

2018.02.02 Search & Seizure on the Internet - Production Orders for Craigslist & Facebook

The BC. Court of Appeal thinks you can get a production order for foreign companies which do business in Canada electronically. Judge Gorman of the Newfoundland Provincial Court disagrees. In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018, 2018 CanLII 2369 (NL PC)

Eventually, this issue will work its way up the appeal chain until we get a straight answer for everyone.

2018.01.23 Noble cause corruption - Letting your job get you down

Mr Hansen, 2018 ONCA 46 had a good job. A detective constable in the Weapons and Gangs unit.

Not any more.

He conspired with a confidential source to frame a local drug dealer. The source said he would plant a handgun in the drug dealer's couch. Hansen agreed, and encouraged the source when he got cold feet. The source texted Hansen that the gun was planted in a sofa at the drug dealer's place. Within an hour, Hansen swore an application for a search warrant. Police searched the place and found drugs and drug paraphernalia. No gun. A small quantity of drugs. (See the trial decision for more detail.)

Text messages on Hansen's phone documented his conversation with the source. Hansen's sworn application told quite a different version of what the source knew about the gun. And so it became clear that Hansen perjured himself.

The decision doesn't explain how Det. Hansen's secret dealings with the source became known. There are several likely routes: diligent defence disclosure demands led to disclosure of some of his text messages; or the source decided to turn in a cop; or a fellow officer borrowed his cell phone.

When you think about it, secrets like this can get out.

Hansen was right. The drug dealer had drugs, and probably caused much pain and suffering in his community. Hansen likely had strong reasons to want to lock him up. A noble cause. A cause to believe in.

But Hansen went about it wrong. He signed up to enforce the law. That means using the law to reach his objectives. Lawfully. Legal proceedings often reach disappointing results. It's not like TV, where the good guys always win and the bad guys always go to jail. It's easy to understand why some officers lose faith in the justice system.

If you're feeling like that, or someone you work with is talking like that, it's time for a philosophy check.

Telling lies on oath is a crime. Committing crime to catch criminals undermines your moral authority. You are no longer one of the "good guys". And you could lose your job and go to jail.

Get used to the notion that the justice system resists your efforts to convict the people you think are guilty. Experience teaches that bad things happen if it's too easy to get a conviction.

Get used to the idea that the law ties your hands with procedural steps that hobble your ability to serve and protect. Those procedures developed over decades, each for a good reason. You signed up to enforce the law. The law includes those cumbersome rules.

If you can't reconcile yourself to these compromises, then look for other work. Lots of employers want to hire a police officer who retired with a good reputation. But a conviction for perjury makes your resume less appealing.

2018.01.20 Whodunnit - Third Party Suspects

Courts worry about the reliability of photo lineup identification. The slightest weakness can raise doubt.

Two men and a woman burst into an apartment. One of the men carried a gun. They robbed a resident. One of the occupants thought she recognized one of the men as Travis or Dillon Soderstrom. She picked Travis Soderstrom and Curtis Vidal, 2018 BCCA 21 out of photo lineups. None of the other victims recognized the robbers. One of the victims testified that the wrong guys were charged.

Travis and Dillon look much like each other. Both brothers lived in the same town as the robbery. Would this photo lineup identification really prove that Travis was the brother?

Not by itself.  But police researched Dillon's whereabouts at the time of the robbery.

Dillon wouldn't give a statement, but he did say that he was working.

Dillon worked out of town. In another province. He flew there. The airline had records. Those records established his alibi, when Dillon wouldn't cooperate.

And that made the difference. Travis was convicted, and lost his appeal.

This case illustrates the importance of corroborating a photo lineup identification:

• When a witness identifies a stranger from a photo lineup, you have some evidence of identity. Keep looking for more.
• When you become aware of a possible alternate suspect, investigate that person's alibi.

2018.01.10 Search & Seizure on the Internet - Production Orders for Craigslist & Facebook

BC courts will now issue production orders to foreign companies that do business in Canada strictly over the internet.

Some of the biggest Internet companies try to behave like good international citizens. They protect the privacy of their users, but will release data to police when a judge says they should.

All too often, those internet companies possess data valuable to your criminal investigations. Threats are delivered over Facebook. Stolen property is fenced through Craigslist. Much of that data is private. But Canadian judges baulked at telling people outside Canada to divulge evidence to Canadian police.

In international law, good countries respect the sovereignty of other countries. Canada tries to behave like a good sovereign nation. Canadian judges don't exercise their legal powers beyond their jurisdictional borders. A B.C. provincial court judge's powers generally end at the borders of B.C.. The Criminal Code makes some exceptions which extend a few powers to the rest of Canada, but not into other countries, like the USA.

Long before the internet, countries entered into "Mutual Legal Assistance Treaties" - agreements that allowed each country to make a formal request of the other country to investigate a crime, and deliver the evidence so discovered. Because these processes involve layers of government in both countries, they move achingly slowly.

Canadian courts will not generally order foreign companies to produce documents or data when those companies have no presence in Canada.

This created a frustrating impasse: the foreign companies would gladly deliver evidence to Canadian police officers if those officers could obtain a judge's order, but the Canadian judges wouldn't give one.

Craigslist provides the perfect example. It has no office and no staff in Canada. However, it provides classified advertising services for every major urban area in Canada. It does business in Canada. Craigslist is here, except not physically.

A B.C. police officer applied for production of data from Craigslist. Judge Brecknell of the Provincial Court declined. He felt that BC judges can't compel Californian companies to disclose information. So did the judge above him. But the Court of Appeal said "yes", it can be done, even if there may be problems prosecuting the internet company for refusing to obey the order.  BC v. Brecknell, 2018 BCCA 5.

This is unusual. Don't do it if you have alternatives.

If the internet company has employees or an office in Canada, then try for a production order which compels them or it to produce the records. The court confirmed that a production order is an "in personam" order (it compels a person to do something). People in Canada are subject to Canadian production orders. No extraordinary measures there.

If the internet company has no physical presence in Canada at all, then your application for a production order must establish the internet company's virtual presence by proving its business activity in Canada. That will take some creative investigating and drafting. In addition to explaining what data the company has and how it relates to your investigation, you should also look up and quote the company's privacy policy with respect to law enforcement. Find out the proper legal name of the company, and establish that it has "possession or control" over the document or data that you need.

I think this is a significant development of Canadian law. It reconciles the transnational nature of the internet with the traditional limits of the exercise of power between sovereign nations.

From the corporate point of view, it also makes sense. Craigslist and companies like it want to protect the privacy of their customers, but they also want to respect local laws in every country. Therefore, they set up policies which permit judges in foreign countries to determine whether in each particular case, privacy or public safety is more important. Responsible internet companies respect the decisions of the judges of the countries where the internet reaches. This Canadian legal decision supports that responsible international corporate approach.

PS: This decision applies in BC, but not necessarily in other provinces. Judge Gorman in Newfoundland disagreed with the B.C.C.A.. He found that production orders can not be used this way.  In the Matter of an application to obtain a Production Order pursuant to section 487.014 of the Criminal Code of Canada, 2018, 2018 CanLII 2369 (NL PC)

2018.01.06 Whodunnit - Third Party Suspects

Allegations of tunnel vision are easy to make, and hard to refute - unless you do the work of investigating alternate theories.

After 28 years of marriage, Barbara Short had enough. She complained of his verbal abuse. She retained a lawyer to sue for divorce and division of family assets. Her husband, Roger Short, 2018 ONCA 1 didn't like that idea. He told her cousin he would rather hurt or kill her than lose half of his property.

Someone murdered Barbara Short the the back yard of the family home by bashing her head. A 4" x 4" board lay near her body, with her blood on it.

Naturally, your attention would turn toward Roger.

But there were other suspects. Maybe it was Mr Robertson. She was having a torrid affair with him. Her body contained evidence suggesting that she engaged in sexual activity that night - which would suggest that she was with her lover. If so, it couldn't have been Roger that killed her.

Maybe it was a thief. At the back of the family home was a gas storage tank. The cap from that tank was removed. Maybe she interrupted someone stealing gas, and that person killed her. After all, a violent thief named Mr Harper lived nearby.

Lots more evidence pointed towards Roger: when police asked him questions, he downplayed his marital difficulties; he destroyed Barbara's poems which recorded her misery in the marriage; he asked a friend to destroy the letter he received from Barbara's lawyer.

At trial, defence accused the police of tunnel vision: "you just looked for evidence which tended to make Roger look guilty" "you overlooked evidence that any one else might have done the deed".

Psychologists say that we all tend to apply "confirmation bias": we believe evidence which supports our preconceptions; and we ignore evidence which doesn't. Tunnel vision is normal human behaviour. That doesn't make it right.

If you think your job is to collect only evidence which supports your theory, then you do have tunnel vision. Your job is to identify all sources of relevant evidence, and gather that evidence. That means devoting resources to investigate alternate suspects.

Roger testified that he went to a local hockey game, then drank at some bars. When he got home, he found his wife was dead.

The first jury couldn't decide whether to convict Roger. The second jury found him guilty of murder. The court of appeal ordered a retrial because of issues with his lawyer. At the third trial, Roger's lawyer will tell the jury that his story could be true: there were others that might have killed Barbara. The prosecutor will want corroborated evidence that the lover and the thief were elsewhere when Barbara died. Finding that evidence now will be much harder than finding it at the time of the killing.

Whether you're investigating the identity of a murderer, or the truth of a domestic assault, your job is to investigate all sides of the story. Don't just stick to the best theory. Look for the evidence which supports or contradicts the alternate theories too.

It's surprising what you may find. Thomas Sophonow went to jail for a murder that was probably committed by a guy named Terry Arnold. Investigators at the time knew of him, but didn't fully investigate his alibi. David Milgaard went to jail for a rape-murder that was actually done by a known rapist named Larry Fisher.

Those are unusual cases. The main suspect usually is the felon. But in court, you don't want to face the question:

"Why didn't you investigate these alternatives?"

2018.01.04 Weapon - When is a Knife a Weapon?

Suppose a judge orders me not to possess any "weapon". Suppose you find me holding a knife. Can you arrest me?

It depends.

The Criminal Code does not define a knife to be a "weapon". It says:

"weapon" means any thing used, designed to be used or intended for use

(a) in causing death or injury to any person, or

(b) for the purpose of threatening or intimidating any person

and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, anything used, designed to be used or intended for use in binding or tying up a person against their will;

If you find me holding the knife to carve my pork chop, you can't arrest me. If I stand up from my dinner, point the knife at you, and tell you that I will drive it deep into your chest, then not only can you arrest me for threatening you, but you can also arrest me for breaching the judge's condition.

These two examples - eating dinner and threatening people - lie at opposite ends of a spectrum. Where is the line in the middle which separates the "weapon" from the "non-weapon"?

Mr Vader, 2018 ABQB 1 generously gave us an example. An officer found him "in the driver's seat of a beat-up pickup truck, in the middle of nowhere, driving and behaving erratically." The handle of an old machete stuck out from the under the driver's side floor mat of the vehicle and a fishing knife, in a leather scabbard, lay in an open area at the bottom of the driver's side door.

He wasn't fishing or hunting. He wasn't somewhere that a machete could be useful. Only because the trial judge eliminated all innocent possibilities, could the judge conclude that the knives were there for use against other people. The trial judge convicted him. He appealed, and lost.

But it wasn't a frivolous appeal. It highlights an important principle. A knife isn't a "weapon" unless you find circumstances that fit it within the definition.

When you find a guy on a "no weapons" condition, you can't arrest him just because he has a knife. Take a look at the circumstances. You may reasonably infer that most folks who carry machetes in the middle of a city intend to possess them as "weapons". But discovering someone in possession of a folded Swiss Army knife isn't so clear-cut.

2018.01.01 Search & Seizure - Warrantless Search - Third Party Consent

When two people share a place, can police search one person's possessions on the basis of the other's consent?

It depends upon the expectations of privacy as between them.

Cst Clarke, 2017 BCCA 453 seized things like guns, drugs, booze in the course of his employment. He stored some of these exhibits in quite the wrong places. That got him into trouble.

He and his mother owned a house in Chilliwack. Because he lived in Surrey, he rented the Chilliwack house to Ms Ferrer. But he stowed some of his seized property in the garage. Ms Ferrer permitted other officers to search the house. They found the missing exhibits. Hence, the trouble.

At trial, he complained that she could not waive away his right to privacy. He said that the police needed a warrant. To determine whether he was right, the judges considered what privacy Cst Clarke reasonably expected from Ms Ferrer.

That was complicated.

Who "owned" the place? In 2008, Cst Clarke and Ms Ferrer signed a formal rental agreement, giving her the entire residence. She thought she was buying the place from him.

In 2007, he signed an agreement which required him to give Ms Ferrer 48 hours notice if he wanted to enter the residence. But their relationship became intimate. Although he still lived in Surrey, he came and went from Ms Ferrer's place as he pleased, without giving any notice at all. He "sort-of" lived with her "part time". He kept some personal effects in the house, and he stored a pile of "stuff" in a corner of the garage. He threw a tarp over some of it.

Ms Ferrer and her children had access to the garage. She parked her van in there, but they left his stuff alone. Sometimes, when he left something in the house, she would add it to the pile in the garage. She didn't really like him keeping ammunition there, because she had children.

But she didn't go through his stuff in the garage.

Ms Ferrer's relationship with Cst Clarke broke down. He told her she might have an STD - which alarmed her. When she learned he was seeing someone else, she became concerned that he would infect the next woman too. She called upon his supervisors - who took great interest in the items Cst Clarke stored in her garage.

Could Ms Ferrer's consent authorize police to search her residence? Yes.

Could her consent authorize police to search her garage? Yes.

Could her consent authorize police to look under the tarp? No.

The court found that Cst Clarke had a reasonable expectation that she wouldn't look under that tarp at his stuff. And if that was his expectation of privacy from Ms Ferrer, then he enjoyed a reasonable expectation that police would not use her consent as an excuse to lift the tarp and look underneath.

When asking Ms Ferrer for her consent, the officers got her to sign a consent form. Good idea. That showed good faith, and created a permanent record of her consent.

Nobody asked whether there were any parts of the house that Ms Ferrer usually left as Cst Clarke's private areas. It's a subtle point, but I expect it to grow in importance, particularly in light of Marakah (see 2017.12.09).

This case suggests that when you ask a non-suspect for consent to search a place for evidence against a third party, you should ask: "Are there any parts of your home/computer/phone/building/property that you leave as <suspect>'s private space?" If the consenter says "yes", you'll need a warrant to search those places.

2017 Developments

2017.12.10 Suspicion vs. Belief - General Warrants

Mr Christiansen, 2017 ONCA 941 looked suspicious. He came and went from an apartment, taking one box in and leaving with another. He associated with another suspicious guy. It looked like a drug operation. The officers watching him wanted to know more about what was in the apartment.

So they got a judge to authorize covert entry into the apartment "to gather information that the evidence of trafficking is presently located inside the [Unit], to support the issuance of a Controlled Drugs and Substances Act (CDSA) Warrant to search".

They found drugs. The got a warrant under s.11 of the CDSA, and busted Mr Christiansen.

But there's a problem.

Judges can not generally authorize covert entry except under s.487.01. That section requires that the ITO establish reasonable grounds to believe that the offence was, is being, or will be committed. If the officers lacked enough evidence to say that they believed the crime was being committed, then they lacked grounds to get a general warrant.

Furthermore, judges can not grant a warrant under that section if there is another warrant that would do the job. Like, maybe, a search warrant under s.11 of the CDSA.

You can use general warrants to sneak and peek. But only if the ITO establishes that probably:

1. the offence happened (or is happening, or is going to happen),
2. information about that offence will be found in the place, and
3. an overt search will prevent you from recovering as much information about the offence as a covert one.

2017.12.10 Text Messages in a Drug Dealer's Phone

 - Hearsay

If you're involved in drug investigations, it's worth reading this case to see what kind of evidence makes received calls and texts on a drug-dealer's phone admissible.

When police searched the residence of Mr Bridgman, 2017 ONCA 940, they found lots of prescription drugs, many stored in bottles bearing the wrong labelling.

When police searched the phone they found on his person, they found text messages which seemed to request drugs.

At trial, the Crown wanted to put the text messages into evidence. Defence said "that's hearsay".  Defence was right. Suppose I send you a text message saying "sell me 1kg of cocaine" from my (throwaway) phone. If your boss reads the text message, the boss will infer that you are a drug dealer. Why? Because my text says so. At your trial, you can complain "Wait a second! Whoever sent that text is not taking the witness stand, swearing to tell the truth, and explaining what made them think I sell drugs. And I can't cross-examine the jerk. This is no better than a 911 tipster."

Those were the winning arguments in a case called Baldree 2013 SCC 35.

But Mr Bridgman lost this argument.

That's because his phone contained lots of texts from lots of different people. Whoever used his phone responded to one of those messages indicating that he did have drugs to provide. The odds that someone texted the wrong number were way lower than the single call at issue in Baldree.

And one more thing. A police expert in drug investigations explained why it would be really difficult to get the people that sent the messages to testify: they don't like being identified as drug users because that's socially embarrassing; and they don't like being identified as informers because it becomes harder to get drugs from dealers.

Those answers helped the Crown prove that it was "necessary" to rely on the hearsay. And the multitude of texts made the evidence "reliable". And that justified admitting it. (See my page on Hearsay).

2017.12.09 Text Messages in the Recipient's Phone - Sender's Expectation of Privacy

You may enjoy an expectation of privacy in the text messages you send me, even after they arrive on my phone.

Mr Marakah, 2017 SCC 59 sent text messages to Mr Winchester regarding the illegal firearms transactions they were engaged in. An informant alerted police. Police obtained warrants, and busted both men. Police seized and searched their cell phones.

But there was a problem. The trial judge found flaws in the searches of both phones. The text messages from Mr Marakah's cell phone were excluded from the trial.

Crown tried a clever tactic: they tendered Mr Marakah's text messages from Mr Winchester's cell phone. They argued "standing": the idea that Mr Marakah could complain about unlawful searches of his own phone, but he could not complain about unlawful searches of someone else's property.

That worked at trial and in the Ontario Court of Appeal (2016 ONCA 542), but a majority of the judges in the Supreme Court of Canada didn't buy it. They said:

"a person does not lose control of information for the purposes of s. 8 simply because another person possesses it or can access it"

Because Mr Marakah sent it to a specific person, and had told him to delete the text messages after reading them, and because of the relationship between the two men, the court found that Mr Marakah retained a reasonable expectation that the state would not read the text messages in Mr Marakah's phone without judicial pre-authorization.

This extends an "expectation of privacy" further than many of us predicted. I found this a surprising decision.

Does this mean that a victim of harassment can not give the police texts and emails she received from her tormentor without police first obtaining a warrant?

I don't think so. (Beware: some of my colleagues disagree with me.)

Note that in the Marakah case, the recipient of the private texts - Mr Winchester - did not give the texts to police. Police just took 'em. An action of the state. No consent. No intervention by the recipient. (I think the intended recipient's consent makes a big difference.)

Suppose a harasser sends nasty messages to a victim. I figure that the analysis differs if the victim gives them to the police. If the victim sends copies of the texts to you, then you merely receive, rather than seize the texts.

Some might say this distinction doesn't make any difference. The Supreme Court has found that police can violate expectations of privacy even by merely receiving private information (R. v. Dyment, [1988] 2 SCR 417). I figure that this situation differs enough from Dyment that the courts will find victims and witnesses can decide who sees the messages they receive. Surely, the victim, who has rights to life, liberty and security of the person, has the right to give police the key information which will secure those rights.

What does this decision mean for police?

When your investigation leads you to text messages, phone messages or emails from one person to another, you should ask the recipient "are you giving these message to me?" Don't seize them, but receive them.

If you get those messages from some third party, rather than the recipient, consider whether the participants in the communications expected privacy.This might be the anxious parent of a child who received luring communications. If so, you need authority to intrude on expectations of privacy. Perhaps exigent circumstances apply. If not, perhaps you need a warrant or production order.

Marakah will generate lots of litigation. How do you avoid it?

Make sure that any time you intrude on the privacy of any person, you have lawful authority. Don't rely on "standing". Every time you do, you admit that you're acting unlawfully.

2017.12.09 Identifying a Suspicious Person

Many police officers suffer from a persistent legal misunderstanding. I receive queries about it regularly. It arose again in my trial work this week. My trial isn't done, so let's consider an older case.

The Calgary City Police had a problem. Thieves kept breaking into the officers' private vehicles, parked in a lot near the police station.

One night, an officer saw a young woman in a black leather jacket emerge from the area of the lot. He asked her to stop, but she kept walking. He asked her what she was doing in the lot, but she walked away. They grabbed her and demanded that she identify herself. She refused to explain, and she refused to tell them that her name was Patricia Guthrie, 1982 ABCA 201.

She was charged with obstruction for failing to answer their questions. She beat the charge.

In most situations, Canadian enjoy the right to silence. They law does not require them to answer a police officer's questions, even about identity.

There are exceptions.

• If you need to issue process, such as a traffic ticket or an appearance notice, then they must identify themselves. Moore v. The Queen, [1979] 1 SCR 195
• Some legislation requires people to identify themselves. If you stop the suspect for the purposes of highway traffic enforcement, the motor vehicle legislation of each province and territory requires the driver to identify himself or herself (but not necessarily the passengers).
• If you arrest a person for an offence, sections 496-503 of the Criminal Code urge you to release the person - but only if you know who they are. If they give you a false name at that point, they are obstructing you.

Today, the Guthrie case might go a little differently. If an officer has reasonable suspicion that a person committed a specific offence, the officer may detain the suspect. (That wasn't clear in 1981.) But even after a formal detention, you still can't compel the suspect to identify herself ... unless you arrest her.

But there's no harm in asking for identification. No problem explaining why you want the identification. I think you can photograph people you detain, even if they won't identify themselves. R. v. Multani, 2002 BCSC 68.

Just don't arrest them for obstruction just for failing to tell you who they are.

2017.11.26 Security Video Evidence - Tips and Ideas

Chad Davidson shot Tyler Johnson dead. Three guys (Barreira et al. 2017 ONSC 1665) accompanied Davidson at the murder scene, just outside a pita shop in downtown Hamilton. They left in a hurry.

Police collected 80 hours of security video from businesses in the area. Clips from these videos showed the four guys and Mr Johnson before, during, and after the killing. Clips also showed the various witnesses observe the action and run for cover - which was useful for corroborating their testimony about what went down. People who knew the defendants identified them from the videos.

Certain clips permitted the viewer to identify the four guys. For example, a Tim Horton's camera captured good quality images of their faces. But most of the video provided insufficient detail to identify the guys. By watching other clips, the officers track the guys as they left Tim Horton's and went to the scene.

One video system used infra-red technology, which tended to distort colour.

A certified forensic video analyst assembled all the useful footage into a composite video, with a single running clock. It did not include the aftermath.

Establishing the accuracy of that clock took some work. The clocks on the security systems differed from each other. One system recorded no time-stamp at all.

The officers who collected the video footage carefully compared the times on their cell phones with the clocks on the security systems. But most cell phones display only hours and minutes. Not seconds. Synchronizing the videos required some guesswork. But the officers did have one known event from which to work. On video, a guy in the Timmy's phoned 911 to report the incident. One can see him turn his phone off at the end of the call. The 911 system provided the exact time that his call ended.

The trial judge had no problem with a composite video which contained unmodified clips from the original videos. Because the expert testified about the effects of infra-red photography on colour, he did not find any problem including that footage either.

The judge did worry that the police could select video clips to make the accused look guilty. However, the judge saw enough of the raw footage to realize that this compilation was fair. Defence counsel did not identify any additional clips they thought needed to be added.

The final composite video displayed a running clock superimposed over each clip showing the best estimate police could make of the actual time of the events displayed. It also included circles and captions which identified each of the key participants.

Because the expert used special skills to link the times together, the court allowed the jury to see video containing the super-imposed clock. But the circles and captions came from hearsay. The judge excluded all those annotations.

At the end of the trial, the jury convicted the defendants. I guess this video made a difference.

We can learn plenty from this investigation.

1. Security video can prove a great deal.  Collect it.
2. Security video systems don't always use the correct time. When collecting security video, compare the time on the system to the time on your cell phone.
3. In the video, look for an event whose time can be accurately placed (in this case, the 911 call). Use that as an anchor to measure time before and after it.
4. Where you have many videos, preparing a composite video can make understanding them much easier.
5. Infra-red cameras distort colour. If you get unexpected colours, consult an expert.
6. Be cautious about annotating a composite video to explain your theory of the case. The judge may exclude the video if you mark it up.
7. Include all relevant footage. Disclose all footage to defence. Offer to add more footage at the request of the defence.

The judge didn't like the the clock on the composite video because it showed seconds. This suggested false accuracy. Because officers recorded video-system accuracy only to the nearest minute, it was accurate to 1 minute at best.

In some cases, the exact time doesn't matter. In others, it makes or breaks the case.

One can do better than minutes. You can get it down to seconds:

1. Establish the accuracy of your cell phone's clock by pointing its browser at Canada's National Research Council's time website. (My computer is about .5 seconds slow. My phone is about 1.5 seconds slow.)
2. Your cell phone records time and date information every time it takes a photograph. Learn how to access that data. Take a picture today, at a known time. Send the picture to a Windows computer. Use the "Properties" function to examine the metadata. It will show you several date and time stamps. Beware. The computer created one when it received the file. That's the wrong timestamp. Look for the time stamp that the camera created. On a Mac, open the photo in Preview, and use "Show Inspector".  Look for the "Exif" information.
3. When you collect security video, take a picture of the system's clock using your cell phone. Compare the Exif data from the photo to the time on the video-system clock.

2017.11.07 Condolences - Abbotsford Officer Down

2017.11.05 Dangerous Driving - Hazards of the Job

2017.11.05 When to Stop Investigating - Confidence or Completeness

2017.10.31 Oops. Should I tell Defence I made a Mistake?

2017.10.26 Impaired Driving - Screening Device Demands - Blow a Second Time

Around 2:00am, an officer saw a speeding car. 94km/h in a 60km/h zone.

A strong odour of liquor wafted out of the car when the officer stopped it. Did it come from the driver or the passenger? The officer asked the driver, Mr Norrie, 2016 ONSC 4644 aff'd 2017 ONCA 795 to step out of the car. Mr Norrie had bloodshot eyes, and said that he last drank 2 hours earlier in a bar. He had difficulty producing paperwork.

The officer suspected he had alcohol in his body, and therefore read him a demand that he blow into a screening device. It registered a fail. The officer arrested Mr Norrie and secured him in the police car, and spoke with Mr Norrie's passenger.

That's when the officer noticed a partially-consumed beer in the front console of Mr Norrie's car.

The officer believed that Mr Norrie lied about when he last drank. If Mr Norrie had recently been drinking, then the "fail" result would not be reliable. The officer formally released Mr Norrie from arrest. He removed the handcuffs, but demanded a second breath test. He explained why.

While the officer waited for mouth-alcohol to dissipate, the officer offered to help Mr Norrie contact counsel. But that didn't work out.

The officer read the screening device demand a third time. Mr Norrie blew, and it registered "fail" again. Re-arrest. Back to the police station. Access to counsel. Blow. Busted. Released on a Promise to Appear

Things got messier after that. The charges did not get sworn before the court date. Once they were sworn, the summons didn't reach Mr Norrie. This caused some delay, which led to a separate issue.

The trial judge stayed the charges, finding that the second screening device demand arbitrarily detained Mr Norrie, and prevented him from getting legal advice to which he was entitled. The trial judge was greatly upset by the delays in bringing Mr Norrie to court.

The summary conviction appeal judge disagreed. Because the officer had good reason to think that the original screening test was wrong, the officer proceeded correctly in making a second demand. And during that time, the right to counsel remained suspended.

Do drivers ever lie about when they had their last drink? Of course they do. Are you required to believe them? Of course not - if you have good evidence that they are lying. When you're not sure, how hard must you investigate to discover the truth?

Ahh. That last question is the trickiest.

As a practical matter, breath screening is supposed to be done quickly. If the driver lied to you about that last shot of tequila before he started driving, I think he deserves to take a detour to the police station for a breath test. But if the open beer is right by the driver, then perhaps, like the good officer who investigated Mr Norrie, you should proceed more carefully.

One more thing. Remember that the officer read the screening device three times? Be careful of that. You can only make that kind of demand "forthwith" after you form reasonable suspicion. If the officer "made" a second or third demand, then he was wrong, because he made them long after he formed his suspicion. On the other hand, if made a single demand, but reminded Mr Norrie of it after he realized that the first test was not "a proper analysis", then he was right.

How many times you read a demand doesn't matter. But the timing of making a demand does.

2017.10.22 Re-enactment Video

Re-enactments of a crime are hard to do well.

Mr Gosse, 2017 BCCA 356 drove an SUV that hit a motorcycle. Security video cameras in the area provided much information about how the collision occurred.

A police officer wore a GoPro camera on her head and recorded what she saw when she drove the route Mr Gosse drove before the crash. She intended to show the judge what the driver should have seen when his vehicle approached and hit the motorcycle.

Unfortunately, someone placed a motorcycle in the wrong spot.

After the trial judge convicted him, Mr Gosse appealed. He said this mistake caused the trial judge to get the wrong idea of what happened.

Re-enactment videos like this can be really helpful. But it's hard - often impossible - to recreate the exact same conditions as the offence under investigation.

Outdoor video is affected by time and date. Light changes depending upon the time of day. Even if you return at the scene two months later, lighting changes depending upon the time of year and weather. In some driving cases, changes in foliage matters. A springtime video of a winter event may mislead the court.

If you make one, Murphy's law says you'll get something wrong. If you don't make one, the judge may not understand the case properly. Damned if you do, damned if you don't.

Despite the challenges, such videos can help. In this case - even with the mistake - the officer's video did help the trial judge and the appeal judges understand just how visible the motorcycle would have been to Mr Gosse when he ran it down. Mr Gosse lost his appeal.

Particularly in accident cases, police officers tend to document the wreckage. But the crime happens before the crash. Good investigation of the crime involves recording how the road looked to the felon before the crash happened.

2017.10.21 Journalists are now Special

Bill S-231 came into force on October 18. It enjoyed all-party support in Parliament, on the basis that it provides some protection for journalist's sources.

It goes much further than that. It protects journalists.

It creates special rules for search warrants against journalists generally:

1. If you are drafting a warrant for production of information from a news outlet, you have new rules to follow. Read the legislation.
2. Even if you don't want to discover a journalist's source, or get the raw footage from their video coverage of a crime, special rules apply.  If you want "a journalist's communications or an object, document or data relating to or in the possession of a journalist", you must apply to a superior court, not a lowly justice of a provincial court.
3. This applies even if you are investigating a journalist for a crime. Suppose a journalist texts his ex-wife and threatens to shoot her with the handgun he keeps in his bedroom. If you want a warrant to enter his house and seize the gun, you need to ask a superior court judge. If you seize his phone, then you need to ask a superior court judge for authority to search it for the texts.
4. If you get one of these special journalist warrants, you don't get to look at any of the documents you obtain right away. You seal up the documents, and give them to a superior court judge. You give notice to the journalist that you want to look at the documents. The journalist may apply to a superior court judge for an order preventing you from looking at the documents because they reveal a journalistic source. For the example involving the homicidal journalist's cell phone, that will slow your investigation considerably.
5. If you execute a regular warrant or production order and wind up obtaining a journalist's communications or "an object, document or data relating to or in the possession of a journalist", then the rule in #4 applies to any documents you seize. The language is so broad, it might apply to a drug dealer's score sheet or a call girl's client list - if the document contains the name of your local reporter.

I am troubled by this bill because it was advertised as protection of journalistic sources. If that's all you think of when investigating journalists who commit crime, you will fall into the technical traps it creates.

The new legislation requires you to jump through extra hurdles. If you forget, then journalists who commit crimes may beat the charges.

2017.10.21 Voyeurism - Reasonable Expectation of Privacy - Search of Digital Devices

Mr Jarvis, 2017 ONCA 778 worked as a teacher at a secondary school.

He bought an interesting camera. It looked like a pen, but it recorded video of whatever he pointed it at.

He took it to work, where he aimed it down the cleavages of his female students (and one teacher). He surreptitiously recorded video. 19 times. 33 victims. No consent.

Did he commit voyeurism, contrary to the relatively new section 162.1?

The trial judge said "no", because the evidence didn't prove he did it for a sexual purpose. The Appeal Court said that the trial judge was wrong about that. Only a prurient interest in the breasts of these young women could explain Mr Jarvis's recordings.

The appeal court had a different concern. The section says it's a crime to snoop like this only if the victim "is in circumstances that give rise to a reasonable expectation of privacy". While agreeing that what Mr Jarvis did was deeply immoral, two of the Court of Appeal judges felt that an open classroom is not a sufficiently private place to engage the section. It's not a bedroom or a washroom.

I sense that the Crown will appeal.

But there are other reasons to find this decision interesting. Like search and seizure.

A police officer first responded to the complaint from the school. The principal told him that he and other teachers had seen Mr Jarvis holding an unusual pen as if using it to video-record students. A red LED emitted light from the top of the pen. He aimed it down toward the students' breasts. After the principal saw the Mr Jarvis pocket the pen, he cornered Mr Jarvis and asked for the pen. Mr Jarvis lied, saying he left it in the classroom. When challenged, he relinquished the pen.

The principal gave it to the school superintendent, who briefed the police officer and handed over the pen.

Would you search the pen without a warrant?

The officer figured he lacked grounds to arrest Mr Jarvis. He figured he needed more information to get a warrant. So he did a cursory search of the contents of the pen. He found videos of breasts. He relied on that cursory search to justify the warrant. The judges didn't like that.

They found that Mr Jarvis enjoyed an expectation of privacy in his electronic device. The officer should have sought permission from a judge or justice before looking inside it. And they found that the officer should have known that he needed a warrant.

Then the judges observed that this expectation of privacy did not go very deep. The principal and the superintendent had authority to seize the pen-camera and search its contents. The device contained only videos of the students and no other private information. Because of that, they found that the videos could be admitted into evidence, notwithstanding the breach of the Charter.

The judges observed that if the officer had interviewed all the eyewitnesses, their evidence would have justified the granting of a warrant. The officer should not have taken the short-cut.

This last point bears consideration. You don't need proof beyond a reasonable doubt that the contraband is in the place you want to search. Just reasonable grounds to believe it is there.

The lessons to draw from this case include:

• Just because you want to look inside an electronic device doesn't mean you can. Electronic devices tend to be private.
• To get into the box (or camera or cell phone) investigate outside the box. Interview people. Look for alternate sources of evidence.

The officer could have said to the principal: "I don't have authority to look inside this device. Do you? If you do have authority, and you decide to exercise that authority, I'd like to know what you find." If you have a conversation like this, take a bundle of notes. If the teacher acts as your agent, then what the teacher finds is inadmissible.

2017.10.16 Evidence of Opportunity

In any "whodunnit", it helps to figure out who had the opportunity to commit the crime.

75 women independently complained that someone sexually assaulted them during surgeries. The only medical person common to all those operations was Dr Doodnaught, 2017 ONCA 781, an anesthesiologist.

His lawyer asked obvious questions: how could anyone do such things in busy operating rooms without getting caught? Maybe the anesthetic gave the women sexual dreams. Maybe somebody else did the things these women suggested.

Investigators studied how operating rooms work: to prevent infection, the surgeon and nurses drape the patient to separate the sterilized surgical area from the rest of the patient's body. Some of the drapes reach up quite high. But the anesthesiologist works on the other side of the drapes - where the surgical staff cannot see.

He had opportunity.

Opportunity does not prove the identity of a felon. Maybe somebody else did the crime.

Dr Doodnaught liked those drapes extra-high. The women all complained of sexual acts done to parts of their bodies that were on the non-sterile side.

The surgical team stayed on the sterile side of the drapes. To move to the anesthesiologist's side would breach medical protocol because it risked infection when they returned to the sterile side.

Therefore, Dr Doodnaught had exclusive opportunity - nobody else could have done the deeds complained of.

Okay. I took some liberties. In fact others could sneak into Dr Doodnaught's side of the room, but they rarely did. You can read the decision for yourself to get the full sense of it.

But the point remains, proving exclusive opportunity establishes identity. Partly proving exclusive opportunity partly proves identity. But even just proving opportunity helps prove the case. Proving opportunity means showing who was there at the scene of the crime, and who wasn't.

You discover that by learning as much as you can about the place and the people in it. The place could be an operating room, a drug house or the scene of an arson:

Who had access? How? What did they do there? Could anybody else have been there at the key moment?

2017.10.16 Applying for a Warrant with Weak Grounds

After investigating for a while, you know some things for sure, and you make reasonable inferences about other things. Beware of those inferences. It's easy to believe too strongly in them.

After a robbery, it took investigators 2 months to gather enough information to justify a warrant to search a residence connected to Mr Silva, 2017 ONCA 788. They had plenty of reason to believe that Silva's girlfriend lived there. They say Mr Silva attend there once shortly before they executed the warrant. And a phone that was loosely associated with the robbery was registered to 'Mike Silva' at that address.

They got their warrant, and found firearms.

The trial judge felt that the grounds contained in the ITO did not sufficiently connect Mr Silva to that address to justify searching it for evidence of the robbery. The trial judge felt that the officers should have investigated more. The decision doesn't say what he was looking for, but I suspect he wanted some evidence to show that Silva stayed there so often that he would leave his possessions there.

After all, that's what a warrant application needs to establish: "the stuff I'm looking for will probably be in the place I want to search".

The judges had mercy on the officers, and admitted evidence anyway.

Why?

Because they acted in good faith. They asked a justice if their evidence sufficed, and the justice said "yes".

But beware: when drawing weaker inferences, it is easy to overstate the evidence. If you do, the judges won't be so merciful.

2017.10.16 Recording all Interaction

When police arrested Mr Silva, 2017 ONCA 788, he gave a statement taking responsibility for the guns they found. At trial, he told the judge that the police threatened to charge his girlfriend unless he made the statement, and promised to release her if he did.

The officers denied making such threats or offers.

It's easy to see how such a conversation might arise. Imagine that the conversation actually went this way:

Suspect: Did you arrest my girlfriend?
Officer: Yes.
Suspect: If I tell you I'm responsible, will you let her go?
Officer: We'll see.

At trial, the defendant will say "the officer promised me that my girlfriend would go free if I confessed".

How do you defend against that?

The best defence is a recording device, which records all conversation from the point of arrest until you're done speaking with the suspect.

2017.10.07 Swearing Affidavits - Hearsay and Process

What's the difference between knowing and believing? Lawyers may explain that you "know" what you experienced, but you "believe" what you learned from credible sources. When you swear an affidavit or information to obtain, lawyers are going to read it. It pays to distinguish between what you saw and what you learned from others.

In B.C., serious administrative penalties hit drivers who get caught with too much alcohol in their bodies. The police officer sends a sworn report to the Superintendent of Motor Vehicles. The driver can contest those penalties by challenging the sworn report. Mr Brar, 2017 BCCA 322 challenged such a report. He complained that the officer swore to the truth of facts that he had no personal knowledge of. He did this by attaching calibration certificates to his report, and swearing to the truth of the report. But he didn't do the calibrations, therefore he could not swear that the certificates were accurate. The affidavit would only be true if he swore that he believed that the instruments were properly calibrated.

It was a clever argument, but the BCCA did not buy it. The legislation permitted the Superintendent to consider unsworn documents ... and besides, the preamble to the officer's report could be interpreted to mean that he knew only his report to be true.

Such arguments do not always fail. Whenever you swear to the truth of a fact in an ITO, check it a second time. You can swear to the truth of thing you experienced. But avoid asserting that you know something to be true - even if you believe it to be true - just because someone told you so.

For example, if you didn't calibrate the instruments, but you must swear to its calibration, then you should choose your language carefully:

Wrong	Right
I tested the driver's breath using instruments I know to be correctly calibrated.	I tested the driver's breath using instruments which I believe were correctly calibrated because I received certificates of calibration for those instruments from a colleague. I attach copies to this affidavit.

2017.09.28 Confessions - Outside Pressure

The private security company Brinks cares about money. And when they suspect their staff are up to no good, it appears that they ask questions.

Brinks issues guns to some of its staff. It protects money. Some money disappeared. So did a gun.

Brinks reported the missing gun. Brinks management suspected their own employee took it. The security director told Mr Foster, 2017 ONCA 751 if he returned the money, they would not pursue the theft with the police. Mr Foster returned most of the money. Then the security director told him they had reported the gun. He asked Mr Foster where the gun was. The security director did not promise to withhold his confession from police, but did say he would be prepared to tell the court that he had cooperated. Mr Foster confessed that he threw it in the lake, and he took them to spot.

Brinks told police everything they knew. Police found part of the gun. Police interviewed Mr Foster. He confessed.

The lawyers saw a problem with the Brinks interviews: a "quid pro quo".  If you do something for me, I'll do something for you. And not just any kind of something: the offer was a confession in exchange for legal immunity. If you, as a police officer, even intimate such an arrangement with a suspect, then the judge will exclude any confession you receive. A confession tainted by such an offer will taint subsequent confessions, unless something breaks the connection between them.

The basic rule is that judges won't accept a confession to a person in authority unless the suspect gave it "voluntarily". There are lots of ways for a statement to be obtained involuntarily. If you don't know them, read Oickle again. (If you are a police officer and you have never read Oickle, then it's like you have an STD. Don't tell anyone, but get the problem fixed immediately. I made it easy for you, click this link.)

Inducements which suggest that the suspect will get legal immunity in exchange for a confession generally don't meet that test.

The investigating officers could have taken greater care to separate themselves from the Brinks investigation. They referred to it during their interview. Lucky for them, those references did not elicit any information.

The appeal court expressed substantial reservation that the Brinks security director was a "person in authority".

Huh?

Doesn't management have "authority"? Kinda. Management has authority over employment, but in this context "person in authority" refers to criminal investigation and prosecution. Management doesn't control that.

The appeal court found a sufficient break between the Brinks interviews and the police. See para 11.

The lawyers proceeded on the assumption that the Brinks security direct was a person in authority. In a similar situation, you should too.

If the confession to management was clearly voluntary, then go ahead and refer to it in your interview of the suspect.

But if there were offers of immunity, then make sure that the suspect understands that you're starting with a clean slate. And when asking questions about the offence, don't refer to the confession that the suspect gave to management.

2017.09.23 Disclosure - 911 Calls - Save Now, Spend Later

A friend of the family overheard Mr M.G.T., 2017 ONCA 736 fight with his wife. The friend called 911. Police attended, and took statements. Mr MGT was charged. The friend testified, so did the wife. The judge convicted Mr MGT of sexual assault.

Mr MGT appealed. During the appeal, the Crown noticed that the friend's 911 call was never disclosed to Crown or defence.

Mr MGT added that failure to disclose relevant evidence to his other complaints. Those complaints failed on appeal.

With respect to the 911 call, it would not have added anything to the case.

But it might have.

You have a duty to disclose all evidence relevant to the charge. It's hard to see how the content of 911 calls is not relevant.

The police had a standing agreement with the Crown not to disclose the 911 calls unless the Crown or defence ask for it. My office has a similar agreement with our local police. It's expensive to download, redact and disclose every 911 call, especially considering that so few cases go to trial.

This cost-saving policy means that after any conviction, the defence can ask for the 911 call, in the hope that it will reveal something new. If it does, the appeal court may well order a new trial, which is very costly.

I generally prefer to get the 911 calls before trial. Those dispatchers often elicit information that the investigators miss. Costly in the short term, but cost-efficient in the long term.

2017.09.22 Sex and Murder

To understand this case, one needs to review some easily-forgotten basics about murder.

Sexual activity - consensual or not - does not turn a killing into a murder. "Murder" involves intentional killing, (or intentional infliction of mortal wounds.)  If a man kills a woman during a rape, it isn't murder ... unless the evidence proves that he meant to kill her (or inflict mortal wounds).

But if he did mean to kill her, then he's in big trouble. Murdering someone in the commission of a sexual assault is first degree murder. s. 231

Mr Niemi, 2017 ONCA 720 intentionally killed a woman by strangling her. Then, with a knife, he sliced her sweater and bra, exposing her breasts. He cut a line along the bottom of one breast. He stripped her lower clothing off. He dumped her body. He explained to an undercover officer that he took these steps to make the killing look sexual, to throw investigators off the track. He denied any sexual purpose in the killing.

Sexual assault involves violation of sexual integrity of a person who could consent but didn't. If a person is already dead before a sexual assault begins, then it's not sexual assault. No matter what sexual indignities a person commits to a corpse that they find, it isn't sexual assault.

Was this murder "first degree" or "second"?

Surprise! It's first degree.

Someone who does sexual things to a corpse without regard to whether they are alive or dead is attempting to engage in sex without consent. And that suffices to raise murder from second degree to first degree. And a guy who assaults his victim with the intention of doing sexual things to her without her consent is committing a sexual assault already, even if he ends up killing her before getting to the sexual part of the attack.

2017.09.20 Detention for Motor Vehicle Safety - "Not on a Highway"

Mr Nield, 2015 ONSC 5730 leave to appeal dismissed 2017 ONCA 722 caught the attention of a police officer when, at 1:22am, he ran across the parking lot of a MacDonald's. He got into a car that was parked at a hotel, and drove 300m along a highway, and pulled into the parking lot of a nearby motel.

The officer suspected that Mr Nield might be drinking. The officer approached the vehicle, and opened the driver's door. The officer quickly learned that his suspicions were true.

Mr Nield complained that the officer had no authority to stop him.

The Supreme Court of Canada repeatedly affirmed that you can rely on powers conferred by vehicle safety legislation (in Ontario, the Highway Traffic Act) to stop drivers at random. In Ontario, the HTA defines "driver" to be a person operating a vehicle on a "highway". Most parking lots don't meet its definition of a "highway". Therefore, the officer could not rely on that power to stop Mr Nield.

The trial judge agreed, and threw out the case.

The Crown appealed, pointing out that police officers have other powers. Under the common law, the Crown argued, a police officer may stop a vehicle for public safety regardless whether it is on a "highway" or not. The summary conviction appeal judge agreed.

To appeal again, Mr Nield needed "leave" (permission) from the Ontario Court of Appeal. They denied leave, saying that this question is not really much in debate.

I dunno. I can think of people who might debate this topic vigorously.

If you suspect some driver might be drinking, but the car is not on a "highway" (by whatever definition applies in your province or territory), I suggest that you take a moment to assess whether that driver poses a real public risk. If you detain someone in a car at a campsite because of the possibility that he might drive drunk, I think you might encounter an unsympathetic judge.

2017.09.17 Journalists accompanying Cops - Balancing Openness and Privacy

Democracy thrives when the public knows the truth about how the government exercises power. The courts understand this well. They try to avoid publication bans except when necessary, and try to accommodate the press. CBC v. Canada (AG), 2011 SCC 2

Police are also an arm of government. Police should also want the press to explain to the public how and why officers act as they do.

It appears that senior officers at the York Regional Police understand this principle. They permitted news reporters to watch officers operating Ontario's "RIDE" programme.

The officers stopped Mr Gautam, 2017 ONCJ 577.

The reporters video-recorded the interaction. Mr Gautam failed the screening device. The officers took Mr Gautam into a breath-testing van, and offered him access to counsel. Mr Gautam talked to a lawyer in a phone booth. The reporters aimed a camera through the window and recorded that too. They recorded him providing breath samples at 152mg% and 146mg%. And they interviewed him afterwards. He explained that he had only one drink. (I guess it was a really big one.)

A few days later, the local TV station aired a story starring Mr Gautam.

At trial, the judge threw out the evidence and acquitted him.

Why? Mr Gautam complained that he could not speak frankly with the lawyer while the camera recorded him. The judge believed him. The judge felt that broadcasting the interaction violated Mr Gautam's privacy rights. The judge did not blame the officers on the street, but their management, for permitting unrestricted recording and publication.

I sympathize with both sides.

In this era of "fake news" and anti-police rhetoric, the public benefits from learning the truth about what police officers do. The senior officers had a good idea. But they should have set limits.

Legally-speaking, the worst part was how the camera interfered with the privileged conversation with the lawyer. That's an obvious breach of s.10(b) of the Charter.

But there's another problem. Our new media make privacy a precious commodity. "The internet never forgets"  Mr Gautam did not consent to the video-recording. Police compelled him out of his car and into the baleful gaze of the camera. The journalists were not assisting the officers to investigate, they were making a story for public consumption which affected Mr Gautam's privacy.

You should welcome the press and let them see how law enforcement is done. But set limits on the journalist which protect the privacy of the people under your control. Although the distressed citizens make great stories, you can only consent to aim the camera at yourselves, not the citizens. "No. While we execute this search warrant, you can't come in. We wish you could, but the judge granted permission only to us." "Yes, you can video-record the officers at this roadblock, but you must not air anything that identifies the people we stop." "No, that guy is conferring with his lawyer. Turn off the camera and give him privacy."

I thank Louis-Philippe Theriault for pointing out this interesting case to me. But for him, I would have paid it no attention.

2017.09.01 Right to Counsel - Eliciting Information after Arrest or Detention

What can you say to a suspect after the arrest but before you give him access to the lawyer from whom he wanted advice?
 
For good - but now historical - reasons, the standard police warning used in parts of Alberta contained this language:

You may be charged with <offences>. You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you wish to say anything?

When an officer arrested Mr G.T.D., 2017 ABCA 274 for sexual assault, the officer dutifully advised him of his right to counsel. Yes, Mr GTD wanted legal advice. Next, the officer recited that warning.
 
Mr GTD responded that he "did not think it was rape", because he and the complainant had a prior relationship.
 
That comment hurt him at trial.  He appealed. He complained that the officer asked him to talk about the offence before he got a chance to get the legal advice he required. That violates his right under s.10(b) to legal advice without delay.
 
All three judges of the Alberta Court of Appeal agreed.
 
Two of the judges reviewed the history behind this language. I found it interesting. Long before the Charter, judges recommended that police ask the question, in case the accused had something exculpatory to say about the offence, like "no no, I wasn't there. You need to talk to my twin brother Harold" or "Sleasy Simon lent me this car. I didn't know it was stolen."
 
That was then, this is now.
 
Right after you arrest someone, avoiding discussion about the offence right after you arrested someone is like not discussing the rhinoceros in the room. It's hard to find some other subject of conversation.  After arresting a person for a crime, many an officer has asked "why did you do it?" Bad idea.
 
Lots of people want to start talking about the crime. But if the suspect wants legal advice first, then the police officer can't ask about the crime until after the suspect gets legal advice.
 
Opinions vary whether you need to shut down a guy who just starts talking on his own.  Some argue: if you didn't ask him questions, then you didn't breach his rights. Others say: to show the judge how fairly you treat the suspect, you should stop him from talking about the offence until after he gets legal rights.
 
I think both answers have merit. I suggest that you choose your path depending upon how vulnerable the suspect is. If she's a seasoned offender with lots of experience with cops, let her talk. If he's a rookie, or suffering a mental disability, or drunk, maybe slow the conversation down. Whichever you do, take abundant notes (or audiorecord) what the two of you said.

2017.09.01 Privacy - Can you Ask a Corporation to Snitch on its Customers?

No. But they can snitch if they want. If their privacy policy permits it. Maybe.

It's complicated.

The Personal Information Protection and Electronic Documents Act (PIPEDA) tells corporations to use customer information for business purposes, but not to pass it around in ways the customer wouldn't expect. Corporations should publish privacy policies which tell their customers how much customer information the corporation will share with other people or agencies. And that helps set the customers' reasonable expectations of privacy over their data.

s. 7(3)(c.1)(ii) PIPEDA seemed to say that if a police officer told a corporation that they were involved in a criminal investigation, and ask for information about a customer, the corporation could - if they wanted - disclose information about their customer. Nobody was quite sure because PIPEDA was drafted badly. Some of its provisions are circular.

The confusion ended after R. v. Spencer, 2014 SCC 43, when the Supreme Court of Canada noticed that the provision required that police have "lawful authority to obtain the information". The court said that means police needed a warrant before they could rely on this provision. I found that interpretation weird because a different section already permitted corporations to comply with court orders. Besides, when police have judicial authority to get information, the officers don't have to ask a corporation to comply, and the corporation can't refuse. Essentially, with their strange interpretation, the court erased s.7(3)(c.1)(ii).

PIPEDA is a Federal act, and it applies only to Federal corporations. What about provincial ones?

Many provinces created similar legislation which achieves similar goals. The provincial legislation was drafted more clearly.

In R. v. Orlandis-Habsburgo, 2017 ONCA 649, the court considered Ontario's Municipal Freedom of Information and Protection of Privacy Act. (MFIPPA)

Basically, an Ontario electric company shared information with police about Mr Orlandis-Habsburgo's power consumption on request. That led to a bust. Mr Orlandis-Habsburgo complained that it was unlawful for the power company to share information with the police when they asked. What do you think? MFIPPA says:

An institution shall not disclose personal information in its custody or under its control except,

(g) if disclosure is to a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result.

I thought that's pretty clear. The judges didn't.

They came to the conclusion that the power company can give information if they choose, but the police can't ask for information unless they get a warrant.

I find that a troubling conclusion. Historically, police work relies upon the consent of the populace. A "good citizen" cooperates with investigators by telling what he or she knows about the offence under investigation. But it's all by consent. Citizen enjoy the right to decide not to tell what they know. If they don't like the investigation, they can stay silent. But a citizen doesn't make that decision until a police officer asks.

The court's interpretation prevents police from asking corporations to be "good citizens".

I may have over-simplified the logic of the decision. But as I read this decision, it blocks police investigations.

Suppose there's a murder in the parking lot of a building, and you think the killer may have walked in or out of the lobbies of nearby buildings, then you need a warrant or production order in order to persuade the management to let you review the security videos of their lobbies.

Of course, if all you have is the possibility that the killer walked through these lobbies, then you lack sufficient grounds to justify the warrant.

No security video to assist your investigation. Whether it catches the guilty or clears the innocent, apparently, you can't have it.

I still don't believe it. I procrastinated several weeks before writing about this case because I'm still not certain I fully understand it. The logic in the decision is more complicated than I have described it in this description. I've got more thinking to do. I may modify this post later.

2017.08.22 Search & Seizure incidental to Detention - Guns

If you have reasonable suspicion that a car contains an unlawful gun, can you search the trunk?

At 8:23:10 p.m, an anonymous tipster called 911. The dispatcher typed a summary of his information:

WL2 SCARBOROUGH WIND-MOBILE ADDRESS AVAILABLE BY THE LIQUOR STORE IN A WHITE VEH -BKND714 [the licence plate number]
COMP SAYS HE SAW A LARGE BAG
IT WAS IN THE TRUNK OPEN
COMP BELIEVES HE SAW A GUN - 1M/A.SIAN-30-40'S

COMP SAYS HE JUST DROVE BY A CAR AND BELIEVES HE SAW A GUN
THINKS THIS MALE IS DEALING DRUGS
COMP IS IN A CAR AND DROVE BY THE SUSP VEH-ITS DARK INSIDE THE CAR AND BELIEVES HE SAW IT IN THE MALE'S POCKET

SAYS THE MALE WAS BY HIMSELF AND IN THE DRIVER'S SEAT
VEH COMES BACK AS RENTAL CAR
TRIED TO FIND OUT HOW HE SAW THE GUN IN THE DARK DRIVING BY-CHANGES HIS MIND
BELIEVES HE SAW IT

MALE ALSO HAS A BRN HAT ON
COMP COULD NOT EXPLAIN/CLARIFY EXACTLY WHERE THE GUN MAY BE

Attending officers drove arrived at the the liquor store at 8:24:53pm but did not see the vehicle in the parking lot. A few minutes later, they did find a matching vehicle and driver pulled over, engine running, on a nearby road. Licence plate and car, and the driver - Mr Lee, 2017 ONCA 654 - was indeed Asian, and wore a hat.

They told him that they were investigating a gun complaint. He responded "no no no". They did not tell him about his right to counsel, but nor did they question him. They patted him down, and checked the vehicle for weapons. No gun.

Another officer arrived. He stepped into the driver's seat and pulled a lever which opened the trunk.

There, indeed was a bag in the trunk. It contained 23kg of cocaine.

And no gun.

The trial judge convicted Mr Lee. He and two judges of the Court of Appeal agreed that the police searched the trunk lawfully. One judge in the Court of Appeal agreed with Mr Lee's lawyers that this search went too far.

This decision does not declare open season on the trunks of cars driven by suspicious people. The majority said:

"... this decision must not be read as condoning an unlimited search of a car for police or public safety purposes whenever there is an investigative detention."

The majority said that the details in the tip (gun, bag in trunk, possible drug dealing) raised a specific concern about public safety. When the officers searched the driver and the cabin of the car, they found no gun. Because so much about the tip was confirmed, they had real reason to fear that a gun remained unaccounted for. That justified opening the trunk.

The other judge looked at the same facts from a different angle. The pat-down and search of the cabin resolved any immediate concerns about public safety. Even if there was a gun in the trunk, it wasn't going to hurt anyone immediately.

It's the kind of case that would divide the judges of the Supreme Court of Canada.

In the mean time, don't go popping trunks just because of this decision. To go into a trunk during an investigative detention:

• tell the suspect why you're detaining
• tell them about the right to counsel
• this case suggests asking questions before they talk to a lawyer may be problematic (though opinions differed)
• don't go into the trunk unless you have specific reasons pointing at a live risk to police or the public.

2017.08.19 Identification - Security Video

A fight broke out at a bar. A guy walked up and fired a handgun several times, hitting several people. Who was the guy?

Two officers and a server at the bar testified that they watched the security video and recognized Mr M.B., 2017 ONCA 653 as the shooter. The officers knew him from watching him on the street (he was involved in drugs). The server knew him because he showed up at the bar from time to time. She did not say he was there that day.

The three witnesses were sure, but the video quality was poor.

The trial judge convicted. The appeal court threw the conviction out.

Security video always looks more convincing to the investigator than it does to the judges. If the face is hard to make out in the video, you probably want independent evidence.

In this case, other evidence could have included:

• did Mr M.B. have a dispute with any of the people that got shot?
• did anyone see Mr M.B. in the bar or near it that day?
• are there any witnesses who can say Mr M.B. possessed a handgun at the time?

2017.08.12 Exhibit Destruction

In 1999, some guy broke into the home of a 75-year-old woman. He lay on top of her and covered her face with the sheets. He told her to relax. She yelled. It appears he stole some money, and moved an orange juice container from the fridge, and emptied it.

The investigating officers threw out the orange juice container. They wish they had kept it.

Twice more in the months that followed, a guy broke into the homes of old women. He took drinks from their kitchens. He stole their money. He went into their bedrooms and assaulted them in their beds. He raped one of them. DNA from the rape matched Mr Nicholas, 2017 ONCA 646. On the other one, DNA from a drink container matched Mr Nicholas. But did he do the first one?

The Crown prosecuted him for all three B&Es. Several times over. The Crown wished that the officer had kept the juice container. If it had Mr Nicholas' DNA on it, the case would have been easy. Instead, they had to use similar fact evidence to prove he did it - which is more difficult. (The jury found him guilty none-the-less.)

The officer wished he had kept the juice container. At the last trial, the defence lawyer cross-examined the officer long and hard about why it was thrown out.

Would you keep it today?

2017.08.12 Taking DNA by Consent

When Mr Nicholas, 2017 ONCA 646 went on the rampage, police had no DNA to match against. They collected around 100 names of possible suspects, and asked each in turn to provide DNA.

They went about it the right way. They prepared a form which made sure that each fellow knew he could decline to give DNA. They offered access to counsel. They recorded most of the process with an audio-recorder. You can read the form in this earlier decision: Nicholas (2004 Ont CA).

The first time Mr Nicholas went to trial, he complained that when taking his DNA, the police detained him and coerced him. But he didn't testify about how he felt at the time. That trial judge found that the DNA was properly taken. That trial judge made other legal errors which led to a retrial.

The next time Mr Nicholas went to trial, he testified that the police detained him and coerced him into giving his DNA. Because of the form and the audio-recording the next trial judge concluded again that he gave it voluntarily. You might want to look at that form.

But the police did make a mistake. They did not accurately record on the form all of the offences that they were investigating. That breached Mr Nicholas' rights under s.8. The judge admitted the evidence anyway.

Getting DNA by consent from a hundred suspects is a boring business. You won't know which one (if any) did the crime. It's easy to slip up on the 75th suspect, and hard to remember him from all the others. But if your offender gives you DNA (and it's amazing how often they do), you can expect an enormous court battle over what happened.

In addition to audio-recording, I would suggest that you also take a picture of each suspect, so that you can identify the person from whom you got the DNA. (Is the electronic date and time correctly set on your camera?)

  I recommend that you record the process of obtaining consent on audio or video.

2017.08.08 Expert Witnesses

Some of you give expert evidence about unusual areas or topics.

Don't fudge your results.

It's not professional, and can cause untold costs and grief. In Abbey, 2017 ONCA 640, an expert claimed to have strong evidence about the meaning of teardrop tattoos among gang members. Perhaps he did have special knowledge, but he fudged the statistics he offered to support this opinion. Lawyers eventually figured it out, destroying his reputation. But not before he cost the public masses of litigation costs. Now, his evidence is worth nothing. It is possible that a murderer will walk free, or that an innocent man suffered a decade of litigation.

2017.08.07 Warrantless Search - Guns and Gangs

A member of the Hells Angels started talking to police.

Three days after a B&E and theft of 29 firearms and lots of ammo, police arrested this guy for the crime. Where did the guns go? The HA member told police that he sold the guns to Mr Strauss, 2017 ONCA 628, but he did not know where Mr Strauss stashed them. He told police where the exchange occurred. Strauss stashed the guns and returned 45 minutes later. Because this occurred in a rural area, police figured the guns could be no more than a 20-minute drive from where the informant gave the guns to Strauss.

Eight days after the B&E, the officers started searching properties in the area. Without warrants. No luck.

Thirteen days after the B&E, police discovered a property in the area belonging to Strauss' parents. Still without a warrant, they went to a barn on the property. They picked a lock, and searched. They found 17 guns, lots of ammo and drug trafficking paraphernalia.

Mr Strauss was arrested on other matters, and happened to be in custody with the Hells Angel informant. (Was it really a coincidence?) The Hells Angel informant then told police that Mr Strauss commented that the police failed to search the false wall in the barn, where more guns were hidden.

This time, police got a warrant, and found the guns, just as the informant said.

The judges were pretty annoyed by the warrantless search, and excluded all of the evidence from the first search of the barn. The trial judge liked the honesty of application for the warrant to search the barn a second time. He admitted the evidence from the second search.  The appeal judges were too outraged by the campaign of warrantless searches. They excluded all of the evidence from the searches of the barn, and Mr Strauss beat the charges.

To search private property, in the absence of exigent circumstances, you need consent from an authorized person, or a warrant.

In these situations, I can see why police might view the warrantless search as necessary in the public interest. They likely had reason to believe that these firearms posed a general danger to the public, even if the guns did not pose a specific imminent danger at the time of the search. By proceeding with a warrantless search, they would get the guns off the street, whether or not there was a conviction.

Great policy. Lousy law. The trouble is, I know of no lawful authority to proceed in that fashion. And unless you get lawful justification under s.25.1 of the Criminal Code to do an act which violates s.348 of the Criminal Code, you're exposing yourself to criminal prosecution.

What can you do to pursue such a policy? In the past, police have been secretive or euphemistic about "no case seizures" to remove guns or drugs from circulation. I think the transparency of s.25.1 of the Criminal Code provides a better model. Or perhaps you need legislation which - in cases of high public risk - permits you to search suspicious places with less than probable cause. That legislation might prevent you from using evidence so discovered from being used to incriminate people whose privacy you violate.

2017.08.07 Arrest - Reasonable Grounds - Eyewitness Descriptions

Eyewitnesses make mistakes. They mis-remember or fail to see crucial detail, even moments later. There are abundant psychological experiments which prove this: Gorilla. Murder mystery. Card trick. Person switch

All these tricks show that what we focus on affects how much we notice of the rest of our surroundings.

When a victim of a violent attack describes it, or the people involved, they may make mistakes. That affects how you should assess their evidence.

Police attended an assault complaint at Dundas & Wellington in Toronto. They spoke to the complainant inside a Mac's convenience store. He told the officers that two men and a woman assaulted him. He knew one man and named him. He said that the other man had dark skin and was dressed in baggy hip-hop style clothing.

The complainant was missing a shoe. An officer found the missing shoe in the alley where he said the assault occurred. They officers had good reason to believe he was assaulted.

But whodunnit?

As the officers spoke in the store with the complainant, two men and a woman walked by outside. The complainant pointed through the window: there they are now. Police stopped the group. The man that the victim named was one of the three, but the other man did not wear baggy hip-hop clothing. The other man did have dark skin, but he wore a black pea coat, black jogging pants, brown boots and a black baseball cap.

Police arrested all three people. When searching the "other man", Mr Aviles, 2017 ONCA 629, police found drugs and a scale. He was charged with PPT.

Mr Aviles complained that the officers lacked grounds to arrest: he wore different clothing than what the victim described.

The court found that his presence with the man and the woman shortly after the incident, the victim's purported recognition, and the dark skin sufficed to make this arrest reasonable.

The misdescription of the clothing did not make the arrest unreasonable. People can make mistakes.

This case was about the drugs in Mr Aviles' possession, and reasonable arrest. Would a court have convicted Mr Aviles of the assault based on this evidence? No way.

A victim of an assault may make some mistakes when describing the assailant. It was reasonable for the arresting officer to believe that the victim mistook the second guy's clothing. But beware. Those same frailties undermine proof of identification at trial. After an eyewitness identifies a stranger as "that's the guy who attacked me", look for other evidence linking your suspect to the crime.

2017.07.31 Entrapment - Reasonable Suspicion

Those of you undercover officers who ask people whether they would like to commit a crime need to make sure you can explain to the judge why you picked a particular target or location.  All you need is a "reasonable suspicion".

A tipster told police that Mr Seymour 2016 MBCA 118 trafficked illegally in firearms. Mr Seymour ran a hunting supply business in Fort Alexander, Manitoba. The police assessed the tip and concluded it was reliable. An officer pretended to be a hunter who broke his rifle. The officer asked Mr Seymour if he could borrow a firearm to finish his hunting. The officer claimed to have no firearms licence. Mr Seymour obliged. The officer asked if he could buy a firearm for parts to fix his broken gun. Mr Seymour obliged.

At trial, Mr Seymour complained of entrapment.

The trial judge and the court of appeal judges agreed.

The problem, they explained, was that the police assessed the quality of the tip, but the evidence led at trial did not let the judge assess the quality of the tip. The judge could not determine whether the police had a "reasonable" suspicion that Mr Seymour would commit the crime.

Therefore, when you get a tip that inspires you to test whether someone wants to commit a crime, you should:

• assess the quality of the tip to make sure that it's reasonable to think that the target mght commit a crime if given the opportunity; and
• determine how much of that assessment you can disclose to the defence and judge.

I didn't notice this decision when it first came out. Even 7 months later, I think it may be useful to some of you even now.

2017.07.27 Holdback & Sympathy

When you don't know who did the crime, keep what you do know to yourself.

Mr Kelly, 2017 ONCA 621 reported that his wife went missing. Four years later, a land surveyor found her body in a wooded area. Police investigated:

• An autopsy showed that someone shot her in the head with a .22 rifle.
• Someone wrapped her body in a carpet, and
• hid it at a specific location in the woods.

This is the kind of information that a bereaved husband might want to know. Six years after the murder, an investigator told him all three of these details.

Eight years after the murder, Mr Kelly told an undercover police officer that he killed his wife. Mr Kelly told the officer those same details he learned from the investigator.

The undercover operation made Mr Kelly believe that he would get $400,000 if he could persuade the undercover officer that he did the murder. That incentive meant that the jury would not convict Mr Kelly if all he did was repeat the facts that the investigator told him two years earlier.

But he mentioned other details which the investigators had carefully kept back from public knowledge: three loops of yellow rope bound the carpet around the body; the killer fired a single bullet to the back of the victim's head; the carpet was blue (actually black and blue).

Those details convicted him.

There could have been more holdback to match against Mr Kelly's confession. Mr Kelly mentioned other details which matched what the police knew about the killing. Unfortunately, at trial, some of the investigators contradicted each other about which of those details were holdback, and which ones were disclosed.

Holdback ain't holdback if you tell family members, other witnesses, or the press.

Bereaved family members often want to know exactly how their loved one died. But they also want justice. If you tell them too much about the investigation, you may prevent them from getting justice.

Junior officers, beware of your enthusiasm. Everyone likes to know a secret. But holdback is dangerous. Avoid learning the holdback information if you can. If you do learn it, disclose it to nobody without first obtaining permission from a senior investigator tasked with tracking the holdback. If you do accidentally leak holdback to someone (your spouse, your brother, your secretary), report it, and ask the person not to mention the details to anyone. You just turned that person into a witness in the case.

Tracking holdback is hard. Senior officers: keep the circle small. You want to avoid the problem which arose in the Kelly trial. You want to be sure exactly what information was held back. Set rules: who decides when to release holdback? what documentation do you want from people in the circle about disclosure? Don't just track what your people told he suspect. Make sure everyone in the circle knows the rules. Make sure you know the name of everyone who knows the secret.

2017.07.27 Undercover - Some of Mr Big's Relatives have big Harts

In R. v. Hart, 2014 SCC 52, the court set special rules for the admissibility of evidence obtained in Mr Big operations. They said those rules apply to operations in which officers pretend to be a criminal organization which can and does use violence, they engage the suspect in simulated crime, they demand loyalty and honesty, and a powerful leader in the organization interrogates the target to ascertain the truth, and dismissing his denials as untrue.

The new rules told investigators what many already knew - don't intimidate or control your target too much.

The undercover operation in the case of Mr Kelly, 2017 ONCA 621 (see above) didn't look much like the traditional Mr Big operation.  An insurance agent contacted him about about life insurance on his wife: a $3,000 payout. Did he want the money? Oh, yes, Mr Kelly wanted the money. The agent alerted him to a weird provision in the release form: it included a requirement that Mr Kelly waive any claims he might have under any other insurance policies. The agent thought that was weird, and he'd check into it. The agent got back in touch with Mr Kelly: yes, there was more insurance  on his wife worth $570,000. But the insurance company wanted proof that Mr Kelly didn't murder his wife.

Luckily for Mr Kelly, the agent had a dying friend who wanted money for his daughter to go to university. If Mr Kelly told the dying friend exactly how he killed his wife, then the agent and the friend would take $150,000, and Mr Kelly could keep the rest. But the plan would only work if Mr Kelly told them exactly what he did.

This was an innovative operation. Not Mr Big, but it got results like Mr Big.

Did the restrictive new rules for Mr Big operations apply to this one?

The judges said "yes". The officers offered a powerful inducement: $400,000. And they involved Mr Kelly in a conspiracy to commit fraud, which would make him look bad to a jury.

But applying those new rules, they found that this operation fit the guidelines easily:

• No threats of violence.
• No pattern of simulated criminal acts.
• No control over Kelly's life.

And Mr Kelly's confession matched the holdback.

The jury convicted him, and Mr Kelly lost his appeal.

But because the court said Hart applies, you must test your future operational plans against Hart even when you plan something different from the traditional Mr Big.

2017.07.26 Deceived by the Obvious - Proof Beyond a Reasonable Doubt

Too much experience in the field can sometimes blind you to the burden of proof in the court room.

Over two days, some officers watched known drug addicts visit a hotel room for short periods of time. The officers got a warrant, kicked in the door, and found two beds. The officers arrested the three men lying on them. All three men had bundles of cash in their pockets. Two of the three men also possessed cocaine -- but not the third man, Mr Douglas, 2017 ONCA 609.

The room contained several bags of larger quantities of what looked like crack cocaine. The lead investigator had abundant experience busting cocaine dealers, and easily concluded that the other bags also contained drugs. I suspect for that reason, he did not send the other bags off for testing.

The trial judge relied on the investigator's experience and knowledge, and came to the conclusion that the other bags contained drugs. That helped lead him to believe that Mr Douglas participated in the drug transactions. Their locations, and the presence of scales probably added to the inference the trial judge could draw.

On appeal, Mr Douglas's lawyer complained: the officer was not a qualified expert. (I observe that even if he sufficiently qualified, he might be seen as biased by reason of his involvement in the investigation, and therefore disqualified from giving expert opinions.)

In the absence of admissible evidence that the other bags contained cocaine, the court only had proof that the other two men possessed cocaine in their pockets. All Mr Douglas did was occupy a room which contained two men with cocaine in their pockets. Even if the others were dealing cocaine, all this showed was that Mr Douglas might have been present, but not that he participated.

The appeal court upheld the trial judge's conviction because there was lots of other circumstantial evidence. But I draw this case to your attention because because it illustrates a trap that's easy to fall into.

At the time of arrest, the defendant's guilt often looks so obvious that investigators are tempted to take short-cuts investigating guilt. In this case, the other (larger) bags "obviously" contained drugs, and so nobody asked the lab to test their contents. In another case, it will be the defendant's obvious sobriety, or intoxication, or lack of injuries. At trial, judges need clear evidence of the obvious facts before they can rely on them.

Sometimes, it really is a waste of time proving the obvious. You don't need to ask the forensic lab to test the red stuff oozing out of a cut in the victim's hand to determine whether it's blood. On the other hand, when the drunk driver threatened to punch the breath technician, you really should preserve the security video in the police station from the time that he or she arrived to the time he or she departed. And you should get every eyewitness to write a statement.

How much time and money you should spend to investigate the obvious depends upon the seriousness of the case and the strength of the other evidence. Guilt usually appears more obvious to the investigators at the time of arrest than at trial. Slow down. When deciding what short-cuts to take, remember that in court everything gets challenged, and when challenged, most witnesses sound only half as impressive as they did at the time of the investigation. Many cops included.

2017.07.20 Undercover Officers on the Internet - Screenshots

A great way to catch internet predators is to pretend to be internet prey. Can you make screenshots of the communications a suspect sends you?

An officer created a fake profile of a 14-year-old girl. Mr Mills, 2017 NLCA 12, aged 32 started communicating with her about sex, and invited her to meet him in a park. He claimed to be 23.

To record the communications, police captured images of the screen using a program called "Snagit".

Defence complained that this constituted "interception" of private communications. It required a 1-party consent authorization under s.184.1 of the Criminal Code.

The trial judge agreed.

The appeal court didn't. Without mentioning the seminal case of Duarte, [1990] 1 SCR 30, they overturned the trial judge's finding that police breached Mr Mills rights.

Mr Mills didn't like the appeal court's conclusion, and applied for leave to appeal to the Supreme Court of Canada.

At present, it appears that you do not need authorization to capture screenshots of undercover internet chats. I think it's a logical conclusion.  But if the Supreme Court grants leave, I do not think the judges of that court will find this case as simple as the Newfoundland Court of Appeal did.

2017.07.17 Destruction of Exhibits - Live Long and Prosper

How long after the conviction should you keep the exhibits?

In 1983, part way through his first degree murder trial, Mr Tallio, 2017 BCCA 259, pleaded guilty to second degree murder. In 2016, he filed an appeal, based upon DNA testing of a few of the exhibits that remain. One contained DNA that doesn't match him, but there is evidence to suggest that it was contaminated by a hospital employee.

Most appeals start within 30 days of the final decision. 33 years is unusual. The decision makes it clear that finding those exhibits took considerable effort. Many exhibits are gone.

Your exhibit storage systems are expensive, and contain masses of stuff that nobody wants. You want to clear them out. Avoid destroying evidence without first checking with people who could be affected. Mr Tallio asserted his innocence ever after his conviction. He would have wanted that stuff kept. Other convicts might not care so much.

2017.07.17 Right to Counsel s.10(b) - Wait Long or Prosper

Section 10(b) of the Charter assures Canadians who are arrested or detained that they will be able to "retain and instruct counsel without delay". How long can the suspect spend contacting his or her lawyer? When can you override the suspect's delay?

At 1:30pm, police officers arrested Mr Fountain, 2017 ONCA 596 for a home-invasion robbery. They told him about his right to counsel. He told them he wanted legal advice. He asked that his girlfriend contact his lawyer for him. When he arrived at the police station, at 2:10pm, he gave the name and phone number of his lawyer. It wasn't until 2:35pm that the police first called the phone number he gave. Someone at the lawyer's office said he was out, but would call back. The lawyer didn't call back. Police called again at 6:15pm, and left a message. At 7:00pm, Mr Fountain's girlfriend told police that a lawyer would be at the lawyer's office in the morning. At 8:15pm, the arresting officer told Mr Fountain about the two calls, and what the girlfriend reported. The officer offered Mr Fountain a call to Legal Aid.

Mr Fountain turned down Legal Aid because he wanted to talk to his lawyer in the morning.

The arresting officer then interviewed Mr Fountain. Twice, Mr Fountain objected to the questioning because he had not yet spoken with his lawyer. The arresting officer pointed out that he turned down Legal Aid. The second time, Mr Fountain spoke to Legal Aid. During the interview, Mr Fountain said the essential things necessary to get him convicted.

The trial judge admitted the confession. The appeal judges threw it out. They said that Mr Fountain did not waive his right to counsel. The officer should have:

• waited until the morning before questioning Mr Fountain, or
• read him the Prosper warning (the Supplemental Charter warning) before forging ahead with the interview.

Mr Fountain beat the charge.

What went wrong?

The arresting officer gave Mr Fountain the choice to wait until the next morning to talk to his own lawyer, and Fountain accepted that choice. That was fair. The officer then questioned Mr Fountain before he spoke with his lawyer. That approach prevented Fountain from getting the legal advice he wanted.

Why did the officer change the time-line?

Maybe the officer's shift ended that night. Maybe interviewing the suspect next morning would have required the officer to return to work on his day off.

How fast the suspect must get legal advice depends upon the urgency of the investigation. If other culprits are currently at large, posing a danger to the public or destroying evidence, then you may push the suspect to get legal advice quickly, so that you can question him sooner, and try to solve the evolving situation. If the situation is under control, then you should let the suspect wait until morning to speak to the lawyer of choice. An impaired driver doesn't get till the next morning to contact counsel because his body metabolizes the evidence with each passing minute. But a trafficker may be entitled to delay that long because no evidence will be lost in the interim, and no people are endangered.

Seriousness matters too. In a small fraud case, a judge might permit an officer to hurry things along to accommodate the officer's work schedule. For serious cases like home invasion or murder, judges won't care so much about conveniencing police officers.

Sometimes, when you call the suspect's chosen lawyer, you get no response. If you think waiting for a response will take too long, know that a judge will second-guess you. Before telling the suspect to get legal advice from some other lawyer, assess how urgent the situation is.

In Prosper, [1994] 3 SCR 236 the court set a high standard for "waiver". This case applies when a suspect first says he wants legal advice, but later decides to do without it. The judges decided that in those situations you must give a supplemental Charter warning, so that the suspect knows he is entitled to a reasonable opportunity to get legal advice.

If you decide you won't wait, you need to make the ground rules clear to the suspect, because you are setting him up to waive his right to counsel:

1. You have a right to a reasonable opportunity to get legal advice.
2. I have to hold off eliciting evidence from you until you get that opportunity.
3. Waiting until tomorrow isn't reasonable because .... I'm not going to wait until tomorrow to interview you.
4. We've done the following things to contact the lawyer you named: ...
5. Is there anything you can think of that would put you in touch with your lawyer tonight?
6. No? That leaves you with three choices:
1. Choose a different lawyer to talk to tonight.
2. Call Legal Aid - they're available 24 hour a day.
3. Proceed without getting any legal advice.
7. Just to be clear, I'm not going to ask you questions about the crime until you've had a reasonable opportunity to get legal advice. If you want legal advice, let's make it happen. But let's do that tonight.

Read my second paragraph, thinking about the suspect's experience of access to counsel. He may have got the impression that the police officer put a low priority on putting him in touch with counsel. There may be good reasons for the officer's delays - other matters may have occupied the officer. But judges assess infringements of rights from the point of view of the suspect, not the police officer.

2017.07.17 Reasonable grounds - Confirming Tipsters

How much confirmation of a tip do you need before you can act on it?

It depends. On the quality of the tip, and the amount of confirmation you already have.

An officer watched the house of a suspected cocaine dealer when a silver Honda Accord drove up. A tall slim black guy got out, and went into the house. The officer ran the plate, and then remembered that another officer told him of a tip relating to that plate and car: the tipster said it belonged to a high-level drug supplier. The tipster said the supplier was a tall slim black guy in his 30's. The other officer said that the tipster was reliable, and had first-hand knowledge.

About 20 minutes later, the officer saw the suspected cocaine dealer show the tall slim black guy out of the house. When the tall guy drove away, the officer arrested him for drug trafficking. Mr Dunkley, 2017 ONCA 600 had 6 cell phones in his clothing and in his car. Behind panels in the car were US$440,000, and 5.5Kg of cocaine. And a handgun.

At trial, the defence urged the judge to find that the officer's evidence failed to prove reasonable grounds to make the arrest. The arresting officer:

• had no personal dealings with the tipster;
• did not know how the source handler came to the conclusion that the tipster was "reliable", and therefore
• could not explain to the trial judge why it would be reasonable to trust the tipster.

The trial judge and the judges of the Court of Appeal rejected this argument. The tip enjoyed some credibility because the tipster claimed to know from personal observation. The officer's observation coroborrated the tip because the car described by the tipster went to a drug dealer's house, and the driver the description given by the tipster. He stayed for a short time, consistent with a delivery of drugs to the dealer. The appeal judges said:

The high degree of suspicion attached to these non-criminal acts was sufficient to remove the possibility of innocent coincidence.

Note what the judges focussed on. If you observe only "non-criminal acts", then think twice before arresting anyone. On the other hand, if the information you have can "remove the possibility of innocent coincidence", then go ahead.

That analysis works whether you're considering whether to arrest the driver who emerged from the bar, or the street dealer that you're watching.

2017.07.09 Street checks - Identifying the Passengers in a Traffic Stop

When meeting shady people in shady places, diligent police officers try to identify all the people involved. The Charter limits what you can do and when.

Near a crack house house, a black Honda drove slowly by. A police officer watching the car noticed that one passenger was not wearing a seatbelt. The officer stopped the car. That passenger, Mr Mhlongo, 2017 ONCA 562 got out and tried to walk away. The officer stopped him, and asked for identification. Mr Mhlongo produced picture ID which satisfied the officer that he knew who he was dealing with.

The vehicle carried the wrong licence plates. Some investigation at the scene led to the driver's arrest.

After that, without releasing Mr Mhlongo, the officer consulted a database available in his police car to find out more about Mr Mhlongo and the other passenger. Under cross-examination, the officer agreed that the computer checks were investigation into possible criminal matters, but he didn't know of any crime at that moment. He wasn't letting go of Mr Mhlongo until he knew. Meanwhile, Mr Mhlongo tossed something under a nearby car. It turned out to be cocaine. Police detained and then arrested him for possession of cocaine. They found lots more cocaine in the car.

Mr Mhlongo complained at trial that the police arbitrarily detained him. He conceded that the initial detention was lawful. The passenger who should have been wearing a seatbelt tried to walk away: that gave the officer a reason to stop him. But after the officer arrested the driver, the seatbelt investigation was over. There was no further need to hold Mr Mhlongo. The continuing detention after the arrest was not for highway traffic matters, but to investigate Mr Mhlongo for possible criminality. Because the officer admitted he had no grounds, this was an arbitrary detention.

And furthermore, Mr Mhlongo complained that:

• just by asking Mr Mhlongo to identify himself the police breached his s.8 right to be free from unreasonable search and seizure.
• when they continued the detention, the officers failed to offer Mr Mhlongo legal advice. They breached his rights under s.10 of the Charter too.

The appeal court judges agreed.

Of course you want to know who you're dealing with. But you can't detain people without reasons.

Sometimes, careful consideration of the evidence under your nose can justify a detention. But the rest of the time, you must release people when you have to reasonable suspicion that they did or are doing something illegal.

I'm troubled by the s.8 conclusion. A decade ago, in , Harris, 2007 ONCA 574 the court first asserted this idea: collecting names from non-suspects for the purpose of looking them up in a database may breach their s.8 rights. Back then, I thought the dissenting judge made a good point: one doesn't enjoy much privacy in one's name. I also think that if police arrest one guy, they should attempt to identify all the others. I can conceive of situations in which failing to identify the other parties present may breach a defendant's s.7 rights. In any case, collecting intelligence on the inhabitants of crime-ridden areas seems to be a necessary technique for police to protect the life, liberty and property of innocent inhabitants.

Some day, some prosecutor will need to take this issue to the Supreme Court of Canada for clarification. Mr Mhlongo's case is not the right one. In the mean time, if they haven't already, Ontario police forces should develop policies about asking non-suspects for identification or investigating the non-suspects during detentions.

2017.07.09 Detention & Reasonable Suspicion

Here's a close call. Are these reasonable grounds to detain?

A residential neighborhood in Markham, Ontario suffered a spate of day-time B&Es. Some houses were under construction. A plainclothes officer drove there in an unmarked police car for the purpose of investigating the burglaries. He saw a brand-new rental van come from a dead-end area, drive an unnecessarily complicated route, and pull into 31 Hislop Drive. Two young men occupied the truck. Five days later, while patrolling again, he saw the same truck. The occupants stared at him as they drove slowly through an intersection. It drove by 31 Hislop, made a U-turn, and parked 4-5 houses down the street. The officer pulled in behind the van. The vehicle then drove a block away.

The officer felt suspicious, but had observed no driving infractions.

He pulled it over and asked the driver, Mr Gonzales, 2017 ONCA 543 for his licence and registration.

Mr Gonzales asked why the officer stopped him. The officer said he wanted to check his licence. The officer didn't mention the burglaries. Nor did he comment on the skunky smell of marijuana emanating from the truck.

The officer called for backup before arresting the men. In the van, they found 252 pounds of packaged marijuana and $105,000 in cash.

Was the initial stop an arbitrary detention? The investigating officer testified that he stopped the vehicle to investigate the burglaries. The trial judge very generously found that the officer also stopped the vehicle to investigate licencing and insurance. The appeal court rejected this finding. The officer went there to investigate burglaries, not drivers. For vehicle stops, of course, you don't need a reason - if the purpose is genuinely to investigate licencing and vehicle safety. For criminal offences, you need reasonable grounds.

The judges found that the officer's observations did not add up to reasonable grounds to suspect that the young men in the van participated in the burglaries.

I think it's a close call. I suspect that a highly observant and articulate officer might have been able to make sufficient inferences and deductions from the unusual behaviour of the van and its occupants to justify a detention.

But the facts left no uncertainty about the vehicle safety detention. This officer couldn't justify stopping the vehicle to check licencing and insurance. He was specifically investigating burglary. The van committed no driving infraction. To pretend otherwise is to lie (and to be clear, the officer did not try to use this justification for stopping the van).

To avoid telling this lie in court, don't use the traffic safety excuse to explain why you stopped a suspicious vehicle unless it's actually true.

2017.07.09 Detention - s.10(a) - Not Telling Why

In the previous article, did you notice that the officer never told the occupants of the vehicle what crime he suspected when he first detained them?

Section 10(a) of the Charter obliges you explain the reason for a detention. Mr Gonzales, 2017 ONCA 543 also complained that the officer failed to do so, and therefore he sought exclusion of the evidence.

The plainclothes officer explained that he delayed telling the suspects why he was stopping them until he could bring in back-up. The officer was not wearing his bullet-proof vest and various other gear. It took 7 minutes for backup to arrive. When they did, he arrested the suspects without further delay, explaining their jeopardy at that time.

The court accepted the "officer safety" explanation for delaying the explanation of the true reason for the detention.

If telling a suspect the real reason why you stopped him could get you hurt or killed, then you may delay the explanation. But take immediate steps to make yourself safe, and then get to the explanation right away.

2017.07.09 Strip Search - You need a Reason

After police arrested Mr Gonzales, 2017 ONCA 543 (see above), they took him to a police station and strip-searched him.

Problem was, the officers could not identify any evidence they expected to find by so doing. You can't strip search someone for evidence just because you lawfully arrested him or her. You need reasons to believe that a strip search will discover evidence, weapons or contraband.

There were no such reasons to justify this strip search. The judges didn't like that. Gonzales beat the charges.

I think the Gonzales decision is worth reading and discussing. It's well-written and clear. How might you have gone about this investigation differently?

2017.07.08 Who Gets the Goods? Disposition of Exhibits

Mr Colyer may have stolen a $40,000 diamond. Police received information that he pawned it at Floward Enterprises Ltd., 2017 ONCA 448. The investigators found a diamond at the pawn shop. Believing it to belong to the victim, they seized it.

I gather Mr Colyer beat the charge. Perhaps the victim's death deprived the prosecution of an essential witness.

When the trial was done, the pawn shop owner asked for the diamond back.

The police told the pawn shop owner that they would not decide who gets the diamond. There's a procedure for that, set out in s.490 of the Criminal Code. The police also tried to inform the victim's family about s.490: the people who want the diamond back should ask a provincial court judge to decide who gets the property.

The pawn shop owner applied for return of the diamond. He didn't formally notify the victim's family about the hearing. The provincial court judge gave him the diamond. Then the victim's family found out, and they appealed.

The technicalities of this decision don't matter to police. The big point is that you can and should duck property disputes over seized property. The Criminal Code provides a procedure. Tell the competing claimants about the procedure. Heck, you can apply to the court yourself asking for a decision. Try to make sure everyone interested in the property knows when the hearing will be. Give notice in writing too.

2017.07.08 Timely Photographs

Two prisoners occupied the same cell during a lockdown. One died of head injuries. Did he just fall, or did the other prisoner attack him? Four days after the death, someone photographed an injury pattern on his head. It looked like tread marks from the other prisoner's shoe. But the photographs weren't clear enough for the expert to give a definitive opinion.

The jury convicted Mr Bye, 2017 ONCA 528 of murder anyway. And the appeal court upheld the conviction. I think the shoe pattern on the victim's head helped the jury to their conclusion. A clearer picture might have helped.

Photographing injuries solves lots of problems, when done correctly. But lots of officers take lousy pictures.

Some people say "the camera never lies". It's not true. Here's a list of common problems:

• Too new - Bruises take time to develop. If you take photos minutes after a violent event you may miss many marks. If you arrive minutes after the incident and photograph the victim before taking a statement, try taking some more photos an hour later. I have one case of a recanting spouse who blamed her injuries on an incident days before. However, the investigating officer noticed that the bruises on the victim's face swelled over the several hours they were together. This turned out to be important evidence in the case.
• Too old - Scratches heal; swelling subsides; bruises fade. Get those photographs before the injuries dissipate.
• Too bright - Flash cameras can hide the injury you seek to capture. If you orient a flat surface (like a bruised arm) directly at the camera, the flash can reflect off the skin, and conceal what you hoped to preserve. Try oblique angles, and natural lighting.
• Too dark - Night photography is difficult. In the dark, the flash captures only nearby objects. If you photograph at night, plan to return in the morning.

If it's worth photographing, it's probably also worth making a note of what you saw. If the camera lies, then after checking you notebook, you can set the record straight.

2017.07.04 Parallel Investigations create Disclosure Problems

I'm seven months late commenting on this case. Better late than never. This case matters to investigations big and small.

The drug squad figured Mr Chu, 2016 SKCA 156 conspired to traffick cocaine. They investigated and put together a case. A separate team investigated him for his dealings with the proceeds of crime. The drug squad finished first. They laid charges and gave Crown the fruits of their investigation. Crown disclosed to defence. Nobody told the prosecutor about the proceeds of crime investigation until a few days before trial.

Two days before trial, the prosecutor told the defence lawyer that the other police investigation produced 1,900 documents, some of which might be relevant to the trial.

This rather upset the defence lawyer, who asked for an adjournment.

The trial judge felt no sympathy. He ordered the case to proceed, and convicted Mr Chu. The judges of the Appeal Court ordered a new trial. They felt sympathetic. Here's why.

Imagine you were about to buy a beautiful old house. It will cost you your life savings, and a commitment to pay most of your disposable income for 20 years. Minutes before you complete the transaction, you learn that 20 different building inspectors examined the house over the last 10 years. Each one wrote a report. All the reports are collected in a folder for you to read. Only a fool would sign on the dotted line before reading the contents of that folder.

The defence lawyer was in a similar position. Maybe those documents contained nothing of importance. But he didn't want to proceed with the trial until he knew.

Parallel investigations of the same suspect for related offences automatically create this disclosure problem. Heck, even if the offences are unrelated, there's a distinct risk that two separate investigations will discover information relevant to the other case.

For those of you involved in big investigations, you may easily overlook the possibility that the evidence you gathered may relate to the defence of the other case. If you know of a parallel investigation to your own, think big picture: do these two investigations overlap at all? What disclosure obligations will trigger when we lay charges on the first one?

For those of you involved in little investigations, don't wait until the day of trial to disclose evidence or information to the prosecutor. When the prosecutor discloses it to the defence lawyer, that lawyer will get an adjournment. Adjournments derail good cases.

In Mr Chu's case, I suspect that the delay caused by the late disclosure prevented further prosecution. The busts occurred in 2011. Will that delay survive a Jordan application?

2017.06.17 Warrant Drafting - Offence, Place, Items Sought ... and When

Mr Saint, 2017 ONCA 491 was no saint. He kept drugs. Police officers learned about this, and applied for a search warrant under the CDSA. The warrant they got said the officers could execute the warrant "at any time", but didn't mention any expiry date.

After police collected Mr Saint's drugs and charged him, he complained about the warrant. He was right. Judges can't grant permanent authority to search a residence. There needs to be a deadline.

The judges agreed with his argument, but he lost. The judges found that this warrant implicitly authorized the search on the day it was granted. Mr Saint was convicted and lost his appeal.

Don't play with fire. Make sure your warrant specifies an expiry date. If you need an expiry date weeks or months into the future, then explain why in the Information to Obtain.

Language like in the ITO that helped save this warrant. The ITO specifically asked for authority to search the residence on the same day as the officers applied for it.

2017.06.17 Investigative Techniques - Dirty Tricks

Innovative investigative techniques can bear much fruit. But stay on the right side of the law.

Durham Regional police sought to bust a drug ring. They knew who they wanted to bust, but they did not know where gangsters stashed their drugs. They obtained lawful authorities: wiretap to intercept the targets talking; tracking devices to find out where they went; and general warrants authorizing staged break-ins to inspect those places. No luck. One of their targets even found a tracking device.

Surveillance noticed Mr Dunstan, 2017 ONCA 432 engaged in a short transaction with one of the targets. Later, surveillance noticed Mr Dunstan's vehicle parked at a particular residence in York Region.

"Somebody" called 911 to report a break-in at that place. That caller wouldn't identify himself. York Regional police officers responded. They found the door was kicked in, but large quantities of drugs and cash remained in the place.  Durham Regional police got involved, and claimed credit for the bust.

Defence counsel suspected that the Durham cops took a short cut. They figured that Durham officers staged a break-in and called 911, knowing that this would justify a warrantless entry by York Regional officers. Defence counsel listened to the voice of a Staff Sargent Gillis as he testified about the case, and noticed similarity to the voice in the short 911 call.

Defence applied for permission to use a high-quality microphone to record S.Sgt. Gillis' voice while he testified, so that their voice comparison expert could compare it to the 911 recording. The trial judge said "no". The defence could not gather enough evidence to prove that S.Sgt. Gillis cheated. The court admitted evidence from the search of Dunstan's, and the jury convicted Dunstan. The appeal court said "yes", the trial judge should have permitted defence to record S.Sgt. Gillis's testimony. Dunstan got a new trial.

All the judges agreed that the short-cut - if taken - was unlawful, and would likely result in exclusion of evidence. It circumvents the judicial pre-authorization process for searches. If you don't have enough evidence to justify searching a place lawfully, then you are not permitted to convert your suspicions into adequate grounds by making an anonymous 911 call and tricking other officers into making the search for you.

There's a temptation to try it anyway. How is anyone going to find out?

Don't kid yourself. Justifying illegal activity in the name of law enforcement is called "noble cause corruption". It's a slippery slope which leads to an ugly place. If you get away with it the first time, you might want to give it another go. But you work in a zone of transparency. Police disclosure obligations are very broad. Your electronic systems track you. It's easy to get caught.

I'm not saying S.Sgt Gillis broke the law. But read the decision, and you'll see how much information defence counsel did obtain, and how much more they'll get next time.

Back in April, I lauded innovative police investigative techniques. ("Mr Big's cousin"). But the public pays you to obey the law. Don't go breaking it instead.

2017.06.16 Child Pornography - Possessing or Accessing?

When Mr M.N., 2017 ONCA 434 and his spouse reported finding child pornography on their computer, police examined it. They reached the conclusion that he used his browser to look at child pornography. They charged him with possession of child pornography.

The trial judge convicted him, but the Court of Appeal acquitted him.

The computer contained temporary files in the browser's cache. This indicated that he used his browser to look at child pornography, but he did not deliberately download images so that he could look at them later. The evidence proved he accessed child pornography.

The appeal court found that they are different offences. Mr M.N. did not commit the offence charged, and therefore must be acquitted.

There is a concept in criminal law of "included" offences. At the conclusion of a trial of a serious offence, the judge can convict the defendant of a less serious but "included" offence. For example, the offence of assault causing bodily harm necessarily includes an assault. If the evidence at trial proves that the defendant assaulted the victim, but the victim's injuries arose from some unrelated incident, then the judge will convict the defendant of the less serious offence of common assault.

The court held that accessing child pornography (s.163.1(4.1)) is not "included" in the offence of possessing child pornography (s.163.1(4)).

When drafting search warrants or laying charges, consider carefully: does the evidence show that he stored the illicit images, or just looked at them?

2017.06.11 Abuse of Police Powers and Resources

Cst Heron, 2017 ONCA 441 smuggled cheese.

He and another officer bought it cheap just across the border. Using their credentials as police officers, they brought it across the border. They sold it to local pizzarias. No import duties. Lots of profit. Hundreds of thousands of dollars. When he feared that authorities were closing in, Cst Heron searched CPIC to see whether other police officers had recently searched his partner's vehicle.

Both officers got busted for smuggling. Cst Heron also got convicted for using the same database that you use every day. The only difference was, he put it to personal use. In this context, that CPIC search was a criminal breach of trust.

Heron went to jail. His buddy got busted too.

I don't know why these guys went bad. The judge's decision offers hints: alcohol, substance abuse, relationship trouble. I suspect those were merely symptoms of deeper losses of purpose and integrity.

Police work ain't easy. The public demands high standards. Courts demand high standards. The clientele delivers constant abuse. Labour disputes undermine morale. It's easy to feel entitled to extra compensation. Extra perks seem easily plucked. The badge gives you access where others cannot go.

Don't do it. CPIC tracks every search. Just use police databases for work.

The badge gives power and access. And lots and lots of accountability.

If you feel tempted to reward yourself on the sly, pull back before it's too late. Ex-constable Heron will now tell you it's not worth it. Too late for him. Not too late for others. If you feel trapped or embittered in your work or life, there is lots of help, if you just look.

Most officers who read this website don't feel tempted. From the emails I receive, I think you are keen to do the right things. You're the ones that the embittered officer ridicules for too having much enthusiasm. As I read the sad case of Cst Heron, I hope that you, your co-workers and your managers can save the next one before he or she falls. It takes effort to rescue a sour comrade, but it takes less work than repairing the damage after a colleague turns to crime.

2017.06.11 Police Expert Evidence - Independence of the Expert

Police officers develop unusual areas of expertise. For example, when you investigate enough drug cases, you learn the language and methods of drug dealers. Few people other than police officers and drug dealers know these things. And DREs learn know little-known facts about drug intoxication.

Courts accept as experts those people who have specialized knowledge that other folks don't have. Therefore, courts do often accept expert evidence from police officers about drug dealers' coded language, and methods of handling drugs and money.

By reason of such experience, an Ontario officer got to know these things, and could give expert opinions about them.

But not in the case of Mr McManus, 2017 ONCA 188.

For four years, that officer received information that McManus was dealing in drugs. The officer participated in surveillance of Mr McManus, and in the search that led to Mr McManus' arrest. The officer testified at Mr McManus' bail hearing that he believed Mr McManus was involved in organized crime.

All of the officer's opinions are likely accurate and true, but does he look independent and unbiased? The court thought not.

The Supreme Court of Canada recently insisted that all experts be fair, objective, and non-partisan. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The prosecution should have found an expert who had not participated in the investigation.

Taken too simplistically, the McManus decision could cause mayhem:

• If a fingerprint examiner attends the scene of the crime, and "participates in the investigation" by lifting fingerprints, should she be prohibited from testifying that in her expert opinion, the accused's fingerprints match the ones from the crime scene?
• If an accident reconstructionist attends the accident scene and "participates in the investigation" by examining skid marks, should the trial judge prohibit him from giving expert opinion evidence that the accused's vehicle did not brake before the collision?
• Should a DRE be prohibited from expressing an opinion about the ability of a driver to operate a motor vehicle?

Of course not. And that's not what the judges said.

They contrasted this case with other cases in which a police expert's opinion was properly admitted. In the other cases, the expert received only the information necessary for the opinion, and the expert did not participate in the rest of the investigation.

Don't involve your police experts in more of the investigation than is necessary for them to provide an opinion. The more information they receive about your theory of the case, the greater the appearance that they might suffer from confirmation bias. The more they participate in busting the suspect, the greater the appearance that they want to see the suspect convicted.

2017.06.10 Continuity of the Suspect - Voluntariness and Charter Rights

Just after a crime, when you find a suspect, an almost impossible conflict of duties arises.

1. You swore to keep the peace: you should not let culprits walk away from crimes.
2. Section 9 of the Charter prohibits you from detaining anyone without reasonable suspicion.
3. You must ask questions, so ensure you stopped the right person.
4. At common law, you must not compel anyone to confess.
5. If you detain anyone, s.10(b) of the Charter requires you to offer them access to counsel without delay.
6. If you detain anyone, judges interpreted s.7 of the Charter to require you to tell them about their right to silence.
7. At common law, when you have reasonable grounds to believe you found the right person, you must warn them about their right to silence.
8. Courts interpreted s.10(b) to require you to hold off questioning detained or arrested suspects until they get the legal advice they request.

Every officer who deals with the suspect must obey these duties. Breaching one can taint what happens next.

Three men robbed a Rogers Wireless store in Vaughan, Ontario. A police officer found Mr Hamilton, 2017 ONCA 179 nearby. Because Mr Hamilton resembled the broadcast description of one of them, the officer detained him, and asked where he was coming from (breach #1). "Tim Horton's" replied Mr Hamilton. 20 minutes later a second officer arrived and arrested Mr Hamilton for robbery. Mr Hamilton wanted legal advice. Never-the-less, that second officer asked him about where he had come from (breach #2). Mr Hamilton gave a more complete account which omitted any visit to Tim Horton's.

Police took Mr Hamilton to a police station, where he got 4 minutes of advice with duty counsel.

After that, a third officer questioned him. That officer told Mr Hamilton about his right to silence. Nobody told the third officer about the conversations with the two preceding officers. Unsurprisingly, the third officer did not tell Mr Hamilton that nothing he and the previous officers discussed should cause him to think that he must speak again.

Mr Hamilton told the third officer that he already explained it all to a previous officer. Instead of giving the secondary warning at that moment and making a fresh start, the third officer asked Mr Hamilton to tell him what he told the previous officer.

When you first find a suspect, you want answers. When your adrenaline runs, you may forget your other duties.

To solve problems that result, add more duties. When you catch a suspect, tell all the subsequent officers what you have done with him or her.

In this case, the breaches led to problems, and a retrial. Every officer who deals with the suspect is a link in the chain. The excited officers at the beginning caused troubles all the down the chain.

When you catch someone interesting, keep calm, and carry on doing your duties - all of them. Tell the next officer(s) what you have done. And report the whole chain to the prosecutor.

2017.06.10 Bail Hearings - Undertaking or Recognizance - Cash or Surety

Last week, the Supreme Court of Canada instructed us about bail hearings. R. v. Antic, 2017 SCC 27.

First, surety is as good as cash. If a defendant can post security, but not cash, then the security suffices.

Second, in a bail hearing, the defendant is entitled to the most lenient form of release available on the facts.

Section 515(2) creates a ladder of forms of release:

1. Undertaking
2. Recognizance without deposit or surety
3. Recognizance with surety
4. Recognizance with cash deposit (with consent of prosecutor)
5. Recognizance for people from out of province, or who live 200km away.
6. Detention

The court directed justices and judges that they must consider and reject each rung of the ladder before moving on to the next one up the list.  (Note that number 5 is a special case)

This may change how bail hearings proceed. When you seek a recognizance or a detention, you may need to spell out why other forms of release are insufficient.

2017.05.28 Arrest and Transport - Talking with Another Officer's Prisoner

Another officer arrests a suspect and turns him over to you. It's not your investigation. Notes don't matter, right?

Wrong.

If the suspect later gives a statement, you will testify about the conversation between you and him. All of it.

When one officer arrested Mr Richards, 2017 ONCA 424 for trafficking, he needed to execute a search warrant on Mr Richard's house. The officer entrusted Mr Richards to another officer. That officer spent 30 minutes with Mr Richards, but took minimal notes. Probably, they discussed nothing of importance. A year or more later, that officer could recall nothing of the conversation.

That was a problem. After those 30 minutes, Mr Richards confessed to the lead investigator. The prosecution needed to prove he did so voluntary. Mr Richards testified that the secondary officer improperly persuaded him to confess. That officer couldn't really say what was discussed, because there was no record.

After arrest, handling a prisoner is something like handling an exhibit. With exhibits that might contain DNA, you must prevent physical contamination. With prisoners, "contamination" can arise through conversation. When you seize the murder weapon, you don fresh gloves, so as to avoid putting DNA on it. You place it in a bag to minimize the number of people who could accidentally transfer DNA onto it. You investigate who touched it besides the murderer. You take these steps so that, at trial, the court can conclude that no DNA got onto it except the murderer's. You document what you did so that you can assure the court afterwards that you did not accidentally contaminate the exhibit with DNA from some other source.

Handling prisoners is similar.

When someone arrests a prisoner who later confesses, the prosecution must prove that no police officer said or did anything to the suspect which undermined the voluntariness of his confession. No "contamination" by threats or promises. The only way to prove that is by asking all of the officers who had the suspect in their custody. "What did you discuss with the prisoner?"  Like DNA, you should minimize the number of people uniforms who speak to the subject. Like DNA, you should document what you did or discussed.

The weakest link is always the officer least involved in the investigation. They rarely think that their involvement matters, and so they take no notes of their innocuous conversation with the suspect. I've seen this problem over and over for decades. I saw it in a trial last week. And the Ontario Court of Appeal saw it in this case.

Don't be the weak link. If you conversed with the prisoner before his interview, make a note. Even if you only discussed the weather.

2017.05.19 Impaired Driving - Search Incidental to Arrest

The day after a murder, a police officer driving an unmarked police car noticed Mr Pearson, 2011 ONSC 1913 drive a vehicle with excessively tinted windows. The officer pulled him over to discuss the unlawful tinting. When Mr Pearson opened his window, an odour of marijuana wafted out. Mr Pearson's slow movements and red eyes led the officer to require him to perform sobriety tests. Mr Pearson failed. The officer arrested him for driving while impaired by a drug.

Could the officer search Mr Pearson's trunk for drugs?

A knapsack there contained shotgun shells which linked Mr Pearson to the murder.

Defence argued that an arrest allows an officer to search only to arm's length. When arresting for impaired driving, the officer can not look in the trunk.

The trial judge said that an officer who arrests a driver impaired by drugs may search the trunk for the drugs that impaired him. This week, the Ontario Court of Appeal agreed. Pearson, 2017 ONCA 389.

Caution.

This decision does not say that every time you arrest someone in a car, you can search the trunk. There must be a reasonable prospect that you will find evidence of the offence in the trunk at the time that you search.

Mr Pearson was charged with murder and with impaired driving. A jury convicted him of murder. He lost his appeal. I don't know what happened to the driving charge.

2017.05.19 Unprompted Admissions while awaiting Legal Advice

A month later, another officer stopped Mr Pearson, 2017 ONCA 389, again because of the excessively tinted windows. This officer saw a shotgun shell lying on the back seat. The officer arrested Mr Pearson and his passenger for unsafe transportation. Mr Pearson wanted to talk to a lawyer. Before giving him that opportunity, the officer asked questions about the shell. He answered.

Later, on the drive to the police station, Mr Pearson asked the officer what charges his passenger faced. The officer told him his passenger faced the same charge. Mr Pearson then asserted the he was responsible for the shotgun shell, not his passenger.

That proved to be an important remark in the murder trial. The trial judge denounced the officer's initial questions, but admitted the remarks in the police car, because the officer did not elicit them. Talking about them was entirely Mr Pearson's idea.  The appeal court agreed.

This case demonstrates several lessons:

1. Don't ask questions about the offence after detention or arrest, but before the suspect gets the legal advice he requested.
2. Don't deliberately set up the suspect to make remarks about the case before the suspect gets legal advice.
3. Document carefully all unprompted remarks that the suspect makes during this period. Heck, keep a recording device going during all your interactions with him.  (But tell him you're recording.)

2017.05.06 Consent Seizure - Warrant drafting

Mr Reeves, 2017 ONCA 365, was on parole. He and his common-law spouse owned a house together, but because he have been violent to her in the past, he could visit only with her express permission.

His common-law spouse looked into the computer they shared, and found evidence of child pornography. She told his parole officer, and she told the parole officer she didn't want to see him any more.

Mr Reeves got into more trouble, and was arrested.

Word reached police. An officer visited the common-law, and asked for her consent to seize the computer. He did a smart thing. He got her written consent.

He got the computer, but he did not report it to a justice for 4 months. No "5.2". The judges didn't like that.

Another officer applied for a warrant to search the computer. That officer also did wise and unwise things.

The officer included lengthy quotes from the statements of the common-law spouse and her daughter, to explain why the officers thought that the computer contained child pornography. That balanced out his exaggerated and inaccurate summary about what they saw. Seeing a filename in a computer suggestive of child pornography is one thing. Seeing child pornography is another. Don't pretend one is the other. Judges don't like it when you exaggerate the strength of the information you have to support your application.

This exaggeration results from a natural human tendency to draw inferences from information, and to recite the inferences instead of the information. We all do it. One can limit this tendency by returning to the raw evidence and comparing it to your summary.

The officer also forgot to mention the years of strife between the common-law spouse and Mr Reeves. The justice should have been told of them, in case bitterness inspired her to make false allegations against him. You have an obligation of full and frank disclosure. When applying for a warrant, include the information you know about that makes your witnesses look less reliable.

I liked this judge's analysis of what consent of one party means when you seize property that belongs to two people. Give paragraphs 54-71 a read.

I was somewhat troubled by the judges' finding that the officer's failure to report the computer to a justice violated s.489.1. A "seizure" occurs when the state takes something without consent. This officer plainly received the computer with consent. Perhaps the judges got it right. I doubt the officer would have returned the computer to the common-law spouse if she had asked for it back. The officer did understand it to contain child pornography, and had the right to seize it under s.489(2).

Remember to write your report to a justice. If in doubt, complete your Form 5.2.

2017.04.30 Big Investigations - Pre-Charge Delay in Big and Little Investigations

When Hickman Equipment Ltd went bust in Newfoundland, investigators found reasons to suspect corporate fraud. The investigation took 10 years. At trial, Mr Hunt, 2017 SCC 25 and other senior managers of the corporation persuaded the judge to throw the case out because it took too long to get started. Two of three judges in the Court of Appeal agreed. But one appeal court judge said the trial should proceed. Most of the judges of the Supreme Court of Canada agreed with her. These charges should proceed.

The Supreme Court of Canada recently changed the rules for post-charge delay. The clock starts ticking loud and clear when charges are laid. But this case involved pre-charge delay. There are some lessons to learn here.

Mr Hunt complained that the collapse of the company and the loss of his job caused him harm. But the police didn't cause any of those problems. These complaints did not provide reasons to drop the charges.

Mr Hunt complained of the injury to his reputation by reason of the publicity and gossip around the collapse of the company. He couldn't get another job. And he feared for many years that he was under investigation.

This complaint cuts closer to you as investigators. If you leak details of your investigation improperly, you might cause harm to your suspects.  But these investigators didn't. Too bad for Mr Hunt.

The trial judge thought charges could have been laid earlier. It turns out that doesn't matter.

The highest court agreed that haste in laying charges is a bad idea.

Except for s.505 of the Criminal Code, the law does not require you to lay charges at the earliest opportunity. Indeed, if further investigation might make the case clearer, perhaps you investigate before swearing charges. Before deciding  to turn someone's life upside-down, you should generally gather all available information.

The post-charge delay clock starts when you lay charges. Prosecutors in BC like - whenever possible - to wait until the investigation completes before starting that clock. (Offenders who pose ongoing risks to society often force our hand.)

There is no pre-charge delay clock. But if your investigation will take a long time, then take care not to conduct it in a manner which inflicts lengthy harm on the suspects.

Those are the big investigations.

Now let's talk about s.505, and the little cases. When you release someone on an appearance notice or PTA, that section requires you to lay an information "as soon as practicable thereafter".

I think it's foolish legislation because it rushes police officers into laying charges even before they finish their investigations. What a formula for injustice!

Don't ignore this legal obligation. But try not to let it prevent you from investigating properly. Don't let it force you to lay unjustified charges.

2017.04.13 Undercover Operations - Mr Big's Cousin Works at a Furniture Store

Mr Big's fame undermines his effectiveness. His relatives can sometimes help.

When Mr Cyr had an affair, 'someone' murdered his wife. Mr Cyr stood to collect lots of life insurance money.

Who?

Mr Cyr worked at a law firm as a paralegal. His wife's dad's law firm. He had an affair with a secretary there. When the affair came to light, dad must have been unhappy. Cyr got fired.

Naturally, Mr Cyr told uniformed investigators he knew nothing about who killed his wife.

Mr Cyr knew all about Mr Big. Investigators needed some other way to win his trust.

When he got fired, Mr Cyr needed a job. He signed up to become a salesman at a furniture company called "Bad Boy". (Seriously. I am not making this up.)

Shortly after he got that job, another guy signed up with "Bad Boy". That guy already had a job. As a cop. A UCO.

They became friends. Mr Cyr talked about his dream of buying a canoe business. The UCO thought that was a great idea. He wanted in on this opportunity. Somehow, the UCO managed to persuade the owner to sell, and got lots of documents to prove it. Cyr agreed to be partners with the UCO, along with Cyr's good friend Zvolensky, 2017 ONCA 273.

But the UCO had a problem. His evil ex-wife. If only she were dead.

She even called the UCO when he was with Cyr and Zvolensky. She was toxic. Zvolensky suggested he'd kill her. The group started making plans. During those discussions, they revealed how Zvolensky and his buddy Qahwash at Cyr's request killed Cyr's wife in a manner to make sure that it couldn't be linked to Cyr.

Good buddies indeed.

The UCO operation led to discovery of the murder weapon, bearing fingerprints of Qahwash and DNA of Zvolensky. All this evidence came out at trial. The prosecution called evidence at trial that the canoe company and "Bad Boy" cooperated with the undercover operation. "Bad Boy" ain't so bad after all.

All three good buddies got convicted of first degree murder.

At trial defence complained that the UCO's evidence was unfair:

• the operation made them look bad to the jury: they're on trial for a murder, and the police made them participate in planning another murder. This would prejudice the jury against them.
• The operation interfered too much with their lives, thus affecting their s.7 right to liberty.

This operation involved no interrogation like the Mr Big interview. No threats. No inducements. The judges liked that.

This operation did involve making the targets look like bad guys. That makes judges skittish. But the probative value of the evidence obtained, particularly the murder weapon, made the judges comfortable with its admission.

If you plan UCO operations, this case is mandatory reading.

While I'm impressed by Mr Big's work-ethic, I've long felt that other members of his family should earn their keep. I'm glad to see that his cousin finally got a job. Even if it was just at a furniture store.

Inventive work pays off, but keep the principles of Hart in the back of your minds when you plan your scenarios.

2017.04.01 Warrantless Search of a Residence - Exigent Circumstances or Social Work?

Someone noticed a 4-year-old boy standing alone near a busy intersection, wearing only a diaper. The passer-by called 911. When police arrived, they found the boy in his mother's arms, wrapped in a blanket. The dad arrived minutes later.

The dad, Mr Davidson, 2017 ONCA 257 explained that the boy suffered autism, and tended to wander from their home, which was 50m away.

The attending officer wanted to look inside to see if the house was safe for the child.

He didn't get a written consent, but basically invited himself in.

While looking around to see if the kitchen contained food for the boy, the officer noticed a smell of marijuana. Down in the basement, where the smell became particularly strong, he found a locked door. When the officer asked for a key, Mr Davidson kicked the door open, and behind it police found a grow operation.

The trial judge thought that a police officer's powers of search in cases of imminent harm justified this intrusion into Davidson's home. He relied on the well-known case of 911 calls, Godoy.

The appeal court disagreed. When discussing the power to enter a residence to preserve life, they said:

The police must reasonably believe that the life or safety of a person inside the home is in danger. And once inside the home, their authority is limited to ascertaining the reason for the call and providing any needed assistance. They do not have any further authority to search the home or intrude on a resident’s privacy or property.

...Godoy does not give the police sweeping authority to enter a home without a warrant to investigate whether a child’s mother and father are good parents.

The boy was safe. The police had no reason to believe that anyone else was in danger. Although the search was to prevent harm to a child, the officer lacked reason to suspect that there was any imminent danger. This was a social work investigation, not an imminent harm investigation.

There's one phrase in this decision which raises a red flag: "reasonably believe". In MacDonald, 2014 SCC 3, the court split 5:4 whether you needed "belief" or "suspicion" that violating privacy was necessary in order to protect life. The majority chose "belief" in the existence of an "imminent threat" before police can violate the privacy of a residence. I've always thought that a reasonable "suspicion" that someone will suffer serious injury or death suffices.

Perhaps it's just semantic games. Is there really any difference between believing that someone may get hurt, or suspecting that someone will get hurt?

To enter someone's residence without consent, you need reasonably reliable information suggesting imminent danger to someone. When you go in, limit your search to its purpose: resolve the danger and get out.

2017.03.26 Production Orders to the Press - Same Standard as the Rest of Us ... sort of

A Canadian member of ISIS chatted online with a reporter in Vice Media. What he said might convict him in Canada of terrorism crimes.

Canadian police wanted copies of the communications. They applied for a production order requiring the reporter to give them the evidence.

Vice Media objected. They fear that people like the terrorist won't reveal newsworthy stories if what they tell reporters becomes evidence against them. Heck, ordinary witnesses might not talk to reporters if doing so puts them on the witness stand. Vice Media asked the courts to set a higher standard for issuing production orders against the press. They said judges should refuse to grant a production order unless the police can prove that a prosecution wouldn't get started without the evidence possessed by the reporter.

No way, replied the judges. R. v. Vice Media Canada Inc., 2017 ONCA 231 The press enjoys the same rights of privacy as the rest of us. A reporter's notebook is no more nor less private than a psychiatrist's notebook, a doctor's chart, or a bank record.

But the judges agreed that a free press protects our democracy. How else can we discover the flaws in the politicians we might elect? How else can we learn of the world around us? They said if there are better sources of evidence out there, then you should leave the reporters alone.

2017.03.26 Sealing Orders - Bikini, Beach Blanket, or Sun Dress?

When police sought a production order against Vice Media Canada Inc., 2017 ONCA 231, they asked for a sealing order, to protect the nature and scope of the police investigation. They also wanted it to protect some information relating to national security, and to protect a witness in the case.

Vice Media challenged the orders. On review, everyone agreed that the information that identified the witness and the national security matters needed sealing up. That part of the sealing order stayed. The judges pointed out that the nature and scope of this investigation was pretty obvious, and didn't need secrecy. But publishing the evidence collected so far could prejudice a jury, if ever a prosecution gets launched. Instead of a sealing order, the judges imposed a publication ban.

In the early stages of an investigation, you often ask for a blanket sealing order. It hides the whole of your beautiful investigation from public view.

But conspiracy theories thrive when government operates in secret. For example, right now, Americans wallow in theories about Obama's secret wiretaps or Trump's secret connections with Russia. Public doubt undermines public trust in government. A justice system which hides from public view raises suspicion.

To retain public trust in the justice system, judges want to protect your ITOs with the least secrecy necessary.  In this case, the judges replaced the blanket sealing order with a time-limited publication ban. A focussed sealing order protected only the most sensitive paragraphs in the ITO.

Your ITO is like a beautiful model - an example of good police work which justifies a search or seizure. The conspiracy theorists are like the guys at the beach who want to ogle her. A blanket sealing order hides her entirely from view like a beach blanket draped around her. The guys are unhappy, and suspect she's ugly: "Did the police cheat?" A focussed sealing order is like a bikini, which reveals all but the most secret things. The lecherous guys may want to see yet more, but most of them understand why they won't. A temporary publication ban is like a sun-dress over top of the bikini. It promises greater exposure, when the time is right.

When you apply for warrants in haste, you usually ask for a blanket sealing order, because you don't yet know which information is sensitive. Later in your investigation, you forget to remove it. If you obtain perpetual sealing orders in every case, even when you don't need them, then you undermine the system you rely on.  Put a sunset clause on the blanket sealing order. Or consider a publication ban instead. Here's the outline of a bikini, a sun dress, and a beach blanket, all in one application:

I provide with this original Information to Obtain, a redacted copy. Subject to further orders of this court:

• For the purposes of preventing the identification of confidential sources described in this information to obtain, I ask for an order that the original of this information to obtain be sealed in an envelope marked "Unredacted - permanent sealing order", and stored in a secure place, and its contents not be disclosed to anyone not involved in the investigation.
• For the purposes of protecting the defendant's right to a fair jury trial, I ask for a an order that no person shall publish any information from the Information to Obtain until after the trial completes and the appeal periods expire.
• For the purposes of protecting the ongoing investigation, I ask for an order that the redacted Information to Obtain be placed in a sealed envelope marked "Redacted - sealing order pending charges", and stored in a secure place until charges are laid in respect of this investigation. When such charges are laid, the redacted Information to Obtain may be removed from that envelope, and its contents may disclosed to interested persons.

I made this order up in a hurry. If someone out there has better language to suggest, I might use it in place of this rough draft.

2017.03.25 Detention for Officer Safety - How Much Force?

I missed this decision when it first came out. Better late than never.

2012. Midsummer. 2:20am. St Johns, Newfoundland.

An anonymous caller told 911 of "a male in a black jeep across from the Froude Avenue Community Centre with a firearm, possibly a shotgun or rifle." Froude Avenue is row-housing. Two officers arrived in separate vehicles. They found a lone black SUV in the parking lot. One occupant. One officer recognized him as Mr Squires, 2016 NLCA 54, and knew he was prohibited from possessing firearms.

What would you do?

This officer drew his firearm. He directed the driver to show his hands out the window. He complied. When the second officer arrived, they instructed him to get out, and lie face down on the road. He did. They handcuffed him and put him in the back of a police car. In the SUV, they found a sawed-off shotgun and ammo. The serial number was defaced.

The judges thought the officer went overboard with officer safety. They held that the excessive force violated Mr Squires' right not to be arbitrarily detained.

I dunno. Two years later, police officers in Moncton responding to a similar call encountered Justin Bourque, who shot five Mounties, killing three.

I won't instruct you police officers on how to keep safe out there. I'm a lawyer. I am not an expert on defensive tactics.

But you are.

In the Squires case, the prosecutors unsuccessfully urged the judges not to play Monday morning quarterback. The judges don't get training on how to handle risky situations.

But you do.

You need to know what to do in these situations, and why. Doing the "what" properly protects your life.

But if you can't justify what you did, then judges will limit your authority to act. Like they did in this case. In the long run, explaining the "why" properly protects other officers' lives.

In the court room, many officers make a simple mistake: they identify what they didn't know, instead of what they knew. Ignorance doesn't justify action. For example:

Ignorance justifies nothing	Knowledge justifies action
I didn't know why he was there nor what he was doing.	The SUV matched the tip. I thought the behaviour - possessing and displaying a firearm at 2:00am in a residential neighborhood - suggested preparation for violence rather than an innocent pursuit like hunting.
I didn't know if there was someone else in the vehicle.	I was told of one person, but I could see that the vehicle could hold more people. I needed to get the one person I could see under control and away from the SUV before I looked for others.
I didn't know whether the driver had a weapon.	I could see the driver's head, but not his torso. He was in a position to hide a weapon from my view, and aim it at me before I could react.

I don't know whether the officer in Squires went overboard or not. I wasn't there, and I have little expertise. Read the decision and decide for yourselves.

My example explanations may not describe real tactical concerns. But you can use that style to explain the risks to the judge.

The truth is, when responding to such a call, many officers don't think thoughts like the ones in the right hand column. They just follow procedure from years of practice. When they reach the court room, they can explain what they do but not why. During practice, then, discuss the reasons for your tactics. Try using language like the right hand column.

One more thing. Let's think about the point the judges wanted to make. Don't use unnecessary force to arrest or detain suspects. Don't even use unnecessary rudeness even with guilty people. Why? Nasty guys grow nastier when every cop they meet treats them like dirt. Some people, like Bourque, get the idea that cops need killing.

Try not to plant that seed.

2017.03.25 Reasonable Belief - Who wants to Stand on Soft Grounds?

An anonymous tipster said Mr Quilop, 2017 ABCA 70 sells cocaine. A team of police watched him for a couple of days.

They saw him go to a suite connected to another guy that they had reason to suspect dealt drugs. They saw him drive to a house, visit briefly, and emerge carrying something about the size of a baseball in his hand. An hour later, he made a short visit to an apartment, and emerge carrying a small pouch.

So they arrested him, and found drugs, money and cell phones.

At trial, defence challenged the arrest. You can't arrest a suspect unless you believe he's guilty, and the evidence establishes that belief is reasonable. On that legal point there is no controversy.

The team leader saw none of the action. What he knew did not justify an arrest. Defence said he was responsible for the arrest, and he lacked grounds. The team leader responded that he had the authority to stop an arrest, but he didn't decide whether to make the arrest. That was the responsibility of the primary investigator. The court liked that answer.

The primary investigator took responsibility for the decision to arrest. Another officer acted on his direction. That's fine too. But the officer who decides to arrest must have reasonable grounds.

The appeal court found these grounds too thin. They provided reasonable suspicion, but not reasonable belief.

But the cops were right - the drugs were there. Doubtless, the arresting officer felt certain his arrest was justified.

This can happen to you. How do you avoid it?

• Detail: When we humans see a pattern we've seen before, we tend to reach a conclusion about what's happening, and remember the conclusion rather than the details that make up the pattern.You need to record the details that make up the pattern, so that you can recount them later. For example "slurred speech" is a conclusion that you might draw when the suspect says: "Whash duh pahblum offisher?" Make a note of the suspect's words.
• Note-taking: what did you know and when did you know it? Some details weren't recorded in notebooks at the time. Recalling them later looked like making stuff up.
• Attenuation: What seemed obvious when you saw it will become unclear in the court room. Observations pack less punch in the retelling. Therefore, "reasonable grounds" require something more than "I think so". It needs that little bit more, so that a skeptic will agree that you're probably right.

2017.03.18 Unhappy Juror after the Verdict

After the jury convicted Mr Lewis, 2017 ONCA 216, one of the jurors phoned the defence counsel to complain about what happened in the jury room.

The defence lawyer did a smart thing. He stopped the phone conversation and referred the juror to an independent lawyer.

That lawyer wasn't so clever.

She prepared an affidavit which the juror swore. It complained of aggression, bullying and hostility in the jury room. It complained that one of the nasty jurors told him "the accused was of bad character, likely had a criminal record and was in a gang".

Neither the trial judge nor the appeal court were impressed.

"Section 649 of the Criminal Code makes it an offence for any juror to disclose “any information relating to the proceedings of the jury when it was absent from the courtroom.” [The second lawyer] put herself and the juror in jeopardy by filing an affidavit detailing the juror’s complaints about the deliberation process."

Basically, the lawyer helped the juror commit a Criminal Code offence.

I read cases every year in which problems like this arise. What do you do if a juror comes to you, complaining about what happened in the jury room?

The better course of action if the juror has a problem with the verdict is to bring the matter to the attention of the trial judge as soon as possible. Work with counsel.

If a juror comes to you complaining about what occurred in a jury room:

1. Stop the juror talking about what deliberations. The juror can't tell you anything about the deliberations of the jury.
2. Keep people safe. The juror can tell you if he or she is in danger, and from whom. They can tell you if they've been threatened with harm, or assaulted.
3. Get advice from lawyers.
4. If the juror is concerned about the verdict, bring the juror's concern to the trial judge as soon as possible.

2017.03.18 DNA or DNA+?

Did Mr Lira, 2017 ONCA 214 and his buddy Mr Ismail rob the "Cash in a Flash" store back in November 2010?

Security video showed one of the robbers limped like Mr Ismail, and wore an unusually striped jacket like Mr Ismail. The other one wore tan shoes with red laces, just like Mr Lira. Oh yeah, and down in the boiler-room of Mr Lira's apartment, police found gloves and a balaclava that looked like what the robbers wore. And they had Mr Ismail's DNA on them.

DNA evidence often helps bust bad guys. But don't stop investigating when you get the DNA hit. DNA works best if you can collect independent circumstantial evidence.

Toronto Novembers can get cold enough for gloves and a balaclava. Mr Ismail's DNA on those items doesn't - by itself - lead to conviction. But these officers collected more evidence, which busted both guys.

2017.03.18 Exigent Circumstances Search for Evidence

What are "exigent circumstances"? You stand at the door of a residence, and you want to go in. If you have neither permission nor a warrant, what urgency suffices that you can walk in anyway?

The Supreme Court considered this question in the context of s.11 of the Controlled Drugs and Substances Act, which authorizes you to search for evidence:

"without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one."

A woman called 911 using a cell phone. She cried, and complained of injuries. She needed an ambulance. And then the phone went dead. Where was she? Emergency services called the owner of the phone, a mom who had lent it to her daughter. The mom called her daughter's work. Not there. The mom found her daughter's car in the parking lot of the apartment where her daughter's shady boyfriend, Mr Paterson, 2017 SCC 15 lived. Police officers attended. Mom briefed them about the tempestuous relationship her daughter had with the guy. Mom said he had a shotgun. Just before the officers reached Mr Paterson's apartment, they learned that the daughter was in hospital, injured. The officers figured that she probably came from the boyfriend's place. They thought that there might be another hurt person in the apartment.

The manager let them into the building. Nobody answered when they first knocked on his door. The manager eventually supplied a key. When the officers opened the door about a foot, Mr Paterson appeared. The air smelled of marijuana - fresh and smoked. His cell-phone rang non-stop. The officers explained their attendance - looking for the girlfriend. Mr Paterson told police she wasn't there.  Although he gave inconsistent explanations about his girlfriend, he looked fine, and the officers concluded that nobody in the apartment needed help.

So they asked Mr Paterson about the smell of marijuana. He denied it. Then he admitted possessing some roaches. The officers wanted to seize them, but told Mr Paterson it would be a "no-case seizure". Mr Paterson offered to hand them over. The officers insisted on seizing the roaches themselves. Paterson let an officer in, who noticed a bullet-proof vest, guns and drugs.

The officers arrested him, got a warrant, and seized lots of drugs, guns and cash.

At trial, he complained that the police had no authority to enter his home. The officers explained to the court that they entered to prevent him from destroying evidence. Mr Paterson pointed out that the officers intended to destroy the evidence anyway, so nobody should care if Mr Paterson destroyed it first.

The trial judge and the court of appeal found "exigent circumstances" justified the entry. All the judges of the Supreme Court of Canada rejected that finding. Under that section, you need urgency to enter, and "impracticability" to get a warrant. "Impracticality" is not enough. "If the situation was not serious enough to arrest and apply for a warrant, then it cannot have been serious enough to intrude into a private residence without a warrant."

The court was considering exigent circumstances where the justification for entry was enforcement of Canada's marijuana prohibition. Would they rule the same way if life were at risk? No. Where officers' safety was at risk in R. v. MacDonald, 2014 SCC 3, they approved of a warrantless entry.

The court solidly chose privacy over liberty. The "temporary" loss of liberty involved in arresting Patterson for 3 joints is not as important as the privacy impact of walking into his apartment. I throw quotes around "temporary" because I know that search warrants take hours to draft properly.

When deciding whether to admit or exclude the evidence from a future trial, the majority of the court also said that the officers should have known better. They excluded the evidence, and Mr Paterson beat the charges. On that question, two judges dissented. They said that the law around exigent circumstances and no-case seizures was unsettled. Even with the luxury of time, the trial judge and three judges of the BC Court of Appeal agreed with the officer's snap decision at the doorway to enter the apartment. "Wrong" about the law differs from "reckless" about the law.

This decision also answers a technical legal point I've been following for over a decade: does the prosecution need to prove voluntariness of the accused's statements before relying on them in a Charter application? The judges answered "no". You should be glad of that answer. If they had said "yes", your search warrant applications would have become much more complicated.

Interested readers will find that the trial decision describes the facts in greater detail than the Supreme Court's summary.

2017.03.18 Completeness of Investigation

Most police officers feel pressure to move quickly from one investigation to the next. Junior police officers in general duty feel this pressure most acutely.

It's a trap.

When investigating the guilt of the suspect, you should also investigate the suspect's innocence.

Ms Dunkers, 2017 BCCA 120 worked for a charity. She stole $200,000 from them, or so it seemed. The investigating officers received a quantity of documents from the directors. Those documents showed that Ms Dunkers wrote herself a bunch of cheques that the directors never authorized.

Ms Dunkers made some vague remarks to suggest that she covered some of the charity's expenses from her own pocket. These cheques merely reimbursed her for those expenses.

The charity kept files on expenses. It would have been easy to review them at the time of the investigation. By the time it got to trial, those files were packed away in storage.

At trial, defence counsel accused the police of shoddy investigation. The trial judge wasn't impressed by the defence complaint, but nor was he impressed by the police investigation.

They had some idea what Ms Dunkers' explanation was. Why didn't they preserve the documents which related to it?

This idea of investigating innocence arises in every investigation. Whether it's a commercial fraud, a murder, a domestic assault or a shoplifting. Try to get more than the complaint. Investigate innocent explanations, even if the suspect refuses to give you a statement. Does the shoplifter have a receipt? Does the alleged batterer have any injuries? Are there other people who wanted the deceased dead?

What was the result? It's a short decision. If you really want to know, click the link and find out.

2017.03.14 Fentanyl is a Problem in B.C.

Mr Smith, 2017 BCCA 112 sold fentanyl as "down" to an undercover police officer. The officer pursued charges. At trial, Mr Smith's Charter arguments failed, and he pleaded guilty. He had never been busted before. He told the judge that he thought it was heroin, not fentanyl.

The trial judge imposed 6 months jail. The Crown appealed, complaining that BC has the biggest Fentanyl problem in the country, and yet the lowest sentences.

The Court of Appeal agreed this was a problem. Fentanyl is killing people. The judges agreed that the appropriate sentence should be 18 months. But Mr Smith committed his offence when the Fentanyl problem was just emerging. Two of the three judges figured the trial judge wasn't in error at the time, and upheld the 6-month sentence.

If he didn't know, then he might tell his customer it was heroin, and his customer might use too much and die. If you obtain "down" from a suspect, you might ask during the transaction what kind of "down" you're getting.

2017.03.12 Arrest and Search - When to Ask Questions

A security company reported a B&E to police. They could see the intruder on security cameras.

Officers closed in.  One found Mr Bronk, 2017 BCCA 88 walking his dog. The officer asked him who he was and what he was doing. He said he was just sittin' with his dog.

Another officer arrived and detained him for B&E. Quite properly, the officer told him of his right to counsel. Bronk wanted a lawyer. They told him he need not say anything. Thereafter, Bronk said nothing, even when they asked him if he understood his rights.

A police dog searched the area, and found a backpack containing:

• a loaded semi-automatic pistol with a dog leash attached to its trigger guard;
• ammunition for the pistol;
• a revolver;
• a bag of dried dog food;
• a drug pipe;
• tools including pliers,
• a pry bar;
• bolt cutters;
• a cellular telephone;
• a SIM card

An officer asked Bronk questions about the guns. Bronk said nothing. Then the officer told him he could be charged with firearms offences too.

He got the procedure backwards.

Unless there are real safety issues, don't ask your detained suspects about the offence before addressing their right to get legal advice. If you detain or arrest someone for an offence, and then discover a new offence, tell them about the new offence. Offer them access to counsel. Don't ask the suspect questions until after he or she knows about the right to access legal advice and declines to exercise it.

There were lots of other issues in the case. The trial judge convicted. The appeal court ordered a new trial based on procedural problems at trial. But it's worth reading the first part of the case, and asking yourself, "how would I handle this situation?"

2017.03.07 Search Warrant Execution - Mistakes you Don't Want to Make

It started innocently enough, with a tip. Way out in the woods, the police might find a grow operation. Police quietly went way out in the woods, and sure enough, found buildings, a generator, and an odour of growing marijuana.

Experience told them that Chinese or Vietnamese-speaking people probably ran the operation. But no officers in the police station spoke those languages. They obtained arrest scripts in those languages. (Good.)

They got a warrant. (Good.)

They brought a civilian member of the RCMP to participate in the search. He was a "peace officer" for the purposes of serving subpoenas, but not for executing warrants. The warrant made no provision for him to join in. (Bad.)

The civilian member attended for the purpose of taking educational photos regarding grow operations, not gathering evidence. (Bad.)

The civilian member published some of the photos he took of the property and the defendants' cars. (Bad.)

On executing the warrant, one member waited only 15 seconds after the initial knock and announce before he entered a vestibule of the residence. He thought the place looked empty. Weapon drawn, he announced again and waited another 15 seconds before searching the house. (Bad.)

He brought a copy of the search warrant with him. (Good.) He left a copy in the residence. (Good.)

The officers arrested Mr Fan, 2017 BCCA 99 and Mr Guan. They didn't give either of them a copy of the search warrant. (Bad.)

Cell phones didn't work in this remote place.  Police could not offer the prisoners cell phones to call lawyers. They did have a satellite radio in the police car, but allowing the prisoners to use it would require police to put them - unsupervised - in the front seat of a police car, with the key in the ignition. The officers delayed access to counsel until they arrived at the police station. At the police station, their phones could use conference calling features to permit translators to assist the defendants exercise their access to counsel. At trial the lawyers complained bitterly about the delay. The judges weren't deeply impressed, particularly because neither of these guys said they wanted to talk to a lawyer.

The officers seized lots of interesting evidence at the grow operation. They didn't file a report to a justice (Form 5.2) until 2 weeks after the deadline. (Bad.)

Luckily for the officers, the trial judge didn't find a pattern of flouting Charter obligations, and some of the violations did not strike the trial judge as particularly serious. They admitted the evidence, and the charges stuck.

For example, the civilian member entered no parts of the property that were particularly private, such as the house. He published only a couple of images, and those were of relatively non-private things, like the exterior of a vehicle.

And the officer who entered the residence too quickly found it was empty. His haste harmed nobody.

I suspect that the care that the officers took in bringing translations of the Charter rights to the scene impressed the judges. It set a tone that the judges liked.

The case could have turned out differently. This case offers lots of reminders of things you can forget in the heat of an investigation:

1. Peace officers execute warrants.
2. Warrants permit you to intrude on privacy. Publishing what you find magnifies the intrusion.
3. Bring copies to give to the people affected by them.
4. If you suspect you'll have language difficulties with the people you arrest, prepare for it.
5. Knock, announce, and wait.
6. Promptly report to a justice what you seized. Form 5.2 matters and will bite you if you forget it.

2017.02.18 Video-Recording Witness Statements - Not Just Children

You likely know that video-recording children's statements can result in the video becoming part of their evidence at trial. It started years ago with sexual offences, but Parliament broadened the section to make it work for all witnesses under 18.

It also works for people with mental and physical disabilities. s.715.2

Mr Osborne, 2017 ONCA 129 and his circle suffered developmental delays and mental disabilities. He told one of them that he intended to kill his exgirlfriend. And he did. At trial, the friend could not remember the conversation, but could remember telling the truth to the police. Was his video-recorded statement admissible?

Yes.

This section applies more broadly than just young folks with intellectual challenges. And it applies to all crimes, not just murder and sexual offences.

Aged victims often deteriorate after a crime. Video-record their statements when possible too.

2017.02.16 Police Powers - Exercise them Accountably

If a guy gropes a woman's breasts, and pulls her shirt so that he can peer at her breasts, we call it sexual assault.

Cst Khan, 2017 ONCA 114 said it was a search incidental to arrest, to ensure that she carried no weapons.

To be fair, he just busted the woman for buying cocaine. But the way she remembered it, he seemed more interested in flesh than weapons.

The trial judge believed the woman. Khan lost his job and his reputation.

When you exercise powers of arrest, you do what would otherwise be called an assault and kidnapping. Use those powers respectfully, and accountably.

If you read her description at the beginning of the decision, you may get ideas on good and bad search procedures.

The remainder of the decision discusses a technical legal issue. Most police won't find it interesting.

2017.02.10 Search and Seizure - Asking Questions

When investigating others for drug offences, police noticed Mr Saciragic, 2017 ONCA 91, and started watching him.

In October, they saw him engage in two open-air transactions with strangers. He handed something to someone, received something in return, and drove away. After the second transaction, they arrested him, and found he had received a ring from a jeweller. But it sure looked suspicious.

The following April, police officers noticed him engaging in counter-surveillance efforts, when driving. He drove to an apartment building, and then drove away to meet with someone in a lonely spot. Mr Saciragic gave the other guy a box. Police closed in. Both guys fled, but police caught them. The box the other guy got from Saciragic contained a kilo of cocaine. Saciragic had keys, and key fobs which might operate the gate to the underground parking at the apartment building.

Officers hurried back to the apartment building, working off the theory that it was Saciragic's stash house.

The key fobs kept a digital recording of when they had been used to enter the building. Police showed the manager the key fobs, who accessed the information in them, and told the police they were registered to apartments 304 and 1107, and had been used in the time frame when Saciragic came to the building. Which apartment was the stash house? They asked the manager to show them security video to identify which apartment Saciragic attended just before the drug transaction. The manager refused: in the absence of a warrant, the apartment privacy policy prevented him from turning over security video to police. But the manager did tell police that a person matching the appellant’s description had exited the elevator on the 11th floor during the relevant time frame, and shortly thereafter returned to take the elevator down to the parking garage.

The police tested one of the keys in the door of unit 1107. It worked. They entered to clear the place of people. One officer pulled back a shower curtain and found lots of cocaine. They pulled out, and got a warrant. With the warrant, they got damning evidence.

The trial judge concluded that the first search violated Mr Saciragic's s.8 rights because the police fears that someone inside might destroy evidence were based only upon speculation and not evidence. (The appeal court judges didn't really address whether this was or was not a proper case for an exigent circumstances search.)

Defence complained that the police violated Mr Saciragic's privacy by getting digital information from the key fob. The judges all disagreed. This differed from searching a cell phone because the key fob contained such minimal information about Mr Saciragic. Defence complained that by looking at the security video and then telling the police what he saw, the manager violated Mr Saciragic's expectation of privacy, and because police asked him, he acted as their agent. Even if he did act as their agent, the judges concluded that Mr Saciragic enjoyed no reasonable expectation of privacy over the information:

"...no intimate details of the appellant’s life were revealed by the provision of the information that, on a single occasion, the appellant exited and re-entered the elevator at the 11th floor. This information did not yield any information about the nature of the appellant’s activities in unit 1107, or even whether he used unit 1107 as a residence. Similarly, no intimate or biographical details were revealed by the fact that the fob he used when police observed him enter the parking garage was assigned to unit 1107."

 The judges also found that the manager did not act as an agent of the officers.

With the information police lawfully obtained from the manager, they had enough to justify the issuance of the warrant. The second search was lawful. Mr Saciragic's conviction stuck.

I find this case interesting on several levels:

• It tends to suggest that police do not need a warrant to search electronic devices which record no personal information - like airbag control modules which record the last few seconds of driving before a car crash.
• It confirms that you can ask questions of people like building managers, without violating s.8 of the Charter.

2017.02.06 Search and Seizure - Warrant Drafting

Police information systems contain data about criminal investigations and whether charges were laid. Other information systems record whether charges stuck.

Before applying for warrants, officers routinely consult police databases, and record in their applications what they find.

Danger.

Convictions impress judges. Acquittals generally do not.

An officer investigated a grow op operated by Mr Paryniuk, 2017 ONCA 87. He wrote 45 pages justifying why a justice should permit police to search the place. He consulted a police database, and recorded in the ITO incidents in which police charged Mr Paryniuk with drug offences.

The ITO didn't mention that courts acquitted Mr Paryniuk of each one.

Judges hate that. The ITO looked more compelling than was justified. It makes the applicant seem deceitful.

What saved this officer was truthfulness. The ITO did not pretend that the previous incidents led to conviction. It explained what source the officer turned to, and that the suspect was "charged" or "involved". An experienced justice would know the difference between those words and "convicted".

Routine police work relies on routine use of police databases. But judges care more about convictions and acquittals. For a judicial application, complete your computer research by turning to a court database.

2017.02.04 Search incidental to Detention - Asking Questions for Officer Safety

This one matters. It may well go to the Supreme Court of Canada. Even before they rule on it, you should think about the ideas it raises.

Mr Patrick, 2017 BCCA 57 drove an SUV at 4:30am on a dark residential street. A lone female officer noticed that the licence plate matched one involved in an identity theft. She pulled it over. It contained four large men. One looked beat up. Another was unconscious, for reasons nobody explained. She asked for vehicle registration. She received an empty plastic envelope. Although the occupants spoke politely, the officer called for backup.

The men identified themselves. Computer checks suggested were involved in drugs and other crime. The three passengers raised violence warnings.

One of the occupants gave police a cell phone. On the other end of the line was a woman who claimed to be the owner of the SUV. She gave her name and date of birth. The officer found the phone number of the victim of the identity theft, and called it. A different woman answered. The officer figured that someone was lying to her.

When backup arrived, she detained everyone so that she could investigate their fraudulent possession of the SUV. Mr Patrick appeared to fiddle or fumble with his seatbelt. The officer told him to keep his hands where she could see them. He kept fiddling. Another officer entered the vehicle and yelled at him to put his hands where they could be seen.

When they got Mr Patrick out of the vehicle, she noticed a large bump in his clothes, just under his right shoulder. The officer asked:

"Do you have something on you?"

Mr Patrick patted the bulge.

The officer asked what it was.

He replied "a shotgun".

It was, indeed, a loaded sawed-off shotgun, which became the subject of charges.

Defence argued that:

• because the occupants of the vehicle were polite, cooperative, and never tried to do anything which endangered the police, the officer lacked reasonable grounds to fear for her safety, and therefore had no right to search for weapons;
• the police had no right to ask questions during a search incidental to detention.

Trial judge agreed, and excluded the evidence of the shotgun.

The Appeal Court came to a different conclusion.

Safety Search on Every Detention?

You don't get to search for weapons every time you detain someone. You need reasons to fear that the suspect has things that could hurt you, and might use them against you. You can take all of the circumstances into account. You don't need to wait for the suspect to take the first aggressive step before this power triggers.

But if asked in court why you searched, you need to explain sufficient reasons that the judge will understand why the risks were real. The trial judge complained that officers described their safety concerns only in general terms.

In my experience, police officers often express their fears in the negative: "I didn't know if he had any weapons" "I didn't know what he was going to do next." An absence of information does not give you grounds to search someone.

You can do better. Try explaining the risks in positive terms. Rather than describing what you didn't know, identify the risks you did know about:

• "The computer information about violence made me fearful that these guys might carry weapons, and use them."
• "Despite their cooperation, these guys lied to me about their right to possess the vehicle. The cooperation seemed like a sham, designed to lull me into letting down my guard."

Questions You Can Ask During a Pat-Down

The Court of Appeal held that you can ask questions during a pat-down search, but you should take care how you ask them.

"In my view, questioning a detainee about to be frisk searched as to whether they are in possession of anything that might cause the searching officer injury is minimally intrusive search. In some respects, it is less intrusive than a physical pat-down search. I would hold that narrowly tailored questions of this kind motivated solely by safety concerns are permissible." [my emphasis]

With the benefit of this hindsight, was the officer's question "narrowly tailored" to identify items that posed police a risk? The court ordered a retrial. At that trial, defence will argue "Do you have something on you?" could be interpreted to mean "Do you have anything illegal in your clothing?" Therefore, the question isn't "narrowly tailored" to address officer safety.

This argument would be much harder to make if the officer had said "I'm going to search you now for weapons, and anything that could hurt me. Do you have anything on you?"

What questions do you ask during a pat-down search? Do they invite responses about offences, or do they focus specifically on officer safety? Do you want to change your standard wording?

Note that the suspect has no obligation to answer you. Don't arrest someone for obstruction of justice just because they didn't tell you about the needles in their jacket.

Note as well that the suspect's remarks about the weapons you find will not be admitted at trial. After detention, you must deal with rights to counsel. If you ask questions and get answers before solving lawyer issues, the trial judge won't admit the answers for proof of the crime.

2017.04.05 Right to Counsel after a Detention - How Fast?

An officer arrested Mr Patrick, 2017 BCCA 57 for possessing a sawed-off shotgun (see above). Even though Mr Patrick wanted to talk to a lawyer right away, she didn't let him call a lawyer from the scene, using a cell phone. She took him to the police station.

The trial judge thought the officer flagrantly violated Mr Patrick's rights. The Court of Appeal wasn't so sure.

Section 10(b) of the Charter, requires you to give a suspect his legal rights "without delay". But the courts find that you may delay that access to counsel where circumstances so require.

That doesn't mean you can always delay access to counsel until you reach the police station. If access can be given at the scene of arrest, without risk, then handing the suspect a cell phone to use in the back of a police car may be appropriate.

But many prisoners can abuse their access to a cell phone.

• Will the wife-beater text his partner, threatening her with harm if she gives a statement?
• Will the drug-dealer call his associates to interfere with your road-side arrest?
• Will the drunk driver delay breath-testing to call the owner of the car to explain why it won't be home tonight?

Some scenes are too chaotic to permit you to give that access: Accident scenes. Feuding neighbors.

If you have a reason specific to this prisoner or this situation, then you can delay his or her legal calls until the situation is under control.

2017.02.04 Charter Rights of Third Parties

Mr Mauro, 2017 BCCA 45 picked a bad time to crash his Audi. It carried $100,000 worth of cocaine when it hit another vehicle. Instead of worrying about the injured woman in the other car, Mr Mauro phoned his mom, and instructed her to bring his Jetta to the scene. He took a shopping bag out of his car and held it until his mother arrived. He put the shopping bag into the Jetta, and his mom drove it a short distance away.

Police attended to deal with the car crash. The injured woman's husband told the police about Mr Mauro's strange behaviour with the shopping bag.

A police officer questioned the mom. She denied having anything in "her" car. The officer figured she was lying, and cautioned her sternly against public mischief. He told her it would be in her best interests to give him the bag.

He scared her. She gave him the bag.

At trial, Mr Mauro complained that the police searched his Jetta without a warrant, thereby breaching his s.8 rights.

The judges agreed.

Defence complained that the officer detained Mauro's mother without telling her that she could get legal advice.

The judges agreed.

Defence said that the evidence should be excluded.

The judges disagreed.

Mr Mauro had standing to complain about the warrantless search of his car. He didn't have standing to complain about police treatment of his mother. But having established a breach of his s.8 rights, he needed to persuade the trial judge to exclude the evidence. At that stage, the trial judge could consider all the breaches of Charter rights that the police committed during the investigation. Including violations of the mother's rights.

But mom tricked the police into thinking the Jetta was her car. She lied to the police about the object in it. The judges sympathized more with the police than with the defendant. Evidence admitted; drug dealer busted. Thanks, Mom.

You are sworn to protect everyone's Charter rights all the time. Because trial judges can sometimes consider the Charter rights of 3rd parties, when investigating suspects, you need to protect the Charter rights of the people they hang around with.

2017.02.04 Ontario Traffic Tickets - Correcting Mistakes before Filing

Have you ever issued a traffic ticket, and later found you forgot to fill in the year, or the municipality where the offence occurred?

In York (Regional Municipality) v. Wadood, 2017 ONCA 45, court decided that you can correct minor mistakes before filing the ticket with the court.

But don't add an extra offence or change the charge. For that, you'll need to issue a new ticket.

To distinguish between a major and a minor change, you should ask yourself whether the person who received the original ticket would still understand what the charge was about, even though she or he did not receive the correction.

This case applies to the Ontario Provincial Offences Act only. Don't assume the same rules apply elsewhere in Canada.

2017.02.04 The Non-Custodial Interview

Two vehicles raced. One crashed, killing the driver. Police broadcast a plea for the driver of the other vehicle to come and talk to them. Mr O’Leary, 2015 ONSC 1346 aff'd 2017 ONCA 71 showed up at the police station unannounced. An officer asked him why he came. He explained that he responded to the request on the radio.

The officer told him he could get the advice of a lawyer. The officer told him he "may" be charged. The officer told him that he was free to go, and that he did not have to say anything about the crash. The officer never searched him, nor told him where to go (except once when indicating where to sit). He stayed. He talked. His statement convicted him.

He appealed, complaining that the police:

• Induced him to give a statement by what they said in the radio broadcast.
• Tricked him into thinking he was a witness rather than a suspect.
• Detained him by words or conduct.
• Failed to get a full waiver of the right to counsel.
• Prevaricated in the court room about whether they had reasonable grounds to arrest Mr O'Leary when interviewing him.

The judges rejected all of these arguments. But there are lessons to learn from them.

• Press releases require careful consideration - if your request for cooperation includes suggestions that the suspect will get better treatment from the courts if s/he confesses, then the judge will consider that offer as a reason not to admit what the defendant says in your interview.
• When interviewing someone you suspect of a crime, tell them about the crime you suspect they committed, and tell them that they have the right not to tell you about it.
• Section 10 of the Charter only requires you to tell a suspect about the right to get legal advice when you detain the suspect. But nothing stops you from telling a suspect that they can get legal advice if they want. Doing so does not create a detention. Especially when interviewing unsophisticated suspects, you can prove to the judge that you treated the suspect fairly by mentioning the right to counsel even though the suspect was not detained.
• Mr O'Leary testified that he thought he was detained even though the officer told him he could leave. This tactic can work when an officer says the words "you can leave" but then behaves like suspect has to stay. Therefore, if you say those words, then act like you mean them.

Defence counsel asked the interviewing officer to say at what point he had reasonable and probable grounds to believe that Mr O'Leary committed the crime, and complained that the officer should have arrested him at that point.

That's silly. Defendants don't have a Constitutional right to be arrested just because an officer starts to believe in their guilt. You can be completely convinced of a fellow's guilt, and still decide not to arrest him.

I suspect that this police officer may have felt uncertainty on this topic, and tried to duck that question. As a result, he may have looked evasive on the witness stand.

If you decide not to arrest someone, then it's perfectly fine to admit that you had grounds: "Yes, counsel, after your client admitted driving the vehicle I believed that he was guilty. But I had decided not to arrest or detain him, so I didn't."  If counsel presses you, you can respond: "Are you saying I had an obligation at that point to arrest or detain him? I am unaware of any such legal obligation, but I would be grateful for the judge's guidance on that point. I certainly told him of my suspicions and his right to silence. I certainly wanted his side of the story."

2017.01.30 Photography of Suspects

Do you photograph just the face or the full appearance of your suspects?

A couple of guys robbed a convenience store. One wore a mask. The clerk complained to police and described the clothing of the two robbers.

45 minutes later, police apprehended two guys wearing remarkably similar clothing. One was Mr McKay, 2017 SKCA 4. A smart officer photographed all their clothing carefully, and later compared it to security video in the store.

It matched.

Unfortunately, the trial judge mishandled the evidence, requiring retrial. But there wouldn't be a case without the careful documentation of the clothing these guys wore when police found them.

In some cases, you don't care about the suspect's clothing or appearance. But in routine investigations, it's easy to ignore valuable evidence. Did the drunk driver have bloodshot eyes? Sometimes the absence of evidence means something. Did the suspect in a domestic assault suffer damage to his clothing or injuries to his body?

When you need to solve a whodunnit, photographs of your suspect's appearance before and after the event can shed much light on whether you caught the felon.

2017.01.30 Right to Counsel - Reminder to Listen

When you explain the right to counsel, listen to your suspect’s responses, and record them. React when they express any hesitancy.

Mr Dunford, 2017 SKCA 1 drove on a highway, feeling happy that his Canadian immigration papers arrived. Too happy. He ignored some construction road signs for 13km. When some big trucks slowed for a flagger, he overtook them. He was going full highway speed when he hit the flagger, killing her.

Mr Dunford’s mood changed from happy to distraught. He cooperated with the police investigation and gave a full statement. The officer who interviewed him explained his legal rights to him. Mr Dunford said he understood. He didn’t want a lawyer. At the beginning of the interview, “Mr. Dunford indicated that he did not mind going without a lawyer and said he just wanted to ‘get it done’.”

When a suspect declines counsel, defence will look for even the slightest ambiguity. In this case, defence argued that the officer breached Mr Dunford’s rights by failing to clarify. The court responded:

“The police do not have an obligation to respond to a detainee’s misunderstanding of his rights or how to implement them if that misunderstanding is not communicated to the police or if there are no other indicators suggestive of a lack of comprehension.”

So you don't have to read minds, but you must watch to see if your suspect appears confused about his or her rights.

2017.01.20 Search Warrants - Telewarrants - "Impracticable" does not require "Urgency"

I previously wrote about Clark, 2015 BCCA 488, a decision from BC which clarified whether you can rely on the telewarrant process in non-urgent search warrant applications.

You can.

The problem was, judges in other provinces disagreed.

Not any longer.

Yesterday, the Supreme Court of Canada agreed with the BCCA: R. v. Clark, 2017 SCC 3.

In case you missed it last time, here's what I wrote:

During a night-shift, Cst Marshinew finished preparing an application for a warrant to search a residence where Mr  lived. No justice of the peace worked in his vicinity at that time of night. Must he stay up until the morning to apply in person, or could he apply at night by telewarrant?

Defence argued that there was no urgency.  The investigative plan involved assembling the search team in the following afternoon.  Therefore, the police didn't need the warrant immediately.

The trial judge accepted the idea that telewarrants can only be granted where there is a need for the warrant to be issued before a personal application could be arranged.  The appeal court disagreed. At para 68, Frankel J.A. said:

"The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week.  Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued.  The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated."

The judges agree that you should state, in the ITO, the circumstances that make it impracticable for you to appear personally before a justice.  That generally means explaining how you know that no judge or justice of the peace (in B.C., a "judicial justice") is not available.  Some provincial courts like BC issued directives from which you can quote when explaining why a Justice is not available to hear your application in person.

2017.01.18 Night Search

Section 488 of the Criminal Code prohibits searches by night unless there are reasonable grounds set out in the ITO, and the warrant specifically permits the search by night.

This section was intended to protect residents in their beds at night. But the broad language leaves no exceptions. When you apply under s.487 to examine a cell phone or vehicle, in your police station, after 9:00pm, remember to add language to your ITO and draft warrant which jusitifies and permits the search to commence after 9:00pm.

Defence counsel recently argued that this limitation applies to searches under the CDSA. It doesn't. Shivrattan, 2017 ONCA 23.

2017.01.14 Witness Statement or Privileged Information - Confidential Sources

Ms Nissen, 2017 ONCA 10 liked her neighborhood. Everyone got along ... until she hired a different babysitter. The first babysitter was one of the neighbor's boys. When she got another babysitter, the first one got mad. She asked around, and learned that the boy broke into another residence nearby, stole some guns, took them to school and threatened kids. Something had to be done.

She called the police. She wanted to tell them what she knew, but she did not want anyone to know who gave them the information. The investigating officer assured her she could give her information confidentially.

He video-recorded the interview. Her information must have been good. After an investigation, police arrested the boy, and they laid charges. The first officer got re-assigned. Another officer disclosed her statement to defence.

The boy and his parents learned that she ratted him out. The dream neighborhood turned into a nightmare. The and his parents harassed and threatened her.

So she sued the police.

And won.

This decision teaches several lessons:

Documentation: If the first investigator intended to keep her identity confidential, he should have documented it clearly in the file.

Clarity: If he intended that she be a witness, then he should have clarified that with her before taking the statement.

Foresight: Early in an investigation, you want information, but later, you want evidence. Early in an investigation, people often want to complain about a problem, and tell you what they know. Later on, cooperative witnesses become reluctant when they realize that holding the crook accountable means telling the crook about the evidence against him, and who gave that evidence. The police denied promising Ms Nissen confidentiality at the beginning. At the end of the events, she was sure they did.

Balance carefully your immediate need for information against your future need for evidence. Make promises of confidentiality slowly, deliberately and clearly. And document them. In cases where you foresee trouble, you could tell witnesses what they say may come out in court.

2017.01.14 Demeanour in Public

Mr Koopmans, 2017 BCCA 10 tried to kill Mr Martin by shooting him. Mr Martin was the most important witness in the case.

Mr Martin used drugs. During the investigation, he suffered paranoia. He suspected that police were conspiring against him, and told the investigating officer so. Apparently, he also told her that an officer who attended the scene was "dancing and skipping" in front of him. At the jury trial, defence counsel sought to make an issue of this, either to undermine Mr Martin's credibility or to undermine the police in the eyes of the jury.

I suspect that an officer who attended the scene shared a private joke with another officer, unrelated to the investigation. Mr Martin interpreted the officer's antics as malice toward himself.

Even regular folks carry plenty of misconceptions about police. In your work, you tend to meet the people at the margins of society, who have drug addictions and mental disorders. Those folks can easily misinterpret you.

You deal with the misery of broken lives on a daily basis. It's hard to stay compassionate, respectful and professional all the time. To relieve the emotional toll, you need a place to laugh and joke together. If that place must be the crime scene, look around for witnesses and security cameras before you crack a joke or pull a gag.

And don't play with the exhibits.

2017.01.07 Context Evidence

M.B., 2016 BCCA 476 had a teenage problem: she didn't like her boyfriend's previous girlfriend ("C.B."). That girl was pregnant. And she still liked M.B.'s boyfriend ("I.S."). Might the birth of the baby distract the boyfriend from M.B.?

M.B. wrote a text message to the previous girlfriend:

“I hope you know that you’ll get stomped if you come to this school, dirty bitches like you aren’t welcome here”

Did these words constitute a criminal threat?

It all depends upon the context.

In this case, investigators collected all of M.B.'s communications to the ex-girlfriend:

“Cool. You'll have like no friends. Our school is really cliquey and no one likes fat pregnant bitches.”

“Ha ha. Been at my school for three years. I think I know how things go and I bet the kid's not even [I.S.]'s. Lol.”

“Lol cause you're a dunce ha hahahahaha wow. And I said I bet the kids not even [I.S.]’s cause you’re a dirty slut who probably sleeps with everyone just to get attention”.

“fight me?:)”.

“Loool. Scared?”

They also acquired messages M.B. sent to her boyfriend about his old girlfriend C.B.:

“[C.B.]'s so annoying. I'm going to like kick her in the stomach when she moves here.”

“If she wants to fight with me I will own her ass. Just sayin'. You know I don't take people's shit.”

“Ya. So will your kid be when I fuckin' kick [C.B.] in the stomach. Joke.”

“I'm not afraid to hurt her [smiley face] because I’m a heartless bitch, rememberrrrr.”

“Holy tits. Get [C.B.] to stop fucking messaging me or I'm gonna rip her face off.”

“K well blah I’m gunna fucking hurt her.. Dude I can make myself look more preggo then [C.B.] could lol”.

By itself, the disputed message would not prove a criminal threat. But this context, persuaded all the judges that M.B. meant to frighten C.B..

When investigating relationship violence, many investigators focus too narrowly on the last bit of unpleasantness. Without context, it may appear less or more serious than would be revealed by some history.

You want more. Some current communication systems like SMS, voice-mail and Facebook permit you to recover the words exchanged before the final event. Get as much as you can.

2017.01.07 Evidentiary Value of a GPS

In your investigations, if you find an GPS device device, you may get a great deal of information.

I stumbled upon R v Didechko, 2016 ABQB 376 today. The GPS in that case automatically recorded everywhere Mr Didechko went: to the bar; to the place where the hit and run occurred; to his parent's house; and then where he dumped the car. He reported the car stolen, but the GPS showed that he never gave the thief any opportunity to take it.

The trial judge found this evidence pretty compelling.

If you find such a device would produce interesting evidence, then get judicial authority to download it.

2016 Developments in the Law

2016.12.28 Warrantless Search of a Residence

Mr Reid, 2016 ONCA 944 sat on a toilet in a tiny bathroom in an apartment. He closed the door. His pants were down. A police officer forced his way into the apartment, opened the door, told him to pull up his pants, and removed him from the bathroom.

Mr Reid complained that the police officer violated his privacy. From his perspective, they sure did.

Given the embarrassing circumstances, why didn't the judges sympathize?

He probably argued that exposure when undressed upset him. But perhaps the discovery of 38 grams of cellophane-wrapped cocaine in the water in the toilet embarrassed him more.

It all depends upon the circumstances. Let's look at it from the officer's perspective.

Sgt Dey responded to a 911 call of an assault in progress. When he arrived, he met a woman outside the apartment who told him that Mr Reid, her ex-boyfriend assaulted her, and he possessed drugs, and was breaching his curfew. She said Mr Reid could be found in unit 202. Someone in the lobby told Sgt Dey that a black guy in unit 202 was dealing drugs and "it was crazy up there", with people coming and going from the unit all the time.

These circumstances gave Sgt Dey plenty of reason to suspect that criminal activity was occurring in the apartment, but no lawful grounds to enter contrary to the wishes of the residents.

Cst Dey went to the door, knocked, and asked questions of the woman who answered. She said she needed time to dress. He heard people shuffling around inside. The door opened a bit. She denied living there, and did not know who did. Same with the white guy with her. They said there was nobody else in the apartment.

Cst Dey now suspected an "apartment takeover", and feared for the safety of the lawful residents.

Fear for life justifies entry and search, but only to the extent necessary to resolve the safety concern.

He forced his way in. He looked in the bathroom. That's when he found Mr Reid. And the cellophane-wrapped package of cocaine.

Mr Reid didn't live there. You'll find in the decision lots of discussion about whether he had standing to complain about violations of privacy. But the key to this case is whether the officer acted out of concern for life and safety.

Even though Sgt Dey knew of various crimes that might be investigated, he bore a greater responsibility to protect life and limb. When he acted on that responsibility, he entered and searched lawfully.

Take no liberties with this power. Even when you exercise it honestly, defence will attack you saying that you used this concern as an excuse. (Write a lot of notes afterwards.) Things can go very badly if you use this power to find evidence. Lawsuits. Damages. Not pretty.

2016.12.20 Reasonable Grounds - Can you Trust a 911 caller?

A guy called 911 to complain about two guys carrying handguns at Tim Horton's. He said that he and his buddy were following the car the gunmen got into. He gave vague descriptions of the people, but provided a licence plate. He gave updates where to find the car. He offered to stick around to tell police what happened. Police found the car he described, where he described it. It went 60km/h in a 40km/h zone.

An officer stopped the car.

Would you arrest the occupants based on this information?

These officers did.

They found drugs, but no guns.

One of them, Mr Carelse-Brown, 2016 ONCA 943 complained that the officers lacked reasonable grounds to believe that the occupants committed a crime. The officers knew nothing about the caller, and therefore had no reason to trust him. The officers should have detained the car and investigated.

The judges disagreed. Finding a car that matched the description, location and direction described in the call tended to confirm the caller. The caller seemed willing to identify himself fully by meeting with police.

Because of the high public risk, the court approved of quick and decisive police action. "This was a dynamic, dangerous and rapidly changing situation involving a serious threat to public and officer safety."

Judges might want to to work slower - detaining first and investigating - if the crime complained of did not pose immediate public risk.

2016.12.20 Arrest & Detention - s.10(a)

When you arrest or detain a suspect, you don't need to tell him in precise legal language what offence you're investigating, but he needs to know the extent of his jeopardy. At the early stages of an investigation, you often know little. Based on what you do know, err towards describing the more serious offence. That way, the suspect can get relevant advice.

Mr Moore, 2016 ONCA 964 drove his car into a pedestrian. The pedestrian had been driving, and got out to confront Mr Moore about his driving. The arresting officer told Mr Moore that he was under arrest for dangerous driving. Mr Moore got legal advice from duty counsel. Then the officer told Mr Moore that they were also investigating him for assault with a weapon. Mr Moore wanted legal advice, but could not reach his lawyer. Police proceeded to interview him.

At the trial for assault with a weapon, Mr Moore complained that the officers did not sufficiently advise him of the charges, and that he did not get the legal advice to which he was entitled. The trial judge rejected this, but the appeal court agreed.

The s.10(a) warning tells the suspect what kind of trouble he's in. The s.10(b) process ensures that he can get legal advice relating to that trouble.

If you aim high at the s.10(a) stage, then you need go through the s.10(b) stage only once. If the jeopardy increases, then the suspect needs fresh legal advice.

Don't allege offences for which you have no evidence. For example, don't tell the suspect that you're investigating a "murder" until you have information suggesting that the victim died. But if the victim's condition is critical, then tell the suspect so. And if you give informal information like this, write down what you said. You need to show the court that you really explained to the suspect what trouble he was in.

2016.12.17 Warrant drafting - What to say about Unreliable Sources

When applying for judicial authorization to intrude on someone's privacy, you must tell the judge or justice everything that you know. What do you say about about someone you don't trust?

When investigating a murder, police in Ottawa received a tip that the suspect's father was overheard saying it was better the victim was killed rather than his son. When applying for wiretap, the affiant cautioned the issuing justice “to take a skeptical view of the informant’s information because, to my knowledge, it is second hand information and not direct knowledge.” He aid that this information did “not advance investigators in this case and can only be treated as intelligence…” Although he asked for permission to intercept the father's communications, he omitted this information from his “summary of grounds for belief” in respect of the dad.

The officer had better information to suggest that the suspect's dad knew about the murder. When investigators came asking questions about the murder, the dad lied to police about his son's whereabouts. Shortly after the dad met with other suspects, he drove in a manner that would prevent police from following him.

The officer got the authorization.

The decision doesn't say whether the police busted the suspect for the murder. But the dad's communications revealed him to be dealing in drugs. As a result of the interceptions, police busted him with heroin and lots of cash.

Mr Hafizi, 2016 ONCA 933 persuaded the trial judge that the warrant should not have been granted. The investigating officer forgot to tell the issuing justice that the dad was on bail for drug trafficking charges. His "heat checks" could have been unrelated to the murder.

The trial judge even found that the affiant "deliberately withheld relevant information that would have completely negated the inferences he sought to be drawn by the issuing justice". The court of appeal disagreed with this conclusion too, but agreed that the officer should have included the information about the trafficking charges.

I think that the Court of Appeal liked the caution with which the affiant dealt with the unreliable source information.  It may have helped them conclude that the officer did not act in bad faith.

Beware of leaving information out. Probably, the officer should have included information about Mr Hafizi's outstanding drug trafficking charge.

If you have information you think is untrustworthy, you can say so in your application. That's a lot better than leaving the information out.

2016.11.26 Photo Lineup Procedures & Lineups of Acquaintances to the Witness

Two men attacked Mr Pierre inflicting wounds that nearly killed him. At the scene he said "Carl" or "Carlton" did it. He sank into a coma for a month. When he first awoke, he wrote a name "Karl Atire" on a piece of paper. At trial, Mr Pierre said that was a mistake brought on by medications. He meant Carl Renous.

Police collected photographs of various people of interest, including Mr Pierre's friends. Each face was quite different from the others. The day after he awoke, police showed him these photographs. Mr Pierre picked out Mr Charles, 2016 ONCA 892 as one of his assailants. He later told police that Carl Renous was the other. Defence complained that this did not follow proper lineup procedure.

Bad news: the investigators misplaced the picture of Mr Charles that they used in this lineup. This made for some embarrassing testimony. Good news: the investigators video-recorded the process, showed each picture to the camera. and preserved that video-recording. Bad news: the officers did not give Mr Pierre the standard instructions for a photo lineup. Good news: Mr Pierre claimed to know his assailants.

Later, when less medication flowed through Mr Pierre's veins, the investigators did a fresh photo-lineup process with him, using pictures of people that resembled Mr Charles. He picked Mr Charles again.

Ordinarily, one uses a photo lineup to see whether a witness can distinguish between a suspect and similar-looking people unrelated to the offence. When the witness only met the suspect during the offence, this method discriminates between recognition, and mere similarity of the suspect to the felon.

When the witness knows the felon, this procedure packs less punch: of course the witness recognizes an acquaintance in the photopack.

Because Mr Pierre knew his attackers, the first photopack served a useful purpose - it identified the felon. If he had not known his attackers, it would have undermined any subsequent identification.

Because the officers video-recorded the procedure so well, that one could see in the video what picture Mr Pierre chose. That reduced the impact of the misplaced photo.

That's unusual. No video-recordings I've seen of photo-lineups captured clear images of each picture as the witness examined them. In a recent trial I ran, it would have helped. You might consider reviewing the video quality, camera angle, and presentation methods you use when showing a photopack to a witness.

Regardless how formally or informally you present pictures to witnesses, carefully preserve the pictures you showed. Mark or annotate the ones which the witnesses pick.  Keep the others as well. They are all exhibits. You'll need them at trial.

2016.11.26 Proving the Obvious

In the case of Mr Charles, 2016 ONCA 892, described above, police found cell tower records showing Mr Charles' cell phone travelled to the town where the attack occurred, and returned to Toronto just afterwards.

The decision doesn't explain how police learned Mr Charles' phone number. I suspect that an investigator relied upon hearsay from a police database, or information from an uncooperative or unavailable witness.

At trial, Mr Charles' probation officer testified that Mr Charles gave him that phone number about 2 weeks before the attack. Defence complained that the probation officer was a person in authority, and Mr Charles did not give his phone number voluntarily. The judges sided with the prosecution; but they won't always.

I suspect that the idea of proving Mr Charles' phone number through the probation officer was an afterthought, not a result of considered investigation. I think this because I encountered a similar problem this week, which I solved in a very similar way.

Investigators often work from what they "know" rather than what can be "proved". When the matter comes to trial, the prosecutor suddenly demands evidence to prove things that seemed obvious during the investigation. And at the last minute, sometimes you can't find witnesses to prove the obvious.

If the probation officer's evidence had been inadmissible, I'll bet that the prosecution would have had a hard time linking the phone number to Mr Charles.

If a fact like that underpins the whole case, take time to find admissible evidence to prove it. For example, how do you prove that a suspect used a particular cell phone number?

• Find acquaintances who communicated with him at that number.
• Get phone company records.
• Seize the phone and (with a warrant) examine its contents.

2016.11.25 Obstructing a police officer by resisting arrest

Some folks use words to tell you that they don't like being arrested. Some use body language. Words of unhappiness do not constitute resistance. At what point does the body language become a crime?

During Mr Kennedy's 2016 ONCA 879 arrest for armed robbery:

• an officer told him to keep his hands above his head, but he reached into the pocket of his leather jacket and pulled out and lit a cigarette instead;
• an officer told him to keep his back turned to the officer speaking to him, but when handcuffed, he instead turned around periodically;
• an officer instructed him to lift his jacket, but instead he took it off and set it on the car;

One officer also said that Mr. Kennedy tried to pull away.

Did any of this amount to resisting arrest?  The judges agreed: "the offence of resisting a peace officer requires more than being uncooperative: it requires active physical resistance." The pulling away would be resistance. But what about the other actions? Although Mr Kennedy's actions sat "at the very low end of the scale of acts of resistance", these actions constituted resistance. Anything less is not.

You often arrest or detain difficult and impolite people. From paragraphs 31 to 35 this decision reviews a variety of situations in which courts decided what constituted criminal resistance and what did not. Most officers will profit by reading them. I take from these paragraphs that "resistance" involves applying force to the officer, or doing something which requires force or energy which prevents or interferes with the officer's arrest.

2016.11.20 Joint Statements and Instructing Witnesses

Good investigators never take the statements of two witnesses in circumstances where one can hear the other's version of events. It's all too easy to interview several people at once, especially when eyewitnesses feel urgency to report to police what they saw. But it undermines the statement they give together because to the court looks like collusion - each witness learns what the other saw, and may deliberately or inadvertently start to describe the event the same way.

But that's just part of the problem.

Consider the unfortunate case of Ms Clause, 2016 ONCA 859. She invited Mr Martin to her house for a birthday party. It went badly. Other guests beat up Mr Martin. He left the party, but felt so angry, he returned to fight with his assailants. He lost that fight too. And then someone stabbed him in the eye. He and two eyewitnesses said Ms Clause was the stabber.

A jury convicted her, but for various reasons, the appeal court ordered a new trial. One of the reasons involved collusion.

The eyewitnesses were Mr Martin's roommates. Only Mr Martin gave a statement to police around the time of the attack. Their close relationship raised a real concern with the court that they might have deliberately agreed to name Ms Clause, or that by discussing the case, some may have affected the memories of others. The appeal court thought the jury should have been instructed to consider that possibility.

How do you stop eyewitnesses from comparing their recollections with each other? All you can do is ask:

"Before I turn off this recording device sir, I'd just like to ask you one more thing. It sounds like you and your roommate are important witnesses in this matter. Until this case finishes, could you please avoid discussing with her the details of what you saw?"

2016.11.20 Impaired Driving - Screening Devices - Reasonable Suspicion

Although Mr Schouten, 2016 ONCA 872 looked sober, an officer noticed an odour of liquor on his breath. It was the morning after "a local motorsports event". The officer was checking the sobriety of drivers emerging from the grounds.

Mr Schouten told the officer that he had not consumed any alcoholic beverages for 10 hours, but he could not remember how much, nor what he drank.

The officer believed that alcohol would be eliminated from the body in 10 hours, but because of the odour, the officer demanded that Mr Schouten blow into a screening device.

The screening device read a fail. Later, breath tests showed Mr Schouten still had too much booze  in his body to drive: 120 and 109mg%.

At trial, defence attacked the officers grounds: if the guy looked sober, and last drank so long ago that he would not have any booze left in his body, then it was unreasonable to suspect that he had any booze in his body.

He won at trial. And at the first appeal. But he lost the appeal that mattered.

All three judges in the Court of Appeal agreed: an odour of liquor on the breath of the driver justifies making a screening device demand.

But notice that judges at two levels of court thought otherwise. Some judges sympathized with the defence argument. Those are the sorts of judges who may find other arguments persuasive. Here are a couple of typical arguments, and ways you can investigate in order to answer them:

Argument	Investigative tactic
The officer mistook an odour emanting from the car or the clothes of the suspect for an odour coming from the breath.	Take more than one sniff. Distinguish between breath and body odours.
The odour of liquor is subjective - especially when the odour is faint.	Get a second opinion from another officer, especially if the suspect denies consuming alcohol.

2016.11.19 Truck Drivers who Cheat

Mr Bhangal, 2016 ONCA 857 fell asleep while driving a commercial vehicle. The truck drove into oncoming traffic and killed someone.

Was falling asleep a crime? No.

But driving for too many hours without rest is. He faked his driving logs, making it look as if he got enough rest. Investigation into those driving logs discovered that he kept himself awake and driving for way too long before the crash. And a jury considered it criminally negligent to keep driving in that state.

When a commercial truck driver crashes, you might want to examine his log book.

2016.11.15 Murder or Assisted Suicide

Mr Elton, 2016 BCCA 440 stabbed his wife with a bayonet and strangled her. At his murder trial, he said he did so because he honestly believed that she wanted to die, and that she had attempted to kill herself by consuming Valium. He asked the judge to acquit him because if he was guilty of anything, it was aiding a suicide, not murder.

The trial judge convicted him, and the appeal court upheld the conviction.

"Aiding" is merely helping another person to do something, not doing it yourself.

Intentional killing another person is murder. He intended that his actions kill her, and they did. He was guilty of murder.

People often confuse "intention" with "motive". Even if his motive was to help her, his intention was to kill.

2016.11.10 Conversation with Prisoners - Voluntariness

Most police officers turn on a recording device before interviewing a suspect about the alleged offence. That's good, because it provides a complete record of what you said to the suspect. The judge needs that recording to determine whether you put any unfair pressure on the suspect to talk.

If you do that, and you interview properly, then you can expect lawyers to focus on conversation which occurred before you started the recording device.

Mr Carr, 2016 ONCA 837 claimed that during the 2-minute walk from the cells to the interview room, the investigator implied that unless he talked about the offence, he would not get released from custody.  The investigator testified that he usually said nothing while walking a suspect from cells to the interview room, but could not recall if he talked with the prisoner on that occasion.

The trial judge didn't buy Mr Carr's claim, but another judge might. Those brief interactions matter.

Most investigators take care to record their interactions with their suspect. But in my experience, the less an officer participates in the investigation, the less care the officer takes to record his or her interactions with the suspect. For example, the officer who transports a suspect from the arrest to the police station will often turn on no recording device and take minimal notes. When that officer testifies, s/he has virtually no memory of the conversation.

And then the defendant says "that's when the officer told me that unless I explained what happened, I wouldn't get out of jail" or "the officer told me that judges and prosecutors go easy on guys who fess up".

Every officer who interacts with a suspect between arrest and interview is a witness, and must be able to account for their conversation and treatment of the suspect.

2016.11.05 Inspecting Mail

You can't inspect mail in the possession of Canada Post. You can't get a warrant to inspect mail. Canada Post Corporation Act s. 40(3)

What do you do if you think there's contraband in the mail?

Well, there are lots of things you can do. One of them is to involve the authorities at Canada Post. But you must do that carefully.

American law enforcement officials complained to Canadian police that Mr King, 2016 CanLII 11698 (NL SCTD) was selling ephedrine over the internet, and shipping it to the USA. Police investigated, and found some evidence to support this complaint.

In a letter, a Canadian officer asked Canada Post to inspect Mr King's outgoing mail.

That's a problem. You can't search mail. If you direct Canada Post to search someone's private mail, then Canada Post acts as your agent.

The officer realized this problem, and sent a second letter which explained why this exportation was unlawful, and suggested that Canada Post might examine these packages as "unmailable", and if they found ephedrine that they might turn it over to police.The judge still found that the officer turned Canada Post into a police agent, even with the second letter. To this judge, it still looked like the police were telling the postal inspector what to do, and turning him into their agent.

There was a better way to write the letter. In situations like this, your "request" should not read like a command but the humble submission of information.  It should state the grounds which might move the postal inspector into action. But it should leave the decision whether to inspect up to the postal inspector:

Dear postal inspector:

I received the following information, which suggests that Mr King is using your postal service to ship ephedrine to the USA:
 ....

I asked a lawyer at the Department of Justice, who told me that doing this is an offence because ... .

I have no authority to search mail in the course of post, nor can I request or require you to search mail on my behalf, and so I make no such request.

Only you have the authority to inspect mail. Only you can decide whether to inspect any of Mr King's mail.

Schedule 4 of the Non-mailable Matter Regulations defines any " item transmitted by post in contravention of an Act or a regulation of Canada." as "non-mailable". Section 4(d) of those regulations require you to deliver such mail to police. If you do encounter this kind of non-mailable matter in relation to Mr King, I would be the appropriate person to contact.

Please contact me if I can be of any assistance.

...

2016.11.05 Missing Persons Reports

Some "missing person" reports waste your time. And sometimes you meet a killer.

Mr Shafia, 2016 ONCA 812 didn't like his daughters' boyfriends. By disobeying his commands about their love lives, they offended his sense of honour. Other members of his family shared his offence. The four offended ones murdered the girls, and those members of their family who supported them. The victims were bashed on the head, placed in an old car, and pushed into a canal.

Then the four killers went to the police station to file a missing persons report.

Subsequent investigation proved that their reports were false. Their statements became important evidence against them.

Most missing persons reports come from genuinely worried people. But if it turns out that you interviewed the killer, won't you be glad you recorded it?

2016.10.22 Undercover Operations - Police Tricks that Cross the Line

A police investigation into a 2011 murder stalled, and the prime suspect had fled the country. The lead investigator thought that police could intercept his friends discussing the murder with him if sufficient stimulus inspired the friends to call him. Undercover officers would talk to the friends. Because organized drug trade appeared to motivate the murder, the undercover officers pretended to be connected to Montreal drug suppliers, interested in "getting rid of" a "rat" - a witness who spoke to police regarding the murder.

The original plan would have caused no difficulty. The U/Cs would talk to each of the suspect's friends in public places where they could walk away.

Instead, they cornered Ms Derbyshire, 2016 NSCA 67 one morning, and pressed her for information about the murder. To everyone's surprise, she told them how she helped the suspect dispose of evidence and flee the jurisdiction. For the day, the officers controlled her movements: they took her cell phone, and they demanded and received answers.

She was charged with accessory to murder. The case depended upon her remarks to the police officers.

Through her lawyers, she complained to the trial judge that the U/Cs terrified her with implied threats of serious harm or death. In violation of her right to silence, they compelled her to give information against herself. And she complained that the officers' failure to record their conversations with her violated her right to a fair trial.

I find irony in that last complaint. In Duarte, [1990] 1 SCR 30, the court agreed with defence complaints that without prior judicial authorization, covert recording of a suspect's conversations violated his s.8 rights. Now a defendant complains that failure to make such a recording violates her s.7 rights. The judges rejected this complaint.  But the fact that defence argued it suggests that defence counsel value police accountability very highly. You can use transparency as a factor to support the issuance of 1-party authorizations.

The judge believed Ms Derbyshire's version of the events. The U/Cs were controlling and terrifying: the officers extorted a confession from the accused by threats of violence. The judges found that unacceptable, and excluded the confession.

The officers painted a less frightening picture of their interactions. Perhaps a recording of the interaction might have supported their version. But their testimony did not impress the judges. One of the U/Cs did most of the talking; the other seemed to recall very little of the conversation. The two U/Cs and their cover man each described the operation and its purposes in significantly different terms. The planning and execution differed greatly.

This case offers suggestions for all police:

1. It illustrates a boundary police officers should not cross: don't use threats or violence to extort evidence from anyone - suspects or witnesses.
2. In court, the testimony of the secondary officer matters as much as the primary officer. Even if you attend in a merely supporting role, pay attention and take notes.
   
3. Innovation and flexibility during investigation can harvest good evidence. But know the limits under which you operate.
4. If you do operate lawfully, transparency protects you. Whenever dealing with important witnesses, record what you (lawfully) can.
   

2016.10.22 Confessions - Voluntariness - What to Do with a Volunteer

Two cases this week show how judges like it when police treat suspects fairly. Here's the first.

Mr Fernandes, 2016 ONCA 772 walked into a police station and told the clerk he wanted to confess to burning down his mother's house. An officer came to speak to him. Mr Fernandes explained that he was homeless and wanted to go to jail. The officer explained that arson is serious, and punishable by imprisonment. The officer urged him many times to get legal advice, and reminded him several times that he was free to leave at any time. At first, Mr Fernandes refused, but after a while, he relented, and spoke with duty counsel. After that, he confessed.

Because police laid charges, I guess somebody did burn down Mr Fernandes' mother's house.

At trial, Mr Fernandes' lawyer argued that the confession was not "voluntary", for two reasons:

• Mr Fernarndes' homelessness constituted such dire circumstances that he would say anything to get a roof over his head. Therefore, the confession was the product of oppression.
• Mr Fernandes wanted to go to jail. The officer "promised" to put him in jail if Mr Fernandes would just confess.

The trial judge agreed, and excluded the confession. Mr Fernandes beat the charge.

The Court of Appeal rejected these ideas. The concept of "voluntariness" protects the suspect from unfair pressures that the police put on the suspect to get him to confess. In this case, the officer didn't cause Mr Fernandes' homelessness. The officer did nothing to coerce or tempt a confession from the suspect. Quite the opposite. This officer put roadblocks in the way.

At first blush, I thought the officer went too far to persuade Mr Fernandes to get legal advice. Mr Fernandes was not detained, therefore section 10(b) of the Charter had not triggered. But Mr Fernandes explained that he wanted to go to jail.  By doing so, he alerted the officer that the usual incentive to remain silent did not apply. By urging Mr Fernandes to get legal advice first, the officer showed the judges that he was not going to take unfair advantage of Mr Fernandes' desperate situation.

The appeal court liked this fair treatment, and ordered a new trial.

2016.10.21 Right to Counsel v. Haste to Test Breath: Getting the Priorities Right

When you make a breath demand of a driver, several obligations trigger.

• S.10(b) of the Charter requires you to arrange for counsel " without delay" when a detainee wants one.
  
• Section 254(2) and (3) require you to test the driver's breath "as soon as practicable".
  

Which one comes first?

Mr Rowson, 2015 ABCA 354 caused a bad motor vehicle accident. At the scene, officers feared that victims might die. When an officer asked him to blow into a screening device, Mr Rowson wanted to call a lawyer. Knowing the seriousness of the matter, the officer let him talk to a lawyer for a short time before testing his breath. Mr Rowson failed. The officer demanded breath for analysis, and he later blew 117 and 105 mg%.

At trial, defence argued that the officer did not test Mr Rowson's breath "as soon as practicable". Because the officer "searched" Mr Rowson's body contrary to law, the officer therefore breached Mr Rowson's rights under s.8 of the Charter.  The officer should not be permitted to rely upon the "fail" result to justify the breath analysis demand. Defence asked the court to exclude the results from the breath analysis.

The appeal court agreed that the officer breached Mr Rowson's s.8 rights by allowing Mr Rowson to call a lawyer before blowing into the screening device. But they disagreed that the breath tests should be excluded. They sympathized with the officer, who plainly recognized the seriousness of the situation, and properly worried that Mr Rowson should get legal advice.

The Supreme Court of Canada agreed with the Alberta Court of Appeal.

To answer the question I posed, the correct priority of events is:

1. Breath screen / SFST
   
2. Legal advice
3. Breath analysis / DRE
   

But judges like it when you really care that the suspect gets legal advice when he faces jeopardy.

2016.10.16 Helping Social Workers Search

Social workers received confidential tips that a child living at the residence of Mr Noftall, 2016 NLCA 48 faced danger because he grew and sold marijuana from that place.

The social workers decided to investigate. But they lacked equipment, skills and training to handle the potentially violent reactions of criminals who lived there. They asked a police officer to accompany them.

Without a warrant, two social workers and cop entered Mr Noftall's place, for the purpose of investigating a child safety complaint. But this cop had experience taking down grow operations. And the place smelled of growing marijuana.

The social workers told Mr Noftall they didn't need a warrant. Mr Noftall took a social worker and the officer to his (small) grow. An unsecured rifle hung nearby, with ammunition at the ready.

Mr Noftall complained that the officer violated his rights under s.8 of the Charter. The trial judge figured that because the officer merely accompanied the social workers for their protection, the officer did not breach s.8. The appeal court disagreed: after the officer smelled growing marijuana, the officer should not have "searched" by going to the grow room. Instead, the officer should have compelled Mr Noftall to wait in the kitchen while the officer phoned for a warrant.

Hmm.

Telewarrant: Although the Criminal Code provides for oral telewarrants, you should be very cautious of using them. You get one chance to say everything perfectly. Nobody checks your work. And if your forget to mention something important, things will go badly at trial.

Search: I agree that when you enter a private residence without a warrant and without consent, you must act in accordance with the lawful authority that got you in there. If a situation arises where you have reasonable grounds to believe that evidence of a crime will be destroyed if you do not freeze the scene, or search the place, then s.487.11 applies. You don't need a warrant. But you should limit your warrantless searching to the least necessary. Get a warrant once you get the scene under control.

Despite the breach, the court admitted the evidence. Mr Noftall stayed convicted.

2016.10.16 Prisoners Talk

When police arrested Mr Day, 2016 NLCA 52 for drug trafficking, he shouted out to his girlfriend not to say anything to police. At trial, he testified that he had nothing to do with the pound of marijuana in the trunk of his car, and suggested that maybe his girlfriend put it there.

The judge didn't find his testimony persuasive. What Mr Day shouted to his girlfriend did not easily mesh with his innocent explanation.  And besides, his girlfriend had recently texted him "the bags you gave me are done" and Mr Day replied, “Don’t worry, I’ve got you”.

All too often, prisoners in police custody call out to each other with advice or instructions about what to say during the investigation. Those remarks can make a significant impression on the trial judge, if you take the trouble of writing them down.

2016.10.16 Employees Talk

Ms McCarthy, 2016 NLCA 33 worked in a Newfoundland police station. Posted on the wall in the drug section of her office, she noticed a picture of her cousin.

She warned her cousin that he was being watched. Indeed he was.  But investigators found out that she violated her oath of confidentiality.

She lost her job. She got charged with obstruction of justice. The trial judge sent her to jail. (The appeal court reduced the sentence to a conditional sentence, but only because she confessed, she apologized, and she pleaded guilty.)

Leaks do happen. Beware of conflicts of interest. Supervisors might want to tell this cautionary tale gently, not to threaten staff, but to remind them of the harm they can do to themselves when they feel the improper tugging of family ties.

2016.10.09 Security Video

Security video can prove independent events to a high degree of confidence.  I hope that you routinely look for security video in the area of offences you investigate. Here's a case from earlier this year which illustrates what to do.

Dean Saddleback, 2016 ABCA 204 drove a stolen truck. He took it to a 7-11, where he had the bad luck to be noticed by an off-duty police officer. The officer watched Mr Saddleback get gas, and pay for it inside the convenience store. Because Saddleback looked particularly suspicious, the officer called in other officers. Those officers pursued the truck. Mr Saddleback fled and escaped. The store security video was the only way to prove the driver's identity.

Security video evidence tends to suffer from some routine - and avoidable - flaws. Those problems arose in the trial:

• Authenticity: In general, a video recording isn't evidence until a person testifies, explaining where it came from and what it shows.  When an officer asks a private business for a video clip, the business often delivers the video without identifying the person who downloaded it from the recording system. In Mr Saddleback's case, someone gave the 7-11 clerk the relevant video. The clerk testified, but he couldn't say from personal knowledge that the recording captured the right date and time. Defence objected to its admissibility.
• Time stamps: Organizations don't always accurately set the date and times on their security systems. And then, every spring and fall, they forget to change the system time to match changes of the clock. This clerk thought that the clock was wrong by an hour.
  
• Quantity: People tend to download only the exciting part of the recording: the part where the crime occurs or the criminal passes by the camera. In this case the prosecution played only the portion of the recording which showed Mr Saddleback, but did not show any of the recording where the off-duty officer appeared.

Everything turned out okay. The clerk remembered Mr Saddleback from that day, and was able to testify that the video accurately depicted what occurred when Mr Saddleback attended. The court accepted the clerk's testimony that the video accurately showed what happened when Mr Saddleback attended.

You won't always be so lucky.

• A security video is not evidence unless you also identify the person who can testify what it shows, and what period of time it captured. Usually, this is the person who downloads the video. That isn't always the person who gives you the video. Find out who. And beware. Those folks rarely make notes of the date and time of the video they download unless you instruct them to.
  
• Always investigate the date and time stamp on the video. By how much does it differ from the actual time?
  
• You want all the evidence in the video-recording, not just the few clips that show the felon best. That may include minutes or hours before the crime (when the felon surveyed the scene), and the minute or hours after the event (between the departure of the felon and the arrival of known persons, such as the police).
  

2016.10.04 Detaining a Suspicious Vehicle

Cst Vachon-Zee recognized a frequent offender sitting in the passenger seat of a Chrysler Cirrus. He didn't recognize the driver, Mr Mr Ali, 2016 ABCA 261. A computer search reported no concern that the car was stolen. But the officer was suspicious. In his experience, thieves often stole this model of car. He wanted to know what the passenger "was up to", and to check whether the car was stolen. He decided to check the ownership documents.

The car stopped when signalled to do so. An odour of fresh marijuana wafted from the driver's window. The officer arrested the driver, and on a search incidental to arrest, found crack.

At his trial, Mr Ali argued that an officer who stops a vehicle to investigate crime needs reasonable grounds to suspect that someone in the vehicle was involved in crime. The appeal court agreed. If you're going to stop a vehicle to investigate crime, you need more than mere suspicion.

But this officer also wanted to check vehicle ownership documents.  You don't need reasonable grounds to suspect that a traffic safety offence is being committed to stop a car.

Courts call this a "dual-purpose" stop. Defence counsel distrust you when, after the fact, you try to justify a stop as a stop for vehicle safety enforcement. If you find something interesting, they will cross-examine you for a long time.

Therefore, when your instincts tingle, and you want to pull over a suspicious vehicle, think about what you're investigating. If you have solid reasons to suspect crime, pull it over. If you don't have solid reasons, consider whether licencing and registration, sobriety and roadworthiness interest you.

If they do, actually investigate those issues. Make inquiries over the radio or the on-board computer (if you have one). Ask questions about that topic.

By the time you encounter drugs or stolen property, it's too late to come up with excuses for stopping the suspect.

2016.09.30 Disclosure - Confidential Sources - Debriefing Reports and Handler's Notes

Sometimes, confidential sources provide good information. Judges issue warrants and authorizations. Police bust bad guys.

Defence counsel then attack the process by which police obtained the warrants and authorizations: did the officer who applied for the warrants and authorizations accurately describe the reliability of the sources, and the information they gave? Should the officer have mentioned other information which tended to undermine the source's credibility or suggested the warrant should not have issued?

To ask that question, defence counsel ask for documents relating to the information that the confidential sources gave: Source handler's notes, source debriefing reports, everything. "Full answer and defence", counsel cried.

Many judges agreed.  But that risks identifying the confidential source. Some judges assumed that redacting the documents would suffice to protect the identities of the informant.

Today, in R. v. McKay, 2016 BCCA 391, BC's top court responded.

No. Defence is not entitled to everything. Only what's relevant to what the officer knew (or should have known) when he or she applied for the warrant.

No. Redaction does not always protect confidential sources. Little bits of information can burn a source.

Defence is still entitled to disclosure when challenging an authorization or warrant, but they need to show why disclosure of the material may assist in showing that the authorization should not have been granted.

This decision solves some problems in BC, particularly for the RCMP's Human Source Unit.

2016.09.28 Wiretap - Who's a "known"?

When you apply for an authorization to listen to private communications, you must identify an offence, and all the persons you "know" whose communications you have reasonable grounds to believe may assist in the investigation of that offence.

Those people are "knowns". You need to identify them in order to intercept their conversations lawfully. And if you knew about them, and failed to identify them in the application, then even if you do intercept their conversations, the court may exclude the recordings from evidence.

So how much do you need to "know" to make a person "known"?

Two separate teams of police investigated what appeared to be two separate schemes to import cocaine from Argentina to Kelowna, BC. The two teams shared some information. There were enough similarities to raise suspicion that they may be related. It turned out that Mr Montgomery, 2016 BCCA 379 and an associate participated in both. The first operation identified them. Wiretap captured their conversations in the second investigation. They complained that the police should have identified them as "knowns" when applying for the authorization in the second investigation.

The court had no difficulty rejecting this argument. "Known" needs to be reasonable belief, not mere suspicion.

But the test remains slightly weird.  You must have reasonable grounds to believe that "probably", listening to this person's conversation "may" assist the investigation of the offence. The court noted at paragraph 92 the prospect of further litigation on this topic.

2016.09.26 Impaired Driving - Taking Breath Tests "As Soon as Practicable"

"On a dark desert highway, cool wind in his hair," Cst Ferguson stopped a car driven by Mr Prestupa, 2016 SKCA 118. Okay, it was prairie, not "desert". And "cool" understates the chill of Saskatchewan in January. A screening device registered a "fail" when Mr Prestupa blew into it. Cst Ferguson read him a breath demand.

That triggered an obligation to test Mr Prestupa's breath "as soon as practicable". Cst Ferguson's police station lay 75 or 80 km away; other police stations were a bit closer. Mr Prestupa asked the officer to let his parents pick up his car, rather than allow it to be towed. Cst Ferguson agreed. They called his parents. Meanwhile, Cst Ferguson called for a breath technician to attend his detachment to test Mr Prestupa's breath. It took a while for the parents to arrive. He left the scene 47 minutes after the initial stop.

Cst Ferguson drove rather quickly back to his detachment. 75 or 80 km in 33 minutes. Hmm.

Mr Prestupa blew 190 & 180mg%.

At trial, Mr Prestupa complained that the officer did not test his breath "as soon as practicable": there were closer police detachments to which they could have gone.

The trial judge agreed, but the appeal courts didn't buy it. The phrase is "as soon as practicable" not "as soon as possible".  And besides, there was no evidence that the other detachments had breath-testing equipment and breath technicians at the ready.

Several ideas emerge from this case:

1. The phrase "as soon as practicable" means you need to account for how you spend your time after making a breath demand.
2. The judges did not mind Cst Ferguson's decision to wait for Mr Prestupa's parents to take his car. But beware. If another officer could have watched the car, Cst Ferguson should have started driving.
3. The judges liked how Cst Ferguson called for a breath technician before departing for the police detachment. "A stitch in time saves nine." A little forethought can save lots of time.
4. "As soon as practicable" does not mean "as soon as possible". Although the judges noted Cst Ferguson's quick trip back to the police station, I would caution against high-speed driving. In B.C., I don't think s.254(2) of the Criminal Code authorizes police officers to drive at emergency speeds for the purposes of breath testing.  See s.122 of the Motor Vehicle Act, and the associated regulations.
5. After demanding breath, ask yourself "what can I do to get the breath testing done promptly?" The defence argument in this case failed not because it was okay to take Mr Prestupa to a detachment far away, but because defence did not show that a closer detachment would have tested Mr Prestupa's breath sooner.

Many tasks will slow you down. Impaired driving prosecutions can fall apart if you:

• Take inadequate notes of symptoms and times
  
• Fail to explain legal rights so that the suspect understands
  
• Give the suspect inadequate opportunity to exercise them
• Divert your attention from the suspect, allowing him/her to burp or consume stuff before testing
  

2016.09.10 Jordan - Right to a Trial within a "Reasonable Time"

Some of you encouraged me to write about the Supreme Court of Canada's recent decision R. v. Jordan, 2016 SCC 27.

It discusses trial delay - the legal wrangling, adjournments and court scheduling conflicts that seem to have no relation to police work.

Why did these police officers care? Because all their hard work will go to waste if the court throws out a case that took too long.

What can police do about delay? Doesn't it all happen at the Crown office and the court house?

There are some things you can do little about. If the government won't pay for prosecutors, judges or courthouses, then delays may mount.

But the courts often blame police for delays. Usually for late disclosure.

Some officers find it difficult to sympathize with this criticism. Collecting, vetting and packaging every little bit of paper, digital information, photograph and video is a colossal chore. It's boring, and the little bits of information that you miss are usually unimportant in the big picture.

If you feel that way, try imagining that you were about to buy a house. An expensive one. You will commit all of your money, and you will sign up for a large mortgage. This purchase decides your finances for the next 20 years. On the day of the deal, the vendor hands you a folder containing 1,000 pages of documents including maintenance receipts and at least 30 reports from property inspectors who examined the house in the last 5 years. Would you sign on the dotted line without reading the folder? At least 30 purchasers paid for property inspections, and walked away without buying this house. Are you sure about this?

That's how defence counsel feels when "new disclosure" shows up just before trial. They don't want to start the trial until they know everything about the case. The diligent defence lawyer will ask for an adjournment. Judges sympathize. They grant the adjournment. And they blame police for failing to provide the disclosure in time for trial.

Clever defence counsel capitalize on this sympathy. I've seen cases where the late disclosure of a single page of trivial information resulted in an adjournment. And the court blamed the delay on the police.

Delays lead to stays of proceedings.

What can you do?

General duty officers

• Disclose BEFORE trial. If you arrive at court on the day of trial carrying a couple more photographs of the scene, or a page or a statement that was not previously disclosed, you may cause an adjournment. In many cases, that delay could have been avoided if you delivered it to the prosecutor as little as 2 or 3 days before trial.
  
• Earlier is better. Like the home-buyer, defence counsel wants time to consider all the evidence. So does Crown. If the charge is laid, and you have more information, don't wait. Disclose promptly.
  
• Completeness matters. If you took 7 good photos of the scene and 3 lousy ones, disclose all 10.
• Completeness matters. It's easy to forget stuff.  Like the fact that security cameras in your police station recorded the actions of the drunk driver that you arrested. He wasn't violent. For a guy who blew 200mg%, he didn't even look all that drunk. Crown and defence need to see this evidence.
  
• Completeness matters. What the victim told the 911 operator may include details that she omitted from her statement.
  
• Completeness matters. Other officers who participated in this investigation may forget to give you everything they obtained. Ask them.
  
• Your availability affects trial dates: make sure that the right people or computer systems know when you can't attend court.

Plainclothes officers

• Organize your disclosure from the beginning. Your next investigation will start before this one completes. Use a system which guarantees complete disclosure.
• Organize disclosure from outside your unit. When you call in outside units like identification services or DNA analysis, ask for and track their disclosure to you.
• Completeness and promptness matters. Neither Crown nor defence want to make deals nor set trial dates until they know what the case is really about. That new file in your queue could distract you from finishing the old one.
  
• Your availability affects trial dates too: make sure that the right people or computer systems know when you can't attend court.

Supervisors

• The bigger the investigation, the bigger the disclosure headache.
• After the arrest, allow no investigator to escape the team until they have provided complete disclosure of their own.
• Ensure that sufficient people remain on the team to complete the package to Crown. Likely, there will be more work to do on the file.
• Revolving file managers guarantees confusion.
  

Upper Management

• Big picture - When your people suggest systems and infrastructure to manage disclosure, think big picture. Disclosure problems can destroy good work.

Disclosure ain't the only problem you can fix.

When a warrant issues for an accused, when the charge is laid, or later, make real efforts to find him. And if your first efforts fail, make sure you follow up regularly. If the guy leaves Canada, even failure to pursue extradition promptly can count against the state.

This post is long, but I did not explain the Supreme Court of Canada's decision. I don't think that fine points matter much to police. In a 5:4 split decision, the majority concluded that a judge should generally kill a prosecution if the Crown or court delay it more than 18 months ... unless there's a good explanation.  Cases in superior courts get 30 months. The minority predicted problems with this one-size-fits-all approach. The judges all agreed that delay is a bad thing, and that the prosecution and its partners bear the burden of bringing accused people to trial promptly.

The court breathed new life into the right to a speedy trial. Defence counsel will look for reasons to blame you for delay.

2016.09.09 Impaired Driving - Oops, I forgot to Read the Breath Demand at the Scene

Section 254(3) requires you to make breath demands "as soon as practicable" after you realize that the suspect's ability to operate a motor vehicle is impaired by alcohol.  Some officers arrest the suspect but forget to read the breath demand at the scene. By the time they reach a police station, it's no longer "as soon as practicable".

This case suggests an interesting solution.

Mr Guenter, 2016 ONCA 572 crashed his car into another car, injuring the people in it. He had been drinking. The attending officer got distracted by the chaos of the accident scene. At the scene, he arrested Mr Guenter for impaired driving causing bodily harm, but he only got around to reading the demand at the police station.

Lucky for him, the breath technician had his own way of dealing with things. The breath tech always:

• Asked the investigator for an explanation of the grounds;
• Reviewed rights to counsel with the suspect; and
• Read a breath demand to the suspect.

The court found that the investigator's breath demand was not made "as soon as practicable", but the breath technician's demand was. The breath tech learned from the investigator that the suspect drove while impaired, and then promptly demanded breath samples. That (new) demand lawfully required Mr Guenter to blow, even if the first one didn't.

About 2 hours after the crash, Mr Guenter blew 170mg%. The evidence was admitted, and Mr Guenter was convicted.

Does that mean every breath technician should now emulate this breath technician in every case?

I don't think so. Not only must the demand be made as soon as practicable, but you must test the suspect's breath as soon as practicable too. In ordinary cases, where the first breath demand was properly made, defence can argue that making another one wastes time.

If your colleague arrives at the police station, and then remembers to read the breath demand, you can save his or her investigation by asking your colleague for the evidence and information which suggests that this person - within the preceding 3 hours - operated or had the care or control of a motor vehicle while impaired by alcohol. If the answers satisfy you, you can make the demand "forthwith or as soon as practicable". After your demand, let the suspect speak to counsel again if desired.

Until I read this decision, I would have doubted the lawfulness of this procedure. If you use it, expect prosecutors and defence counsel to challenge your actions. Bring them copy of Guenter, 2016 ONCA 572 to explain yourself.

2016.09.09 Statements of Suspects - Compelled, Elicited or Volunteered?

In some provinces, including Ontario, when drivers crash their cars, legislation requires them to tell police what happened when police ask. But the right to silence means that suspects of crimes can't be compelled to explain their involvement. This case explored the interaction between right to silence, statutory compulsion, and a police officer's duty to hold off eliciting evidence before a detainee got his right to counsel.

Mr Guenter, 2016 ONCA 572 was drunk. His car crashed into another car injuring its occupants. But who drove his car?

The first police officer to attend asked Mr Guenter if he was hurt.  Mr Guenter replied "No. My heart hurts because I feel bad for hitting this vehicle with a family in it."  After an officer arrested him for impaired driving causing bodily harm, he banged his head on the hood of the cruiser. He later blurted out - of his own accord - things like "drank too much J.D.”; “I smoked weed”; “a couple of beers, it’s Christmas". " I made a mistake. I was at a Christmas party. He shouldn’t have turned in front of me."

He also said: "Shoot me in the back of the head.” “Shoot George too. He ran into the bush.” “I should have never let him drive.” At trial, Mr Guenter testified that another guy named George drove the car.

His earlier comments proved he drove. Were they admissible?

His lawyer argued that legislation compelled him to tell the officer about the accident. Therefore, admitting these remarks would violate his right to silence. But the prosecution pointed out that the officer asked about his health, not about the accident. The judges agreed.

His lawyer argued that after the arrest, everything that Mr Guenter said before he got to talk to a lawyer should be excluded. The prosecution responded that after detention or arrest, police must hold off eliciting evidence from the suspect. That's what these officers did. They asked no questions. They weren't trying to get evidence out of him before he spoke with a lawyer. Mr Guenter volunteered these remarks of his own accord. The judges agreed.

Mr Guenter was convicted.

In B.C., the legislation no longer compels drivers to give explanations for accidents to the officers who attend. Before detaining a BC driver at an accident scene, you can ask questions, knowing that the answers won't be excluded from trial.

In other jurisdictions, officers need to gather information from other sources than the driver.

At trial, defence will challenge your version of how these conversations went.

When a detained suspect blurts out information of his or her own accord, the investigating officer rarely has a notebook open and a pen in hand. A subsequent decision dwelt upon the value of contemporaneous audio and/or video recording during these dynamic interactions. I agree, but with caution. Making lots of audio or video recordings means storing, disclosing and transcribing lots of recordings too. It's the way of the future, but I suspect it costs more than most proponents realize.

2016.09.09 Deals with Devils - Accomplices who Rat Each Other Out

Some drug dealers complained to police of a couple of home invasions committed by men with guns.

Whodunnit?

Police suspected two buddies Keenan and Kelman, both drug dealers and users. One day, when they were both in custody, police made them an offer: lead us to the gun used in the first robbery, and you'll get bail. They accepted the deal, produced a gun, and - with the consent of Crown - they got bail.

A little while later, police told Keenan that he would soon face charges over the first home invasion. Keenan gave a statement. He told police he was the getaway driver. He named Kelman and his friend, Mr McGown, 2016 ONCA 575 as the robbers who entered the house.

All three got charged. Keenan, the rat, pleaded guilty, and made arrangements be sentenced on the basis of his police statement. Kelman also pleaded guilty and got sentenced.  McGown wanted a trial.

At the preliminary inquiry, Keenan testified for the Crown. He gave a new version.  He wasn't the driver, his good buddy Kelman was.  He went into the house with McGown.

Keenan got sentenced as the driver. He even got a reduced sentence because he "cooperated" with the state.

At trial, Keenan testified for the Crown. He was the only witness who could establish that McGown participated. He gave much the same story as he told at the preliminary inquiry. Defence pointed out that his "cooperation" with the Crown involved admitting that he didn't take full responsibility at sentencing for what he did. He was a liar that manipulated the system. That undermined his credibility.

His good buddy Kelman testified for the defence. Kelman agreed that he, Kelman drove the car. Indeed, much of his story matched Keenan's version. But Kelman said that his good buddy McGown wasn't even there. Oh, no. Some other dude he didn't know participated in this crime. A stranger. Some friend of Keenan's.

The judges believed Keenan the rat, not Kelman. McGown went down. But only because other evidence confirmed that Keenan told some truth, and there was no evidence to suggest that Keenan was protecting some third party.

Beware of rats. Their statements sound great. Confirm everything that you can. When these folks reach the court room, their testimony often changes. Sometimes dramatically. Don't offer them special deals, immunity or reduced sentences without Crown's blessing ... and lots of documentation. Because at trial, you will look like a fool if it appears that the rat duped you.

2016.09.08 Limits of General Warrants - Complying with Legislation

Can a judge authorize a police officer to disobey legislation? In Whipple, 2016 ABCA 232, the Alberta Court of Appeal seemed to suggest that a judge may issue a General Warrant which authorizes a police officer to disobey s.10(a) of the Charter. I expressed some discomfort with that notion. Just a few days earlier, the Ontario Court of Appeal held that a General Warrant can not authorize a police officer to disobey s.503 of the Criminal Code. This decision makes more sense to me.

Even though the court held that the officers breached Mr Poirier's, 2016 ONCA 582 rights, you gotta give them some credit for trying to do this one correctly.

Reliable confidential sources told police that Mr Poirier sold drugs. Whenever he wasn't selling, he stored them in his rectum. The investigating officers obtained a general warrant which authorized the officers arrest Mr Poirier and to hold hold him for as long as it took him to defecate all the drugs out, and to watch him and control him so that he did not conceal or destroy the drugs during this vigil.

It took 43 hours.  In stages separated by many hours, Mr Poirier eliminated crystal methamphetamine, heroin, cocaine and Dilaudid.  Each time something came out, he told the officers that was everything. And then later, more came out.

Defence complained that this was not a search, but a detention. Section 487.01 - the General Warrant section - empowers a judge to authorize police to "...use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property".  The court disagreed: it's a search that takes time because of the passive nature of the searching: the police just watch till nature takes its course.

After an arrest, s.503 requires you to bring your prisoner before a justice "without unreasonable delay" and within 24 hours (unless no justice is available).

Defence complained that s.487.01 does not empower a judge to authorize police to disobey the Criminal Code. The court agreed. Reasonably promptly after the arrest (not at the 24-hour mark), the officers should have brought the prisoner to a justice of the peace, and asked the justice to order that Mr Poirier be detained in their custody to complete their execution of the General Warrant.

But the officers made some other mistakes, which resulted in Mr Poirier's acquittal.  See below...

2016.09.08 Reasonable Search of a Prisoner - Privacy, Comfort and Health

As described above, a judge authorized police to perform a "bedpan vigil" on Mr Poirier, 2016 ONCA 582. Mr Poirier excreted lots of drugs. But there were some problems.

• The officers strip-searched Mr Poirier after his arrest.  No problem. But they made him strip completely naked. Problem. You should avoid rendering your suspect entirely naked if possible. Expose him or her one part at a time, if possible.
• The officers forgot that the location where they searched him was video-recorded. The entire strip-search was recorded.  Problem. This unnecessarily perpetuates the invasion of his privacy.
  
• The officers sought to prevent Mr Poirier from destroying or concealing evidence during the vigil. No problem. But they did it by handcuffing him in an awkward and uncomfortable position. For 22 hours. Problem.  There was a better way. After 22 hours, they handcuffed his hands together, covered by oven mitts. The court found that they should have thought of that earlier.
• Mr Poirier was a drug addict. During the long wait, he experienced a nasty withdrawal. Even knowing that Tylenol could relieve his suffering, the officers did nothing to help him. Problem. You are responsible for the health of your prisoner.
• The officers knew that Mr Poirier's rectum contained lots of drugs. But they had only a rudimentary contingency plan if the packaging ruptured. They didn't even know what signs to look for. The court didn't like that either.
• As noted above, the failure to bring him before a justice infringed his Charter rights under s.9.
  

The officers in this case used the General Warrant legislation in a creative way. The court approved. But the officers got distracted by the complications of executing it. Perhaps Mr Poirier was not a congenial guest. It looks like the officers lost track of some basic principles of handling prisoners. We can learn much from this investigation.

2016.09.03 Knocking on the door of the Suspect - the "Implied Invitation"

Will Duval wrote me: "Here's a good suggestion for your website..."

He's right, damn him. I spent many hours thinking about what to write about this difficult case.

In their homes, people enjoy a right of privacy from the government. As a police officer, you can't enter or search people's houses except with lawful authority, such as a warrant, exigent circumstances, or permission from a person who lives there.

But can you knock on the front door?

Long ago, some officers received a tip that Mr Evans, [1996] 1 SCR 8 grew marijuana in his home. Because other investigative approaches failed, they knocked on his door and explained that they were there to investigate a grow at the residence. Oddly enough, when Mr Evans opened the door, they smelled green marijuana, so they arrested him, and took down his grow-op.

All the Supreme Court judges agreed that in the absence of contrary indications, an officer may assume that every resident of a home offers an invitation to people to come and knock on the front door (or ring the doorbell) to communicate with the residents.  But four of the seven judges added a limitation: this "implied invitation" invites only communication, not searches for evidence against the residents. Although these officers wanted to talk to the occupants, they also wanted to sniff the air when the residents opened the door. That intention turned the door-knock into an unconstitutional search.

So, if you suspect someone committed a criminal offence, and you approach his home with the intention of gathering evidence of the criminal offence from a resident there, then you breach his s.8 rights when you knock on the door (and may breach his rights even when you set foot on his front walk).  But you may lawfully knock on the door if all you intend to do is communicate with the resident. You can knock and talk even if you suspect that the resident committed the offence you're there to investigate. You can even talk about the offence.  And if you discover evidence during this conversation, it's all good.  But only if your initial intention was just to talk.

Mr Rogers 2016 SKCA 105 backed his car into another vehicle, causing negligible damage. A witness thought he was drunk, and called the licence plate in to police. An officer went to Mr Rogers' apartment to investigate. When the officer knocked on the door, Mr Rogers opened it.  He looked, sounded and smelled intoxicated. The officer arrested him, and demanded breath samples. Mr Rogers blew 270mg%.

Depending how you look at it, the legal trouble began when the officer knocked on Mr Rogers' door, or it began in court, when the officer answered questions about what he intended to do when the door opened:

Q	So your purpose in attending at Mr. Rogers’ home was to determine whether he had been the person driving, correct?
A	Yes.
Q	And more importantly, whether his ability to operate a motor vehicle was impaired.
A	Yes.
Q	And you would agree that the observation made of a suspected impaired driver’s appearance, demeanour, speech, and actions are critical pieces of investigation in an impaired driving investigation?
A	Yes. They are what form my grounds. ...
Q	But going back to my question, you knew that the minute you opened the door you would be able to gather evidence regarding Mr. Rogers.
A	Not necessarily. The minute he opened the door is when I would start observing to determine whether or not I had ... any grounds.

If the officer's only purpose in knocking had been to speak with the occupant to find out who drove the car, then the knock wasn't a search.  But the Court of Appeal judges agreed that this officer's knock was a search because he intended to secure evidence. And because no judge granted a warrant to the officer permitting him to do that, this was an unlawful search. Evidence excluded. Drunk driver acquitted. The judges explained that they simply followed the law set out by the Supreme Court of Canada in Evans.

If you think the legal trouble started with the officer's admission that he was looking for evidence, then your solution to this conundrum would be to lie in court when answering questions about your motives when you knocked on the door. I disapprove. Not only would this be perjury, but any good cross-examiner will reveal it to be perjury. Goodbye career.

I think the legal trouble started at the door, not in the court room.

The court itself noted that in similar circumstances, courts reached the opposite conclusion, for example: Petri, 2003 MBCA 1; Grotheim, 2001 SKCA 116.

After reviewing many similar cases, they commented:

"There are numerous other applications of the implied licence to knock principle from all levels of court. Often, the line between when the police intend to investigate a crime and when they intend to secure evidence in relation to it is not easy to perceive..."

Where's the line? Talking with the residents is okay -- even about the offence.  Knocking on the door in the hope of seeing evidence like symptoms of impairment isn't.

You have a general duty to investigate, but the courts chastise the officer who does try to gather evidence at the door. How do you avoid this problem?

By respecting the privacy of the home. If all you're allowed to do is talk, then you might deliberately limit your ability to see evidence in the residence and smell the breath coming from the suspect.  You might knock, and then move as far back as possible while still being able to talk.  Fully explain why you came, and invite the suspect outside, or ask for permission to enter.

This approach raises two problems:

1. Tactical disadvantage: an officer who blinds himself to dangers in the residence will one day be blind-sided.
   
2. The suspect has control: a cagey drunk will slam the door in your face. Unless you have other leads or lawful authority, your investigation may stop there.

I don't think the law requires police to render themselves vulnerable to attack. At the door of the suspect's residence, keep watching for dangers, and routinely position yourself for safety.

I do think that the law limits your investigation. In some cases, exigent circumstances may justify entering the residence to preserve evidence.

But not in this case. No doubt, with every minute, Mr Rogers' liver was busy removing alcohol from his bloodstream. Definitely, evidence was disappearing. But you can't rely on "exigent circumstances" to enter unless you know that an offence probably occurred. This officer had only reasonable suspicion.

In s.487.11, the Criminal Code permits you, in exigent circumstances, to search for whatever a search warrant will let you find, "if the conditions for obtaining a warrant exist". Search warrants require probable grounds. You can't use this power if you have only a reasonable suspicion. And besides, a search warrant won't authorize you to sniff a suspect's breath nor watch his "appearance, demeanour, speech, and actions".

I do not expect the Supreme Court to clear this up any time soon. In Evans, the court divided 4:3. In the similar case of Feeney, [1997] 2 SCR 13, they divided 5:4. In MacDonald, [2014] 1 SCR 37, 2014 SCC 3, they divided 4:3. In each of these cases, the court considered how a police officer should behave at a suspect's door. In each case, their conclusion conflicted with previous case law.

Thank you, Will Duval, for pointing this case out.

2016.09.03 Evidence offered by Hysterical Witnesses

What evidence could have helped determine whether Mr M.T.L. 2016 YKCA 11 raped his friend's fiancee?

The complainant spent an evening drinking with her friend, Mr M.T.L.. Through the evening, she sent text messages to her fiancee to join them. At the end of the evening she slept at Mr M.T.L.'s place. That's where the sex happened. But did she consent? Afterwards, she sent a text message to her fiancee about the encounter. She went to a hospital, where a doctor found redness and soreness in her genitals. She declined a formal sexual assault exam. After she complained to the police, Mr M.T.L. allegedly sent her a message threatening to commit suicide unless she told everyone that she lied.

The investigating officer never examined her cell phone. According to her, she offered her cell phone, but the police weren't interested. According to the officer, the complainant told him that she was using a "loaner" cell phone which was now wiped and returned to the phone company. No messages remained.

The trial judge convicted Mr M.T.L..  The appeal court ordered a new trial, worrying that perhaps the complainant wasn't reliable.

Cell phones pack a great deal of information these days. In a case such as this, the content of the text messages before and after the incident could probe the complainant's feelings toward her fiancee: if they showed that she loved him that night and wanted him to join them, then she wouldn't likely cheat on him. The timestamps could help determine when the important events occurred.

I can't say from reading the decision what really happened with the cell phone. If the complainant was right, then the cop missed some important evidence. If the cop was right, then the complainant destroyed important evidence.

Lots of complainants have told me over the years that they offered additional evidence to the investigating officer, but the officer wasn't interested. When I asked officers to follow up, I receive mixed results. Sometimes the cop missed key evidence. Sometimes, it's useless information.

It's easy to understand why an officer might discount their ideas. Distressed people often don't think straight, and often express themselves badly. Some are crazy, and some just sound crazy. It takes time and patience to distinguish between the two.

In this case, the completeness of the investigation mattered to the appeal judges. You may be called upon to explain why you didn't follow a specific investigative lead. This case illustrates how important that explanation may become to the final result.

I think of it this way:

1. Your investigation isn't complete until you have canvassed every reasonably available source of information.
2. Your report isn't complete until you have documented the whole of the investigation (including the dead ends).
   

If you ignore a potential source of evidence, someone may ask you why.

2016.08.22 Detention, Arrest, and Inventory Search of a Vehicle

When can you search the contents of a vehicle?

Ontario's courts developed rules around inventory searches, based upon their legislation. The rules in other provinces differs, according to the applicable legislation available to them.

In two decisions, the Ontario Court of Appeal recently reviewed this area of the law.

Late at night, police officers driving an unmarked car watched Mr Dunkley, 2016 ONCA 597 visit a couple of gas stations. He went into the kiosk several times, he bought nothing, he came out. He drove away fast, through a MacDonald's parking lot, as if to shake someone following him. He drove to another gas station, and went into the kiosk. The officers told him to stop and tried to talk to him, but he fled, discarding his keys. He left the car unlocked. (He explained that he thought these plainclothes officers intended him harm; he did not know they were police.) An officer searched it for identification. When he found a firearm, he applied for a search warrant before searching further. The trial judge found that the search for identification was lawful, and even if it wasn't, the officers had authority to do an inventory search when they impounded this abandoned car; they would have found the gun anyway.

The court of appeal disagreed. The officers reasonably suspected that Mr Dunkley was up to no good, but did not have sufficient grounds to arrest him. Reasonable suspicion authorizes you to stop someone, and search for officer safety. But this empty car posed no risk to them. Reasonable belief - that the suspect probably committed crime - permits you to search the suspect and his vicinity for evidence. The court found that the officers' observations did not meet this higher standard.

Finally, the court considered whether the officers could do an inventory search. Section 221 of Ontario's Highway Traffic Act permits officers to impound "abandoned" vehicles. But the court observed that nothing about the way this guy parked his car indicated an intention to abandon it. The officers made him run away. This was not an "abandoned" car. Lacking any justification for the search, the court excluded the evidence.

A police officer saw two cars racing. He pursued one of them - an Acura - into a dead-end street. He found it parked in a driveway at a different address than the registered owner. A guy in an oversize white shirt walked away from the vehicle. Another officer found Mr Ellis, 2016 ONCA 598 nearby, wearing an oversize white shirt. Mr Ellis lived at the same address as the registered owner of the vehicle.

Because the computer system flagged Ellis as a gang member, an officer patted him down for weapons. Something in his pocket felt hard. The officer asked him to empty his pockets. Ellis had a cell phone and keys for an Acura. The officer returned them. After discussing these details with the first officer, the second officer arrested Ellis.

Police then searched the car for identification of the driver, and found a handgun.

The court approved of the pat-down search of Mr Ellis. There were grounds to detain, and reason to fear that he might harm a police officer.

The court held that the police lacked authority to search his car as part of the arrest. Although the officers had reasonable grounds to arrest him for "careless driving", the other preconditions for search incidental to arrest did not apply. Mr Ellis had put 50m between himself and the car - it wasn't close enough to be in his vicinity at the moment they arrested him. And there was no reason to believe that searching the car would discover evidence of careless driving.

On the other hand, the court found that this car was "abandoned", because Mr Ellis parked it in a stranger's driveway, in a position likely to block access to vehicles. An inventory search was inevitable, and the police would have found the gun. The court upheld Mr Ellis's conviction.

For Ontario officers who discover a recently-driven vehicle, this pair of decisions sheds a little light on whether it is "abandoned": if the car will be a nuisance to other drivers, then it may be abandoned. If it's parked normally, it may not. But other factors may lead judges to other conclusions.

For all officers, these decisions illustrate the limitations of search incidental to detention and search incidental to arrest. But I would add some cautions. The Ellis case does not establish a 50m limit for the "vicinity" of the arrest. Time also matters. Suppose you pull over a vehicle for an offence, and the suspect flees. If you chase him and catch him 100m from the car and arrest him, I think you can search his car incidental to arrest. But if you find him 30 minutes later, only 25m from the car, you can not.

Both cases emphasized the narrow scope of a search for officer safety. In the Ellis case, the suspect's gang associations justified police fears. The judges liked knowing that the officer who searched for officer safety returned the items immediately. This proved that the officer was not snooping for evidence. In the Dunkley case, they rejected the idea that the officer searched the empty car for officer safety: it posed the police no danger.

2016.08.09 Evading s.10(a) - Lying about why you stopped a target

Even though s.8 of the Charter guarantees everyone's privacy, judges can authorize you to intrude into the privacy of the targets of your criminal investigations.

But can you stop someone without telling them the truth about why? Section 10(a) of the Charter requires you to tell people why you detained or arrested them. But sometimes, you need to withhold the truth. Is there a provision of the Criminal Code which permits this?

Albertan police were investigating Mr Whipple, 2016 ABCA 232 and others for drug transactions. They didn't want their targets to know that a judge granted a wiretap authorization in respect of their communications. From intercepted communications, the officers knew that Mr Whipple would transport methamphetamine. They obtained a General Warrant under s.487.01 to search Mr Whipple's car. That order authorized the police to mislead Mr Whipple - if necessary - as to the reason for stopping him.

The officers actually found Mr Whipple committing a traffic infraction. They didn't need to mislead him about the reason for the traffic stop.  And they did, quite quickly, inform Mr Whipple of the drug search too.

Defence complained anyway.  They pointed out that s.487.01 creates exceptions to s.8 of the Charter, but not to s.10(a). The trial judge agreed, and ruled that the general warrant was invalid.

The Court of Appeal disagreed.

They observed that the general warrant authorized police to search Mr Whipple's car, which is a matter under s.8 of the Charter.  The fact that it authorized police do the search in an unusual way did not invalidate the general warrant.

The way they saw it, the interference with Mr Whipple's s.10(a) rights was necessary to the execution of a justified general warrant.

I dunno.  My gut urges caution. Because s.487.01 only permits police to do what would otherwise be an "unreasonable search or seizure in respect of a person or a person’s property", I still don't think that s.487.01 can be used - by itself - to authorize police to lie to detainees about why they were stopped.

In this case, if there was any authority to permit police to lie about the reason for a detention, I think it came from s.186 - the wiretap provision. If the wiretap operation required ongoing secrecy to achieve its purpose, then a judge exercising the wiretap powers could make a specific order pursuant to s.186(4)(d) ("... such terms and conditions as the judge considers advisable in the public interest") which would protect the secrecy of the authorization.

But I can think of situations in which no existing legislation could help.  Suppose a confidential source tells you that right now, a terrorist is driving to a daycare to blow up children. The source begs you to lie to the suspect about your reason for stopping him. She tells you that his colleagues know what he's going to do today, but only she knew which daycare he decided to hit. You find the suspect's vehicle on the road one block away from the daycare. It commits no traffic violations. Of course you stop the van. What do you tell the driver?

I think you should lie. The suspect has a right, protected by s.10(a) of the Charter, to know why you stopped him. You would violated that right. But the source has a right, protected by s.7 of the Charter, to life.

I think that Parliament should pass legislation by which a judge may authorize a police officer to lie about the reason for a detention. This case illustrates why such legislation makes sense. I also think that there should be an exigent circumstances exception.

I thank Cst. S.D. Smith for bringing this decision to my attention.

2016.08.05 Possession of Data in a Computer - Breadth of Search

Last year, I wrote about this case.  Last week, the Supreme Court of Canada weighed in. Although the court overturned the Alberta Court of Appeal's rulings, my suggestions for police remain the same. I repeat them here, so that you can see why.

Mr Villaroman 2016 SCC 33 brought a Macintosh computer to a computer store for repairs.  Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net.  Links in the file system suggested that someone viewed the files too.  The two people who lived with Mr Villaroman did not put the files there.  But was it Mr Villaroman?  The trial judge thought so, and convicted him.  The appeal judges weren't so sure.  The one account had no password. They said.

"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."

The Supreme Court of Canada found that the Court of Appeal erred in their re-assessment of the case by speculating about innocent explanations for the evidence in the computer. But the court also commented that a different trial judge could have acquitted Mr Villaroman based on the same evidence.

Even after reading the trial decisions (2012 ABQB 630, 2013 ABQB 279), I can't be sure I know just how much evidence the investigators actually discovered which linked the accused to the pornography.

It's clear that they sought judicial authority to search the computer for child pornography.

With the benefit of hindsight, I see that searching for probative non-criminal data might have helped.  For example, I don't think they looked for emails with similar date stamps as the pornography.  If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.

Can you snoop through the emails?  Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search.  Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant.  And the warrant should explicitly grant you that authority.

Playing armchair quarterback, I suggest that the investigator in this case could have sought authority "to search emails, stored communications and documents in the computer bearing date stamps close in time to the date stamps associated to the child pornography for evidence of who operated the computer at the times when the child pornography was downloaded, viewed or accessed."

2016.07.19 Search & Seizure - Reasonable Expectation of Privacy - Text messages in Other People's Phones

Mr Winchester bought guns. Legally. 45 guns over 6 months. Police received information that he sold them on the black market, and got search warrants for several places, and got Mr Winchester's cell phone. In it, they found text messages that proved Mr Marakah, 2016 ONCA 542 committed firearms offences. The trial court found that the police violated Mr Winchester's s.8 Charter rights during their search. Mr Marakah asked the trial judge to exclude the text messages from his trial because he still enjoyed an expectation of privacy over them. Even though the police found them in someone else's phone.

The trial judge found that Mr Marakah had no expectation of privacy in the text messages in Mr Winchester's phone. Even though police searched Winchester's phone unlawfully, the court admitted the text messages from the phone into Mr Marakah's trial.

Two out of three appeal court judges agreed with the trial judge. They rejected the reasoning of the BC Court of Appeal in Pelucco, 2015 BCCA 370, which reached the opposite conclusion in a similar situation.

But those Ontario judges didn't say what you wanted them to say: "A person who sends text messages to another person always loses any expectation of privacy in those messages." See para 78. An explicit arrangement or guarantee of confidentiality between sender and recipient may create an enforceable expectation of privacy. But that's the exception in most cases, not the norm.

Therefore, in Ontario, most of the time, the sender of text messages doesn't enjoy an expectation of privacy in them after they arrive in the recipient's phone.

When courts of appeal disagree with each other, the law becomes confused.

Because people use text messaging so much, on phones and other communication technologies, you want clarity.

Because one Ontario judge disagreed, Mr Marakah can, if he wants, require the Supreme Court of Canada to hear his appeal.

2016.07.16 Executing DNA warrants

Take a picture

Why would an officer take DNA samples from a suspect? The answer is easy: to identify the suspect. I suggest that if you do not know the suspect very well, you will want to take a photo of the suspect's face at the same time as you take the samples, so that you can remember whose DNA you got.

In a recent case of mine, a police officer in one city assisted another officer in another city by executing a DNA warrant on the prime suspect. The officer who executed the DNA warrant had no other involvement in the case, and met the suspect for only a few minutes.

Two years later, at trial, the officer couldn't remember the face of the defendant. Considering the purpose of DNA comparison, this tended to defeat the work he did taking the sample. Fortunately, he did take care record information from suspect's driver's licence, and compare the photo on it with the face of the suspect.

Can you take a picture of the person from whom you take the bodily samples? Defence counsel might argue that doing so violates s.8 of the Charter. "If it ain't in the warrant, you can't do it." I observe that the Criminal Code makes no provision for photographing he suspect at the time you take bodily samples. Instead, s.487.07(3) requires you to ensure that the suspect's "privacy is respected in a manner that is reasonable in the circumstances".

I think you can. In B.C., the case of Multani, 2002 BCSC 68, the court approved of officers taking photos of drivers they detain for traffic offences, for the purposes of identifying the driver afterwards. I think the same logic applies to the execution of a DNA warrant.

Indeed, I would go further, and suggest that you can video-record the execution of a DNA warrant for the purpose of proving compliance with the terms and conditions of the warrant. Police did this in an old case Kanuma, 2002 BCSC 355

Read the warrant

I learned recently that RCMP recruits learn at Depot how to take bodily samples for DNA analysis. The RCMP here in BC use a kit, which contains a checklist to follow. I suspect that someone trains them to follow the checklist.

Danger!

Checklists can make junior officers complacent.

When you execute a DNA warrant, your authority comes from the warrant, not the checklist. Read the warrant. If the warrant tells you to something different from the checklist, then obey the warrant.

2016.07.16 "'Ello, 'ello, 'ello. What's all this then?" - Detention at the earliest stage of the investigation

Angel Daley, 2016 ONCA 564 tried to pawn jewellery at Money Mart. Her friend Sharon Stockton, waited outside in Angel's car. The clerk the store noticed that Angel's jewellery resembled stolen jewellery depicted in a recent police flyer, so she called police.

The police who attended tried to figure out whether Angel's jewellery was the stolen jewellery depicted in the flyer. Meanwhile, they wouldn't let her go. Therefore, they "detained" her. For approximately 40 minutes.  Without telling her of her right to counsel.

From her, they learned about her car, waiting outside. An officer spoke with the friend, and saw more jewellery in Ms Stockton's possession that looked like stolen jewellery. He arrested her, searched the car, and found Angel's fentanyl, and a rather nasty knife.

At trial, Ms Daley's lawyer asked the judge to throw out the evidence: 40 minutes of waiting demands an explanation; and detentions trigger rights to counsel. They complained as well of an unlawful search.

The trial judge admitted the evidence, but the appeal court threw it out. Nobody explained why looking at some jewellery took 40 minutes. In the absence of an explanation, the detention was arbitrary. The officer should have given Ms Daley her right to counsel. (The judges agreed that the search was lawful.)

 We all know that you can overlook important evidence when you move too fast. This case suggests that you can also cause trouble by going too slowly while a detained suspect waits. I suspect that the officer stopped Ms Daley from leaving the store, and then slowly and methodically figured out what the problem was. If it looks like a detention will take a significant time, then you should talk to the suspect about lawyers. If it does take a long time, you may need to explain why.

2016.07.13 Production Orders for Stored Text Messages

Over the last several years, judges reached different conclusions on whether you need a production order or wiretap to compel a telephone company to disclose text messages stored in their servers. Last week, the Ontario Court of Appeal weighed in. Here's the current list, by province:

• Alberta: Croft, 2013 ABQB 640 - wiretap; Didechko, 2015 ABQB 642 - production order; Vader, 2016 ABQB 309 - production order
• BC: Belcourt, 2015 BCCA 126; Webster, 2015 BCCA 286 - production order
• Ontario: Jones, 2016 ONCA 543 - production order
• Manitoba: Scott, 2015 MBQB 87 - production order
• Newfoundland: Rideout, 2016 NLTD(G) 73 - production order

I think this issue is now pretty much decided: production order, not wiretap.

Similarly, a search warrant is an appropriate tool to search cell phones for text messages. Desjardins, 2014 QCCS 6790

2016.07.05 Agents - Lawful Justification - Role of Police

Last week, the British Columbia Court of Appeal published a decision it made 6 years ago. R. v. Lising, 2010 BCCA 390. I don't know why it took so long. It remains interesting reading for officers who deal with confidential sources and agents.

For 10 years, Michael Plante collected debts for the Hells Angels. In 2003, after an arrest for extortion, Plante decided to work for the RCMP by infiltrating the Hells Angels. The RCMP paid him handsomely: over $1M over several years. All he had to do was help the police bust the gangsters ... while committing enough crime that the gangsters would continue to trust him.

A cop named Bob Paulson oversaw the project. He saw a problem. The public pays police to prevent crime, but this project involved paying a guy to commit crime. That participation would make the police parties to Plante's crimes. Canadian law requires police to obey the law, not break it. Police officers don't get a mulligan just because they're trying to catch bad guys.

Fortunately, a couple of years earlier, Parliament passed legislation enabling specially-designated officers to authorize a person to do things that would otherwise be crimes. s.25.1.

If you use the legislation, then these acts aren't crimes, so I'll refer to them as "acts".

How does that work?

• A federal or provincial minister in charge of police appoints a "senior official". That person decides what the officer and his/her agent (if any) should investigate, and what sorts of "acts" they can commit, and what limits and conditions should apply.
• The handler may direct the commission, or commit, these "acts" only if they are "reasonable and proportional".
• Don't plan to damage or destroy property without the specific written permission of the senior officer. s.25.1(9).
• If you do damage or destroy property, the senior officer must notify the owner promptly, unless the minister permits delay. s.25.4
• You can't use this authority to kill or hurt people, interfere with the workings of the justice system, nor violate anyone's sexual integrity. s.25.1(11).
• After every "act", an officer must file a report. s.25.2.

Investigative plans take time to develop. While working with police, Mr Plante intimidated witnesses, ripped grows, and trafficked in large quantities of drugs and firearms. It took many months for police to prepare a Letter Of Agreement (LOA) which set the ground rules for Mr Plante's immunity from criminal prosecution. (There were several LOAs after that.)

Although s.25.1 and similar provisions in the CDSA justified some of Mr Plante's "acts", others were crimes.

The investigating police were parties to the crimes. Defence applied for a stay of proceedings.

But Bob Paulson did some things the court liked.

• Instead of permitting the handlers to charge ahead with the investigation, he required a balanced assessment of the crime that the police would involve themselves with against the crime that they sought to prevent. He required a plan to minimize illicit activity, particularly to avoid harm from violence.
• He required careful documentation of all the permissions that police gave Plante.
• The LOAs carefully delineated in writing what Plante could and could not do.

The handlers did some things the court liked.

• They did not encourage or permit Mr Plante to commit offences of violence.
• They made it clear that he did not have blanket permission to commit criminal offences.
• They put in place a significant number of control measures to limit and monitor Plante’s behaviour during the course of the investigation, like surveillance, and 1-party wiretap.
• When he assaulted people, the investigators did not interfere with the regular police investigations into those assaults.

Mr Plante did some things the court liked.

• He turned over the drugs and money he acquired during his cooperation with police.
• He fully reported to his handlers what he did.  (I suspect his handlers told him he had to be completely honest with them, or the deal was off.)

These things resulted in:

• transparency - the court could trust that it understood exactly what occurred during this investigation.
• public safety - the police minimized Plante's criminal activity.

Even though the police and Mr Plante did not comply immediately nor completely with s.25.1, the court denied the defence application, and the Hells Angels who were convicted at trial lost their appeal.

And Bob Paulson got a promotion.

Despite its age, I think this decision remains worthwhile reading for police officers. It reminds officers of highest principles: police enforce the law, but are not above the law. This applies as much to traffic cops as organized crime investigators. And it demonstrates practical steps you can take when working with nasty people.

2016.07.04 Search and Seizure - Warrant drafting - Avoiding "Step 6"

A confidential source told police that Mr Reid, 2016 ONCA 524 kept firearms in a specific storage locker. Relying almost entirely on what the source said, police applied for, and obtained, a warrant to search that locker. They found guns. Lots of them. Stolen only a few days earlier.

What the police found suggests that this source enjoyed a position very close to the criminals. Obviously, this source would not want to be identified.

At trial, defence applied to quash the warrant.

As required by the case of R. v. Garofoli, [1990] 2 SCR 1421, the prosecution had to disclose a copy of the original application. Before doing that, the prosecution redacted (deleted) from the application everything that tended to identify the source.

This source was too good - almost everything s/he told the police tended to identify him/her. After redaction, what remained could not justify the issuance of the warrant. Mr Reid would win the application, and beat the charges.

The prosecution moved to Garofoli's "Step 6": the prosecution prepared a summary of the confidential source's information. The summary contained too little detail to identify the source, but just enough to explain why a warrant could issue. The prosecution gave that summary and the original unredacted application to the trial judge, and asked the judge to determine whether the summary fairly explained what the confidential source told police. The judge compared them, and found the summary accurate. The prosecution gave the summary to defence.

Working from the summary, defence complained that the original application failed to spell out what criminal record the source had, whether the source faced outstanding charges, and whether the source had previously given information to a police force. Defence complained this was essential information which the first justice needed in order to decide whether to trust the source and issue the warrant.

These are fair complaints, but they didn't succeed because of the very detailed information this source gave. In other cases these issues may make or break the case. When relying on confidential informants, search for this information, and include it as an appendix. Here's what you can write to achieve this:

I searched for source A's criminal convictions in CPIC [and any other database available to you], and I attach as Appendix A1 the complete list of what I found.

I searched for source A's outstanding charges in [whatever database is available to you], and I attach as Appendix A2 the complete list of what I found.

I investigated source A's past performance in giving information to police. I understand that 7 times in the past 5 years, source A gave police information about criminal activity. Further investigation confirmed the source's information 3 times. The other times, the source's information could neither be confirmed nor contradicted. I attach as Appendix A3 more detailed explanations of the information this source provided, and how further investigation confirmed it.

Naturally, the prosecution will redact the appendices. A1 and A2 tend to identify the source. But what remains in your application shows the trial judge that you disclosed the information which the first judge needed to assess the credibility of your source.

Similarly, you can summarize the source's information in your application, and include the details for the prosecution to redact. Suppose your source says "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns." That information identifies your source. You may summarize it, and include the detail for redaction:

Source A reported that Mr Reid possessed firearms in locker 13 at the premises of Vigilant Custodian Storage within the last 14 days. Source A claimed s/he obtained this information not by gossip, but from her/her own observation or by hearing or overhearing the words of a person who claimed direct knowledge. Specifically, Source A said: "Yesterday, Mr Reid took me to Vigilant Custodian Storage, opened locker 13 and showed me 45 guns."

Plainly, the emphasized portion must be redacted. What remains is true, but does not point so directly to the identity of the source. It leaves open the possibility that the staff at Vigilant Custodian Storage saw the guns, or that they or someone else overheard Mr Reid and the source talking. And the remaining information explains why a warrant should issue to search the locker.

Why should you bother preparing the "step 6" summary when applying for a warrant? After all, the prosecution can do it at trial.

Step 6 is controversial. In Mr Reid's appeal, he tried to argue that it's unconstitutional. Step 6 is tricky to do. If you lay the groundwork when you apply for the warrant, then the prosecution stands a better chance of success at trial.

2016.07.02 Exigent Circumstances Search

A woman called 911. She said she heard her neighbours arguing.  The male threatened to kill the female. The female cried and pleaded, “please don’t kill me.” She heard loud banging and crashing coming from their apartment.

Officers attended, and knocked at the door. No answer. After they knocked more, a woman answered. She refused to open the door. She spoke to someone behind the door, but she told police she was alone.

What would you do?

These officers feared that a man posed the woman serious risk of harm which they felt obliged to prevent.  They sought permission from superiors to break in. Before that occurred, the woman stepped out of the apartment, unharmed. Without her permission, the officers entered and searched. They found Mr Lowes, 2016 ONCA 519 hiding under a bed. They found drugs.

The trial judge excluded all the evidence. He reasoned that the officers could have assured themselves of the woman's safety by questioning her, by questioning the neighbor who made the 911 call or by getting a warrant.

The appeal court ordered a new trial.

The neighbor's information gave reason to fear for the woman's safety.  The woman's apparent lies at the door about who was home gave the officers reason to fear that the man was controlling and directing her.

In my opinion, the trial judge correctly identified an important principle: even in exigent circumstances, where life and limb are at risk, you should not search private places if there are reasonable alternatives by which you can ensure people are safe. But the trial judge's proposed alternatives in this case weren't reasonable. The woman already told lies; questioning her wasn't a good way to ensure her safety. The neighbor was in a poor position to assess the woman's safety. And the officers lacked sufficient grounds to justify any warrant. The appeal court found that entry and search was the reasonable response to the situation.

Therefore, this case provides some guidance for first responders who encounter similar situations all too often.

I particularly liked how these officers sought a second opinion from a senior officer before entering. In the excitement of the first response, it's easy to act without second thoughts.

2016.06.23 Search and Seizure Incidental to Arrest - Genital Swabs & Fingernail Clippings

Courts across Canada disagreed whether police could swab the penis of a man arrested for a recent rape.  This morning, the Supreme Court of Canada swept away the confusion. R. v. Saeed, 2016 SCC 24.

Yes. You can. If:

• you have reasonable grounds to believe that the suspect committed an offence;
• you arrested the suspect for that offence;
• you have reasonable grounds to believe that swabbing the suspect's penis will recover evidence relating to the offence (usually, the victim's DNA)

BUT, the court set guidelines:

1. Do it at the police station if at all possible;
2. Protect the health and safety of all involved - gloves and sterile equipment;
3. Don't act alone - ask a superior officer for authorization;
4. Tell the suspect what you are going to do, why, and what your authority is;
5. Let the suspect remove his own clothing and swab his penis himself; or, "if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary";
6. Officers of the same gender as the suspect do the swab "unless the circumstances compel otherwise";
7. Minimize the number of officers involved;
8. Do it in a private place where others can't watch;
9. Don't strip the guy completely naked; expose only what you need to get the job done, and minimize the time during which he is exposed;
10. Keep a complete record of what you did and why.

These are not rules. I suspect that number 5 may cause difficulty with some suspects. If your suspect won't strip or swab his penis properly, you can help him.

Mistakes other officers have made in other cases include:

• exposing the suspect's nakedness to the view of security cameras in the police station;
• bringing a team of burly officers and a video camera to record the process;
• letting the suspect rub or wash away the evidence before getting the swab done.

Feel squeamish? From my experience prosecuting cases like this, I can see reasons to train officers to do this kind of forensic work:

• Rape trials can revictimize victims. DNA evidence can save them from much court-room trauma.
• Many rapists don't ejaculate. Some leave so little of their genetic material in the woman that DNA analysis can not obtain his profile from her body.
• But the woman's vaginal secretions can leave a great deal of DNA on the man, and for many hours, if he does not wash.

2016.06.17 Arrest and Detention - Explaining Why - s.10(a)

Dennis Guthrie, 2016 ONCA 466 assaulted someone at the Shepherds of Good Hope shelter in Toronto. He hurt the guy badly. Police arrested him that night for "assault causing bodily harm". He didn't seem drunk or high. Police let him speak with a lawyer. Next morning, 11 hours later, an officer interviewed him.  He told the officer that he had no memory of the events of the night before.

At that point the officer said some important things:

• He asked Mr Guthrie if he wanted to talk to a lawyer a second time. Smart! If Guthrie couldn't remember getting legal advice, then he was answering the officer's questions as if he had no legal advice.
• He told Mr Guthrie that he was arrested for "an assault". Not so smart. Aggravated assault is a lot more serious than assault. Fortunately, Mr Guthrie made a comment which suggested he had some idea how serious the assault was.

This decision is very short and to the point.  An easy read.

Lessons to draw from it:

• Judges treat the s.10(b) right to legal advice as more than just a procedure you go through. If Mr Guthrie really had no memory of the arrest and legal advice he received, then in the morning, it was only fair to start from the beginning, and explain it all to him again.
• When you tell someone why you arrested or detained them, courts do not require you to describe the offence perfectly.  "Assault causing bodily harm" is pretty similar to "aggravated assault". But if you know how serious the offence was, don't hold back:  "You're under arrest for assault: the guy you hurt is in hospital undergoing surgery now." Section 10(a) requires you to explain the reason for the arrest so that the suspect has a reasonable sense of how much trouble he's in.

2016.06.11 Disclosure - Liability

"Those who cannot remember the past are condemned to repeat it." George Santayana 1906.

Ivan Henry 2016 BCSC 1038 recently received an award of $8M. He spent 27 years in jail for rapes he probably didn't commit. This decision explores what went wrong.

In 1980-1982, police investigated around 20 similar sexual assaults. Mr Henry's ex-wife told police that she suspected Mr Henry. Police assembled a live line-up to which a group of complainants attended.  One of them gave a qualified identification of Mr Henry.

Mr Henry, who suffered mental disorder, fired the lawyers he retained. He represented himself - poorly - at trial, and the jury convicted him.

Years later, prosecutors noticed a striking similarity between his charges and and other offences committed around the same time by a guy named McRae. A review led to the conclusion that the evidence suggested Mr Henry didn't commit the crimes for which he was convicted.

Although there were problems with the police investigations too, the bulk of the blame for this wrongful conviction fell on the prosecutor, who failed to disclose investigative materials to defence.

What relevance do prosecutorial mistakes made 35 years ago have to current police practice?  More than you might first expect.

• The prosecutor disclosed evidence which supported conviction, but withheld evidence that undermined the prosecution. And that was the problem. Full disclosure particularly requires disclosing the evidence which shows the weakness of a charge. Young police officers still mistakenly fail to disclose that kind of information today.
• A prosecutor may be sued for wilful non-disclosure, but a police officer can be sued for negligent non-disclosure. You can be sued more easily than the prosecutor in this case. $8M is the kind of bill your superiors might notice.
• If the defence complains of inadequate disclosure, the prosecutor will first look at what you sent to Crown. The prosecutor can't protect you if you forgot to disclose.
• This decision will be fresh in the minds of defence counsel and judges when they consider complaints about inadequate disclosure.

Cross-referencing similar files might have discovered Mr McRae earlier, and taken suspicion away from Mr Henry. Collecting, organizing and assessing relevant information was a problem then. It's still a problem today.

The methods of conducting lineups described in the decision may seem antique to you, but complacency about our methods today will lead you astray. Even today, some officers still tell eyewitnesses after the photo-lineup whether they got the identification "right".  Even today, we see photopacks containing images of the suspect which differ markedly from the other faces.

2016.06.01 Warrants - Night Search - Arresting the Occupants

A junior officer made a common mistake. A senior officer's experience saved the day. Understanding the principles involved could help your next case.

A storage locker facility renovated, and discovered that one of their lockers contained a bunch of firearms. So they called police. Police got a search warrant and found 4,000 rounds of ammunition and 1.5 kg of ecstasy in the locker along with a machine gun, an assault rifle, and sawed-off shotgun and 7 other pieces.

The junior officer drafted an application to search the residence of the person who rented the locker. He didn't think he had grounds to believe that the residence contained firearms, so the warrant asked only for authority to search for keys and documents of ownership. He got started in the morning, but didn't finish until shortly before 9:00pm.

He forgot to ask the justice for permission to search the residence "at night".

The justice signed the warrant at 9:02pm, but it did not specifically permit police to search by night.

The junior officer radioed the rest of the team, which was watching the residence.  The senior officer watched the woman who rented the storage locker leave her apartment with a man. The officer knew little about the woman, but he knew a great deal about Mr Robinson, 2016 ONCA 402, the man with her.  Mr Robinson embraced and kissed her.  The officer knew Mr Robinson to be a "player" in the local criminal underworld, a man who dealt with guns and violence. The senior officer knew who dealt in guns often kept some in their residences.

The senior officer ordered the arrest of Mr Robinson for possessing firearms. On his person, they found keys to the storage locker and the apartment. That night, they found guns and drugs in the apartment.

Defence complained that the police had no authority to search at night. The judge agreed. Night starts at 9:00pm. Police officers shouldn't execute regular search warrants at night without specific judicial authority. s.488.

Defence complained that police had no authority to arrest Mr Robinson: If the junior officer didn't have grounds to believe that there were guns in the apartment, then the senior officer had no grounds to arrest him for possessing firearms.

The judges disagreed. The logic here matters:

1. A search warrant does NOT authorize any arrests.  A search warrant authorizes searching. If you want to arrest someone associated to the place you search, you must know for yourself why you think the person probably committed an offence.
2. The junior officer didn't believe the apartment contained firearms. He didn't have enough information to reach that conclusion. But the senior officer had more information than the junior officer. He saw the association between the renter of the locker and the known gun dealer. From that he could infer that the gun dealer controlled the guns, and was in actual or constructive possession of the firearms.  He could arrest Robinson.

The senior officer testified that he thought the warrant authorized a search for firearms. He was very surprised that the junior officer did not ask the justice for authority to search for guns. The senior officer would have identified firearms as the first thing to look for in the apartment.

I don't think this reflects badly on the junior officer. Although he suspected guns would be in the apartment, he didn't think he could say that it probably contained them. When applying for a warrant, you shouldn't ask for authority to search for things you hope to find unless you think it probable that you will find them.

The senior officer made a quick decision to arrest Mr Robinson. It was the right decision because he knew the underlying investigative facts.

At the time of the arrest, the senior officer didn't know what the warrant authorized. From the judgment, it appears that defence counsel suggested this fact mattered. I disagree. The practicalities of getting the warrant from the justice to the scene prevented the senior officer from reviewing the warrant at the time of arrest. That didn't matter ... as long as the senior officer knew the underlying investigative facts, he would actually have reasonable grounds to arrest.

But communicating the contents of the search warrant to the scene does matter. Members of the search team needed to know what searching the warrant authorizes. Bringing a copy of the warrant to the scene does matter. Section 29 requires you to do so "where feasible", and to show it to people who want to see it.

The judge forgave the night search as an inadvertent error. The judge convicted Mr Robinson of possession of firearms and drugs in the apartment. The judge acquitted him of the guns at the storage locker because the evidence wasn't clear which locker the guns and drugs came from.

In conclusion:

1. Never arrest someone just because you have a warrant to search their place.
2. Arrest if you have grounds.
3. Night starts at 9:00pm. Warrants under s.487 require separate justification.
4. Officers on teams that execute search warrants should know what the ITO says.
5. Bring the warrant to the scene.
6. Officers who search should read it.

2016.05.27 Hard Arrest & Isolating the Prisoner

Police received a tip that marijuana grew inside a house at 24 St. Claire Avenue. Hydro records tended to confirm it, but those records identified the house at 21 St. Claire Avenue as equally suspicious. Both houses smelled of weed. FLIR showed strange heat patterns coming from both.

Just before executing search warrants for the two residences, officers saw Ms Pino, 2016 ONCA 389 carry a box from number 21 St Claire Avenue. She put it in the trunk of her car and drove away. They followed her. She drove to Value Village, where she got into the passenger seat, and a man took the wheel.

Two officers arrested Ms Pino and her companion. One officer drove an unmarked car. He wore black clothes and a black mask over his face. Only a police vest identified him.

The box contained 50 clones.

To prevent Ms Pino from tipping off her neighbors or others who might destroy evidence, the officers did not permit her to call a lawyer until after the search. It uncovered a large grow operation in her house.

At trial Ms Pino complained of excessive force used during the arrest. She and her friend testified that the masked officer drew his gun and pointed it at her. He terrified them unnecessarily.

The masked officer denied drawing his gun. The other officer "couldn't remember" whether or not his partner drew a gun.

The judge believed the defendants over the officers.

Ms Pino complained that police did not properly advise her of her right to counsel. The arresting officer recited the s.10(b) warning for memory at the scene because he didn't bring his duty book, which contained the standard card. At court he could not remember the wording.

Ms Pino complained of unnecessary delay after the search in permitting her to speak with a lawyer. The search started at about 3:30pm, but she didn't get to talk to a lawyer until 6:40pm (when most lawyers have left their offices). Once the police arrived at St Claire Avenue with all the vehicles and people necessary for the searches, there was no longer any point in keeping the investigation secret.

Although the trial judge admitted the evidence, the court of appeal found there were too many serious breaches of Charter rights, and excluded it. Guilty as she was, Ms Pino beat all the charges.

The full truth about this investigation can not be determined from reading the decision. Maybe the defendant lied to beat the charges. Maybe the officer never drew his gun. If so:

• This case illustrates the risks that come with fancy equipment. Don't use a mask if you don't need to. The mask gave the defendant's lies about the gun credibility.
• The other officer, who called it a "routine traffic stop", should have made sufficient notes that he could recall at trial whether or not guns were drawn.

Maybe the officer did draw his gun. If so, then:

• The officer overestimated the risks of the situation, and needed to review use of force guidelines.
• The officer lied in court. The case would have gone much better if he told the truth: the gun issue would be a training problem rather than a question of honesty, which can undermine careers.

Aside from use of force, the arresting officer garbled his recitation of Charter rights in the court room. If you're gonna explain the rights by memory, then make sure you can always recite them accurately.

And finally, giving your prisoner prompt access to counsel always matters. You can suspend access to counsel if you fear that the prisoner will foil a police investigation.  But after you enter the property, it's time to let prisoners call their lawyers.

 

2016.05.17 Investigative Detention - How Long can you Hold a Suspect in Investigative Detention?

Doherty J.A. didn't like what the police did after they stopped Mr McGuffie, 2016 ONCA 365. Doherty is a respected judge whose words will inspire defence lawyers to criticize lengthy investigative detentions. This decision is worth reading.

Someone told police that a group of men down at the bar were passing a handgun around. When officers attended to investigate, bouncers pointed out Mr McGuffie, who was walking away in a hurry as one of the group.

An officer stopped him. And handcuffed him. And patted him down. The officer found nothing at that stage, but put him in a police car with another police officer, pending further investigation. The officer said nothing about access to lawyers.

It wasn't a very good pat-down search. Half an hour later, the officer searched him again. This time, he found a package of cocaine, for which the officer arrested him. Mr McGuffie said he wanted to speak to a lawyer. Half an hour later, the officer took him to the police station - several blocks away, where he arranged for a strip-search. By this time, other officers had already found the gun they were looking for. They found more drugs in his clothes and between his buttocks. After the strip-search, Mr McGuffie finally got to talk to a lawyer.

The judges agreed that the officer had sufficient reason to detain Mr McGuffie, but criticized him for not advising Mr McGuffie that he could talk to a lawyer. The judges agreed that the concerns about firearms justified the initial pat-down search.

But they didn't like what followed.

They didn't like the half-hour of sitting around. They didn't like the hour that passed before Mr McGuffie got access to counsel. They didn't like the second search. If it was really for officer safety, why was it okay to leave him in the police car with an officer for half an hour?

It's easy to see how events distracted the main officer in this case. When he first arrived on scene, he probably felt pressed for time. He wanted to secure one suspect, and then make sure others did not escape the area. He likely gave the initial safety search short shrift, figuring he could return to Mr McGuffie later. And then he got busy with other matters.

But constitutional rights are assessed from the perspective of the claimant. When the handcuffs clicked around Mr McGuffie's wrists, he couldn't go anywhere. He was detained, and he knew it. Section 10(b) says that on detention, he has the right to counsel "without delay". But he didn't get to speak to a lawyer for over an hour.

Police may search a detainee for officer safety. The first search was okay. But the second one looked an awful lot like a search for evidence. And until you have grounds to arrest, you can't a detainee search for evidence of crime.

It's easy for first-responders to fall into the traps that caught this officer. For that reason, it's worth discussing. How would you avoid the pitfalls?

2016.05.08 Group Attacks - Who Done the Damage?

The bouncers didn't like Mr Ukwu. After they threw him out of the bar, one bouncer, Mr Taing knocked him down with a punch. Mr Ukwu got up, and then the other bouncer, Mr Brouillard, 2016 ONCA 342 knocked him down again. He stayed down, because this time his head hit a curb. He suffered life-changing head injuries.

Sure, Mr Brouillard could be convicted of aggravated assault.

What about Mr Taing? His punch didn't cause the head injury.

Yup: Mr Taing was also guilty of aggravated assault. But only because he acted in concert with Mr Brouillard.

When a mob attacks, the evidence often fails to identify who caused the injury or death. If you can't find that evidence, look for evidence which determines whether they acted together.

2016.05.02 Reasonable Grounds and Confidential Sources

Was the information three confidential sources gave police sufficient to justify arresting Mr Dhillon, 2016 ONCA 308? Judging whether you have reasonable grounds for an arrest based on confidential source information requires a gut feeling for what judges will do. This case helps.

All three confidential sources told police officers that Mr Dhillon dealt drugs. Two told police that they bought drugs from him. None had given information to police before; but none were anonymous.

Police watched Mr Dhillon, and saw him meet several people for short periods of time. When they attempted to arrest one of his visitors, that person fled. That guy carried $3,000 when they caught him.

Fearing that word of that arrest would get back to Mr Dhillon, police arrested Mr Dhillon.

Did they jump the gun?

Defence attacked the independence of the confidential sources: did police know that the sources were all different people?

Sorta.

The officer who decided to arrest Mr Dhillon knew that two sources were different people, but couldn't be sure that the last one was not the same person speaking to two different officers.

Defence suggested a conspiracy: at the time of deciding to arrest Mr Dhillon, could the officer be sure that the sources did not make up a story together just to get Mr Dhillon into trouble?

Officers handling these sources told them that giving false or exaggerated information would result in non-payment, or even criminal charges. They dealt with these sources personally.

The defence arguments persuaded the trial judge, but not the appeal court.

This decision highlights communications between source handlers and the officers who rely on source information. Independence of sources, and their personal knowledge took the appeal court half of the way to the point of finding that there were reasonable grounds for the arrest. Confirmation by way of observing suspicious transactions carried them the rest of the way.

2016.04.27 Voluntariness and Confessions - What the Judge may Think

Police arrested Mr Donard, 2015 SKCA 83, and told him they were investigating him for an aggravated assault. But the officers also asked him about some rumours going around that Mr Donard murdered someone named Yooya.

The officer who interviewed him suggested that a judge would want him to be truthful and if Mr. Donard told the truth, he might not have to sit in jail as long.

That's a problem. Judges don't like it if you link the idea of confessing to the hope that the justice system will give the suspect a break. It puts unfair pressure on the suspect. Don't raise that idea yourself. If the suspect asks, avoid it. "I can't tell you how a judge is going to feel, or what a judge is going to do."

After that conversation, Mr Donard admitted killing Yooya. The officer immediately arrested him for murder, and told him his Charter rights. But the officer did not tell him the secondary warning.

Mr Donard made several more statements about killing Yooya.  The trial judge found most of them inadmissible.

If you arrest someone for an offence, and you want to investigate him for another offence as well, you should mention both offences when offering him access to counsel. "Jimmie: I'm arresting you for aggravated assault, but I'm also investigating the disappearance of Mr Yooya, and I suspect you might be involved. You have the right to retain and instruct counsel without delay..."

If an interviewing officer does stray into linking confession with lenience in the court room (or maintaining silence will aggravate the judge), then as soon as possible, someone needs to give the suspect the secondary warning.

The big problem for you is how to start afresh without tainting the second statement with anything discussed in the first statement.  If you identify the improper inducement, you may re-emphasize it. It's better if a different officer takes over, and starts afresh. Read the secondary warning, but discuss it too. "Jimmie: Cst Mistake made a mistake in his interview.  Everything you told him before is off the table. I'm starting fresh. I don't know what you told Cst Smith, but anything he told you, anything you guys talked about, it's off the table. If he said anything that made you think you should tell police officers about what happened to Mr Yooya, just ignore what he said."

Really start afresh. Do not refer to admissions obtained in the earlier statement (unless they arose before any improper inducement).

In Mr Donard's case, the police arrested Mr Donard a month later for the murder. They gave him an extensive opportunity to consult with counsel. He gave a further confession. The court admitted the last statement into evidence, but not the earlier ones.

2016.04.23 Search & Seizure - Exposing your Sneaking and Peeking

Informants and tipsters told police that Mr Coderre, 2016 ONCA 276 dealt drugs from his residence. But when would the drugs be there? Instead of simply knocking on the door and searching the place, the officers got a general warrant which permitted them to sneak in and snoop about, without telling him. The case doesn't say why they needed such permission, but I suspect that they wanted to arrest him when he actually possessed drugs.

Section 487.01(5.1) requires "sneak and peek" warrants to include a notice requirement. The judge must order the officers to return later, and inform the person whose privacy they violated about what they did.

This sneek-and-peek order properly included a notice provision.  It required the officers to tell Mr Coderre about their covert entry into his house. They had 6 months.

The officers didn't find drugs when they snuck in. But their source information made them pretty sure they would catch him some time soon.

Around 6 months later, they got more information.

What should you do? If they told Mr Coderre about the first search, then he'd make sure they never caught him.

Days after the 6-month mark, these officers applied for a new search warrant. In the ITO they explained that they had failed to comply with the notice requirement. And they asked for permission to search his place again.

They got it. They searched. They found drugs. They busted him.

At trial, he complained that they breached his Charter rights by failing to comply with the notice requirement.

The court agreed.  But the judges liked how honest the police were about this. The evidence went in anyway.

Don't expect they'll always forgive this breach.

If you have a deadline, diarize it, and make sure get the notice done before the deadline.

What if you find yourself in the same position position as these officers? Giving notice would wreck your ongoing investigation. One thing these officers did right was to confess their mistake right away. That honesty paid. There's another solution: apply to court for an extension on the deadline for notice.

And that's where a little planning could save you some grief. If you're drafting a "sneak-and-peek" warrant, you might want to slip a little extra language into the terms and conditions:

Subject to further order of this court, the peace officers who execute this warrant shall, no later than (date), notify (names of persons whose privacy will be affected) of the warrant and its execution.

Those magic words turn an application for an extension into something the original judge contemplated and permitted.

2016.04.13 Search & Seizure - How to "Fix" Broken Warrants

Officers investigating internet luring needed a warrant to get Mr Craig's 2016 BCCA 154 information from Nexopia's servers in Alberta. Although the ITO properly identified the username of the account of interest, the draft warrant misspelled it. The judge granted the warrant.

A police officer learned of the problem and asked Nexopia to produce information using the correct username. Another officer added words to the warrant, so that Nexopia would search not only their servers but also "compact discs or digital video discs (DVD) containing" the interesting data.

That was a problem.

As a peace officer, you have no authority to change a judicial order. If judge orders the wrong search, then get a judge to fix the order.

The officers' "little" corrections led to problems.

2016.04.13 Search & Seizure - Reasonable Expectation of Privacy - Private electronic communications

Mr Craig 2016 BCCA 154 sent Nexopia messages to a 13-year old girl. She said they met once. Then his messages became more sexual. The second time they met, he had sex with her knowing she was underage. Eventually, word of this reached police, who sought warrants to get data from his Nexopia account ... and her account, as well as the Nexopia accounts of two of her girlfriends.

As set out above, there was a problem with the warrant.

After charges were laid, the prosecutor tried to circumvent the problem. Rather than relying on the messages from Mr Craig's account, the prosecution relied only on the messages from the girls' accounts. The prosecutor argued that Mr Craig could complain about unlawful searches of his data, but he can't complain about the unlawful searches of other people's data.

It worked at trial, but the Court of Appeal disagreed.

In a fully considered judgment which I expect will re-appear in the future, the court concluded that Mr Craig enjoyed an "expectation of privacy" in the messages he sent to the three girls, even if the police got that data by searching the girls' accounts.

How can this be?

The court explained that Mr Craig knew that only the girls would receive the messages he sent. He knew that everyone on Nexopia had password-secured accounts. Therefore, he reasonably expected that he enjoyed privacy in the messages, even after they arrived at their destination accounts. He could expect that the government would require warrants (or other lawful authority) to get at the messages he sent.

The court gave a preview of these conclusions in a case I mentioned last year: Pelucco, 2015 BCCA 370. In that case, the police searched a drug dealer named Guray pursuant to an illegal arrest. They found text messages from Pelucco on Guray's phone which suggested that Mr Pelucco was selling him large quantities of drugs. Using Guray's phone, police communicated with Pelucco, and used the messages they received to bust him. At that trial, defence complained of the illegal search of Mr Guray's phone. The prosecution argued that Mr Pelucco enjoyed no expectation of privacy in text messages he sent to another person's phone therefore he had no standing to complain of the police search of that phone. The court found otherwise.

What does this mean for police in B.C.? If some witness or victim received messages by some private communication system (text message, email, private Facebook conversation) from the target of your investigation, then you need lawful authority to get those messages from the victim's account

In my opinion, "lawful authority" may come from the informed and voluntary consent of the account holder. Or a warrant.  Or even a search pursuant to exigent circumstances. Others disagree.

In murder cases, unless you obtain consent from the victim's lawful heirs, this suggests that you need a warrant to search the deceased's computer or cell phone for messages from the suspect.

What about police in other provinces? I can't predict what your courts will do. I can say that getting consents and warrants for this kind of information will protect your investigations against arguments of this sort.

2016.04.13 Search & Seizure - Report to A Justice

The officers who investigated Mr Craig 2016 BCCA 154 used a warrant to get data about him from Nexopia. They forgot entirely to report to a justice what they got.

The court concluded that this breached Mr Craig's rights.

Unfortunately for Mr Craig, despite finding all these breaches of his rights, the court concluded that the evidence against him should be admitted into trial anyway.

Don't gamble on your investigations. Report what you seize to a justice. Get into the habit of completing Form 5.2.

The new production order section could have saved them some embarrassment. See 487.0192(4).

2016.04.09 Inventory Searches

Under some motor vehicle legislation, when you impound a vehicle, you have the authority to conduct an inventory. The law permits police to do this to protect officers and police forces from civil liability.

An officer found Mr Harflett, 2016 ONCA 248 driving without a valid licence. He needed to pay some fines, and he could drive again. The traffic stop occurred on a busy highway. The officer arranged to tow Mr Harflett's vehicle to a hotel. Mr Harflett would pay his fines, and then be free to drive away. But before the tow-truck driver hauled the car away, the officer did an inventory search.

That's how he found the "large quantity" of marijuana.

The officer testified that he "always" did "an inventory", and claimed this was not a "search".

The trial judge bought this explanation, but the court of appeal did not. The officer did not impound the vehicle. Mr Harflett was going to stay with it all the way to the hotel. The officer had no need to make an inventory of its contents.

"... the power to detain an individual under the HTA does not inevitably include the power to detain or impound a vehicle, nor does it include the power to conduct an inventory search in every situation."

Calling a search an "inventory" won't make it legal unless it's really an inventory search.  You need:

• lawful authority to impound the vehicle;
• a decision that you actually are impounding the vehicle; and
• an intention to search for the purposes of protecting yourself and your employer from civil liability.

Using "inventory search" as an excuse to snoop through a suspect's vehicle violates the suspect's s.8 Charter rights.

2016.04.05 Arson Investigation - Circumstantial Cases

Most arsons are hard to prove. Often, the arsonist hopes to recover money from insurance policies, and therefore plans and executes the crime.

Ms Nguyen, 2016 BCCA 133 ran a nail salon in rented premises. The trial judge found her guilty of setting it on fire. The appeal court found no error. Let's see what the investigators did right:

• Forensic examination of the scene found that the arsonist used three 5-gallon containers of accellerant.  The place smelled of gasoline.  The arsonist took cotton wadding from business, soaked in gasoline, and strung it around the business.
• A thorough neighbourhood canvass discovered witnesses who could say that Ms Nguyen occupied the business late into the night, and her car stayed there even later.
• People who worked in the adjoining restaurant detected the odour of gasoline wafting through the vents from the nail salon.
• Ms Nguyen bought insurance days before the fire, but delayed in making her claim. (I'm sure the insurance company was happy to divulge this information to the police.)
• Police investigated Ms Nguyen's business finances. Some evidence suggested that the salon was losing money. But there was some conflicting evidence that it collected undocumented cash each month.
• Police investigated Ms Nguyen's bank records. (I'm sure they needed a warrant for that.)  Ms Nguyen made two credit card purchases at a local gas station at the same time: $80 and $59.34.
• Someone found an expert who looked at the sums involved, and opined that the $80 would have filled the tank of her car, and $59.34 would have been just right to fill the three 5-gallon containers with gas.
• There was no sign of forced entry.
• Police investigated who had keys to the business: Ms Nguyen and two employees.  (I did not notice in the appeal court's review of the evidence whether those two employees had alibis, but you would want to investigate their alibis.)

I suspect that these investigators did a good deal more work than the points identified in the decision.

Arson investigation takes imagination, luck and diligence. Arson arises rarely enough that most investigators don't get to learn on the job; but arson occurs often enough to defeat investigators who lack training or experience. Therefore, it may be worth investing some time preparing for the next arson investigation.

2016.04.01 Too Much Evidence, or Not Enough?

Somebody stabbed Ricardo Kelly to death in an apartment building hallway.

Whodunnit?

Security video recorded who went where in many parts of the building. Investigators obtained lots of it.

Kelly's girlfriend saw the assailant, but didn't get a very good look. She gave several statements which described the assailant. Months after the killing, investigators showed her security video recordings of the four most likely suspects. She rejected two of them because she knew them. She picked one of the other two, Mr McCracken, 2016 ONCA 228 as the assailant. 

Some might think that her identification solved the case. But it was fraught with problems. Her initial descriptions of the assailant differed from the man she picked. One wore a hat, the other didn't. Watching the video did not put her in a position of identifying a person she recognized. Instead, she identified the most suspicious person. And furthermore, before seeing the video people in the apartment told her things which might have caused her to choose McCracken, whether he was guilty or not.

However, careful analysis of the video and phone records led to strong circumstantial evidence which independently supported this identification. Mr McCracken's conviction withstood review on appeal.

The victim, Mr Kelly, sold marijuana in the building. Someone in apartment 1610 called him for a dime bag. A Mr Stevens, who frequented that suite, agreed that he made the call. But when Mr Kelly failed to turn up, Mr Stevens never called back.  Why not?  Perhaps because he knew what happened.

Phone records established a close relationship between McCracken and the people in apartment 1610. The security video put Mr McCracken in or near apartment 1610, along with the other suspect. And the other suspect had a beef with the victim.

The other suspect didn't look at all like the assailant.  That left only McCracken.

Courts do not trust eyewitness identification of strangers, particularly from events as frightening as this one. Therefore, these investigators wisely searched for other ways to identify the assailant. The security video established more than who was in the hallway at the key moment. Because the officers secured more video than the just the killing, it told them what the relationships were between the various people in the apartment building.

Telephone records established more than who called for the drugs. Mr Stevens, for example, denied knowing Mr McCracken. But his telephone records showed that Mr McCracken called him 4 times that day.

When you apply for a production order or search warrant you must collect only information relevant to an offence. However, the relationships between key players in an offence may prove important. And evidence of relationship may occur long before, and even after the incident you investigate.

A warrant which seeks unnecessary information is overbroad. A warrant which seeks too little may leave you without the background evidence.  How do you balance this?

As the next case suggests, you can sometimes focus your requests.  Do you want all phone calls made by the suspect's phone in the month prior? Perhaps that's too broad.  Maybe you want all phone calls between the suspect, and people who live in the apartment over that time frame.

If you need a warrant to obtain security video, how much of it can you say is probably relevant?  If you ask for video which shows only the short time around the attack, you will miss video which shows relationships between the parties in the days or weeks prior to the attack. Do you have reason to believe that identifying relationships will solve the case? If so, you can ask for more video.

One other thing emerged from this decision: the police audio-recorded the eyewitness as she reviewed the hallway video. But they did not video-record her. That hampered review of what occurred. If court can't see the security video at the moment that the witness exclaims "that's him", then the court doesn't see who the witness identified. If you're going to show security videos to an important witness for the purposes of identification, try to set it up as much like a photo lineup as possible. Videorecord the process if possible.

2016.03.26 Production Orders - Cell Tower Dumps and Database Dumps

In cities, cell towers serve tens and even hundreds of thousands of people each day. Cell phone companies record which phones used their towers. Those people enjoy some expectation of privacy over their locations.

Some investigations rely on combing through all the cell tower information. For example, in the Mahmood 2011 ONCA 693 case, robbers with guns stole $500,000 worth of product from a jewellery store. Without much to go on, police got a warrant for a dump of records of cell towers in the area. Later investigation led them to a phone that they could connect to the purchase of a disguise used in the robbery. And that led them to the robbers and some of the jewels. In that case, the court found that the police violated s.8 by asking for too much information.

Rogers Communications, 2016 ONSC 70 complained to court about production orders police sought for the purpose of investigating a string of jewellery store robberies. The officers wanted all the records from the towers nearest stores for the days of the robberies. Around 40-50 towers. And the police wanted the subscriber information for every caller. And billing information, including credit card numbers.

That's a lot of data.

Nothing in the orders indicated how the subscribers' privacy would be protected.

The court identified some principles.

Minimal intrusion - you should seek orders which intrude only as much into other people's privacy as you need to get the job done. In this case the officers didn't need the billing information until they found a phone of interest.

Incrementalism - rather than demanding everything that could eventually be useful, request information step-wise, so as to minimize the violation of privacy. For example, officers may have been able to narrow their investigation significantly by examining the cell phone numbers first. When they found a couple of phones of interest, they could then seek an order requiring the phone company to identify the subscribers of only those phones.

The court made seven suggestions for officers who apply for orders which affect the privacy of lots of people:

1. An application should explicitly assert that the officer understands the principles of incrementalism and minimal intrusion and has tailored the requested order with that in mind. (And if you don't build your investigation that way, you'll get crucified at trial.)
2. Your application should explain why all the towers and date ranges are relevant to the investigation. "This obviously flows from what is now the s. 487.014(2)(b) Criminal Code requirement that there be reasonable grounds to believe that the documents or data requested will afford evidence respecting the commission of the offence."
3. For the same reason, your application should explain why you need all the types of records you seek. Do you really need all that banking and credit card information?
4. Narrow your search to match the information you have. For example, if the evidence indicates that a robber made a series of calls lasting less than one minute this detail might permit the target of the order to narrow the search and reduce the number of records to be produced.
5. Instead of demanding all the records, and sifting through them yourself, ask for an order which requires the phone company to collect the records and sift through them, and issue you a report of what they found. "For example, in this case a report on which telephone numbers utilized towers proximate to multiple robbery locations would contain identifying information concerning only a small number of robbery suspects and not the personal information of more than 40,000 subscribers which the Production Orders sought."
6. If you need the raw data instead of a report, explain why.
7. Confirmation that the types and amounts of data that are requested can be meaningfully reviewed. Spell out what kind of data you expect to get, and how you plan to make use of it.

Counsel for a phone company suggested that if you do obtain vast quantities of data from cell phone dumps, that you should soon destroy what you determine to be irrelevant.

Caution.

If you do that, defence may complain that the records you destroyed may contain the very data required to establish an alibi, or otherwise defend the case.

Do not take this decision as gospel. It is a trial-level decision. Appeal courts tend to give more authoritative answers. The only parties were the police, the Crown and the phone company. Nobody to represent the defence interest.

But these seven ideas have legs. Don't ignore them.

2016.03.26 Search & Seizure - Officer Safety

How much can you search to protect yourself?

I noticed this case last summer. I should have commented on it then. Better late than never.

Police officers attended an apartment in response to a 911 call. The dispatcher told the attending officers that a neighbor called in the complaint. A domestic. The woman was crying and screaming "stop hitting me".

A woman came to the door. Police entered.  Mr Ahmed-Kadir, 2015 BCCA 346 emerged from the bedroom. An officer arrested him for assault. Another officer walked through the apartment, and saw nothing of concern.

After 15 minutes, one officer noticed drugs on top of the refrigerator. Then she realized that she stood with her back to a closet that nobody had checked for people. She looked inside. It was full of shelves - no room for a person to hide. But a shopping bag sat on one shelf. An officer looked in the bag and found a handgun.

The officer who looked in the closet said she was looking for people, and for officer safety.

The court excluded the gun from evidence.

On entry, the officers were entitled to look around for people, for officer safety. The officers knew only of a man and a woman; and they found a man and a woman. The judges didn't think, after 15 minutes, that the officers had reasonable grounds to fear that another person might be hiding in the closet, nor that the person would pose them any danger. And the bag on the shelf posed no obvious danger either.

They judges did not complain about the the drug seizure, the drugs were plainly visible.

The lessons to draw are simple and obvious:

1. When you "clear a residence", you need to be able to give reasons why you needed to walk through it.
2. Safety of victims and officers can give you reasons; but you need to be able to identify why, in each situation, those concerns arose.
3. If you need to search for officer safety, do it properly, right away.
4. If you do a haphazard job in the beginning, you expose yourself to unnecessary dangers.
5. If you wait too long to search a residence "for officer safety", it will look like a search for evidence, which in many situations be unlawful.

2016.03.21 Right to Counsel - Counsel of Choice

After you demand breath samples from a driver pursuant to s.254(3) of the Criminal Code, you must test his breath "as soon as practicable". No sitting around waiting.

However, for the purposes of s.10 of the Charter the demand "detains" the driver. The driver enjoys the right to retain and instruct counsel without delay, including the right to seek advice from any counsel of choice that may be reasonably available.

An officer made such a demand on Mr Vernon, 2015 ONSC 3943 at 6:45pm on a Sunday evening. They reached the police station at 7:23pm. Mr Vernon said he wanted to talk to a particular lawyer. At 7:30pm, the investigating officer called that lawyer, but one minute later, unbidden, he placed a call to Legal Aid. The duty lawyer called back at 7:44pm, and Mr Vernon spent 12 minutes getting advice from him.  At the time, he expressed no complaint about the quality of legal advice.

He waited until the trial to complain.  There he said that he would rather have spoken with his own lawyer.

The trial judge agreed that the police breached his right to counsel.  So did the summary conviction appeal court and the Court of Appeal.

The judges agreed that the officer should have told Mr Vernon that he "had a right to wait a reasonable amount of time for his counsel of choice to call back."

This puts you in a difficult situation. If you wait too long, then you fail to take the breath samples "as soon as practicable". If you don't wait long enough, then you fail to respect the driver's right to counsel. The judges don't say what a "reasonable amount of time" would be.

The judges agreed that the officer should have taken more steps to try to contact the lawyer of choice.

The cross-examination suggested that the officer should have looked up the lawyer's home number, and checked the Law Society's webpage for other phone numbers. In many cases, these steps will be futile; but taking those steps would make a show of good faith.

This area of criminal practice has been litigated frequently for 30 years, and yet no standard procedure emerged for satisfying a detainee's s.10(b) rights. Although the judges in this case all agreed that the officer did it wrong, they did not say what would have been "right". If asked, most criminal practitioners will come to different conclusions.

I think the answer to these conundrums emerges by considering a police officer's duties under these circumstances:

• hold off eliciting evidence until the suspect has had a reasonable opportunity to get legal advice.
• inform the suspect of the right to get legal advice including right to counsel of choice.
• facilitate the suspect's exercise of that right.
• investigate the offence promptly.

I suggest that the solution to this conundrum of investigating the offence "as soon as practicable" while waiting for a lawyer who never calls is done by asking person who enjoys the right how he chooses to exercise his rights. Refuse his requests only when they become unreasonable.

• "Mr Vernon, I called the number you gave me for your lawyer, but I got a voicemail. I left a message, but it's 7:30pm on a Sunday. I doubt he's at his office. Do you have any reason to think he'll call back?  Are there any other ways you can think of that we can reach him?"
• "In case your lawyer doesn't phone back, I'll call Legal Aid right now. It's your choice whether to speak to them."
• "Mr Vernon, Legal Aid is on the line now. They can give you free legal advice right now. Do you want to talk to them? If your lawyer calls, you can still talk to him."
• "Mr Vernon, did you speak with Legal Aid?  Good. Did you get a reasonable opportunity to legal advice? Good. Your lawyer didn't call while you were talking to Legal Aid. Like I told you earlier, you can talk to any lawyer you choose, if we can reach him or her in a reasonable time. It's been half an hour since I called your lawyer. Do you want to call a different lawyer, or have you got all the legal advice you need?"

This case may revive debates in your office about how to deal with difficult demands for counsel of choice. Good. Beware of anyone who claims to have a fool-proof procedure that works every time. In my view, Charter rights are respected by understanding the principles, not by following blindly a standard procedure which works in most cases.

2016.03.17 Right to Counsel - Eliciting Evidence

Mr Sabados, 2015 SKCA 74 gave police reasons not to like him. They arrested him for robbery. He got bail after 450 days in custody. I guess Mr Sabados had a substance abuse problem: the judge imposed a term that he provide police with breath samples if an officer formed reasonable grounds to suspect that he consumed alcohol.

Mr Sabados didn't stay out on bail for long. 3 months later, police attended to a new complaint. They arrested Mr Sabados for death threats, assault, and breaching his bail by possessing drugs and alcohol.  They offered him access to counsel.

He wanted to talk to a specific lawyer.  He called, and left a message for the lawyer to call back.  Knowing this, an officer interviewed him about the new offence before Mr Sabados got legal advice.

That was a mistake.

Police must hold off eliciting evidence until after the prisoner waives or exercises his right to counsel. Asking questions about the offence is "eliciting".

During the interview, the officer noticed an odour of liquor. Knowing of the bail condition, the officer demanded that he provide a breath sample. He said he would not give samples until after he spoke with a lawyer.

So they charged him with refusing, contrary to his bail order.

That was another mistake.

Demanding bodily samples is "eliciting".

Mr Sabados won.

Even though the recognizance required Mr Sabados to blow, he still had a right to get legal advice before incriminating himself.

If you arrest a suspect, and the suspect wants legal advice, arrange for that legal advice before asking that suspect to provide evidence against himself. You can search incidental to arrest before the legal advice, but you can't ask him for bodily samples, statements or re-enactments of the crime until he exercises or rejects his right to legal advice.

This principle arises most often with serious motor vehicle cases. Drunk drivers who crash often go to hospital. When you demand blood samples from the driver who caused a serious accident, you must give that driver the access to counsel he requests before you take his blood. It's more complicated to do in a hospital, but the principle still applies.

2016.03.09 Gathering Evidence - How much is Too Much Evidence?

A troubled young man on a reserve complained that Mr Hume, 2016 BCCA 105 molested him. The young man said he arrived at Mr Hume's residence drunk. Mr Hume gave him more booze. He passed out. He claimed that awoke naked on the living room floor and found Mr Hume shaving his testicles. He complained to police and showed them that all his body hair was gone. By the next evening, a police officer executed a search warrant on Mr Hume's place.

The officer found no pubic hair on the living room floor. But the vacuum cleaner contained a large quantity of short curly dark hair. The officer dumped the contents of the vacuum cleaner into a bucket, photographed it, and took a small sample.

The DNA lab said that the sample was not suitable for DNA analysis.

At trial, the judge did not permit the police officer to testify whether this hair had fallen out naturally or had been cut.  The judge felt this opinion required expert opinion.

In submissions to the jury, the defence explained away the hair: this was a home on an aboriginal reserve. Lots of people there would shed dark hair. And the home had pets.

I invite you to consider with the perfect vision of hindsight what you would do to get the most out of the evidence in the vacuum cleaner. Would you ...

1. Keep all the contents of the vacuum cleaner?
2. Spread the contents of the vacuum cleaner out on a white paper sheet before photographing it?
3. Find an expert to assess whether this hair was cut.
4. Examine the hairs under a microscope, and compare them to cut human hair.
5. Photograph the hairs under a microscope.

It turns out that the police officer did enough in this case to satisfy the jury. They convicted Mr Hume. Next time, it might be different.

2016.03.08 Implied Invitation to Enter Private Property

If you suspect someone of committing an offence, you can't walk onto their private property for the purposes of searching for evidence. But you can walk onto private property for the purpose of communicating with them, even if you know about the offence. It's a peculiar line, which is difficult for judges to assess.

Police officers in rural BC arrested Mr Parr, 2016 BCCA 99 under the Mental Health Act. He was speaking incoherently about his fiancée. They towed his vehicle and took control of his dog.

Knowing that a team of officers was investigating Mr Parr for growing marijuana at his residence, Cst Jenkins went there to tell Mr Parr's fiancée where he was. Perhaps she could take back his dog.

Cst Jenkins found nobody, but noticed odours of marijuana on the property, and equipment for growing it. He told the team. The team got a warrant, and took the operation down.

If Cst Jenkins went there to investigate the marijuana grow operation, then he intruded unlawfully on the land, and his observations could not be used to support the warrant.

Defence argued that Cst Jenkins went there to investigate: Cst Jenkins didn't phone, he went there in person. It was a long drive from the police detachment to Mr Parr's place. After failing to find her, Cst Jenkins took no further steps to locate the fiancée.

The trial judge believed Cst Jenkins when he said his purpose was simply to speak with the fiancée.

This case makes for good reading, not just for the teams, but also the general duty officers those teams communicate with. What's your purpose when you go into private property? Did someone actually invite you? Can you rely on the implied invitation, because they would want you to communicate with them?

Don't rely on my summary.  Read the decision, to understand how the judges analyse this subtle distinction.

2016.03.07 Objective Investigating and Reporting

Police arrested Mr. Laing, 2016 ONCA 184 in a mall parking lot. They found two loaded handguns in his possession. As part of the investigation, some officers obtained and watched mall security video of the take-down. They took no notes if its contents. Between investigation and trial, the DVD which contained that video recording went missing.

Mr Laing's counsel asked the trial judge to drop the case by reason of the lost evidence. The trial judge refused. At trial, defence accused police of planting the guns. He suggested that they destroyed the DVD as part of a cover-up.

According to the officers, the cameras pointed the wrong way, and captured none of the take-down. Too bad they took no notes.

The jury convicted Mr Laing, and the appeal court upheld the conviction.

I think that there's a lesson in here. Human beings tend to notice evidence which supports their beliefs. I suspect that this tendency affected this investigation:

• A member of the "Guns and Gangs Task Force" first noticed Mr Laing. Those folks focus on bad dudes with guns.
• He found out that a judge issued a warrant was outstanding for Mr Laing. Confirmation that Laing was a bad dude.
• He noticed Mr Laing holding his waistband and tucking his elbow close to his body suggestive of possessing guns.

Could anyone fault the officer for thinking that Mr Laing carried a gun? Of course not.

During the take-down, officers found guns. Naturally, they recorded information about that. It was obviously important.

After the take-down, the officers who watched the security video saw no information about the guns. It seemed obviously unimportant. Therefore they took no notes of the video's contents. The DVD seemed unimportant. They took less care in lodging it into exhibit storage.

Perfectly natural human behaviour. But it formed the foundation of the defence attack. And I doubt any of the officers enjoyed having their integrity attacked.

An objective investigation seeks out all reasonably available sources of evidence. An objective report accounts for every investigative angle pursued. It was a good idea to look for the video. It captured nothing that the officers wanted to see

2016.03.06 Conspiracy, Aiding and Abetting - The Marijuana Growers' Supply Shop

What's the difference between aiding and conspiring?

Mr Nguyen, 2016 ONCA 182 and his son-in-law ran a garden supply store in an unusual way. For accountability and marketing purposes, most vendors track which customer bought what. Mr Nguyen's store accepted only cash. He kept no records of customers and what they bought. Most shops sell their products in packaging which advertises the source. Mr Nguyen wrapped his products in plain bags. Customers could load their purchases at a loading bay hidden from view. Like some vendors, Mr Nguyen's store had a van to deliver the goods to the customer. Unlike most vendors, Mr Nguyen let his customers drive the company van away to undisclosed locations.

The store stocked only products useful for growing marijuana. It stocked unusual garden supplies, such as electrical circuit panels and ductwork. He sold nothing that was illegal to possess.

Police followed four customers, each of whom led police to grow operations.

The trial judge convicted Mr Nguyen of the charge of conspiring with his son-in-law and the purchasers of their products to aid and abet the production of marijuana.

That was a mistake. The purchaser and vendor of an illegal product don't conspire, because their objectives differ: the vendor wants money; the purchaser wants the product. Had the charge accused only Mr Nguyen and his son-in-law of conspiring to aid others in the illegal production of marijuana, that charge might have stuck.

But he was guilty of actually aiding others in the illegal production of marijuana. But that required more than merely following the customers, and finding grow operations where the products went. It required evidence that Mr Nguyen was involved in the sales of the products to those customers, or otherwise assisted the purchasers.  That's what aiding is. Nguyen himself helping the customer.

2016.03.05 Possession - "What's in the Gun?"

Section 95(1) of the Criminal Code creates a specific offence of possession of a loaded restricted/prohibited firearm.

Mr Hunter, 2016 BCCA 94 possessed a loaded handgun, cocked and ready to fire, in a storage compartment under the seat of a scooter he sometimes drove. Did that make him guilty of the offence?

Nope.

Not if the Crown can't also prove that he knew it was loaded.

Sometimes, the circumstances make it obvious. For example Mr Francois, 2014 ONCA 234 took a handgun with him to complete drug transactions which involved threatening to kill people with it. When police arrested them, they found it contained bullets. The circumstances allowed the court to infer that he must have known it was loaded.

But Mr Hunter's circumstances differed. Police found him in a park talking with friends, near the scooter. These circumstances did not lead to any clear reason to say he knew about the bullets in the gun.

That means finding someone with a loaded handgun is not the same as proving they knew the bullets were in the gun. Because courts acquit if there is any doubt, keep investigating. Sometimes they load the bullets with their bare hands, and leave fingerprints. Sometimes, they have more bullets in their pockets, or somewhere nearby. Sometimes, if you ask the right questions, the prisoner, or someone who knows him, will talk.

2016.03.05 Possession - "What's in the USB stick?"

What kind of "circumstances" persuade judges that a suspect had guilty knowledge?

When police arrested Mr Arsabekov, 2016 ONCA 169 in his car, they found a USB stick and a credit card reader.  The USB stick contained lots of credit card information.

Could the judge convict him of possession of the credit card data? Only if the judge could find beyond a reasonable doubt that he knew about the data inside the USB stick.  The presence of the credit card reader (and some efforts to evade police) persuaded the judge that he knew.

The Appeal Court agreed.

It's not illegal to possess a credit card reader. But having one along with a memory device containing stolen credit card information suggests that you know about the credit card information.

2016.03.03 Production Orders and Search Warrants - Reasonable Grounds to Suspect an Offence

We all know that a judge can't issue a search warrant or production order unless the officer provides reasonable grounds to believe that the warrant or order should be granted.

Except, s.487 also uses the word "suspect" in relation to how sure the judge should be that an offence occurred.  And before March 9, 2015, so did the former general production order section.

Does this difference mean anything?

In Nero, 2016 ONCA 160 at para 62, the court said it does.  They said that the judge doesn't need belief, only suspicion, that an offence occurred.

I observe that Parliament removed the word "suspect" from the current general production order section. If Parliament thinks suspicion is too low a standard for production orders, then a judge may conclude that suspicion is too low a standard for search warrants too. When applying for search warrants, rely on this difference at your peril.

But Parliament deliberately chose "suspicion" for many other kinds of searches, such as number recorders and preservation demands. I see less risk there.

2016.03.03 Production Orders - Evidence "Respecting" an Offence

Police suspected Mr Nero, 2016 ONCA 160 of organizing a major drug trafficking operation.  Initially, they sought cell phone records, to find out who he called, and which cell phone towers he was nearest when he called. 

Production orders get you evidence "evidence respecting the commission of the offence". It's often difficult to explain why you think specific records fit that description. At trial, defence argued that these records would establish only that he talked to people, but not that he was guilty of any offence.

At para 83, Watt J.A. observed:

"The records need not be conclusive proof of guilt."

The production orders were good.  When you apply for a production order, you needn't explain why the records will prove guilt, only how they might provide evidence about the offence.

2016.02.29 How much evidence is Too Much Evidence?

In the basement of their house, Mr Walchuk, 2015 FCA 85 beat his wife unconscious. The house caught fire and burned. An expert told the trial judge that someone poured gasoline (or some other accellerant) at the top of the stairs. The trial judge convicted him of murder, on the theory that he set the fire.

After he exhausted his appeals, Mr Walchuk found different experts who concluded that the first expert was wrong. No accellerant on the stairs started this fire: it started somewhere else. There was some evidence to suggest that his wife started the fire by crashing her car into the house before the beating in the basement. He asked the Minister of Justice to review the case: was this a wrongful conviction?

The Minister didn't think so. Nor did the Federal Court Judge, nor the Federal Court of Appeal.

Why not? Among other reasons:

• If the car crash started the fire, then Mr Walchuck beat his wife to unconsciousness in the basement of a burning house, and left her there to die in the flames.  That's murder.
• The new experts merely established that there was no accellerant at the stairs; they could not say how the fire started.
• Investigators discovered that the matchbook in his pocket came from his wedding 10 years earlier.  Only three matches were missing. Evidently, before going to the house, he plucked a matchbook from a location where he stored matchbooks for a very long time.
• Mr. Walchuk told an undercover police officer posing as his cell mate that the house “should have all gone up; what with a barbeque, gasoline, gas in an antifreeze container, I can’t figure out why it didn’t”.
• Mr Walchuk took steps to ensure that the people who would normally come over, didn't.
• Investigators discovered that some of his most prized possessions went missing from the home just before the fire.
  

Read the decision for all the circumstances.

The prosecutor could prove those circumstances only because investigators, with active curiosity, looked into questions like "where did that matchbook come from?"

The defence challenged the expert after the trial and the appeals all passed. This conviction stood because the investigators gathered (and the prosecutor presented) more than evidence than necessary to prove Mr Walchuk's guilt.

So when is your investigation complete? After you have attempted all that is reasonably possible to gather all the evidence available.  Don't quit investigating just because you become satisfied of the suspect's guilt. Keep gathering evidence until all the available evidence is collected.

The smaller the case, the harder it is to do a complete investigation. But the burden of proof in a domestic assault is the same as murder: proof beyond a reasonable doubt. So many of those reluctant spouses recant, it hardly seems worth any effort. But if you bust enough wife-beaters, you may prevent a murder. Like Mr Walchuk.

2016.02.28 Arresting and Releasing Foreigners

When you arrest and hold a foreigner, one of your obligations under Art. 36(b) of the Vienna Convention on Consular Relations (1963), is to inform the person concerned without delay of his right to contact consular officers from his home state. (Only a few countries in the world are not parties to this convention.)

Failure to do so does not usually breach Charter rights (Walters, 2013 ABCA 204).

After arresting a foreigner, are you obliged to bring him or her before a justice of the peace? Nope. Provo, 2015 ONCJ 311. You can release him or her yourself. But you should turn your mind to whether the suspect will return to court.

Sections 498(1)(d) (and s.503(2.1), by reference) of the Criminal Code, permit you to release the suspect on recognizance (Form 11) with or without conditions.  You can even take up to $500 cash on deposit, to make sure that the suspect attends court.

You might want to consider how you to account for the deposit. Do you seize it and place it in exhibits, and report the seizure to a Justice, or do you deposit it with the court?

2016.02.14 Sexual assault

Mr Edgar, 2016 ONCA 120, a big man, grabbed a woman outside her apartment, and made her let him in.  He kept her captive there for an hour, making various non-sexual demands: he needed to use her phone.  He wanted water. At the end, he made her sit and watch him masturbate. For a few minutes, she did. He touched only himself, and not her. She then fled, leaping off the balcony. She broke both ankles in her effort to escape him.

Did he sexually assault her, even without touching?

Yes.

Why?

Read the definition of "assault" in s.265 of the Criminal Code.  It includes more than touching. Assault includes a threat of force, accompanied by the immediate means to carry it out.

She only sat down because he had threatened her. She watched only because he demanded it. He had her under his control. The whole confinement was an assault, and he rendered it sexual when he compelled her to watch him.

Why do you care?

Because we often forget that second part of the definition of assault.

The man who raises his fist to a woman assaults her even without striking, if he does so in a manner that causes her to believe that a blow was imminent. At your next domestic call, the complainant may say that no blows were struck before you got there. When the reluctant complainant says "he never hit me, he only threatened", you should follow up: "Did he make it look like you were about to be hit? Did you think that was going to happen?"  If you get "yes", then she described an assault. If you believe her claims are probably true, and arrest is necessary in the public interest, then you can arrest him for assault.

If you do, he may express bewilderment "I never touched her, man."  If so, have some sympathy for the blighter. Maybe you should take him to an interview room, and explain why you arrested him. Video-record it. Who knows, he might even show you how he held his fist.

2016.01.30 Press Conferences - Prejudice to Fair Trial

When you make a big bust, holding a press conference tells Canadians that police are effective, and crime doesn't pay.

But tread carefully. 

After police busted Mr Pedersen, 2016 BCCA 47 and his accomplices for importing one tonne of cocaine they told the world. At trial, Mr Pedersen asked for a stay of proceedings. He complained that the publicity robbed him of a fair trial.  The jury would be prejudiced against him.

The judges denied his application.  But they commented:

"care must be taken to avoid prejudicing the accused, particularly where the trial will be held before a jury."

What do you avoid showing and saying in such a press conference? I have little skill in media relations; I won't tell you how to talk to reporters. But your prosecutor would fear press coverage of:

• Evidence which the trial judge might exclude.
• Memorable details of the evidence which particularly proves the guilt of the suspects.

In this case, the trial judge disliked the "trophy" or "self-congratulatory" tone of the press conference, but she liked the fact that press conference revealed no detailed personal information about the suspects.

Therefore, despite your excitement after the biggest bust in your career, you should take a deep breath before the press conference, and calm down.  Remind yourself that what you say there will be used to cross-examine you, and attack the case. When the reporter presses you for information about the defendants and their individual roles, avoid saying anything exciting enough that a juror would remember it a year later. "Giving too many details at this early stage could undermine the accused's right to a fair [jury] trial."

2016.01.29 Citizen's Arrest - Civilians don't need Charter Cards ... unless you organize them

After Mr Nguyen, 2016 BCCA 32 attacked another man at a bar, bouncers grabbed  and held him until police arrived. During the wait, Mr Nguyen told them things that his lawyer wished he hadn't said. At trial, Mr Nguyen complained that the bouncers failed to tell him his rights under the Charter, and asked the court to prevent the jury from hearing what Mr Nguyen said about the fight.

The judges concluded that the Charter does not require private citizens acting on their own to explain Charter rights.

They would have to explain Charter rights if you instruct or enlist private citizens to arrest or detain miscreants as some organized initiative.

2016.01.27 Book Update

My publisher recently released the 2015-2016 edition of Common Canadian Criminal Code Offences and Procedures. This book collects into one soft-cover book the parts my two larger (and more expensive) books that I use most. Some police officers tell me that they found the previous edition useful, and no police officer has told me otherwise. Either you folks are just polite, or perhaps there's something there that police officers like.

This edition covers the same topics, but reflects court decisions and changes in the legislation. (Since the last edition, the "Harper Government" amended the Criminal Code about 15 times, causing hundreds of changes to the act.)

Click the link if you want to know more.

2016.01.26 Search and Seizure - Automobile Crash Data Recorders

In November, I reported the growing Ontario case law which suggests that you need a warrant if you want to search the device in a vehicle which records the last few seconds of driving data. (Hamilton, 2014 ONSC 447; Glenfield, 2015 ONSC 1304).

Now the B.C. Court of Appeal upheld a trial decision which came to the opposite conclusion.  Fedan, 2016 BCCA 26.

In that case, the police obtained a warrant to search the vehicle for other forensic evidence such as DNA, but they did not obtain permission to search the black box. The court found that they didn't need judicial pre-authorization because the driver enjoys no expectation of privacy in it.

2016.01.25 Search Warrant - Searching the Place Identified on the Warrant

Intercepted communications of a drug king-pin led police to believe that a woman called "Momo" supplied crystal meth to the king-pin's network. Police watched him enter the front door of a residence in a mixed commercial and residential plaza, let in by a woman. When drafting the warrant to search that place, the affiant wisely obtained schematic diagrammes which suggested that the front door led to an apartment at the rear of the building. The schematics showed a rear entrance to the same apartment. Two vehicles registered to Valerie Pham parked in the lot outside the building. Her sister Tammy received the Hydro bills for apartment 4204B. Valerie's driver's licence photo resembled the woman who welcomed the king-pin. Police believed Valerie was "Momo". The justice granted their application to search of "4204B Dundas Street West (rear)".

Things on the ground differed from the drawings.

The front entrance did not reach the rear apartment.  The front entrance led to an undocumented apartment in the basement.  There, they found Ms Ting, 2016 ONCA 57.

Her apartment was not at the "rear", and did not connect to that apartment. Police searched it, and her cell phone, anyway. For an hour and 40 minutes.

They found drugs and money. They figured that she must be "Momo". Then, realizing that they had a problem with the warrant, they applied for, and obtained, a new warrant. This one let them search "residence of 4204B Dundas Street, West".  With that warrant, they searched some more, and found more drugs.

The judges hated it. The first warrant authorized the search of a different residence. The second one failed to identify which of the apartments there the officers wanted to search. The real "Momo" - Ms Ting - beat all the charges.

The address on the face of the warrant matters. Apartment buildings pose special problems. Researching before you apply for a warrant helps prevent mistakes. When you execute the warrant, make sure you enter the right place. And if the warrant is wrong, fix the problem before you search.

2016.01.25 Exigent Circumstances Search

On February 14, Mr Mengitsu sold drugs to an undercover police officer who came to his apartment.  On February 24, the same officer arranged to purchase more from Mr Mengitsu, a dealer.  That day, the dealer foolishly told the officer he needed to get some more from his supplier. Other officers watched him visit the nearby apartment of Mr Phoummasak, 2016 ONCA 46 before completing the sale.

The officers believed Phoummasak was the supplier.  They debated whether to apply immediately for a warrant to search the Phoummasak's apartment. The officer in charge directed them to buy drugs one more time, to make sure of the supplier's location. Anticipating this, they started drafting their application, and arranged another buy.

On March 15, 2012, the dealer sold them drugs again. Again, he needed to visit Mr Phoummasak's apartment before completing the deal. The officers planned to arrest the dealer as he returned to his own apartment. Instead, he walked to Phoummasak's apartment building. The arrest team took him down in public, right in front of the supplier's apartment building. The dealer's cell phone then began to ring repeatedly.

Fearing that this arrest would cause his supplier to hide or destroy his drugs, the officers entered the Phoummasak's residence without a warrant.  They found Mr Phoummasak throwing baggies of drugs off the balcony.

At Phoummasak's trial, defence agreed that exigent circumstances may justify a warrantless search, but complained that the police created the emergency. Defence said police had sufficient grounds for a warrant after the second buy, but police chose not to apply for it. If police create the emergency, then police can't rely on exigent circumstances.

The court agreed with this general principle. You can't manufacture exigent circumstances as a way of circumventing the legal requirement to get a search warrant.  But these officers planned all along to get judicial authorization. They were just double-checking the location of their intended search. Their plans went awry when the dealer went in an unexpected direction. The court found that the police response to the unexpected events was reasonable, and not an effort to avoid paperwork. Mr Phoummasak lost at trial and on appeal.

Unexpected developments may justify a warrantless search under s.487.11 of the Criminal Code (or, in the case of drugs, s. 11 of the CDSA). But don't plan to rely on this power. If you expect a development which will trigger a need to search a place, consider applying in advance for a General Warrant under s.487.01 which authorizes you to search when the expected development occurs.

2016.01.19 Authenticating Communications - Emails and Texts

If you get a text message from my phone, does that mean I sent it?

In R. v. Seruhungo, 2016 SCC 2, the trial judge wasn't prepared to assume that the sender of a text was always the owner of the phone. The dissenting judge in the Alberta Court of Appeal agreed with him: R. v. Seruhungo, 2015 ABCA 189.  So did most of the judges of the Supreme Court of Canada.  You can't always expect the owner of the phone is the person who sends all the messages from it.

When your investigation leads you to text messages and emails of importance, you will naturally assume that each message came from the account holder.  But the court may need evidence to support this inference. A text from a phone number proves only that the phone sent the message, not whose fingers did the typing.  If you receive an email from someone, then you know which account sent it, but not who typed it.

If you case stands or falls upon emails or texts, look for evidence which authenticates the message.  Does the text say something or say it in some way that establishes who typed it?

2016.01.09 Drunks -  Keep or Release?

When you arrest a drunk under the Criminal Code, how long should you keep him or her in custody?

Mr Hardy, 2015 MBCA 51 didn't just refuse to provide his breath into a screening device, he was rude and argumentative with police. They kept him in custody for 12 hours before letting him go.

At trial, Mr Hardy claimed that the police kept him in custody as punishment for refusing to blow. He said the officers should have called his girlfriend to come and pick him up. He asked the judge to throw out the charges because the officers arbitrarily detained him.

The answer to my question is: Drunkenness does not justify detention. The fact that the officers thought that Mr Hardy was drunk was no reason to keep him in custody.

But public safety and the safety of your prisoner does.

Because Mr Hall was an obstreperous, belligerent and unreasonable drunk, the officers decided to keep him until he became safe to himself and others. (If you do the same, keep notes, or better still, record his conduct on audio or video.)

Was it acceptable for the officers to decide at the beginning to keep him for 12 hours, or were they required to monitor Mr Hardy, and release him as soon as he became safe?  This court found that the officers did not bear an obligation to monitor Mr Hardy constantly. (I imagine waking a sleeping drunk every 30 minutes to check his sobriety would render a detention unreasonable.) However, I do not think it wise to lock up every drunk up for 12 hours and ignore them.  Some may calm down and become safe after shorter periods.  I suggest checking on them with increasing frequency after they have had an opportunity to sober up.

2016.01.08 Warrant drafting - Pedigrees of Criminal Sources

"I've got this great source," the officer told the judge. "He can be an agent. Based on what he says, you should grant me an authorization to listen to his conversations with Mr Hall."

Later, at trial, the truth about this agent came out.

The proposed agent hated Mr Hall, 2016 ONCA 13. The agent believed that Mr Hall helped torture and murder his sister. The agent had a bad drug addiction, and a horrible record of crime, and sought extraordinarily lenient treatment from police in exchange for information.

Perhaps the judge would not have been so impressed if the officer revealed these details to the judge.

Relying on the officer's affidavit, the judge issued a wiretap authorization.

When the trial judge learned the whole truth, he excluded all the evidence obtained by the wiretap.  Mr Hall beat some serious charges.

It's too easy to get caught up in what your source tells you. Before you ask for a warrant, take some time to discover and report the problems with your source.

2016.01.06 Mr Big Operations - Simulated Violence

In R. v. Hart, 2014 SCC 52 the Supreme Court decided that no jury should hear about a confession obtained by a Mr Big operation unless the Crown could first prove its reliability.  That may be done either by showing corroboration or that the circumstances of the confession rendered it unlikely that the target would lie. The court also observed that when police use outrageous tactics, courts may stay proceedings.

Defendants who confess to Mr Big often say at trial that they lied to Mr Big because they feared him, and they said what he wanted to hear because they were so dependent upon the money and friendship they received from the undercover officers.

When persuading suspected murderers to confess, these operations include scenarios of simulated violence. Going too far with this may undermine the investigation.

Mr Hart was a particularly vulnerable and needy individual. The Mr Big operation he underwent preyed upon this, leading the court to find that his confession should not be admitted.

In Laflamme v. R., 2015 QCCA 1517, police suspected that the accused murdered his wife in 1973. During a Mr Big operation in 2008, the target saw simulated violence on people outside and inside Mr Big's organization. Mr Big intimated that the target and his new friend faced the prospect of serious violence or death if the target did not confess. This went beyond providing incentives to confess, and imposed undue pressure.  The court directed a stay of proceedings.

However, in R. c. Perreault, 2015 QCCA 694, R. v. Allgood, 2015 SKCA 58 and R. v. Johnston, 2016 BCCA 3, the courts found no abuse of process in investigations in which the accused saw some pretty serious simulated violence.

Mr Allgood saw the organization remove a member from its ranks without violence, but Mr Big said that he "recently" had to "bury a friend". Mr Perreault saw what appeared to be violence as well, but the organization never directed its violence towards him.

Mr Johnson underwent a Mr Big operation in which he participated in the kidnapping of a "debtor" and his "girlfriend". While he drove the van, the officers staged a beating in the back. Later, they made it appear that they murdered the debtor and his girlfriend. He later confessed, giving details which largely matched hold-back and other evidence, but included details which contradicted some of the evidence.

As nicely summarized in the Johnston case, what distinguished the good operations from the bad were exploitation of vulnerability, and directing violence at the target.

As officers conducting these operations have always known, confirming the details of the target's confession makes a huge difference at trial.

I think that the Johnson scenarios survived judicial scrutiny because the officers collected evidence that Mr Johnston was his own man, unafraid of what he saw. It's not just that the officers directed no threats at him. The result might have differed if the police used the same tactics on a more timid target.  Therefore, continuously watch for the target's timidity or callousness, and tailor your operations in response.

2016.01.03 Laying Charges - Swearing to Reasonable Grounds

Criminal prosecutions formally start when someone lays a charge. Many of you do this by presenting the charge to the justice of the peace, and swearing or affirming that you have reasonable grounds to believe that the accused did the crime.

Don't swear because someone told you to swear the charge. Read enough of the file to know why you think that this person committed this crime. You don't need to read the entire file; summaries will do. But you can't lay a charge without knowing any of the evidence.

A retired police officer swore charges against a batch of offenders. The batch included a charge of assault against Mr Delalla, 2015 BCSC 592. The officer met the justice of the peace in a room with a computer. The officer swore that he had reasonable grounds that the whole batch of offenders did the crimes. The justice then popped each file up on the computer, and he entered his electronic signature on each information.

The court didn't like this procedure because:

• the officer didn't know which informations were going to pop up on the screen until he saw them;
• he couldn't know, until he saw the charges, which ones he was swearing.
• he didn't read all the files in advance; he skimmed them as the charges popped up on the computer. Therefore, he swore to the guilt of the accused before he knew anything about them.

There was a separate issue: should the justice or the officer sign the document first? The answer is: it doesn't matter.  What matters is that the officer swear to the reasonable grounds before the documentation gets completed. And that's what went wrong in Mr Delalla's case. The charge was falsely sworn, and so the prosecution ended before the trial began.

2016.01.03 Disclosure - Confidential Sources - Debriefing Reports and Handler's Notes

How much disclosure must the police and prosecutors must give to defence when the only issue it probes is whether a warrant should have issued?  Recent decisions considered this question in the context of confidential source debriefing reports (SDRs) and the handlers' notes (SHNs).

Trial judges all agreed that the prosecution should redact anything that tended to identify the informants.  But they made quite different orders of disclosure (subject to that redaction):

• Full disclosure of anything that might throw light on the reliability of the sources. Edwardsen, 2015 BCSC 705.
• Disclosure of SHNs and SDRs relating to the information used in the ITO. McKay, 2015 BCSC 1510; Whitton, 2015 BCSC 859
• Disclosure of SHNs or SDRs which the affiant relied upon in drafting the ITO. Plowman, 2015 ABQB 667

These apparently subtle distinctions have big impacts on cases. I predict that the appeal courts will have to address this question next year. (2016.04.06 Yup: McKay is under appeal.)

Lots of officers receive information from people who don't want their names revealed. It starts out simple, but can become complex and dangerous.

When you receive such information, follow your force's documentation policies and procedures for confidential source information. If you don't know what those are, learn them.  These trial decisions indicate that following formal record-keeping procedures today will make a big difference in future cases.

2016.01.02Statement-taking - Admissible Hearsay

Notebook notes are necessary, but not always sufficient.  There's a difference between information and evidence. Information tells investigators what happened, but evidence proves charges.

In 2001, someone stabbed Alexander Sanderson to death.

Three men were present: Terry Pechawis, Dwayne Badger and Curtis Nataucappo, 2015 SKCA 28.

That day, Badger told two officers that he and his friend Pechawis accompanied a stranger, and the stranger stabbed Sanderson.

He refused to provide any kind of statement.  The officers wrote notes about what Badger told them.

Mr Badger died in 2006.

At the time of the stabbing, Mr Pechawis completely refused to cooperate with the police. In 2009, he identified Mr Nataucappo as the person he and Badger accompanied.

The trial occurred in 2011.

Considering Badger was dead, could the officers tell the jury what Mr Badger told them in 2001? Such testimony is, of course, hearsay. The trial judge thought the jury should hear this information, but the Court of Appeal held that it was too unreliable to admit into evidence.

• The investigators took notes of the information they received, but did not record what questions they put to Mr Badger. No matter how honest the investigators were 8 years later, they could not describe how Badger's story emerged.
• The officers did not review their notes with Badger to confirm their accuracy.
• Pechawis could have stabbed Sanderson: Badger had a motive to lie to protect his friend, and Pechawis had a motive to blame Nataucappo.
• Defence counsel could not cross-examine Badger on his story to reveal any deceit.
• The officers did record that Badger expressed fear - but not who he feared. Fear can inspire lies.

In this serious case, Badger prevented the investigators from collecting crucial evidence. But it illustrates a preventable problem that arises routinely.

When a witness tells you the answers to your questions, you write information into your notebook.  It's hearsay, and generally not evidence. Witnesses who testify in court give evidence. If it's important information, you need to do more than take notes.

For example, if an eyewitness tells you the licence plate of the culprit's car, you should write it down in your notebook. But that's only information. You can't testify that the culprit drove that car because you didn't see the culprit driving it. Only the eyewitness can testify to that fact.

If your notebook contains the only record of the licence plate, will the witness still remember it when you get to trial?  No way.

The prosecutor might ask the forgetful eyewitness whether she told the investigating officer what the licence plate was, and then ask you to testify what you wrote down. As this case illustrates, judges worry about accuracy. The judge may not permit you to testify about the licence plate you heard about.

What can you do?

• Accuracy - ask the witness to review your notes and confirm you wrote the right number down.
• Audio- or video-record a statement
• Ask the witness to record the licence plate herself, and to give you a copy.

This applies to much more than licence plates. For example, I've seen this arise with:

• eyewitness's descriptions of culprits;
• owners' descriptions of stolen property.

You need to record information in your notebook, so that you can give evidence well. But your notes will  preserve other people's evidence poorly, unless you take further steps.

2015 Developments in the Law

2015.12.19 Using the Evidence of Confidential Informants at Trial

Confidential informants give information on condition that they not be identified. That disqualifies them as witnesses because we require witnesses to testify in open court, where the defendant can see who testifies against him. Can we never use confidential informant information to prove a case?

Mr Gaulub wore a red shirt when he went to a friend's place for a barbeque. Two men drove up in a car.  One got out, shot him in the back while the other waited.  Then they fled. Mr Gaulub had no dispute with anybody. The investigation produced evidence that Mr Sheriffe, 2015 ONCA 880, drove the car, and Mr Ashafa pulled the trigger. But why did they kill him?

The victim wore red - the colour of a local street gang. He wasn't a member. He just put on the wrong shirt that day.

An informant told police that Mr Sheriffe and Mr Ashafa belonged to a rival street gang. The informant's information provided a motive: Sheriffe and Ashafa killed him as part of an ongoing turf war.  Could the prosecution use the source's information in the trial?

Yes ... but only if the prosecution could prove that the source was very reliable, and without giving away his identity.  In this case, the prosecution succeeded.  The trial judge permitted the jury to hear what this source told a police officer.

This is the first time I've seen a court permit a confidential source's information to be admitted for its truth in a trial. It may make prosecutors look at source information differently in future.

2015.12.13 Arrest & Detention - Detaining for Interviewing

A police officer in Victoria, B.C. gathered sufficient grounds to arrest Mr Viszlai, 2015 BCCA 495 for a sexual assault committed upon a boy scout.  When she learned that he would attend a scout jamboree at Sechelt, she asked police there to arrest him, and hold him until she could arrive. Because of the ferries involved, getting from Victoria to Sechelt takes time.  They held him overnight, so that she could interview him in the morning.

Defence complained that the overnight delay violated his right to be free from arbitrary detention. Section 503(1) of the Criminal Code requires police to give him a bail hearing "without unreasonable delay".

The court re-affirmed its earlier ruling (Viszlai, 2012 BCCA 442) that you may delay the bail hearing up to 24 hours if you need the prisoner for investigative purposes such as interviewing.

Beware.  This case does not say: "after an arrest, you can hold prisoners up to 24 hours". The combination of s.9 & 11(e) of the Charter and s.503 of the Criminal Code means you need good reasons to detain prisoners after arrest. This decision says that interviewing the prisoner is a good reason for delaying a bail hearing.

2015.12.11 Interviewing Skills

Don't tell people what to say.  Not ever.  Except if you have to. In which case do it carefully.

For decades, Mr Viszlai, 2015 BCCA 495 led scouts.  One former scout complained of sexual abuse in the 1990's.  An officer took a statement from that witness, and then researched Mr Viszlai on the computer.  She discovered an uninvestigated report that he abused another scout around that time.

She learned that Mr Viszlai would soon participate in a scout jamboree. Fearing more abuse, she arranged for his arrest at that event.  (It was done in a manner that would attract as little attention as possible.)  She interviewed him.  He admitted abusing the scout that recently complained.  She pressed him about the other one, telling him she believed that he did it.  He admitted sexual acts with that kid too.

The officer then located and interviewed the other scout.  He denied anything occurred.  She suggested some details of the abuse.  He denied it. A few weeks later, of his own accord, that former scout returned, and told the officer that he did remember, and provided details, some of which differed from the suggestions that the officer made.

The first jury convicted Mr Viszlai, but the appeal court ordered a new trial. (Viszlai, 2012 BCCA 442)

At the second trial, defence complained that the officer told Mr Viszlai and the second witness what to believe: by suggesting what the truth might be, the officer rendered Mr Viszlai's statement, and the second witness's testimony, unreliable and inadmissible. Defence brought a renowned psychologist to testify that telling people the answers can change their memories. He condemned "The Reid Technique" as an interrogation method capable of causing false confessions, and identified features of the officer's interrogation of Mr Viszlai which matched how a Reid interrogation should proceed.

Despite this, the trial judge let the jury hear former scouts' testimony and watch the video-recording of Mr Viszlai's statement. The jury convicted.

Mr Viszlai appealed.

The court agreed that police should avoid suggesting answers to witnesses during interviews.  But this complainant remembered things differently from the suggestions that the officer made.  That showed that he had independent recall.

I am not a psychologist, but I can comment on the optics in court.  If your witness doesn't remember, and you think that his memory needs jogging, it looks better if you:

• video- or audio-record any suggestions you make. Telling the witness what to say off-the-record looks underhanded.
• work from notes or recording of what the witness said in the past.  For example "your mom told police back in 1990, when you were 9, that you said 'Uncle Rocco plays penis games'".
• ask open questions. "What do you remember about showering?" Don't ask "Did he abuse you in the shower?"
• make suggestions as a last resort.
• do it sparingly.  Every suggestion that you make reduces the strength of the witness's evidence.

The same general principle applies to suspects. Don't put words in their mouths unless you have to.  But often, they don't want to tell you everything, and so you often have to.

In Oickle, the Supreme Court of Canada described which techniques are lawful in Canada, and which are not.  Some of the techniques originally taught by John Reid comply with Oickle, and others techniques, such as aggressive accusation, can amount to oppression in Canadian law. So don't oppress your suspects.  This officer made sure that Mr Viszlai got food, rest, access to counsel, and decent treatment. No oppression.

Read, understand and obey Oickle.  When defence accuse you of applying the Reid technique, you can respond that where Oickle and Reid differ, you follow Oickle.

2015.12.02 Preservation of Exhibits

Mr Neidig’s, 2015 BCCA 489 vehicle crashed. His friend Ian Shepherd was in the car, but died when his body flew from the car.
 
Who drove?
 
Another motorist found Mr Neidig walking on the road at the scene.  Mr Neidig said “My truck, what have I done to my truck?”  When asked if he was driving, at first he said he didn’t know, and then said it wasn’t him. At the hospital, when doctors checked out Mr Neidig, he had bruising on his left shoulder, as if he wore the driver’s seatbelt during the crash. Afterwards, he commented to a friend that a seatbelt “saved my fucking life”. Officers who examined  the vehicle, found stress marks on the driver’s seatbelt, as if the driver wore it during the crash.  There were no stress marks on the passenger seatbelt.
 
Three different experts photographed and examined the vehicle for evidence.  Without telling Mr Neidig, the police released the vehicle to the insurance company which eventually destroyed the vehicle.
 
At trial, the defence complained that police breached Mr Neidig’s right to full answer and defence: a defence expert testified, saying he would probably have found more evidence in the SUV if it had been preserved. Defence argued that police should have notified Mr Neidig of their plans for the vehicle, so that he could take steps to arrange an examination of the vehicle.
 
The trial judge agreed.  So did the Court of Appeal.  The trial judge was so outraged that police would destroy evidence that he stayed the case.  The Court of Appeal disagreed with that solution: instead, the trial should proceed, but the trial judge could consider that the lost evidence undermined the strength of the prosecution’s case.
 
Does this mean you must keep every possible shred of evidence forever? No.  But when you’re considering disposing of important exhibits, you should write to the suspect(s), and explain your intentions.

2015.11.30 Search Warrants - Telewarrants - "Impracticable" does not require "Urgency"

During a night-shift, Cst Marshinew finished preparing an application for a warrant to search a residence where Mr Clark, 2015 BCCA 488 lived. No justice of the peace worked in his vicinity at that time of night. Must he stay up until the morning to apply in person, or could he apply at night by telewarrant?

Defence argued that there was no urgency.  The investigative plan involved assembling the search team in the following afternoon.  Therefore, the police didn't need the warrant immediately.

The trial judge accepted the idea that telewarrants can only be granted where there is a need for the warrant to be issued before a personal application could be arranged.  The appeal court disagreed. At para 68, Frankel J.A. said:

"The telewarrant procedure was designed to make it possible for law enforcement officers to apply for a search warrant 24 hours a day, seven days a week.  Whether the application is made in-person or by fax the reasonable-grounds standard must be met before a warrant can be issued.  The impracticability-requirement is concerned with whether it is practicable to make an in-person application at the time the application is brought; it does not require that an immediate need for a warrant be demonstrated."

Do other provinces agree?  I did a brief search.

• Robinson, 2011 ONSC 1388: yes.
• Gallinger, 2012 ONCJ 600: no.
  
• Groupe TVA inc. c. Barbès, 2008 QCCS 3995: no.

Boussoulas, 2014 ONSC 5542 considered a related question: urgency may establish the impracticability of in-person warrant applications.

There are, doubtless, other decisions on the question.  If you have one which you think should be added to this list, feel free to email it to me, and I'll share it here.

What does appear in the cases which discuss the pre-requisites to telewarrants is the need for applicants to state the circumstances that make it impracticable for you to appear personally before a justice in the ITO.  That generally means explaining how you know that no judge or justice of the peace (in B.C., a "judicial justice") is not available.  Some provincial courts like BC issued directives from which you can quote when explaining why a Justice is not available to hear your application in person.

2015.11.30 Search Warrant applications - Note your Conversation with the Justice

When Cst Marshinew first applied for a telewarrant to search a residence where Mr Clark, 2015 BCCA 488 lived, he forgot to explain how he knew that no judge was available.  The justice to whom he applied talked with him, and explained what was missing from the application.

So he fixed it, and re-submitted his application.

Was it proper for the justice to talk with the officer about the application? Defence said it looked like bias. The appeal court disagreed.

Talking with a justice about the application does raise a legal concern.  The ITO should spell out everything you tell the justice.  A conversation with the justice after you draft your ITO suggests that the ITO could omit something the justice relied on to issue the warrant.

It appears that Cst Marshinew took notes of the conversation, so that he could explain all that they discussed.

That was a good idea.

When applying for judicial authorization:

• avoid discussing the evidence supporting the application with the issuing judge or justice
• take detailed notes of any discussion that does occur
• if you must explain any of the evidence beyond what you wrote in your ITO, then write the additional information onto the ITO and swear it to be true, before the judge or justice.

2015.11.23 Note-taking and Record-Keeping

Daylight savings time creates confusion. The clocks change. Sleeping patterns change. It's easy to get sloppy.

Around daylight savings time, the officers involved in the investigation of Mr Thompson, 2015 ONCA 800 screwed up their record-keeping.

A tipster said Mr Thompson dealt drugs from a fast food restaurant. Police arrested Mr Thompson's cousin, who emerged from the restaurant, and found drugs. They got a warrant and busted Mr Thompson. At trial, two stories emerged.

On the police version, the cousin had drugs on his person when he emerged from the restaurant.  That information justified the issuance of a search warrant.  But the ITO went on to say that the cousin told the police that he got the drugs from Thompson.

The cousin said that there were no drugs on his person. Heck, the police didn't arrest him when he emerged from the restaurant but after he went home.

Defence got really excited about failings in the officers' documentation.

• One set of documents suggested that the police released the cousin before they arrested him.  (The officer explained that for the later time, he relied upon a clock which had not been adjusted for daylight savings time.)
• If the cousin fingered Mr Thompson on arrest, no officer wrote it down.
• The officer who wrote the ITO admitted that he may have "cut and pasted" that remark into his ITO from some other investigation.

Although Mr Thompson's conviction stood, this case reminds us that you can avoid embarassment by:

• synchronizing timepieces when Daylight savings time starts and stops.  (Don't forget your cameras.)
• taking notes of conversation which occurs during arrests.
• using copy and paste most carefully when preparing ITOs. (It's one of the biggest sources of problems.)
• checking your ITOs for accuracy before you swear them.

2015.11.23 "Statutory Rape" - s.150.1 survives constitutional scrutiny

Mr A.B., 2015 ONCA 803 met Miss MB at a dance studio when he was 17 and she was 11. They danced well together for 4 years. After they left the studio, they started dating.  He was 21 and she was 15.  She asked him for sex; at first, he resisted, then he relented. Her mom died.  Her dad started seeing someone new.  She moved out.  Mr A.B. impregnated her. She had an abortion, which caused her an emotional breakdown.  Authorities investigated, and he was charged with sexual assault.

Obviously, she consented: sex was her idea.  Section 150.1 of the Criminal Code removed consent as a defence because of the age difference between them.

The trial judge acquitted him, because he felt that s.150.1 went too far in criminalizing this relationship. The prosecutor appealed, and got a conviction.  He appealed.  The Ontario Court of Appeal upheld the conviction.  Even if the child wanted the sex, the adult must not engage. Children are too vulnerable. The legislation is constitutional.

Did Mr AB go to jail? No. The trial judge discharged him after conviction.

But this reminds us that adults having consensual sex with kids under 16 are - if the age difference exceeds 5 years - committing a crime in Canada.  For kids under 14, an age difference of 2 years of more renders the sex a crime.

2015.11.13 Detention or Conversation - Formally Describing Casual Encounters

At 3:00am, a police officer in a cruiser rolled down the window and addressed a pedestrian on the street.  The officer asked him his name, and his date of birth. Adrian Poole, 2015 BCCA 464 told them who he was.

The computer system told the officers that a judge or justice had issued a warrant for Mr Poole. The officer and his partner arrested him. That's when they found the loaded handgun concealed in his waistband.

It was cocked and ready to fire.

At his trial, Mr Poole complained that the police officers detained him, and they should have told him about his rights to counsel.  The two police officers had to account very precisely for a conversation which started in the most casual way.  Unsurprisingly, everyone remembered the conversation a bit differently. Especially Mr Poole. He assured the trial judge that the officers told him "stop".

The trial judge didn't believe Mr Poole.  It would have been easier if the two officers had recounted the conversation more precisely.

Because you may be called upon to provide precise accounts of banal conversations, your record-keeping matters. Finding a loaded handgun in someone's pants provides you a big clue that it's time to take out your notebook, and write what occurred before you discovered it. Recording devices in cruisers can record enormous quantities of banal material ... and some crucial stuff.

Mr Poole's arguments didn't impress the appeal judges either. If you address a suspicious person in a public place, you can trigger a detention - or not - depending upon what you say and how you behave. A fellow might reasonably believe that he's detained if you say "Stop right there. Keep your hands where I can see them." But he may well feel quite differently if you address him: "Hey buddy, I don't think I've met you here before.  What's your name?"

2015.11.07 Informants - Reliability

Someone told police that Ms Nguyen, 2015 ONCA 753 sold pot. Police arrested her, and found her in possession of plenty of pot.

At trial, the defence complained that the police should have been more suspicious of the tipster: The tipster's past tips resulted in drug-related arrests, but did those arrests result in convictions?

The court dismissed this concern: it takes a long time for some tips to result in convictions. Police should not wait that long before relying on the tipster's next tip.

But you should be careful of acquittals.  Courts don't like that kind of information. You should check to see if arrests based on your tipster's tips resulted in acquittals.  And you should reveal that information when applying for a warrant.

2015.11.07 Facebook Evidence

I just read the case of R. v. Luceno, 2015 ONCA 759.

A 25-year-old guy met a 13-year-old girl over Facebook.  They met and had sex.

Their Facebook profiles might have contained some useful evidence.

It's an offence for someone that old to have sex with someone that young. But it's not an offence if he took reasonable steps to learn her age.  Both said the other lied about his or her age. Did his profile say he was 18 or 19, in the hope of attracting younger girls?  Did hers claim she was 19?

Many questions could have been answered by capturing their Facebook profiles and messages.  She deleted hers.

Other complainants might not delete theirs. Ask for their consent to preserve evidence from Facebook. You want:

• complainant's profile - so that you can see what the complainant showed the suspect;
• all their communications with the suspect - so that you can see the whole relationship develop
• suspect's profile - so that you can see what the suspect advertized about himself.

As it turned out, in this case none of this information mattered much.  The accused denied having sex with the complainant, and the judge didn't believe him.

2015.11.03 Search and Seizure - Automobile Crash Data Recorders

The law around the searching of data recording devices in automobiles remains confused.

Last year around this time, I wrote about Hamilton, 2014 ONSC 447 and Fedan, 2014 BCSC 1716.  In Ontario, police need warrants to obtain the data from these devices.  B.C. officers do not.

There's another Ontario decision which affirms that Ontario police need warrants: Glenfield, 2015 ONSC 1304.  For the rest of you, I know of no developments.

As a rule of thumb, the more data that the devices contain, the more likely you're gonna need a warrant.

2015.11.03 Impaired Driving - Breath Demands - "Are You Gonna Blow?"

After you demand that a drunk driver provide you a breath sample, don't give him a choice whether or not to blow. Act like the driver will provide a sample until he makes it absolutely clear he won't. The idea of refusing to blow should come from the driver, not you.

Mr Bagherli, 2014 MBCA 105 crashed his car and ran away before police arrived. They found and arrested him.  He told the officers he wanted legal advice.  An officer made a breath demand:

"I demand you provide samples of your breath necessary to determine the concentration, if any, of alcohol and to accompany me for that purpose.  Should you refuse this demand, you will be charged with the offence of refusal.  Will you provide samples of your breath?"

He replied: "No".

Thereafter, he never blew.  Nor did he talk to a lawyer - he kept passing out.

At trial, he beat the charge of refusing to provide a breath sample.  The problem arose with the emphasized words.  Those words elicited evidence from Mr Bagherli after his arrest, but before he had an opportunity to exercise his right to counsel.

To be clear, when you read a screening device demand, the driver must provide breath samples forthwith. No right to talk to a lawyer unless your screening device isn't ready within minutes.

When you read a breath (or blood) demand, you must hold off eliciting evidence until the driver exercises or waives the right to counsel. Don't go asking whether the driver will blow.  If the driver wants a lawyer, then you're eliciting evidence before the driver gets legal advice.  And even if the driver doesn't want a lawyer, it suggests to the driver that he has a choice.  The idea of refusing to blow shouldn't come from you.

2015.10.25 Exigent Circumstances

What circumstances justify freezing a residence?

Confidential sources told police that Mr Nguyen sold cocaine wholesale to a drug dealer named Shae Hunter, 2015 BCCA 428. They watched Mr Hunter visit local known dealers and members of a criminal gang. They understood that Mr Hunter would soon "reload". They saw a Mr Pham visit his house carrying a duffel bag, and leave only minutes later. There were other people at home.  When they arrested Pham at the Nanaimo ferry terminal, they found $50,000 in cash in the duffel bag.  This, their observations and the source information led them to believe Mr Hunter just bought lots of cocaine.

They also feared that someone might have observed the arrest, and tipped off Mr Hunter, who would then hide his drugs.  So without a warrant, they entered and cleared his place of people, relying on s.11(7) of the Controlled Drugs and Substances Act.  Once they had the scene under control, they got a warrant and found the drugs.

That section authorizes police to search for drugs in residences, without a warrant, if they have

• exigent circumstances, and
• sufficient grounds to justify a warrant.

Defence argued:

1. even after the arrest of Pham the police lacked sufficient grounds to search Mr Hunter's house;
2. the police created the crisis by arresting the guy with the duffel bag in a public place. They didn't need to.  They could have waited and arrested him somewhere else more private.
3. the officers had sufficient grounds to get a warrant before they arrested Pham. They should have applied for the warrant before arresting him.

(Doubtless you noticed the conflict between (1) and (3)).

The judges accepted none of these arguments, but they spent some time thinking about the second one.

Judges restrict your use of "exigent circumstances" powers. You can't create exigent circumstances as an excuse for avoiding judicial pre-authorization. But these officers had no control over the location and timing of Mr Pham's arrest.  He was about to board a ferry, and leave the area. Mr Pham forced their hand. The money proved their suspicions. Police did not know whether Pham or Hunter had accomplices who might have observed the arrest and tipped off Hunter.  The officers had to act.

If you can control the situation, you can get a warrant before you search.  If you can't control the situation, then you can act before asking for judicial permission... if you have reasonable grounds.  Follow the example of this team.  If you rely on exigent circumstances to justify a search without judicial authorization, search no more than is necessary to end the emergency.  These officers cleared the house of people.  Once you have things under control, post a guard and get your warrant.

2015.10.17 Impaired driving - Breath Techs

I just ran across a decision from January of this year.  I think that qualified breath technicians should know about it.

What makes you a breath tech? After your course, you received a certificate which says you know how to operate the instrument. When testifying, you might get asked who designated you to be a qualified technician. That's what happened to the breath tech in R v Lange, 2015 SKQB 15.  He said that the national breath tech coordinator signed his certificate.

Unfortunately, s.254(1) defines a breath technician as:

"...a person designated by the Attorney General as being qualified to operate an approved instrument"

Because the technician testified that somebody other than the Attorney General did the designating, the court found that it could not rely on the breath tech's certificate of analysis.  Mr Lange beat the charge.

The legal issue was not whether the technician knew how to operate the instrument properly.  The national breath tech coordinator doubtless taught him well.  The legal question was whether the Attorney-General had designated him as a "qualified technician".

Quite probably, the Attorney General did make that designation.  But the technician didn't know how to say it.  Check your own documents.  If someone asks you who taught you how to operate the instrument, then tell them about the expert who taught you.  If someone asks you who designated you as a qualified technician, then tell them about the name of the Minister who designated you.

2015.10.17 Impaired Driving - British Columbia's Administrative Roadside Prohibition Programme

In B.C., police officers process most drunk drivers under provincial legislation instead of the Criminal Code. The penalties are immediate, expensive and inconvenient.

Yesterday, in Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, the Supreme Court of Canada found that the original version of BC's immediate roadside prohibition programme violated s.8 of the Charter by reason that a single screening of a driver's breath risked imposing serious consequences without sufficient safeguards against error. Screening devices can give false results, depending upon calibration or mouth alcohol.

But in 2012, the legislation changed, requiring officers to give the driver a second chance with a different screening device. The changes also expanded the driver's opportunity to challenge the prohibition by way of an administrative review. The court hinted pretty strongly that the new regime would pass constitutional muster.

The appellants challenged the administrative regime by pointing out that it has virtually replaced the Criminal Code provisions in B.C.. A majority of the judges replied: "A provincial enactment that allows police to make a discretionary decision about whether to enforce the Criminal Code or the MVA in particular circumstances is not one that 'compromise[s] the proper functioning of the Criminal Code'".

This means B.C. police can use their good sense to determine when to proceed by way of a criminal investigation, and when to solve the case by way of an administrative prohibition.

Use this discretion for the protection of the public.  Administrative prohibitions are easy. Effective criminal investigation of impaired drivers is difficult. Check the history of the driver you're investigating. If past administrative measures failed to deter him, then perhaps its time to try criminal measures instead.  B.C. officers should practice their criminal investigation skills, lest they forget what to do to investigate a fatality caused by an impaired driver.

The court rejected another challenge to the legislation. Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47. Under s. 215.41(3.1) of the act a police officer may inflict a roadside prohibition on a driver only if the officer has:

"reasonable grounds to believe, as a result of the analysis, that the driver’s ability to drive is affected by alcohol".

That means you need to know:

1. the screening device worked properly;
2. it did not give a falsely high result by reason of a burp or a recent drink; and
3. the "warn" or "fail" result means that the driver's ability to drive is "affected by alcohol".

Mr Wilson argued that police officers should require independent evidence confirming that alcohol affected the driver before they can prohibit a driver.  The court rejected this idea.

But the court agreed that the screening device does not decide a prohibition.

Be clear about this: You should never prohibit a driver because they blew a fail or a warn.  You should only prohibit a driver if the fail or warn caused you to believe that alcohol "affected" the driver's ability to drive.

The legislation requires you to think for yourself.

The screening device does not know whether it was calibrated properly, nor whether that calibration was recent.  But you can find out.  The screening device does not know whether the driver recently burped.  But you can watch for this.  The screening device does not know what a "warn" or "fail" tells you about a driver's ability to drive. But during your training, you should have learned from toxicologists what those results mean.  If you don't remember, then before you do another roadside prohibition, go back to your materials and find out.

2015.10.15 Strip Search at the Scene of Arrest

Police searched Mr Parchment, 2015 BCCA 417 at a residence during a drug raid.  They found drugs in a baggie attached to his penis by a rubber band.

Mr Parchment complained that police should not do strip-searches in the field without good reason. That's what the Supreme Court of Canada said in Golden, 2001 SCC 83. Therefore the drugs should be excluded.

The judges agreed with Mr Parchment that the officers needed good reason, but in this particular case, the officers had sufficient reason, and furthermore, they followed the appropriate steps.

What were the reasons? What were the steps?

The officers burst into the house - I guess they had good reason before they got there to fear that evidence would be destroyed if they knocked and announced.

They saw Mr Parchment toss something to the floor near a refrigerator. Under the fridge they found rock cocaine. They patted him down, and found two knives in his clothing. He wore two trousers.  They removed the outer one. They laid him on the floor, where he squirmed in an odd manner. A supervising officer authorized a further search. Male officers stood him up, and took him to another room where the other occupants of the house could not watch. An officer patted him down again, and felt something hard in his groin area. The officer pulled the waist of his trousers away from his body, and looked down. Mr Parchment wore no underpants; and the officer could see the baggie.  The officers pulled his pants to his knees, removed the baggie, and dressed him again. They couldn't remember whether they put on fresh gloves to search him.

In Golden, the court adopted an English test to determine when a strip-search is appropriate in the field:

1. Can the strip search be conducted at the police station and, if not, why not?
2. Will the strip search be conducted in a manner that ensures the health and safety of all involved?
3. Will the strip search be authorized by a police officer acting in a supervisory capacity?
4. Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched?
5. Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances?
6. What is the minimum of force necessary to conduct the strip search?
7. Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search?
8. Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time?
9. Will the strip search involve only a visual inspection of the arrestee's genital and anal areas without any physical contact?
10. If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional?
11. Will a proper record be kept of the reasons for and the manner in which the strip search was conducted?

If you supervise other officers, you might find it useful to compare this checklist against what the officers did in this case. I found four points on this checklist on which these officers were vulnerable to criticism. Read the decision. See what you think.

If you need to strip-search in the field, follow the checklist. How will you remember it? Well, the exercise I suggest might help.

Mr Parchment testified that the search was done improperly, and without good cause. These judges didn't believe him. But in your next case, your suspect may present better than him. Number 11 matters. After the bustle and excitement of a search, everyone should take detailed notes of what happened and what they saw.

2015.10.09 Detention - Triggering s.10

Ms Wong, 2015 ONCA 657, a 26-year-old university graduate, called police to report the theft of her car.  An officer attended her apartment. She invited him in. It smelled of marijuana. In the kitchen, the officer saw some “Zigzag” cigarette papers and a digital scale on the counter. He suspected drugs. He asked her for insurance documents and other documents relating to the car.  She moved to the den, where he saw "two tin boxes with drug markings, rolling papers and metal screen filters that he knew were commonly used to smoke marijuana". He started asking questions about drugs.  He told her she didn't have to answer his questions.

He picked up a box, sniffed it, and said "I smell marijuana, what's up with that?" She said it was her boyfriends, and she did not know what it was.  The officer asked "Well, okay, I can go with that. What else is here that’s not yours, that’s your boyfriend’s?"

She pointed to a drawer, and opened it. It held bags of marijuana.

He cautioned her again on her right to silence, and kept asking questions.  She told him she was scared.  He told her: “I believe you’re not a bad person, so if you cooperate with me I’m sure you’ll be fine, but if you lie to me and I find out, you’ll be in trouble.” she led him to the bedroom and pointed out a black duffel bag, which he opened.  It contained lots of drugs.  Police later got a warrant and found drugs, guns and id.

The trial judge sentenced her to 6 years. I don't know if she recovered her car.

Ms Wong appealed. She complained that before she showed the officer any drugs, he had detained her. And because he did that without telling her that she could get legal advice, all the evidence should be excluded.

The appeal court agreed. She beat the rap.

The court did not say "asking questions triggers detentions".  Asking questions can trigger detentions.  The test is whether "a reasonable person in her situation would conclude that she no longer had the freedom to choose whether or not to cooperate with the police."

I think you may find reading this case challenging and instructive.  It's worth debating with your peers how this officer might have handled the two investigations without breaching the Charter.

2015.10.07 Alternate Suspect

Somebody robbed a bank.  And the next day, someone looking just like him, and wearing the same clothes, robbed another bank. This time he presented a demand note. The hoodie and the sunglasses he wore made identifying the robber difficult.  But just after the second robbery, police found a matching hoodie in a nearby garbage bin, along with a written demand "have gun give me all money".

The officer who first examined the sweatshirt did not record finding anything interesting in the pockets.

An investigator thought that the robber looked like Victor Wolynec, 2015 ONCA 656. He asked Mr Wolynec's parole officer to look at the bank security video stills. The parole officer said the robber looked like Brian Bush.  The investigator did nothing to investigate Mr Bush's whereabouts at the time of the robbery. Instead, he pursued the idea that Wolynec was the robber. A different parole officer looked at stills from the security video, and concluded that the robber was Wolynec.

The investigative team sent the hoodie to the forensic lab to see if they could get DNA from it.  By luck, the forensic lab found a crumpled tissue containing Wolynec's DNA inside a pocket.

Defence pointed out that the investigator had tunnel vision.  He did not accept any evidence which disagreed with his theory.  Defence suggested that the investigator was so biased against Wolynec that the investigator planted the DNA-laden tissue into the pocket of the hoodie before sending it to the lab. What gave that theory credibility was that the police could not fully account for the continuity of the sweatshirt from seizure to analysis at the DNA lab.

The trial judge did not like the investigator who ignored evidence of an alternate suspect. 

The DNA evidence did persuade the trial judge of Mr Wolynec's guilt.  The appeal court agreed.

Lessons for police officers in this case include:

• Even if you believe you know who did the crime, investigate the alternate suspect.  This proves your objectivity.  Clearing the alternate suspect strengthens the case against the prime suspect.  And sometimes, the alternate suspect is the real felon.  Catching the real felon prevents wrongful conviction, like what happened to Thomas Sophonow.
• When you examine seized exhibits, even trivial contents, such as snotty tissues can be important. Look carefully. Note what you find.
• Documenting who handled which exhibit when takes time and rarely matters; but when it matters, it matters a great deal. Follow protocols for recording and tracking exhibits.

2015.10.02 Traffic Stop off the Highway

When investigating motor vehicle safety, you don't need reasonable grounds to suspect that a driver committed an offence before you can pull the driver over.  But the legislation empowers you to do that only on "highways".

But what about private property? The Saskatchewan Traffic Safety Act did not authorize police to stop a vehicle in a pub parking lot for the purpose of checking whether the driver had a licence and insurance. Lux, 2012 SKCA 129.

What if you see the vehicle driving on a public road, and then it pulls into a parking lot? According to the Ontario Superior Court of Justice, in R. v. Heer, [2013] O.J. No. 6432, 2013 ONSC 7257, Ontario police can still investigate traffic safety issues on a parking lot even without grounds to suspect an offence, so long as they saw driving on a highway, and decided to pull the driver over before the driver reached the parking lot.

Your mileage may vary. The relevant legislation varies from province to province to province. In B.C., a mall parking lot is a "highway".  Cyr v. Koster, 2001 BCSC 1459.  In Ontario, a restaurant parking lot is not. Tresham, 1998 CanLII 14756.

I did not provide a link to R. v. Heer because it's not available on any free websites.  I asked CanLII to add it to their database. I hope they will.

2015.09.29 Right to Counsel - Uncertain Suspects

When you arrest or detain someone, you must tell them that they can retain and instruct counsel. When you ask them what they want to do, some answer ambiguously. That's a trap for you.

For example, when asked if he wanted a lawyer, Mr Wydenes 1999 BCCA 202 said “No, I guess not.  I don’t know.”  The court found that triggered a duty on the officer to inquire further.

Mr Owens, 2015 ONCA 652 said "No, not right now."  Many Ontario provincial court judges held that required the officer to read the secondary Charter warning.  Yesterday, the Ontario Court of Appeal straightened them out. The obligation to read the secondary Charter warning arises when a prisoner suggests that he wants to talk to a lawyer and then appears to change his mind.

Mr Bishop, 2013 BCSC 522 also said "not right now".  The BC judge came to the same conclusion as in Owens.

Although you arrest people routinely, many of the people you arrest find the process unfamiliar.  They may respond hesitantly. Know that judges will scrutinize this interaction carefully.  Therefore listen to what your prisoner says, and react to what they say.

• "Not right now" suggests that the prisoner may change his mind.  Perhaps you should respond "okay, let me know if you do feel like talking to a lawyer, and we'll make that happen".
• "I don't know" suggests a lack of comprehension.  Perhaps you should explain again the availability of immediate legal advice.

Usually, you arrest people and then take them to the police station. I think you should always ask again about access to counsel when you reach the police station.  It gives the suspect an opportunity to think about his/her situation, and it shows good faith on your part.  Always makes notes of this second interaction.

2015.09.22 Search and Seizure - Warrant Drafting - "Step Six" review at trial

Confidential informants told police that "Jen" Crevier, 2015 ONCA 619 ran with a bad crowd, trafficked drugs and possessed firearms in a one-bedroom apartment in Toronto. Police officers drafted an application for a warrant which explained the sources' information, along with what the police knew about the sources, and what other information they had which matched what the sources said. A justice granted a search warrant. Police who executed it found drugs and guns in the apartment.

In order to give Ms Crevier full answer and defence at trial, the prosecution provided defence with copies of the applications, with redactions to prevent Ms Crevier (or anyone else) from figuring out who informed on her. But the remaining information did not sufficiently explain why the justice could have granted the warrant.

The defence challenged the warrant.  Ordinarily, in such a challenge, the trial judge sees only the material which the defence received. But this time, the disclosed information could not support a warrant. The prosecution gave the judge the original application, and summaries of the redacted material.  The summaries identified the kinds of material in the redactions, without identifying the confidential sources. The trial judge checked those summaries against the redacted material to ensure they were accurate, and then gave the summaries to defence.

Defence didn't like the idea of the judge deciding their challenge to the warrant based on information they could not see. But because those summaries sufficiently equipped the defence to probe the weaknesses of the application, the judge could then look at the original material without redaction.  That material persuaded the judge that the warrant could properly have been granted. The judges in the appeal court approved of the procedure and agreed that the warrant properly issued.

The Supreme Court of Canada proposed this complicated procedure in the case of Garofoli, [1990] 2 SCR 1421 (SCC) as the last of a six step process for examining judicial authorizations. Few prosecutions tried "step 6" until recently. This decision re-affirms the procedure.

This means when drafting applications for warrants or wiretap, you must:

• recount accurately and fully the information you receive from sources, whether or not you intend to redact it;
• include all the information you know about the credibility of your source(s).

You should structure what you write in expectation the trial process will involve redaction and disclosure to defence. This link illustrates some concepts, but I provide it only to demonstrate structure, not as a precedent.  Don't copy and paste from it into your applications.

2015.09.21 Prisoner Privacy redux

If your cell block contains cameras which view and record prisoners using the toilet, consider making changes now. Several Ontario judges found that those setups violate s.8 Charter rights.  Mok, 2015 ONCA 608

2015.09.07 Facebook Identification

Mr Emam stood outside a nightclub with a friend, when a stranger shot his friend to death.  Two days later, he was recounting what happened to another friend when that friend showed him some Facebook pictures, and pointed out the face of Mr Mohamed, 2014 ABCA 398. Mr Emam recognized him as the shooter.

Pretty good lead.  Pretty crappy lineup.

The investigators didn't just take Mr Emam and his friend at their words.  The investigators made a point of downloading the Facebook pages which Mr Emam saw.  Not just the image of the suspect, but all the photos that Mr Emam saw during this informal identification process.

Defence unsuccessfully argued that this identification procedure was so flawed that it should not be admitted into evidence. I suspect that part of the reason they failed was that the witnesses could show other faces that Mr Emam saw on Facebook before identifying Mr Mohamed. That identification evidence combined with other evidence (Mr Mohamed had a dispute with the deceased), led to Mr Mohamed's conviction.

Where evidence comes from Facebook, get screen dumps of the crucial evidence immediately.  But don't just get the information.  Try to get the remaining context.

This decision came down last year. I'm sorry that I didn't notice it until now.

2015.09.06 Authenticating Exhibits - What Made this Video and When? Who Downloaded it?

How hard is it to get a conviction for assault if you have a video of the attack?

Pretty hard, if you can't prove the authenticity of the video.

Mr Bulldog, Mr Geiser and Mr Joe, 2015 ABCA 251 attacked Mr Keepness. They did it in a jail, where security cameras recorded the whole thing. Being a "good" con, Mr Keepness refused to testify.

You might think that the video proves the case. But exhibits prove nothing until people testify about them.

For example, suppose you find a cardboard box labelled "moon rocks" on your desk.  You look inside and see rocks.  Do you believe that they came from the moon?

Only if you're gullible.

Suppose instead, Buzz Aldrin gives you a box containing rocks, and says "I collected these on the moon. Take a look." Those rocks became more interesting because personal testimony authenticated them.

Judges want the same thing: testimony which explains the exhibit.

The investigators in this case made the same mistake investigators make all over the country. They took no time to establish who downloaded the video. (The prosecutor also made a mistake by failing to ask the guards whether the video accurately recorded what occurred. Lucky for them, the witnesses provided just enough evidence that the judge could infer that the video was authentic.)

It would have been much easier if the person who downloaded the video testified about it.

Avoid this mistake. When collecting a security video, don't expect that the video will testify for itself. Identify who downloaded it from the security system.  That person should make notes about what they give you, in case they must testify.

And check the date and time settings on the system, if you possibly can. People often forget to check the settings, especially when the clocks change in the spring and fall.

2015.09.05 Exigent Circumstances Search - Freeze the Scene or Apply for a Warrant?

A good confidential source told police that "TJ", a gangster, just got out of jail, and was moving lots of cocaine into town. He told them where "TJ" lived and what car he drove. "TJ" appeared to be Mr Kim, 2015 ABCA 274, a gangster with a record for trafficking, who just got out of jail and drove that car. Police officers watched Mr Kim meet someone for 30 seconds in a dark spot behind a gas station. They saw more suspicious activity with friends at a restaurant.  They arrested Mr Kim and some of his friends.  One of the group (not Mr Kim) possessed 7 rocks of cocaine wrapped in cellophane.

Next officers rushed to his house.  The lights were on, but nobody answered the door.  Without a warrant, they entered it, and searched for people. They found none, but noticed a drug scale and lots of cash. Officers stood guard at the door, while others applied for a search warrant. When it arrived, they searched more carefully and found more cocaine and more cash.

Mr Kim complained that the police violated his rights by entering his house without a warrant. The officers explained that they had reason to fear that someone inside the house might destroy evidence before they had time to get the warrant. Some of their reasons included:

1. The source described large quantities of cocaine; but the officers seized only a little.
2. The arrest occurred where friends of Mr Kim could see.  A friend might call his home and tell occupants there to destroy evidence before police arrived.
3. The lights were on, suggesting that someone might be home.

Mr Kim accused the police of creating an avoidable emergency. Police should no be allowed to circumvent the obligation to get a warrant by manufacturing exigent circumstances.

The court sided with police this time:the officers didn't know what they would see until they watched Mr Kim.

If you have real concerns that evidence will be destroyed if you don't freeze the scene, then you may - without a warrant - enter a residence to preserve the evidence. In CDSA cases, you rely on s.11(7) of the Controlled Drugs and Substances Act.  In criminal cases, you rely on s.487.11 of the Criminal Code.

But don't manufacture unnecessary emergencies. Apply for your search warrant in advance, if you can.

2015.09.05 Warrant Drafting - Full, Fair and Frank

The officer who drafted the application for a warrant to search Mr Kim's house failed to mention that Mr Kim possessed no drugs when arrested.

The trial judge didn't like that.  Nor did the appeal judges.

An application for a search warrant resembles a trial. The justice reviews evidence, and then makes a decision.  If you don't tell the justice both sides of the story, then the justice may reach the wrong conclusion.  If you possess evidence suggesting that the drugs aren't there

If you know of evidence which suggests that the warrant should not issue,

2015.09.05 Documenting your Search

Mr Dhillon 2015 BCCA 375 drove a truck through the border.  A compartment contained 30 bricks of cocaine worth $1.5 million. Defence suggested that Mr Dhillon might not have known of the drugs because someone could have opened a panel in the roof, and dropped the cocaine into the compartment.

Someone took good pictures. Those pictures showed the cocaine neatly stacked, which would be impossible from the roof.  Mr Dhillon was convicted and the conviction stuck.

If you find something interesting, photograph it before you move it.  And write notes in case the photos don't turn out.

2015.08.29 Report to a Justice - Redux

The Ontario Court of Appeal reminds us again that you violate Constitutional rights when you fail to report to a justice what you seized.  United States v. Mathurin, 2015 ONCA 581

2015.08.28 Expectation of Privacy - Fraudulently obtained Internet Service

Mr Feltham signed up for internet service.  Mr Caza, 2015 BCCA 374 fraudlently took over his account, and used the service himself to download child pornography. Police officers noticed his activity, and asked his internet provider, Shaw, for subscriber information. Shaw gave them personal information which led them to Mr Caza.  Mr Caza complained this breached his reasonable expectation of privacy, citing Spencer, 2014 SCC 43.

The court found that he had no reasonable expectation of privacy because he obtained the internet service by fraud.

This resembles the argument that a car thief can't complain that you violated his privacy by searching his car, because it's not his car.

The difference between cars and internet service is that you can't usually tell whether your target is fraudulently using internet service.  The investigators were lucky that time.  Post Spencer, you mostly need to get subscriber information by way of the new production orders.

2015.08.26 Writing - Warrant drafting  - Active Voice

Police work involves writing. Some prosecutions stand or fall on the quality of police drafting. Writing well can make the difference between success and failure.

A confidential informant told his/her handler that "Marvin" (later identified as Michael Green, 2015 ONCA 579) packed a pistol. Another officer drafted an application for a warrant. Confidential informants won't talk if they think that their identities will be discovered.  The drafter wisely separated the source's information into material he thought would not tend to reveal the source's identity (Appendix B), and the highly specific material from which Mr Green might identify who ratted him out (Appendix C).

The warrant issued, and police busted Mr Green with drugs and a loaded semi-automatic pistol.

When it came to trial, the defence challenged the warrant: did the appendices really convey enough information to justify issuing the warrant? To protect the source, the prosecution could only rely on Appendix B - and even it needed some redacting.

Just to be clear, when you apply for a warrant application must convince the justice that he or she should grant the warrant. The justice reads everything, in private. Later, at public trial, a judge reviews only the redacted material, but asks a different question: Could a justice lawfully issue the warrant based only on this (redacted) material?

The trial judge and the appeal judges examined only what the officer wrote in Appendix B. Because of how the officer wrote it, they nearly agreed with the defence. Judges distinguish between personal observation and gossip on the street. Try reading what the officer wrote, and ask yourself, "Does it tell you how the source knew that the target had a gun?

On January 11th, 2008, I spoke to Constable SILLS #2830 who received information from a confidential informant indicating that a male named “Marvin”, who was later identified as Michael GREEN  October 10th, 1957, was in possession of a semi automatic handgun at his residence located at 189 Queen Street East in the City of Brampton.
...
Michael GREEN was observed to be in possession of a semi-automatic handgun within the residence of 189 Queen Street East in the City of Brampton.

Who observed Green holding the gun?   Perhaps the confidential source repeated street gossip. By writing in the passive voice (italicized in the quotation) the officer omitted crucial information. And if that were all he wrote, the warrant would have fallen.

Later in Appendix B, the writer mentioned as an afterthought:

The C/I has [redacted] seen Michael GREEN in possession of a semi-automatic handgun.

Apparently, the source saw the gun in Green's possession after all. This information saved the case.

I find police write in the passive voice too often. Just yesterday, I reviewed a file in which an officer wrote that the contraband "was found" in the offender's possession, instead of identifying which officer found it. Because it appeared in a CSO breach report, that one poorly drafted sentence could have scuttled the prosecution. Just like the Green case.

Avoiding the passive voice takes practice. Try it. You may write better as a result.

2015.08.25 Search & Seizure - Standing - Privacy of Text Messages

Here's another cell phone case for the Supreme Court of Canada.

Police stopped Manjit Guray's vehicle, asked some questions, searched his trunk, and then arrested him for possession of drugs for the purposes of trafficking.  The trial judge found that they lacked reasonable grounds.  The officers then searched Mr Guray's cell phone, and found text messages which suggested that Mr Guray was about to complete a drug deal.  The officers continued the text message conversation, which led them to arrest Mr Pelucco, 2015 BCCA 370 and search his house.  Among other things, they found a kilo of cocaine in his car and 280 grams of heroin in his house.

Mr Pelucco complained that the police violated his privacy by unlawfully reading his text messages on Mr Guray's phone.  The prosecutor argued that Mr Pelucco doesn't have a right of privacy in someone else's phone.

Because the search occurred in the course an unlawful arrest, the trial judge agreed that Mr Pelucco enjoyed a reasonable expectation of privacy over his text messages in Mr Guray's phone.  So did two of the three appeal court judges.  But because one judge disagreed, the Federal Crown has a right (if it wants) to ask the Supreme Court of Canada to hear an appeal.

The lesson for police is to avoiding building your investigations based upon Charter breaches and standing arguments. Obey the law. If Mr Guray's initial arrest had been found lawful, Mr Pelucco wouldn't have a leg to stand on.

2015.08.22 Judicial Pre-Authorization - Hard Entries  - Uncertainty in the Law

A confidential source told police that Mr Al-Amiri, 2015 NLCA 37 and an associate trafficked drugs from their residence. An officer wrote to Canada Post asking them to look out for suspicious packages addressed to that home. A postal official noticed one that turned out to contain 15,300 ecstasy pills. The officers took all but three of the pills from the package, and installed a tracking device and an alarm which would alert police when the recipient opened the package. They sought a general warrant to permit the police to enter the residence and freeze the scene when the occupant(s) opened the package.  They didn't tell the issuing judge that they planned a "hard" entry.

The trial judge hated the warrant and its execution. 2013 CanLII 22340

He found a multitude of flaws, including:

• the source information was dated and unconfirmed
• the police should have mentioned that Al-Amiri had no criminal record
• the police should have sought permission to enter without knocking
• the "hard" entry violated Mr Al-Amiri's right to bodily integrity

The appeal court disagreed with all of these conclusions.

Like the trial judge, some police officers out there still think you need judicial pre-authorization for hard entries. As the appeal court explained, you don't need pre-authorization, but you do need good information in advance of the entry that suggests that you should omit the "knock and announce" required in normal searches.

The Canadian criminal justice system suffers an irreparable flaw - it relies entirely upon human beings. Police officers, lawyers and judges can all make mistakes. I'm human too. What you read on this website may also contain errors (though I try to avoid it).

Part of understanding "the law" means understanding that the latest decision from a trial judge - or even a court of appeal - must be respected.  But it isn't necessarily the last word. On contentious issues, the common law gropes its way dimly towards justice. And as this case shows, even settled questions may arise again.

2015.08.22 Right to Counsel in Impaired Driving Investigations - A Delicate Balance

After you demand that a suspected drunk driver provide breath samples, you must obtain those breath samples "as soon as practicable".  No wasting time.

You must also inform the driver of his or her right to get legal advice, and facilitate access before taking those breath samples. And if a driver asserts that he wants legal advice, and then changes his mind, you must give him the secondary Charter warning, making it clear that you will hold off eliciting evidence until he gets a reasonable opportunity to get legal advice.

Did Mr Swaine, 2014 ONSC 7049 want legal advice before he blew? The officer who first dealt with him made an unclear note about what he said. Then Mr Swaine waffled. He wasted time. He gave no clear answer. Then he said "You know what? … fuck it" He then provided breath samples without complaint.  At trial, Mr Swaine remembered telling the police that he wanted to speak to a lawyer. 

Ambiguity ruined this case. The trial judge found that Mr Swaine waived his right to counsel.  The appeal court disagreed.

If the officer had spent time explaining the secondary Charter warning to Mr Swaine, then at trial Mr Swaine might have remembered wanting to get the breath test done promptly, without legal advice.  His lawyer would have argued that the officer wasted time: "My client didn't want a lawyer, and made that clear. The officer wasted time talking about a lawyer my client didn't want. Therefore, these breath samples were not taken 'as soon as practicable'."

You're wrong if you rush him to the instrument, and you're wrong if you push him to the phone. Scylla and Charybdis. How do you navigate this difficult territory?

Clarity.

Be clear about your duties: get breath samples promptly; give suspect access to legal advice if he wants it.

Be clear in your questions. "Do you want legal advice before blowing into the instrument?"

Clearly record the responses. (I like audio or video recordings.)

Put the ball in the suspect's court. If he expresses uncertainty about seeking legal advice, read the secondary warning, then encourage - but don't force - him to talk to duty counsel. Give him the choice to talk with a lawyer of his choice, and then press on with your investigation.

2015.08.15 Hidden bruises - Ultraviolet Light - Experts

In violence cases, your observations of the presence or absence of injuries on the victim or suspect can make all the difference in the case.

In my experience, people often complain of being struck, but the investigating officer sees no injuries. Some bruises take hours to develop, so the officer finishes dealing with the victim or suspect before the injury shows. One way to capture this evidence is to photograph the person the next day. Some injuries never show.

This case suggests another technique.

A woman complained that Mr Lawrence, 2015 BCCA 358 raped her, and when doing so, choked her to unconsciousness. Her neck showed no injury. Not even the doctor who examined her found injury. Sgt Gosling decided to examine her neck under ultraviolet light, and found marks consistent with bruising, about the size of fingertips, just below her jaw line.

Good thinking, Sgt Gosling!

The prosecutor asked Sgt Gosling to testify about his observations, but did not qualify him as an expert.

The appeal court said that his testimony was "expert evidence", and therefore the prosecutor made a mistake in failing to qualify him as an expert.  Fortunately, Sgt Gosling testified about his many years' experience in forensic work, and his use of this technique.  The court found that what he said in court sufficed to prove he was an expert, even though the prosecutor did not follow the formal steps. They also liked how he restrained his evidence to merely his observations, and did not express opinions about how the marks got there.

If you're in an identification section, this can happen to you. Therefore:

1. If you use unusual light sources and make interesting observations in the case, write up your observations in a manner which identifies it as expert evidence.
2. Include in your CV comments about your training and experience using these techniques to make similar observations.
3. If the prosecutor forgets to qualify you as an expert, but asks you questions about a topic which requires expertise, talk lots about your experience and training in the use of the technique.
4. Experiment with your unusual light sources in situations where you know the truth - if you suffer a bruise which doesn't show, try shining the light on it to see whether it fluoresces.
5. Beware of articles which merely praise the technology. Learn and explain the limits of the technology. Will ultraviolet light sometimes fluoresce in places that aren't injured? If so, why? Can it fail to detect injuries that are actually there? If so, why?

2015.08.12 Self-defence and Reporting Use of Force

Cst Power, 2014 SKQB 356 patrolled downtown when he noticed Mr Stonechild, intoxicated again. Mr Stonechild suffered hepatitis and AIDS. Sometimes he cooperated with police, and sometimes he was a nasty drunk. Rather than arrest him immediately, Cst Power told Stonechild to walk to the detox unit, two blocks away. Cst Power followed in his police car as Stonechild walked there, but wouldn't go in. Cst Power got out of the car.

Because Cst Power was putting on latex gloves as he got out, he didn't notice Stonechild approaching him until Stonechild was 4-5 feet away, fists clenched and coming fast.

Cst Power kicked him in the abdomen, knocking Mr Stonechild away. Mr Stonechild fell, cracked his head and bled.

When asked about the incident by a superior officer, Cst Power re-enacted it, showing himself pushing Stonechild with his hands instead of his foot. Cst Power filed a use of force report with this explanation.

Unbeknownst to Cst Power, a security camera recorded the whole incident.

An assault charges was laid against the officer for using excessive force. A defence expert testified that Cst Power should not have distracted himself by pulling on his latex gloves while exposed to the possible danger of an angry drunk; but the kick matched standard police training for repelling the attack. After watching the video, the trial judge convicted Cst Power for using too much force. The appeal judge acquitted, observing that Cst Power had little opportunity to assess how much force to use at the instant he reacted. The matter is proceeding on to further appeal.

I suspect that Cst Power's lie about the kick caused most of his difficulty. (I am curious how it got into evidence, considering that the officer was likely compelled to account for his actions that day. But that's a separate issue.)

Several lessons can be drawn from this case:

1. Pay attention to tactical self-defence training - avoid putting yourself at risk. Cst Power should have put on his gloves in a safe place.
2. Practice self-defence - you are hired to handle the most unpredictable people. Keep your instincts sharp.
3. Telling lies is dangerous for you. Police use of force attracts much scrutiny. This scrutiny creates fear in the officer who injured someone. That fear moves some people to minimize or lie. But in the long run, deceit is harder for everyone else to accept than a split-second error in judgment in the use of force.

2015.08.11 Search & Seizure - Expectation of Privacy in a Casino - Interception of Private Communication

Mr Wiwchar, 2014 BCSC 2108 walked into a casino. The signs on the door told patrons of the 24-hour video surveillance inside. Police were watching Mr Wiwchar. They asked the security staff at the casino to zoom in on Mr Wiwchar.  The cameras were pretty high quality.  They captured text messages he composed on his Blackberry, even before he sent them.

At trial, Mr Wiwchar complained that police violated his privacy. The casino's surveillance was to catch cheaters at games, not to snoop on the private lives of their patrons. The police directions resulted in surveillance which exceeded what the casino would normally do. And besides, he said, this was interception of private communications. Even a general warrant could not authorize this kind of surveillance.

The prosecution pointed out that the patrons were warned of the high level of security. This couldn't be "interception", the prosecution argued, because Mr Wiwchar hadn't sent the messages yet.

The trial judge agreed with defence. The prosecution eventually got a conviction anyway, and so they will not appeal this decision.  This is a trial decision, not an appeal. It provides you a warning of what other judges might conclude, but does not provide a final answer.

2015.08.09 Surveillance in the Cell Block - Charter Breach or Police Duty?

Does cell-block security video violate or protect prisoner's rights?

Ms Wildfong, 2015 SKPC 55 needed to pee. But police had arrested her for impaired driving. The investigating officer took her to the police station and let her pee in a cell.  He arranged for a matron to supervise, to make sure that Ms Wildfong didn't consume alcohol before the breath test.  The officer forgot that the security system would video-record Ms Wildfong. He didn't tell her she would be recorded. At trial, Ms Wildfong complained that the police gave her the impression that she enjoyed privacy, but the recording of her private urination violated that reasonable expectation of privacy. The trial judge agreed that this violated Ms Wildfong's rights.

Should you give prisoners privacy? Should you turn off or block the video cameras in your cell block?

Prisoners sometimes do strange things in police cell blocks.  Some will kill themselves, even if arrested for minor matters. You have a duty to protect your prisoners from harm.

Maybe someone should watch your prisoners even when they pee.

Some drinking drivers will consume alcohol in order to defeat the breath testing equipment. That's what Ms St. Pierre [1995] 1 S.C.R. 791 said she did when she got privacy. You have a duty to collect reliable evidence.

Maybe someone should watch your prisoners even when they pee.

Police officers and guards sometimes abuse or neglect prisoners. Video cameras can hold them to account. When prisoner Ashley Smith killed herself, prison security video was necessary to find out whether the prison staff acted properly. There is a reasonable argument that you should have no control over security video recordings of your actions.

Maybe cameras should watch you when you deal with prisoners.

The judge who decided Ms Wildfong's case referred to several similar cases in which judges concluded that surveillance violated the privacy rights of prisoners. In light of these broader issues, I question whether these judges are heading in the right direction.

I expect this issue to percolate slowly up to higher levels of court.

What can you do in the mean time?

1. Remember your security system. What it records often provides relevant evidence. If so, put a copy in your file.
2. Disclose your security system. When arriving in your police station, tell your prisoners that it records them. This may reduce their expectation of privacy.
3. Prevent unnecessary violations of privacy. Aim your cameras to avoid capturing images of prisoners' genitals. Erect partial screens, to block unnecessary views. Minimize who watches prisoners pee. Seal up copies of video recordings of private activity, and limit who accesses them.

2015.08.08 Search & Seizure - Report to a Justice

To those officers who doubt the necessity of "Form 5.2", the Ontario Court of Appeal resolved your doubts: you breach s.8 of the Charter when you fail to report to a justice what you seized using your powers as a peace officer.

Mr Garcia-Machado, 2015 ONCA 569 drove drunk and crashed. With a warrant, police got his blood samples from the hospital, and later, acquired his medical records. But the investigator failed to report the seizures until 15 weeks after the crash. He thought the obligation triggered when an officer swears the charges.

The trial judge excluded the evidence and acquitted the drunk.

The Court of Appeal agreed that officers who fail to file these reports "as soon as practicable" violate s.489.1; and they breach the constitutional rights of the persons whose property they took or whose privacy they violated by seizing the evidence.

In this case, the court found sufficient extenuating circumstances that they felt the evidence should have been admitted anyway. This officer did actually file a report. Better late than never.

If you haven't read s.489.1 recently, perhaps you should. Test your knowledge with this quiz:

"I don't have to file a form 5.2 unless charges are laid."	Answer	False: s.489.1 requires you to report to a justice every time you seize property.
"I don't have to file a form 5.2 if I give the thing back."	Answer	False: s.489.1 requires you to report to a justice even if you give it back.
"I have 7 days to file a form 5.2."	Answer	False: s.489.1 requires you to report to a justice "as soon as practicable". In R. v. Canadian Broadcasting Corporation, 2007 NLCA 62, the court found that 3 days was too long. (That case is a little unusual.) The telewarrant section (487.1(9)) requires you to report what you seize "as soon as practicable" AND within 7 days.
"Filing a form 5.2 means I get to keep the exhibit for a while."	Answer	False: Your right to keep the exhibit depends upon the justice making a "detention order" pursuant to s.490.
"I get to keep the exhibit for 3 months after I file the 5.2."	Answer	Nearly true: The initial "detention order" may be "not more than" 3 months. s.490(2).
"Form 5.2 is just for search warrants."	Answer	False: Your obligation to report arises whenever you seize property "under a warrant" or "otherwise in the execution of duties". s.489.1
"I don't need to do a Form 5.2 for documents obtained through a production order."	Answer	True: Section 487.0192(4) excuses you from reporting documents produced pursuant to production orders.

2015.08.07 Confessions - Voluntariness

"If I confess will you let my girlfriend go?"

Mr Heatley, 2015 BCCA 350 robbed convenience stores. His girlfriend drove. Eventually, police surveillance caught them in the act, and both were arrested. An interviewer spent four days trying to get Mr Heatley to talk about all the robberies. Mr Heatley didn't want to talk, but particularly, he didn't want his girlfriend to stay in jail.  Eventually, he talked.  Defence complained that police exploited his concern for his girlfriend, thus rendering his confession inadmissible.

The common law places many limits on what you can say to a suspect to persuade him or her to confess.  You must attend to their physical needs - feed them, let them sleep, get them the medication that they need. You must not overwhelm their ability to choose whether to speak. You must avoid offering a deal which undermines their freedom to choose.

In this case, it was Mr Heatley who proposed the deal.  Repeatedly.  And every time, the investigating officer explained that he could not make such a deal; all he wanted was the truth. He suggested to Mr Heatley that the truth might get his girlfriend and him into more legal trouble, but would be better for them both morally in the long run.  The judges concluded that this statement was voluntary.

The most important Canadian case on voluntariness is still Oickle.  If you read no other decisions, read that one. But this one's a valuable read. I recommend it to you officers who interview suspects, even if only rarely. Don't rely on my summary. Click the link and read what the judges thought. Pay close attention to the parts of the interviews which defence counsel highlighted. Language like that is dangerous.  Pay close attention to the passages that the judges highlighted.  See how to avoid trouble when interviewing.

2015.08.03 Arrest on a Warrant - Bring a Copy if you Can

While doing some basic research, I ran across this interesting decision from last year.

When a warrant issued for the arrest of Mr Gerlitz, 2014 ABQB 252, police knew they had a problem. He considered himself to be a "sovereign citizen" - not bound by any law of Canada. They expected trouble, so they organized a tactical team to assist. Mr Gerlitz acted less violently than they feared, but demanded his rights, refused to give his name, and talked over their explanations. He demanded to know why they were arresting him.

Nobody thought to bring along a copy of the warrant.

Section 29 of the Criminal Code requires you - if feasible - to bring a copy of any warrant you plan to execute, and to produce it on request.

Mr Gerlitz complained that the officers failed to explain sufficiently why they arrested him, and thereby breached s.10(a) of the Charter. The judge decided that the officers in this case did not breach Mr Gerlitz's Charter rights by failing to comply with s.29. I suspect that Mr Gerlitz's contrary nature may have helped him reach that conclusion.

You might not be so lucky in the next case.

If you plan to execute a warrant, bring a copy if at all possible.

2015.07.13 Arrest - Reasonable Grounds during a Gang War

Sources told police that Mr Sanghera, 2015 BCCA 316, stored rifles and handguns in his mother's garage. They got a warrant.

No guns, but plenty of ammunition, and the butts sawn from two long guns.

Over the days that followed, more information poured in: At a casino, Mr Sanghera got into a shoving match with a member of a rival gang. According to a source, a couple of weeks later, someone drove by Mr Sanghera's residence and shot at it. The next day, there had been more drive-by shootings at the residences of two members of the rival gangs. The day after that, police officers near Mr Sanghera's residence observed two rival gang members doing heat checks as they drove in Mr Sanghera's neighborhood. Police set up road blocks to prevent drive-by shootings.

A couple of days later, Mr Sanghera's cousin's girlfriend complained to police that two vehicles boxed in vehicle.  She escaped by driving on a sidewalk. She named one driver as the man from the casino. She was driving Sanghera's cousin's vehicle at the time.

A few days later, an untested source told police that the Sangheras were hunting for the rival gang. The source said that the Sangheras were wearing body armour and carrying firearms. The police discovered Sanghera was driving a rental vehicle.  They found him driving it slowly back and forth through a specific area. It stopped at a massage parlour. Four men went in. An hour later, they emerged.

Police arrested the men, and found handguns and ammunition.  Defence argued that police lacked sufficient grounds to arrest the men for any identifiable offence.

The judges disagreed.

Offence - Past or future?

Many officers would limit themselves to offences already committed - such as possession of a weapon for a dangerous purpose. But the officers who watched did not see any weapons that day.

The court found that the officers could rely on the part of s.495(1)(a) which authorizes arrest when someone "is about to commit an indictable offence".

Reasonable Grounds - An Exercise in Logic

The judges agreed that the officers had sufficient grounds to arrest.

When I ask police officers to explain why they arrested or detained or searched, they usually regurgitate all the facts, but they rarely link it together, to make the conclusion obvious. Indeed, the decision contains a quote from the testimony which shows this happening. I suspect that this officer probably prepared to give a more detailed answer, if asked.

For those who want practice constructing such an answer, the facts in this case provide an excellent exercise.

See what you come up with.  Click the button to see how I might explain it: Waldock's answer

2015.07.10 Drunk in a "Public Place" - Detention and Arrest

A taxi driver complained to police that Mr Guray, 2015 BCCA 183 would not leave his cab. The officers told him to get out of the cab. After he got out, the officers arrested him for being drunk in public. When they searched him, they found cocaine in his pockets.

Mr Guray complained that the police broke the law by

• forcing him into a public place, and then arresting him for being there;
• jumping to conclusions about his intoxication; and
• searching him beyond what the law permits.

These complaints often succeed - but they didn't this time. Consider what could go wrong, and what went right.

Suppose you pluck a drunk from a private place, and put him in a public place. You would be responsible for putting him there, not him.  Courts look unfavourably on officers who put drunks in public places and then arrest them for "drunk in a public place" (DIPP).

But these judges found that the taxi cab was a "public place". It might be a private place when a paying fare occupies it. But Mr Guray wasn't a paying customer. The cabbie wanted him out.

Was Mr Guray drunk? He mumbled incoherently, he had balance issues and glossy, bloodshot eyes.  But only one of the two officers detected any odour of liquor, and it was faint. He had good posture.  Perhaps he was just ill.  The court held that a police officer need not have proof of impairment, only reasonable grounds.  This officer had other reasons to believe alcohol caused the problem.  For example, the events occurred in the vicinity of bars, after closing time, when drunks are common.

Many officers fail to appreciate that "drunk" is not enough for DIPP. Impairment must render the drunk a danger to himself or others. You must fear for safety of people or damage to property. In this case, however, Mr Guray's intoxication appeared to be depriving the cabbie of his livelihood. He appeared to lack the ability to find his way home. Mr Guray's lawyer wisely avoided arguing this issue.

Arresting someone does not give you the right to search their person for anything you might find. You must look only for items related to the offence or the arrest. These officers sought:

1. liquor - which would provide evidence of the offence;
2. weapons - which could endanger the officers; and
3. identification - so that the officers could determine who they arrested.
   

These are all lawfully incidental to this arrest. And that's why Mr Guray lost his appeal.

2015.07.08 Expectation of Privacy- Common Areas of a Condominium

Do police need a warrant to investigate in the common areas of a condominium or apartment?  Two similar investigations reached different conclusions.

Ontario police had reasons to suspect that Mr White, 2015 ONCA 508 sold drugs from his unit in a 10-unit condominium.  Also for good reasons, BC police suspected Mr Webster, 2015 BCCA 286, sold drugs from his apartment.

In both cases, police got into the buildings by circumventing the security system at the front door. While investigating Mr White, plainclothes officers managed to follow the postman into the building.  They discovered that the back door didn't lock properly, and entered that way on two other occasions. Mr Webster actually held the front door open for the plainclothes officers who were watching him. On another occasion, another resident let them into the building, also without knowing who they were.

These investigations led the police to seize quantities of illegal drugs from both residences.  Mr White beat the rap.  Mr Webster went down.

The Ontario courts found that by entering and looking around the building, and by watching Mr White and listening outside his unit, the officers violated Mr White's reasonable expectation of privacy in the common areas of the building. Police needed a warrant to investigate in those hallways. The BC courts found that Mr Webster enjoyed no reasonable expectation of privacy in his building's common areas. No warrant required.

Is there or isn't there an expectation of privacy in the common areas of an apartment or condominium?

The facts distinguish the cases.  Mr Webster had the misfortune of sharing his building with the lead investigator of the drug team. At least one resident of the apartment wanted the drug cops there.  Mr Webster made the mistake of holding the front door open for strangers - plainclothes police. His claim to expect no strangers to wander his hallways fell flat.

This emphasis on the facts of the individual cases leaves you with little guidance.

I think these two cases illustrate a structural problem in the law: only one standard justifies the issuance of a warrant, even though the courts recognize a sliding scale of privacy. The "reasonable grounds to believe" standard can justify intrusions into the privacy of bedrooms and psychiatric records. The common areas of apartments are semi-private at best. Why should police need to meet the same standard in order to tread the hallways where Mr White's neighbours and their friends walk?

This tension will cause trouble.  We may reasonably expect the judges will struggle with this issue for a while yet.

In the mean time, what should you do to investigate in the common areas of secure condominiums and apartments?  These two cases suggest some strategies:

• Get permission or at least an invitation from another resident or the building manager;
• See if your target will let you in through the front door; or
• Get a warrant.

2015.06.27 Expectation of Privacy - Who Lives in a Condominium?

Can the building manager in a condominium tell a police officer who lives in a specific unit?

In B.C., legislation requires the building manager to identify owners and tenants of the building to the other owners and tenants.  Mr Webster, 2015 BCCA 286 lived in a condominium. Police asked the building manager for Mr Webster's information.  The manager provided it. That information led to Mr Webster's arrest for PPT.  Defence argued that police should have obtained a production order. The court disagreed. Anyone in the building could ask for and obtain the information. Mr Webster did not enjoy much privacy in it. The building manager could agree or refuse to provide the information sought; his cooperation did not make him an agent of the state.

2015.06.26 Sexual Assault - What is Consent?

You may have met some people who don't understand consent. I know in my prosecutions, I have. A colleague sent me this explanatory video. Maybe you will encounter a situation in which it would help enlighten someone.

2015.06.26 Wrongful Conviction

When is your investigation "over"?

Maxime Ditchfield died on September 22, 1970. A jury convicted her partner, Mr Salmon, 2015 ONCA 469 of manslaughter, relying largely on the evidence of an expert that her brain injuries resulted from "blunt force trauma". The judge sentenced him to 10 years.

Mr Salmon always maintained his innocence. 30 years later, his lawyer found some experts who reviewed the evidence.  They concluded that Mr Salmon didn't hit her on the head.  The brain injury was more likely the result of a fall or a series of falls.  The prosecution found an independent expert, who agreed with the defence experts.

Last week, almost 45 years after the death, another court acquitted him.

Experts aren't always right.  Your investigation is never really "over".

2015.06.20 Murder & Manslaughter - Intoxication defence

If you're too drunk to understand that what you intend to do next will kill someone, should you be convicted of murder if you do it?  At law, the answer is "no".  To be guilty of murder, you must expect that someone will die as a result of your action.  Intoxicated people don't always forsee what sober people would see.  If so, they might be guilty of manslaughter, but not murder.

Therefore, investigate the suspect's impairment.  Officers who deal with the suspect immediately before or after the killing should record notes or video of the suspect's symptoms of sobriety and impairment.

Ms Arjun 2015 BCCA 273 hacked a friend to death over several hours.  She had a drinking problem, and had consumed some alcohol. Several hours after the killing, police attended.  She had no difficulty with balance or speech, but did seem shocked.  This evidence did not suffice to establish the kind of impairment by alcohol that would be required to deprive her of the understanding that hacking someone repeatedly with a large knife would kill him.

2015.06.07 Search & Seizure - Detention Orders

Mr Weatherill, 2015 BCSC 566 didn't like the new digital power meters that the electric company wanted to install in his house. Things must have turned ugly, because the police attended and gave him a promise to appear to attend court regarding an assault. That complaint ultimately resolved as a peace bond. But in the mean time, police seized his guns. Among those firearms were some prohibited handguns for which Mr Weatherill had no licence.

Once the assault charge settled as a peace bond, Mr Weatherill wanted his guns given to a properly-licenced friend - perhaps to sell on his behalf. Police wanted them forfeited.

The Crown persuaded a provincial court to order the guns forfeit, but the BCSC saw a problem with that.

Because the police never reported the seizure of the firearms to a justice ("Form 5.2"), and the justice never ordered the firearms detained, the provincial court never took jurisdiction over the firearms. When the time came to dispose of them, the provincial court lacked jurisdiction to make the forfeiture order which the Crown sought. Although the case doesn't say, I suspect that Mr Weatherill's friend got the guns in the end.

Reporting what you seize to a justice is bothersome. Getting extensions is inconvenient. In cumbersome language, s.490 of the Criminal Code requires it. Failure to comply with that legislation can lead to embarrassing results. For example: Raponi 2004 SCC 50.

2015.06.05 Search & Seizure - Cavity Searches and Doctors

Mr Johal, 2015 BCCA 246 sold crack cocaine to an undercover officer for $100. The officer detained him, and asked him who he was. The officer arrested him and asked him if he'd like to speak with a lawyer. Mr Johal declined it for the moment, but indicated he might want to make a call from the police station.

At the police station, in a private place, police strip-searched him. They saw blood in his underwear, and what appeared to be a white powder around his anus.

The investigating officer knew that drug traffickers usually carry more than one sale of drugs, and they often hide drugs in their rectums.  He worried that drug packaging may have broken, exposing Mr Johal to a dangerous overdose.  He took Mr Johal to a hospital. He explained his concerns to a doctor, but did not direct or ask the doctor to take any particular action. He also offered Mr Johal another opportunity to talk to a lawyer, which Mr Johal declined.

The doctor told Mr. Johal, in the presence of the police officers, that Mr. Johal had to submit to an internal search.

The officers left the room, and the doctor searched Mr Johal's rectum. The doctor reported this to the police.  The doctor then X-rayed Mr Johal, and again found nothing.

Defence complained that the police and the doctor violated Mr Johal's right not to be searched unreasonably.

The trial judge and the court of appeal found that the officers acted properly. Both decisions make good reading on a variety of issues. (And the judges kept their decisions mercifully short.)

1. Strip searches are tricky to do correctly. Notice what steps these officers took to minimize the violation of privacy in this one.
2. Two officers saw the white powder around Johal's anus.  You should minimize the number of eyes (and videocameras) that observe the suspect's nakedness; but you should avoid leaving an officer alone and unsupervised during a strip-search. Having a second witness observe the powder provided corroboration for an important piece of evidence.
3. Detention triggers the right to counsel. The investigating officer took a little longer than he should have to offer access to counsel. Luckily, that did not result in any prejudice to the accused.
4. The right to counsel applies regardless where you are.  At the hospital, the investigating officer offered Mr Johal access to counsel before the doctor examined him.  That was smart. Had the doctor found evidence, it would have been excluded if the officer had not offered prior access to counsel.  Taylor, 2014 SCC 50
5. When you ask or direct someone to help you do your work, the law calls them your "agent".  Everything they do thereafter must comply with your duties under the Charter. Even though the doctor searched Mr Johal's rectum for drugs after the police brought him to the hospital, the doctor was not a police agent because the officers took care not to tell him what to do.
6. The court observed that Mr Johal could have declined the medical treatment.  What would you do then?
7. The officer testified that he "suspected" that there Mr Johal's anus contained illegal drugs.  For a cavity search for evidence, you need reasonable grounds to believe that the anus or vagina in question contains evidence. Golden, 2001 SCC 83. However, this officer also had real concerns for Mr Johal's health, which should justify searching on the lower standard of belief.

2015.05.29 Spousal Privilege - Statutory Amendments July 22, 2015

Spouses are complicated.  But the law surrounding their testimony will become simpler on July 22, 2015.

Before then, with various exceptions, the prosecution could not compel a husband or wife to testify against his or her spouse nor could the court accept such testimony. Courts reached differing conclusions whether these rules applied to common-law relationships. Nguyen, 2015 ONCA 278; Legge, 2014 ABCA 213. Section 52 of the Victims Bill of Rights Act sweeps much of the confusion away by amending s.4 of the Canada Evidence Act. When it comes into force on July 22, 2015, all spouses can be compelled to testify in all cases.

But spousal communication privilege continues. The Canada Evidence Act will still provide:

4.(3) No husband is compellable to disclose any communication made to him by his wife during their marriage, and no wife is compellable to disclose any communication made to her by her husband during their marriage.

This protects an accused's person's spouse from revealing communications made in private.  If the communication were overheard (or read) by some third party in circumstances where the couple could not expect privacy (such as overtly recorded jail cell conversations), then the third party can come to court and testify about what he or she overheard the accused say to his wife.  Siniscalchi, 2010 BCCA 354; Meer, 2015 ABCA 141.

So the Crown can compel the wife of the accused to testify about the events of the crime - what she saw - but the Crown can't compel her to reveal what her husband told her in private about the murder. If the Crown does ask her what the accused said about the murder, she can decide to answer the questions if she wants.  If she and her husband discussed the crime in places where they expected to be overheard, the Crown can ask her to repeat those remarks in court without her consent.  Meer, 2015 ABCA 141 at para 69.

In Nguyen, 2015 ONCA 278, the accused's common-law partner was near the murder when it happened.  The partner told a friend some things that the accused said before the murder. As admissible hearsay, the Crown asked the friend to repeat the partner's remarks. Whether or not s.4(3) of the Canada Evidence Act applies to common law spouses, it didn't apply to this testimony because the Crown did not compel the partner to testify about the communication.

As pointed out in that case, s. 189(6) of the Criminal Code creates another exception.  The prosecutor can't tender electronically intercepted private communications between husband and wife. But the prosecution can tender the intercepted communications of common-law spouses. Nero, 2014 ONSC 1896

Spousal privilege does not extend to common-law partners. Martin, 2009 SKCA 37.  But in Ontario, it does.  Masterson 2009 CanLII 36305 (ON S.C.).

2015.05.28 Identification by Acquaintances

Over a couple of months, three Tim Hortons stores in Oshawa suffered four robberies.  In each, the robber held out a Tim Hortons cup, and required the clerk to put money into it. In each, the robber covered his face and hands. In each, the robber wore generally similar clothing.

Police prepared a poster which showed images from the store security videos.  A woman who worked at Tim Hortons believed that she recognized the robber as Mr Olliffe, 2015 ONCA 242, a former boyfriend.  Police got a search warrant for his house, and found several things which generally resembled what the robber wore: blue hospital gloves, sunglasses, bandannas, and shoes. None clearly matched the clothing of the robber.

Because of the generic nature of the items found in his house, the case depended upon the strength of her identification.

She did not recognize his clothing, only the style.  At trial, she conceded that she would not have believed that the robber was her ex-boyfriend if she had been told that the poster showed robberies in Alberta.  This evidence showed the robber appeared similar to Mr Oliffe, but that she did not specifically recognize him from the photographs.

This kind of identification evidence won't support a conviction all by itself.

Witnesses don't always articulate this difference.  You can always ask:

Are you saying you know that the guy in this picture is your ex-boyfriend, or are you saying the guy this picture looks like your ex-boyfriend?

2015.05.24 Street Checks - Detention

Street checks walk the fine line between conversation and detention.  Try to stay on the right side.

Police in the area knew Mr Fountain 2015 ONCA 354 and his brother to be involved in crime and to carry guns. When a constable saw this Mr Fountain walking on the street, he remembered learning not long before of a warrant for the arrest of one of the brothers, but he did not know which brother this was, nor whether the warrant had yet been executed.  A recording device captured the conversation:

Officer: "Fountain, come here, Guy? What's going on, man? Which one are you?"
Fountain: "What do you want?"
Officer: Which one are you?
Fountain: Fountain.
Officer: I know. Are you -- there are two brothers. Keep your hands down. Which one are you? What's your first name?

It's worth reading the decision for the rest of the conversation.

The conversation continued until a stranger intervened. Mr Fountain reacted to the stranger by blading his body and pressing his left arm to his side as if he possessed a gun.  Suspecting a firearm, and believing himself at risk, the officer touched Fountain's left side, and felt something hard like a gun. He yelled "gun!"  Fountain fled, and dropped a handgun. Police later caught him and charged him with firearms offences.

At court, the officer conceded that he did not believe that he have sufficient grounds to detain Mr Fountain. The judges found that he did detain Mr Fountain, and he did so arbitrarily.

Was the gun admissible?  The court held it was. Even though police discovered it during an arbitrary detention, the police did not create the circumstances which caused the officer to discover the gun.  The stranger did. The search was lawful, for officer safety.

The Crown and defence agreed that the officer arbitrarily detained Mr Fountain, but they disagreed when the detention became arbitrary. Factors which turned this conversation into a detention included:

1. the officer focussed on identifying Mr Fountain for a warrant (instead of general conversation);
2. the officer ordered Mr Fountain to talk to him, giving him the impression he had no choice but to comply;
3. even after they identified him, they kept pumping him for information without telling him he could go; and
4. the officer used coercive words "keep your hands down".

The appeal decision and the trial decision discuss the differences between a lawful and an unlawful street check. You may find them helpful, in order to walk on the right side of the line.  There's an even clearer discussion in Papilion, 2014 SKCA 45

2015.05.22 Child Pornography - Exploitative Relationship

When is recorded consensual sex with a young person child pornography, and when is it "self expression"?

Mr Barabash 2015 SCC 29 was over 60.  Mr Rollison was 41. They recorded videos of explicit sex with two runaway 14-year-old girls.  The girls, motivated no doubt by the food, shelter and drugs these men provided, consented to the activity, and never asked the men to destroy the recordings.  Because the age of consent at the time was 14, the trial judge found that none of the participants committed any offence.  The Supreme Court pointed out that the sexual activity might have been unlawful under s.153 of the Criminal Code if the relationship between the men and the girls was "exploitative", and ordered a new trial.

Making and possessing child pornography is lawful "where these recordings do not depict unlawful sexual activity, are held only for private use, and were created with the consent of those persons depicted."

2015.05.22 Child Pornography - Undoing Youthful Indiscretions

What should you do if a young person repents of her sexting? The answer appears to be that she should request that the recipient(s) return or destroy the images. If he/they don't, he/they may be committing an offence.

Can you arrest her abusive ex-boyfriend for possessing videos of their passionate sex together? Perhaps you can, if he persists in retaining them after she demands their destruction. And for sure, you can, if the abusive ex-boyfriend threatens to embarrass her by showing the recordings to others.

In an aside, in the Barabash 2015 SCC 29 case, the court suggested that young persons might be able to demand destruction or return of the child pornography they created. This may terminate the consent necessary for lawful possession of the child pornography.  The abusive ex-boyfriend who fails or refuses to comply with the young person's demand may then be committing the offence of possession of child pornography.

Mr Dabrowski, 2007 ONCA 619, aged 28 video-recorded himself having sex with his 14-year-old girlfriend.  Sometimes his friends attended and helped.  After they broke up, he threatened to show the videos to her family and friends.  If he did, then he no longer held the recordings for private use, and could be convicted of possessing child pornography.

Parliament could act. They wouldn't need to write much. How about this:

"163.1(8) Lawful possession of child pornography which depends upon the consent of a person recorded or depicted in it terminates when that person withdraws his or her consent."

2015.05.18 Bail - Tertiary Ground - Public Confidence in the Justice System

Busting crooks resembles fishing for steelhead in B.C.. Mostly, it's catch-and-release. That's because s.11(e) of the Charter guarantees people charged with offences reasonable bail except where detention can be justified.

Most people understand the "primary" and "secondary" grounds for detaining a suspect.  If buddy won't return for court, or if he will likely commit more crime, then the justice should detain him.

But the tertiary ground confuses people. Even the appeal courts across the country disagreed about when to use it. The Supreme Court of Canada explained that the legislation means what it says.  Section 515(10)(c) provides:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including:

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject‑matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Mr St-Cloud, 2015 SCC 27 and his buddies attacked a bus driver. A video security system recorded it. The bus driver suffered serious long-term injuries. Even though Mr St-Cloud's family posted sufficient bail to ensure his return to court, and he proposed plans which would remove him from criminal conduct, the judges agreed that he should remain in jail pending trial.

Don't use the tertiary ground for protecting the victims from a future violence. Although the prospect of releasing such a suspect undermines the victims' confidence in the justice system, concerns that your prisoner will retaliate against the complainant are good secondary ground concerns.

The tertiary ground solves the problem of releasing a suspect when everyone knows that after trial, he will return to jail for a long time. The court proceeded on the assumption that Mr St-Cloud would commit no more crime, and would return to court for trial. Use it when the evidence of guilt is overwhelming, the offence is really awful, and the accused is looking at many years in jail for the crime.

2015.05.17 Search & Seizure - Consent Search

"Would you permit me to search your vehicle?"

Mr Sebben, 2015 ONCA 270 had just passed a roadside screening test, but the officer had concerns that he might be carrying drugs.  The officer asked Mr Sebben to consent to a search.  Mr Sebben replied:  "You can look in the back if you want, 'cause all I've got is tools and Christmas presents."

The officer did not accept that as sufficiently informed consent.  Instead, he remarked, "I'm looking for things like drugs or marijuana."

At that, Mr Sebben produced a bag of marijuana.  The officer arrested him, and found more marijuana in the car.

At trial, Mr Sebben's lawyer argued that the question was effectively a detention and a search.

Because the officer intended to explain consent more fully, but got cut off by the presentation of the bag, the court found that the officer's question wasn't a search, and therefore did not breach Mr Sebben's rights under s.8 (unreasonable search), s.9 (arbitrary detention) or s.10 (right to counsel after detention).

It won't always be this easy.  When asking for consent to search a car, make a habit of explaining what you want to do, and give the suspect a real choice to say no. After you find interesting things, defence will challenge the consent.

2015.05.14 Exigent Circumstances

Around 4:00pm, a crying woman called 911 from a cell phone and asked for an ambulance.  She didn't complete the call. Police investigated.  The owner of the phone told them that she gave it to her daughter. The mom called her daughter's employer, who reported that the daughter didn't show up for work.  Mom speculated that her daughter might be in the nearby apartment of her boyfriend, Mr Paterson, 2015 BCCA 205.  Mom told the police that Mr Paterson had a shotgun, and there was "previous history" between him and her daughter.

The officers inquired at the apartment building.  The manager told them that an ambulance took the girl from Mr Paterson's apartment to hospital with unknown injuries. No other officers were available to investigate at the hospital.  The officers wanted to make sure nobody else in the apartment was hurt or in need of assistance.  They testified that after 911 calls, they often found more than one victim .

Mr Paterson didn't answer the door when they knocked. They could see a light under the door, but could hear no sounds inside.  Eventually, they obtained a master key from the apartment manager.  As they slid it into the lock, Mr Paterson opened the door.

He was fine, but the air around him smelled of raw and smoked marijuana.  His cell phone rang continuously. When the officers commented about the smell, he denied that there was a smell of marijuana.  Then he said he smoked some.  Then he said that the still had some roaches lying around.

The officer had several choices:

1. Do nothing about the marijuana.
2. Leave Mr Paterson there and, get a search warrant.
3. Arrest Mr Paterson for possessing a few roaches.  Get a search warrant.
4. Detain Mr Paterson temporarily, enter the residence, and seize the roaches.

He testified that #2 wouldn't work, because he believed Mr Paterson would destroy the evidence.  He believed #3 wasn't practical, and besides, he had no intention of charging Mr Paterson for possession of a few roaches. He still wanted to ensure that nobody in the apartment needed help. He chose #4.

He entered the residence with another officer.  They saw a handgun, a bullet-proof vest, and lots of drugs and cash. They arrested Mr Paterson, got a warrant, and seized the evidence. But they forgot something: for several months, the investigation team neglected to file a report to a justice (Form 5.2) listing what they took.

Defence complained that the warrantless search of the residence was unlawful: there weren't exigent circumstances. And if there were, the police created them.

The court found that there was reason to believe that evidence would be destroyed.  This justified immediate action.  The judges observed that #2 was impractical: arresting Mr Paterson and holding him for the preparation of a warrant would have significantly deprived him of liberty; a quick search was more practical.

The judges didn't say it, but I suspect that concern for public safety probably helped tip the balance.

The judges did not, in this case, find that late filing of the report to a justice necessitated exclusion of evidence.  Don't forget in future to submit these reports promptly.

2015.05.13 Experiments as Evidence

In the Schertzer, 2015 ONCA 259 case (see below), a key question was whether an accused police officer could receive a search warrant in his office, drive across town in 13 minutes and deliver it to at the door of the 14th floor apartment, and then return in 9 minutes.  The officer in question claimed to have driven the trip at high speed in an unmarked car, without lights or siren.

An investigator made the trip twice, driving at the speed limit, and walking.  He took 27 minutes the first time and 20.5 minutes the second time.

At trial, defence objected because driving conditions must have changed in the 14 years between the event and the experiment.  Defence complained that by driving the speed limit, the investigator did not replicate what the accused officer did.

The court admitted the evidence anyway, because it measured the distance and approximated the driving time.  It wasn't perfect, but it helped understand timing.

Travelling time is difficult to replicate.  If you need this kind of evidence, not only should you travel the route yourself more than once, but you should map it, and identify any features which will affect travel time. If it's really important, you might consider  investigating traffic patterns at the time of the incident under investigation. There are limits on how hard a vehicle can accelerate, brake or turn. Engaging an engineer might, in some cases, establish a more rigorous maximum and minimum travelling time.

But sometimes, just going for a drive answers many questions.

2015.05.11 Noble Cause Corruption - Every Lie Leads to Another

Most of you will nod your heads, and say "I know this already". But a few of you may find yourselves pulled off course by the desire to succeed in your investigations. This piece is for them.

Last week, five members of Toronto's drug squad lost their appeals.  17 years ago, they busted a heroin dealer and searched his apartment.  But they lied about when they got the warrant. Did they get the warrant first, or did they search first? To make the lie work, they wrote false notes. Those notes didn't jive with other time-stamps.  They claimed that an officer rushed from the police station to the scene in an unmarked police vehicle to deliver the warrant in time. If it were true, this story suggested hopelessly irresponsible behaviour.  But the jury found it was false too.  Schertzer, 2015 ONCA 259

A much bigger controversy swirls around the case.

The rules which constrain your ability to catch criminals may cause you endless frustration. But it's your job to obey the law while upholding it.  To stop crime, these officers apparently got used to bending the law. Temporarily, it may have worked, but in the long run, it undermined public respect for police and the justice system.

After decades of studying it, I think criminal law is complicated. For police officers, obeying the law is complicated, but telling the truth is simple. Bending the rules may seems simpler, but the lies and moral relativism are more complicated.

But for the protection of the law, police commit crimes all the time.  Seizure of property without lawful authority is theft.  Arrest without lawful authority is kidnapping. Even if you commit these offences for a noble cause - like catching criminals - you're committing crimes yourself. Lying in an ITO or in the court room is perjury.  I don't think that's why you signed up.

The public pay you to take the high ground. It may be slower and less efficient, but their political system chose the laws that you uphold. 
Stay on the high ground.  It's harder work, but the view is clear.

2015.05.01 Disclosure - Civil Liability for Prosecutors

Prosecutors became more vulnerable to getting sued.  The Supreme Court of Canada decided today that:

"a cause of action will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence."

Say what?

Okay.  Here's what happened.  In the early 1980's, women in Vancouver complained of similar rapes. Police suspected either Mr McRae or Mr Henry, 2015 SCC 24.  Some victims picked Mr Henry out of an awful photo lineup.  (Mr Henry was shown as the only guy engaged in a struggle with a police officer.)

Mr Henry was charged.  During the trial, the prosecutor disclosed few of the witness statements that police collected, and no information about the alternate suspect.  The trial judge convicted Mr Henry and declared him a dangerous offender.  The rapes continued for 6 more years after Mr Henry went to jail. 14 years later, further investigation into those rapes found that DNA identified Mr McRae as the culprit. Finally the Crown disclosed all it knew to Mr Henry's legal team. He appealed his conviction, and finally beat the charge.

Could Mr Henry sue the prosecutor for failing to disclose all of the police file? The answer turns out to be more complicated than one would think. If the answer were "sure", then every convicted criminal would immediately sue the prosecutor in the hope of finding some shred of evidence that wasn't disclosed. Prosecutors would spend more of their time defending nuisance civil claims than actually proving guilt.  For that reason, the court said that the convicted person can only sue if they say they can prove:

• intentional
• non-disclosure
• of information that the prosecutor knew or should have known was important
• which actually caused harm

Does this matter to police?

If prosecutors can get sued for non-disclosure, then police can too.  Make sure you disclose all relevant evidence.

And there's another lesson: the alternate suspect turned out to be the real culprit. The lineup should have contained both suspects.  In most cases, the alternate suspect is innocent.  Investigating his guilt feels like a waste of your time.  But it isn't.  Investigating the alternate suspect makes the case.  Last week I prosecuted a case in which there was an alternate suspect. I needed (and eventually received) clear evidence which proved that the alternate suspect was in another province at the time of the offence.

2015.04.29 Confessions - Non-custodial Interviews

In the 1970's, Richard Bach's story "Jonathon Livingstone Seagull"  preached that you can be anything you want to be.  Some people thought it was brilliant.  Some people called it banal.  It inspired one man to change his name.

Maybe you can be anything you want to be, but law sets limits on what you can do.

Mr Jonathon Livingston Seagull, 2015 BCCA 164 had sex with his ex-girlfriend's sons.  At the time, the boys were close to 14, the legal age for consent at the time.  But if he were in a position of trust or authority, then the age for consent would have been 18.

Years later, the boys, now men, complained to police.  An officer invited Mr Seagull to the police station for an interview.  Mr Seagull accepted.  When he arrived, the officer told him he could leave any time; he was not under arrest. She told him what he said could be evidence against him.  She did not offer him any opportunity to speak to a lawyer.

Mr Seagull played dumb.  He admitted some sexual activity, but mostly, the conversation went in circles.  The officer pressed him with questions.  He asked what would happen if he answered them.  The officer explained that three things could happen: nothing, more investigation, or court.  He asked what was most likely.  She said "very likely a charge of sexual exploitation".  But still she didn't arrest him.  She kept explaining that she needed to know about what happened.

Eventually he raised the idea of getting a lawyer.  She asked "do you wanna speak with a lawyer?"  He replied "no".

She kept questioning, but he answered few of his questions. He said he knew that he had a right to silence.  Eventually, he decided the interview was over.  She let him leave.

At trial, the defence complained that the police deliberately avoided arresting Mr Seagull, in order to avoid the dampening effect legal advice would have on the conversation.  The officer partly agreed: she wasn't entirely sure she had reasonable grounds.  Defence complained that the discussion of possible outcomes was the same as holding out a promise: it implied that no charges would follow if Mr Seagull would just answer the questions.

The trial judge and the appeal court rejected these arguments. The officer never suggested by words or actions that Mr Seagull was ever detained or arrested, and therefore she never triggered the right to counsel. She never prevented him from getting legal advice. And the way she explained the possibilities (charge, more investigation, or no charge) held out no promises of better treatment if he answered her questions.

The "non-custodial interview" still lives. But be careful trying it.

• Mr Seagull was a cagey guy, who chose to control his own destiny.  The courts will be quick to infer a detention when you interview an intellectually or emotionally challenged suspect.  Vulnerable people are more easily detained than sophisticated ones.
• Mr Seagull turned down the idea of calling a lawyer. If your non-custodial suspect decides he wants to call a lawyer, you can't stop him.

And one more thing. If you're going to invite someone for a non-custodial interview, expect to field lots of questions in court about the invitation. Because it's the only part of the conversation which isn't video recorded, 0take lots of detailed notes.

2015.04.17 Impaired Drivers - Fatal Collisions

Car accidents involving fatalities and serious injuries occur sufficiently rarely that when they do, some officers do not know what to investigate.  Here in British Columbia, so many officers give drinking drivers administrative penalties that their investigative skills on impaired driving offences are withering away.

Your first duty is to preserve life. To the extent that duty causes you to lose evidence, prosecutors can not criticize your work.

But after preserving life, capture evidence.

On a summer's evening, out in the country, Mr Saul, 2015 BCCA 149 crashed his car going around a bend on Highway 1. His passenger died.  An officer attended.  Mr Saul had watery eyes, a flushed face and slurred speech but the officer did not smell any odour of liquor on his breath. Mr Saul stumbled and limped. Mr Saul told the officer he had been fishing - an activity the officer associated with drinking. There was a bottle of vodka in the car. The officer could not at first tell whether the accident or alcohol caused his symptoms, but eventually developed sufficient grounds. He demanded a blood sample.  Mr Saul went to the hospital, and got treatment. The doctor drew blood before the driver got legal advice, which prevented the prosecution from relying on that evidence. Later, by way of a production order, police obtained his medical records. It turned out that 2 hours after the accident, Mr Saul still contained over 160mg% of alcohol in his blood.

The trial judge acquitted Mr Saul on the possibility of "bolus drinking". It was theoretically possible that Mr Saul consumed a large quantity of alcohol just before crashing. After he crashed, the alcohol in his stomach moved into his blood-stream, resulting in the high readings.

The appeal court ordered a new trial. Such a speculative defence required more evidence to support it.

At a crash scene hat evidence do you investigate and preserve?

• When did it happen?  The lawfulness of your breath or blood demands, and the alcohol calculations all depend upon when the accident occurred. Don't rely on the time of the 911 call, or the time of your dispatch. Those things happened after the accident. When did the car crash? Witnesses may tell you. The car's engine block may be warm. Tracks in falling snow may tell you.
• Who was driving? What the driver tells you after being detained (but before speaking to a lawyer) is inadmissible at trial except for establishing grounds to make demands. Therefore, ask other people, especially the passengers. Observe injuries. Try interviewing the suspect afterwards.
• Did alcohol or drugs cause it? Look for all symptoms. Keep watching the suspect for symptoms even after he leaves the scene. In this case, the driver's symptoms did not change significantly between accident scene and hospital. That fact made all the difference. Keep watching. Record details carefully. What kind of odour of liquor? Yeasty, like beer? Medicinal, like gin? Which words did the suspect slur? Investigate what occurred before? Photograph the scene and the road which leads to it. Is there any other explanation for the crash?
• Did the suspect consume drugs or alcohol before after the collision? How much?  Examine liquor containers at the scene.  Are any open?  How much do they contain? Where were they before the crash? Take lots of photos.

What do you do if you think he was impaired? Make your demand as soon as practicable.  Make sure the suspect gets legal advice, even at the hospital, before the doctor takes blood samples.

The law around investigation of impaired drivers may seem confusing. If you can figure it out, you will discover valuable principles of general application. Here are some basics.

2015.04.15 Impaired Drivers - Reasonable Suspicion

After police set up a roadside check stop in Saskatoon, Cst Comley saw Mr Synkiw's , 2014 SKQB 362 vehicle make a U-turn about half a mile back from the police cars.  Cst Comley pursued and stopped Mr Synkiw's car.  Cst Comley explained that the U-turn was not only illegal at that location, but also he suspected that the driver was driving drunk, and did not want the police to catch him.  Cst Comley's suspicions later proved accurate: Mr Synkiw blew 130 and 110 mg%.

Defence complained that the vehicle stop was arbitrary - Mr Synkiw might have made the U-turn because he remembered something that he left behind.  The court agreed that there were other possibilities than criminality which caused Mr Synkiw to make the U-turn; but there remained the real possibility that he was committing an offence.  That justified a detention.  Mr Synkiw was convicted, and his appeal denied.

It's just a fundamental principle that you already know: To detain a suspect, you need a real possibility that the person committed a crime.  But you don't need proof.

I don't think a U-turn, by itself, justifies a screening device demand. You'll need reason to suspect that the driver consumed alcohol. For example, Mr Synkiw provided several reasons: odour of liquor, glossy eyes, poor balance.

2015.04.14 Social Workers' Powers to Seize

When Mr R.M.J.T., 2014 MBCA 36 abused his step-daughter (see below) and made voyeuristic recordings of her, a social worker prevented him from removing the recordings from the home.  Furthermore, the social worker instructed the mother to collect the recordings and give them to the police.

Do social workers have powers of search and seizure like police?  Was the social worker acting as an agent for the police?

Because the police did not ask the social worker to do anything, the social worker was not an agent of police.

However, social workers are government agents, and therefore subject to the Charter. Social workers can't rely on s.489.1 of the Criminal Code to seize evidence; what authority did this one have to stop Mr R.M.J.T. from taking his recordings away, or to direct the mom to grab them?

The social worker testified that she had originally prevented the accused from taking the discs from the residence because she believed they contained child pornography involving the complainant. She agreed that seizing them had the effect of preserving the evidence for the police, but she said that she acted pursuant to her authority under Manitoba's Child and Family Services Act, to protect the complainant from further harm or abuse.

The court agreed. Even though the act does not explicitly spell out a power of seizure like s.489(2) of the Criminal Code, the child protection legislation allowed her to seize the objects because, in the hands of Mr RMJT, they constituted ongoing harm to the child.

Did this power to seize comply with the Charter?  The court found it did, but declined to say whether the legislation would authorize a search for child pornography.

What about turning the recordings over to police? The court found that was merely appropriate cooperation between agencies.

I suspect that courts in other provinces will interpret their child protection legislation similarly.

How does this affect police officers?

Suppose this social worker called you during during her visit saying that she believes that the suspect is about to take his voyeuristic recordings away with him. What should you tell her?

• If you direct her to seize it, then she becomes your agent.  She must rely on your s.489(2) power to seize, even though you aren't lawfully there. That's dodgy.
• If you tell her to do nothing, then the felon hides the evidence. That's no good.
• Based on this case, you might say "I can't tell you what to do in your investigation. It seems to me that letting Mr RMJT escape with those recordings poses a risk of harm to the child. He can use them for his own titillation, or to distribute them on the internet. It's your job to stop that. I think your Act empowers you to seize them. But it's up to you to decide what you're going to do. If you do seize them, I think you should turn them over to us for investigation. Please make notes that I told you to exercise your own judgment and your own powers."

2015.04.13 Search & Seizure - Using s.489(2)

Mr R.M.J.T., 2014 MBCA 36 married a refugee claimant, Ms S.  He sponsored her and her 14-year old daughter to come to Canada. But they discovered a problem with his sponsorship.  The daughter found a hidden webcam observing her bedroom.  She complained to him, but not to the authorities.  A year later, the girl complained to her mother that Mr T took sexual liberties with her.  Mom sought the advice of a counsellor, who alerted a social worker.  The social worker spoke to the girl, who complained of another webcam in her bedroom. Mom went to the police.

The police asked mom for permission to seize the computer which she shared with her husband.  She agreed.  She let them into the house and they took the computer.

Mom sought and obtained an order in family court which removed him from the house.  A social worker attended while he collected his belongings.  She stopped him when he attempted to remove some CDs.  The social worker told the mother to gather CDs and video-recordings for the police.  The next day, mom delivered a cardboard box of recordings to the police.

A couple of months later, police sought and obtained a warrant to search the computer and the recordings. They found evidence that Mr T covertly video-recorded his stepdaughter naked, and sent her emails discussing his sexual acts with her.

Defence complained that police lacked authority to seize Mr T's computer: no warrant, and no permission from him. Defence argued that Ms S's consent didn't suffice. Although Ms S told police it was the "family computer", and that she had the password, at trial, she said she knew only how to play a few games on it. She didn't use the computer to access Mr T's private information. Therefore, he enjoyed an expectation of privacy over it, and her consent to seize the computer did not suffice to overcome his privacy rights in the information in the computer.

Maybe so. Or not.  The court didn't need to decide.

Mom certainly had authority to let police into her home, and into the places in the home that Mr T shared with her.

Once you are lawfully in a place, s.489(2) of the Criminal Code says you can seize things if you reasonably believe that they were used in the commission of an offence or contain evidence of an offence.  It's stronger and broader than the "plain view" power.

The judges all agreed that the seizure was lawful.

S.489(2) only permits seizure.  It doesn't authorize search.  The officers were wise to get a warrant to search the computer.  Given what mom said at trial, her consent to search might not have sufficed. If you propose to search a shared computer relying on the consent of one of them, ask your cooperative witness how much access s/he has to the data of interest.  Record her/his answers. Explain how much you plan to search. Give the witness the freedom to say no.  Record the consent.

One more thing.  If you seize something using s.489(2), write a report to a justice.  s.489.1.

2015.04.07 Preventative Policing after a Riot - The Limits of Civil Liberties

On June 26, 2010, riots broke out at the G20 summit in Toronto. The summit continued the next day, and protesters flocked to the centre of town to air their varied concerns.

How should police respond?

On the first day, police observed the worst agitators to hid their faces with ski masks, goggles or balaclavas.  These people tended to wear black and carry backpacks.  After the violence they changed their clothes and mingled with the crowd.

On the second day some officers tried searching the backpacks of protesters approaching the downtown core.  Mr Figueiras, 2015 ONCA 208 and his colleagues carried signs and pamphlets which proclaimed animal rights.  One carried a megaphone. Mr Figueiras wore a black cap, reflective sunglasses, a black shirt and blue jeans.  He and his friends carried backpacks. The officers refused to permit Mr Figueiras to approach the protest zone unless he allowed them to search his backpack. His friends video-recorded what the police did.

Mr Figueiras complained that the officer violated his civil rights.  The officer unfortunately responded "This ain’t Canada right now" and "There’s no civil rights here in this area."

No struggle broke out, but Mr Figueiras didn't get to demonstrate in favour of animals.

Mr Figueiras brought the events to the attention of the courts.  The trial judge sympathized with the police, finding that the violence of the previous day justified taking these extraordinary steps.

The appeal court disagreed.  The judges declared that the officers violated Mr Figueiras' freedom of expression.

In doing so, they discussed two legal pathways of analysis to determine when a police officer may limit a citizen's civil liberties. An old English case R. v. Waterfield, [1963] 2 All E.R. 659 suggested that an officer may do so only when it is necessary in order to perform his or her duty, and the officer takes only the steps that are reasonable in the circumstances.  The other way to approach the question is by consideration of s.1 of the Charter, which permits limitation of civil liberties only if the limitations are "prescribed by law" and can be "demonstrably justified in a free and democratic society".  Curiously, these boil down to roughly the same thing: when doing your duty, only violate civil liberties if it's clearly necessary; and when doing so, limit civil liberties as little as possible.

In this case, the officer claimed to be searching the packs for weapons.  The events of the previous day showed that the violent protesters did not bring weapons, but seized and hurled loose objects around them, like stones and mailboxes. The court opined that a search for weapons wasn't going to do much good.  (But finding balaclavas might have changed the conversation.)  Turning people back from this point did little good because so many alternate routes to the protest were available. It found that the means chosen to protect the public violated civil liberties more than necessary, particularly considering how ineffective they were.

This case and the videos provide plenty of fodder for armchair quarterbacks to discuss.  Here are some basic principles.

• The Charter always applies in Canada.
• Saying otherwise will likely cause you trouble.
• Police officers may infringe civil liberties when there is a pressing public need to do so.
• Police officers must minimize those infringements to the least infringement necessary.
• "Police officers are given broad duties to preserve the peace and prevent crime. The powers conferred on them to execute those duties, however, are not correspondingly broad." (Para 43)

2015.03.21 Production Orders for Stored Text Messages

Last year, I reported that in Croft, 2013 ABQB 640, police obtained a production order against a telephone company to get text messages that the company stored in its servers after they were sent.  The court found that this constituted "interception of communication", and therefore is unlawful.  In January, I observed that a different judge reached the opposite conclusion: Carty, 2014 ONSC 212.

This week, in Belcourt, 2015 BCCA 126, the BC Court of Appeal agreed that production orders may lawfully compel telephone companies to divulge stored text messages. The officers who drafted this production order took care to include conditions on the order: messages protected by solicitor-client privilege should not be disclosed; nor should text messages which were still "in transit" and not yet delivered.

Because this decision comes from the appeal level, it will likely persuade most judges in Canada to agree - except those in Alberta, who may well side with Croft.

PS: the BCCA re-affirmed its view in Webster, 2015 BCCA 286

2015.03.21 General Warrant - "Sneak 'n Peek" or "Wait 'n Take"?

General warrants may authorize a "sneak & peek" - a covert search for information about the offence.  If that's what the judge authorizes, then when you're done looking, you must leave.  Sometimes, waiting for someone to walk in may give you more information.  You can do that, even in a residence, if the judge grants you authority.

Good information suggested that drug dealers stashed their drugs in an apartment on Leslie St.  Some information suggested that the apartment belonged to Mr Shin, 2015 ONCA 189. The investigators sought and obtained a warrant authorizing them to sneak into the apartment and search for and seize the drugs.

They were right.  When they snuck in they found and seized drugs and evidence of trafficking.  And the place looked like nobody lived there.  When they finished searching and seizing, the officers decided to wait to see who might turn up.  Half an hour later, at 9:01pm, within the time allowed by the general warrant for the covert entry, Mr Shin unlocked the door and walked in.  The police arrested him.

At trial, Mr Shin complained that the police overstayed their authority.  By staying longer than permitted they breached his rights under s.8 of the Charter.  The judge agreed.  But the judge let the evidence in anyway: Mr Shin didn't live there - nobody did.  The general warrant authorized police to enter the apartment for the purpose of gathering information about the offence. Staying a little longer allowed the police to gather valuable proof that Mr Shin had access to the stash house.

If you want to stay and arrest after your covert entry, ask the judge for authority to do that.  Many warrants "authorize and require" peace officers to do what the warrant specifies.  You might want the judge merely to "authorize" this latter technique, but not "require" it, so that you have the choice to stay or leave after the sneak and peek.

2015.03.20 Immunity & Sweetheart deals in exchange for Testimony

Beware of offering immunity or light sentences to criminals in exchange for evidence against your primary target. Some recant.  If they do, they will accuse you of threatening or intimidating them into making false allegations. In the robbery-kidnapping prosecution of Alexander, 2015 ONCA 167, in exchange for their testimony the prosecution dropped charges against one witness and agreed to a reduced sentence against another.  Both recanted during the trial and blamed police and prosecutors for making them lie.

Sometimes, these deals are unavoidable. Engage in them only after consultation with management and Crown.

2015.03.19 Possession of Data in a Computer - Breadth of Search

Mr Villaroman, 2015 ABCA 104 brought a Macintosh computer to a computer store for repairs.  Technicians found child pornography in the computer, and called the police. Police seized it, got a warrant and searched it for child pornography. By examining the child pornography files, an expert found reason to believe that someone using the one account on the computer used Limewire - a file sharing program - to download them from the net.  Links in the file system suggested that someone viewed the files too.  The two people who lived with Mr Villaroman did not put the files there.  But was it Mr Villaroman?  The trial judge thought so, and convicted him.  The appeal judges weren't so sure.  The one account had no password. They said.

"If there had been evidence that only the three people lived in the residence, and that the computer never left the home, we might have had less concern. Had there been that evidence and also further evidence that other persons did not come and use the computer, nor use the room where it was located, probably we would not interfere with the conviction. Other possibilities would then be too remote. But there is no such evidence."

Even after reading the trial decisions (2012 ABQB 630, 2013 ABQB 279), I can't be sure I know just how much evidence the investigators actually discovered which linked the accused to the pornography.

It's clear that they sought judicial authority to search the computer for child pornography.

With the benefit of hindsight, I see that searching for probative non-criminal data might have helped.  For example, I don't think they looked for emails with similar date stamps as the pornography.  If Mr Villaroman emailed his friends on the same nights as his computer downloaded child pornography, one may infer he did the downloading.

Can you snoop through the emails?  Only if your warrant authorizes it. In Fearon, 2014 SCC 77, the court emphasized that a lawful searches should pursue only relevant evidence, and they want clarity about the breadth of an officer's search.  Therefore, your ITO should spell out what kind of data you want to snoop through and why it's relevant.  And the warrant should explicitly grant you that authority.

Playing armchair quarterback, I suggest that the investigator in this case could have sought authority "to search emails, stored communications and documents in the computer bearing date stamps close in time to the date stamps associated to the child pornography for evidence of who operated the computer at the times when the child pornography was downloaded, viewed or accessed."

Postscript: The Supreme Court of Canada found that the Court of Appeal erred in their re-assessment of the case. Villaroman 2016 SCC 33. But they also held that reasonable minds can differ on whether this evidence sufficed to prove guilt beyond a reasonable doubt.  I stand by my suggestion that a little extra would have been worth obtaining.

2015.03.18 Search & Seizure - Production Orders, Tracking Devices

Production orders changed, starting March 9.  The sections numbers changed, and the Criminal Code provides standard forms for the orders and the ITOs.  If you write applications, read the new legislation!

Here is a summary.  You can find more detail on the warrant toolbox page.

Order	Basics	Reasonable grounds to...
Preservation demand 487.012	A peace officer may require a person or organization to preserve computer data.  In most cases, the obligation lasts only 21 days, after which you must get a production order, or the data will be destroyed.  You can't extend your order. If you want your target to keep your investigation secret, you need	Suspect
487.013	A justice or judge may require a person or organization to preserve computer data.  This obligation lasts 90 days, after which you must get an extension or a production order.	Believe
487.014	A justice or judge may grant "General production order" - In the past, a production order could get original documents.  Now it produces only copies, but the copy is deemed as good as the original.	Believe
487.015	Production order to trace a communication from relay to relay through the devices of people or corporations whose identities will only be discovered as you go.	Suspect
487.016	Production order to known persons for transmission data - if you do trace a communication, you will probably start with a known recipient.  You'll apply for orders under 487.016 & 487.015 together.	Suspect
487.017	Production order for tracking data - to find things or people, not communications.	Suspect
487.018	Production order to identify accounts in a "financial institution": to produce the name if all you have is an account number; or to produce an account number if all you have is a name. This section differs only a little from the old s.487.013.	Suspect

No 5.2s

Section 487.0192 exempts all but the tracking production order from the obligation to write a report to a justice.  This makes logical sense: s.490 addresses returning property to owners.  Information differs because the order doesn't deprive the owner of anything.  However, the legislation does not require officers to inform those people whose privacy the order affected that their information is now in the hands of the police - and may fall into the hands of defendants. Expect defence counsel will attack the legislation on this basis.  I suggest that you notify the people whose privacy the order affected, and disclose to defence that you did so.

Destruction of Data

Curiously, s.487.0194 requires the people who have data of interest to police to destroy their copies "as soon as feasible" after complying with the order.  Suppose a cell phone provider normally kept cell tower logs for 30 days.  A week after a significant offence, you demand that the company preserve the logs for that day.  But you fail to get your production order within 21 days.  After 21 days, they may destroy the data, but for sure, after 30 days, they must destroy the data, despite your interest in it.

Even more curiously, if you do get a production order for that data in time, and they comply, they must destroy their own copy.  Don't lose what you get with a production order.  It may be the only copy.

Nationwide jurisdiction

Parliament finally fixed a jurisdictional issue: production orders are now effective across Canada, even if only a justice of the peace issues them.

Still no Telewarrant

My sources tell me that the legislators intended to include telewarrants for production orders, but they "forgot".  Grrr.  They hope to include it "next time".

Preservation Demand

Police officers can now demand that organizations (or people) who possess computer data preserve it if the officer suspects that the data may assist an investigation.

Transmission data recorder

The old DNR warrant 487.092 is replaced by a new "Transmission Data Recorder" warrant - which does the same thing for a wider array of communication devices.  Emails, texts, chats may all be captured by this.  You don't get what the target says, but you do discover to whom they say it.

Tracking devices changed

Tracking device for objects and vehicles - 492.1(1)	an offence has been or will be committed, and tracking the location of one or more transactions or the location or movement of a thing, including a vehicle will assist in the investigation of the offence	Reasonable grounds to suspect
Tracking device for apparel and cell phones - 492.1(2)	tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence	Reasonable grounds to believe

As before, tracking orders last 60 days, except in criminal organization and terrorism investigations in which you can get a full year.  The section now provides for a 90-day supplementary order to remove tracking devices covertly after the original order expires.

Dialled Number Recorder becomes a Transmission Data Recorder

Now, a judge or justice can order any telecommunication provider to tell you who your target communicates with, whether by phone, internet or other telecommunication technique.  It's not just telephones.  The section remains the same: 492.2.

2015.03.09 911 Calls - Power to Enter - Power to Arrest

At 4:00am, someone called 911 but hung up before the operator could talk. Nobody answered when the 911 operator called back. Two officers went to the address associated to the phone, to investigate.  They saw and heard, through the living room window, Mr Alexson, 2015 MBCA 5 screaming at a woman and a child, that he was “pissed off.”  The woman and child clung to each other as if terrified.  The officers immediately banged on the window and door.  The woman let them in, saying “please take him away.”  Without asking her whether she had authority to let them in, the officers entered.  The man smelled strongly of alcohol and looked drunk. Wearing only underwear, he became verbally abusive to both the officers and his wife.

At the officers' request, the woman brought the man some clothes. He continued to swear at the officers while dressing. The officers urged him to calm down, but he clenched his fists and stood ready to fight. The officers arrested him, and he fought back, injuring an officer.

Did the officers lawfully arrest Mr Alexson, or did they unlawfully assault him in his home?

As far as these officers knew, Mr Alexson committed no offence before they arrived.  The trial judge found that they lacked reasonable grounds to believe that he was going to commit an offence, and therefore acquitted Mr Alexson of assaulting a peace officer.  The summary conviction appeal judge agreed.  The Court of Appeal saw it differently.

It wasn't the 911 call that got the officers lawfully into the house, but the possibility of a person in peril.  A 911 hangup call can reasonably raise that concern, even without evidence of an angry drunk yelling at a woman or child.  The judges said: "there can be no question that the officers in this case had the authority to enter the home to investigate the reason for the 911 call, irrespective of whether the person that let them in had the authority to do so."

Having entered to prevent harm to people, the officers found an unreasonable man who got angrier as time passed.  As an ordinary civilian, I can walk away and think of better ways to solve the problem.  But you peace officers swore to serve and protect. You must act in the heat of the moment.  The trial judge thought the officers could have waited to see if the man would cool down.  The appeal judges said "Second-guessing is not helpful."

These officers arrested.  They could do so lawfully only if they had reasonable grounds to believe that an assault or a breach of the peace was about to occur.  (A breach of the peace involves someone or something getting hurt or broken, not just an unhappy argument.)  The lower court judges didn't think the police had such grounds.  The Court of Appeal saw clear reason to arrest.

In such cases, you must explain afterwards what perils you feared and why. (Take good notes, even after the guy kicks or punches you.)  The judge discusses the legal reasons why the officers acted correctly, and that's what makes this decision a worthwhile read.

I thank James Paulson at the Pacific Regional Training Centre for bringing this decision to my attention.

2015.03.05 Third Party Suspects

Blaming someone else is a great way to avoid responsibility, especially when the identity of the perpetrator isn't clear.

Someone abducted a 13-year-old girl, tied her up and left her in a shed to die in the cold of a Manitoba winter.  Decades later, police accused Mr Grant, 2015 SCC 9, based on small traces of DNA.  At his trial, he tried to present evidence of a similar assault on a schoolgirl, committed when he was in jail.  He wanted to argue that the similarity suggested that the same guy committed both offences, but because Mr Grant was in jail at the time of one of them, he couldn't be that guy.  The trial judge wouldn't let him.  The appeal judges held that the jury should have heard this evidence, and granted him a retrial.

For police officers investigating "whodunnit" cases, this reminds you that alternate suspects matter. To prove that your main suspect did the crime, you must investigate alternate suspects thoroughly.

2015.02.21 Search Warrants - When to get Another Warrant

Police got a warrant to search Mr Galbiati's, 2014 BCCA 5 residence for a marijuana grow operation. What they found suggested that they arrived in the nick of time. The grow rooms were empty and the marijuana was packaged for sale. They also found an arsenal of firearms and ammunition - some of which was unsafely stored. They found income tax returns which suggested that Mr Galbiati could scant afford the lifestyle his residence suggested.  They saw what looked like stolen property.

They started investigating proceeds of crime and stolen property. That breached Mr Galbiati's rights, because the warrant authorized a more limited search.

The officers should have got a warrant.

Interestingly, the trial judge felt that the officers could lawfully examine the serial numbers of apparently stolen property in plain view, and check those numbers on a database, even though the warrant itself did not authorize this. But examining his tax returns to assess his income went beyond the search for "documents of residency" which the warrant authorized, because the focus went beyond residency and into income.

When searching pursuant to a warrant, you may search for what the warrant describes. In so doing, if you encounter evidence of other offences, you may seize it.  But you can't change your investigation, and start searching for items not described in the warrant. If you want to search for other stuff, get a new warrant.

2015.02.19 Impaired Driving - Drug Recognition Evaluations - Right to Counsel

Mr Fogarty, 2015 NSCA 6 crashed his Crown Victoria into an oncoming Mustang. The occupants of the other car died. An investigating officer figured that drugs impaired Mr Fogarty's ability to drive.  That officer made a DRE demand, and told him about his right to counsel. He called a lawyer and got advice. After the evaluation, the DRE officer demanded a blood sample, but didn't offer him any further opportunity to call a lawyer. Mr Fogarty complained that this breached his rights: any time an investigation changes, police should give the suspect fresh access to legal advice.

The trial judge disagreed.  Consider the legislation:

An officer who forms reasonable grounds to believe that drugs impair a driver's ability to operate a motor vehicle may demand that the driver undergo an evaluation by a Drug Recognition Evaluation. s.254(3.1)  If that officer reaches the same conclusion, that officer may demand a blood sample for analysis. s.254(3.4).

Because a lawful DRE may logically lead to a blood demand, the court held that the blood demand was not a new or unexpected investigative tactic.

The appeal court judges agreed with the trial judge.

But they sounded a cautionary note: "Mr. Fogarty said nothing to indicate that his initial legal advice was inadequate or to request a re-consultation with counsel."

What if your suspect complains that his initial legal advice didn't cover what to do if the officer demands blood?  I suggest that you give the suspect an opportunity to get further advice.

2015.02.12 False Complaints to Police

Sometimes, people report crimes that never happened commit.  If they do it with intent to mislead, and you act on it, then they commit public mischief (Criminal Code - s.140).  People like me can prosecute them.

But can they be sued?

Apparently, police investigated Mr Caron 2015 BCCA 47 because young Miss A. told police that he raped her.  He sued her for defamation.  His claim explained that the police investigation proved he was working in another province at the time of the alleged rape.

Her lawyers asked the court to dismiss the lawsuit without hearing evidence. They argued that allowing such a lawsuit might frighten true complainants.  Who wants to complain to police about being raped if you might get sued for it?

The court allowed the trial to proceed: she could be found liable if the evidence showed that she acted maliciously, but not if she made an honest mistake.

I am not an expert in civil law. There may be nuances in this decision which I missed.

But the decision does identify dangers in sexual assault complaints.

Sometimes people make false complaints.  Such allegations can do terrible harm, especially sexual complaints. Be wary of our natural human tendency to sympathize with complainants.

Sometimes, true complaints come from vulnerable, inarticulate people who omit parts of the story because of shame or fear.  Ignoring, dismissing or lecturing them can do terrible damage too.  Not long ago, I worked with a woman who deeply distrusted police.  She had good reason.  Officers ignored or dismissed her complaints both times she was sexually assaulted. The jury believed her second complaint. But she won't ask police again to investigate the first one. Beware of dismissing a complaint too quickly.

Damned if you believe her.  Damned if you don't.  Investigate sensitively. Keep in mind the possibility of innocence.

2015.02.05 Testifying about the Law

Professional witnesses, particularly police officers and experts witnesses, usually know some of the law which applies to their field.  Sometimes these witnesses know the applicable law better than the lawyers who question them. Pride can lead to a fall - exercise some humility.

Dr Steven Hucker knows more about mental disorders than most folks. He's a smart guy.  Ms Campione, 2015 ONCA 67 murdered her children.  At her trial, the defence presented evidence that she was "Not Criminally Responsible by reason of Mental Disorder" (NCRMD).  Dr Hucker disagreed. While explaining to the jury why he disagreed, he discussed the complicated legal rules which determine whether a person qualifies for this defence.

The jury found Ms Campione guilty.  Evidently, they accepted Dr Hucker's opinion.

Defence appealed, complaining that Dr Hucker got the law wrong, and therefore he misled the jury.

The appeal court rejected this complaint. Dr Hucker got the law right. It's good to know the law that pertains to your work.

But Dr Hucker did another clever thing which you can emulate.  When he testifying, he claimed no authority in interpreting the law.  When discussing the leading case, he explained it "... as I've understood it".  He emphasized that law is not his area of expertise: "That's obviously using my lay professional’s understanding of what the case law tells us."  He left the job of explaining the law to the judge.

Smart.

When testifying, never tell the judge, the lawyers or the jury what the law is -- even if you know more about it than anyone else in the room. Instead, qualify your testimony: "As I understand the law...".  Law is the judge's job.  Take the humble path: "Well, you're the experts on this, but I understand that..." If it turns out you're right, you look brilliant and unmotivated by ego. If you're wrong, your humility earns forgiveness.

The law changes too. For example, the rules around searching cell phones incidental to arrest changed. If it changes between investigation and testimony, you can say "As I understood the law at the time of this search..."

2015.01.29 DNA needs Context

In the women's washroom of a restaurant a black guy quietly peered over the wall between one stall and another, so that he could watch a woman use the adjoining toilet.  When she noticed him, she ran screaming from the washroom. Police attended.  They found a pop bottle on the tank of the toilet in the stall where the man had been. A swab of the mouth of the bottle contained DNA matching Mr Mufuta, 2015 ONCA 50. Case proved, right?

Nope. Not with the DNA alone.

Maybe Mr Mufuta drank from he bottle, and someone else moved the bottle from his table to the washroom.  Maybe the felon took his drink.  Maybe a waitress took a detour from clearing his table, and left something behind in the washroom.

An officer watched the restaurant security video and saw three black men attended the restaurant.  One black man entered the washroom area minutes before the woman, and left three minutes later. Too bad the officer didn't get a copy of the security video right away. Within three weeks, the system overwrote the video.  The recording was unavailable for court.

The trial judge convicted Mr Mufuta, and the appeal court upheld the conviction, not because of the DNA alone, but because of the DNA in the context of other evidence, including:

• Police attended promptly and froze the scene of the washroom.  Nobody could have moved the bottle into the washroom after the incident.
• The court heard testimony about the cleaning schedule, which precluded the bottle from having sat in the stall for more than a few hours.
• The woman said that the voyeur was a bald black man.  At the time, Mr Mufuta was a bald black man.
• The video showed that the three black men entered together, and left together just after the incident.

This case offers several lessons:

• Security video is perishable. If the staff let you watch it, but promise you copies later, then take detailed notes of what you see, including whether the time stamp matches the current time.
• Freezing the scene can preserve evidence.
• Investigate the scene - who entered it between offence and police arrival?  What did they do?
• DNA evidence needs context before it can prove the case.

2015.01.26 s.10(a) of the Charter - Should you Name the Victim?

When you arrest a suspect, you must identify the offence, so that the suspect can decide whether to cooperate with your investigation, or keep silent.

The law does not require you to provide detail. Quite often, at the early stages of an investigation, you don't have much information. Quite often, the suspect knows more than you. Therefore, it generally isn't wrong to arrest for "murder" without identifying the victim. (2005 ABCA 430)

How much information should you give a suspect about the offence? As a matter of tactics, giving the bare minimum can produce evidence.  For example suppose you tell your suspect "You're under arrest for murder", and the suspect replies "Mabel's dead?" Whether or not you were investigating the death of Mabel, you now know that your suspect knows something about harm that came to her.

But there's a downside to being coy. It can look cheap and unfair.

In W.L., 2015 ONCA 37, the investigating officer arrested the suspect for "sexual assault". The officer did not identify the complainant - the suspect's step-daughter - until long into an interview.  In that interview, the suspect admitted touching the girl, but at trial, he explained that he did so only to check her for pinworms. Why didn't he tell police that explanation during the interview? He blamed police. By arresting him for assault, and keeping him in the dark, the officer scared and confused him, so that he did not think to give the exculpatory explanation.

I have not watched the interview. I can not say whether the investigating officer actually treated the suspect unfairly. The appeal court focussed on a lawyer's issue. When choosing tactics, remember that it can look unfair if you don't identify who you say the suspect hurt (MacLean, 2013 ABQB 60) or what the suspect did (J.S.W., 2013 ONCA 593)

2015.01.24 Fingerprint Experts - What to Expect when the Attack Comes

When stealing plastic-wrapped dolls from a residence, a burglar left a single fingerprint behind on the plastic. Ripples in the plastic distorted the print.  Whose finger matched the print?

At first, AFIS - the Automated Fingerprint Identification System - produced no potential matches for the prints.  But almost a year later, the people at AFIS reported a possible match with fingerprints taken from Mr Bornyk in 2006 and 2010.  Curiously, those prints would have been in the system all along. Something made this match difficult.

A fingerprint examiner manually compared the print from the plastic with a photocopy of the prints taken from Mr Bornyk.  He concluded they matched. According to standard protocol, he passed his work to a peer for "verification". She reviewed his work, and looked at the fingerprint to see if she agreed with his conclusion. She did.

The trial judge acquitted Mr Bornyk, 2013 BCSC 1927.  He researched scholarly criticisms of fingerprint analysis techniques, and asked the lawyers to comment on the articles he found. During arguments, the defence lawyer pointed out differences between the known print and the print on the plastic. Without asking the fingerprint expert to comment on the articles or discrepancies, the judge concluded that they raised more than reasonable doubt about the fingerprint identification.

The Crown successfully appealed. Mr Bornyk 2015 BCCA 28 faces a new trial. But the appeal court did not vindicate current fingerprint analysis techniques. Instead, it criticized the trial judge's procedure. The trial judge was not a fingerprint expert, and a little research does not make him into one. He should have asked the expert for his comments. Could the expert answer the complaints of the scholars? Could the expert explain the discrepancies which defence counsel identified?  Because the trial judge trusted his own expertise more than the expert, the appeal court found that the trial judge erred.

But this litigation points the way forward in fingerprint litigation. Fingerprint experts should prepare to respond in future trials. They should read the trial judge's list of concerns. Some will return to a court room near you. I think that the important points in that list are:

1. By RCMP policy, if any two fingerprint experts ever disagree, the one who turns out to be wrong loses his or her job. This policy was intended to make fingerprint evidence reliable. But the community of fingerprint experts is small. Their collegiality raises concern that the verification process will lack rigour. Who wants to get their workmate fired? The policy also prevents experts from keeping open minds when presented with challenges to their opinions. Who wants to admit they made a mistake, if doing so gets you fired? Finally, the verification process looks unscientific: it's not a double-blind test nor even blind to the expected answer.
3. Disclosure of bench notes of the fingerprint analysis can easily break down because:

• The analysis often occurs after the initial investigation,
• in a separate office.
• Disclosure flows from the expert through the investigator to the prosecutor, and then to defence.

5. Some known errors in fingerprint identifications came from partial prints and prints with poor detail.
   

7. On difficult matches where you have multiple 'knowns', consider using the other knowns to confirm your opinion.

2015.01.22 Tactics for Prosecuting Multiple Accused

Prosecuting several people at once is cheaper than running separate trials against each one.  But the law requires us to prosecute youth separately from adults.  Indeed, the Crown may choose to prosecute adults separately too.  This leads to interesting legal and tactical considerations for prosecutors and police.

The Crown can require one defendant to testify at the separate trial of another defendant.

But section 13 of the Charter and section 5 of the Canada Evidence Act prevent the prosecution from using the accomplice's testimony against him at his own subsequent trial.

For example, Mr P.C., a youth, helped several adults beat a man to death.  The Crown served him with a subpoena to testify at the adults' preliminary hearing.  His lawyers didn't want him to give his version of the event before his trial. They argued that the subpoena violated his right to silence. The court disagreed, because of the legal protections he enjoyed. P.C., 2011 ONSC 1824.

After his conviction, Mr P.C., 2015 ONCA 30 complained again that at his trial the prosecutors cross-examined him on topics they had asked him about at the other defendants' preliminary hearing. The appeal court accepted the prosecutor's explanation: at Mr P.C.'s trial, they only cross-examined him using information they got from other sources than his testimony at the prelim. For example, at the prelim he said he knew in advance that there would be a beating. At the trial, the prosecution suggested that same fact to him. But the prosecution already knew the answer, because they knew he previously told his sister that fact.

There are limits to this strategy. The Crown can not use this tactic directly or indirectly to develop the case against the witness. In R. v. Z., 2001 CanLII 8539 (ON CA), the prosecution used the same general tactic. The Crown called Mr Z at the preliminary inquiry of other defendants. Later, defence counsel called a witness B. During the cross-examination of B, the prosecutor pressed him to explain Z's behaviour during the offence, and used Z's testimony to push B into incriminating Z. Then Mr B. testified at Mr Z's trial, and repeated the incriminating testimony. Mr Z successfully appealed. Because the prosecutor used this Z's testimony indirectly against him, the prosecutor violated Mr Z's rights.

If the Crown chooses to proceed like this, your investigation against the witness must be complete.

If - after the Crown compels the accomplice to testify - you produce new evidence against the accomplice, it will appear as though you used his testimony at the preliminary inquiry to identify investigative leads against him.  And that could cause problems at his trial.

2015.01.19 Testifying - Dos and Don'ts - Credibility Assessments

At a trial, the judge or jury decides whom to believe. Not the witnesses. For this reason, avoid expressing opinions on whether or not you believed what witnesses told you, unless specifically asked.

Evangeline Billy drowned in the Yukon River. Her sister and another woman told police that Alicia Murphy, 2014 YKCA 7 confessed to killing her.

At trial, the prosecutor asked the officers who interviewed them to describe their demeanour:

Q         What was her -- what sort of shape was she in when you got there?

A         She was very emotional.  I would say under the influence of alcohol, but not to the point where she wasn’t -- and she was giving a story that was credible, with detail, believable.  She was emotional.  She -- she was quite -- quite emotional and somewhat under the influence but not heavily so.

...

Q         And could you describe her demeanour during that interview?

A         Again, she -- she was upset by the whole situation.  But she was much more composed, less emotional than the previous evening, and she gave a pretty coherent and detailed statement

As you can see, the officers went beyond demeanour, and into credibility.  After the jury convicted, the appeal court overturned the conviction, and ordered a new trial.

When testifying, listen to the question asked, and answer it.

• If a lawyer asks you whether a witness or a dispatcher gave you information, answer only that question. Don't recite what the witness or dispatcher told you unless specifically asked.
• If a lawyer asks about the demeanour of a witness, talk about what the witness looked like and how she behaved.  Don't talk about whether you believed her.
  

2015.01.17 RCMP Labour Relations

Here are links to the SCC's decisions yesterday on the RCMP members' challenges to existing labour relations and remuneration structures. Because I know I have no expertise in labour law, I am not foolish enough to express any opinions about them.

Meredith v. Canada (Attorney General), 2015 SCC 2
Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

2015.01.13 Search & Seizure - Detention

At 2:30am, someone called 911, but hung up before speaking to the dispatcher. The call came from a troubled part of town. Police attended and knocked, but nobody inside responded. Fearing that the occupants may have suffered harm, they called building security to let them in. As they waited, police saw Mr Peterkin, 2015 ONCA 8 walk along the street, into the fenced back yard of that unit. There, he used his cell phone. The officers approached him and asked him what he was doing, and whether he knew the occupants of the residence.

He looked startled to see police.  No, he didn't know the residents.  He was waiting for a ride, he explained. And indeed, his girlfriend shortly arrived.

The officers found this odd. If he expected someone to pick him up, surely he would stand nearer the street, where the driver would see him, rather than duck into a yard near a house.  One officer detained him, but made incomplete notes as to why. Nor did he explain to Mr Peterkin all his reasons for detaining him.  The officer's testimony in prelim on this point conflicted with his testimony at trial. The officer did tell him about a right to counsel, but did not mention immediate free legal aid.

Mr Peterkin stood strangely. He held his right arm against his chest, and stood sideways to the officers. The officers called this "blading". They obtained his driver's licence from him, and gave it back. He accepted it in his right hand, but did not extend his arm.  Instead, he turned his body so that his arm remained against his chest.

The officers suspected that he carried a weapon, and told him they wanted to search him. He attempted to flee. The officers stopped him, searched and found money, drugs, a loaded handgun and ammunition.

Defence complained that the officer:

• lacked grounds to search Mr Peterkin, and
• they failed to explain the reasons for his detention and
• failed explain his legal rights properly.

In his reasons trial judge admitted the evidence because the officers gave good reasons for detaining and searching Mr Peterkin. Failure to explain the reasons for the detention and the right to counsel did not cause the discovery of any evidence.

Mr Peterkin appealed unsuccessfully.  Meanwhile, a majority of the Supreme Court of Canada muddied the law of safety searches in a case called MacDonald, 2014 SCC 3.  The majority seemed to say that you need reasonable grounds to believe that the suspect posed you a danger before you could search for officer safety.  The minority identified flaws in their logic, and concluded all you need is suspicion that the suspect possesses a weapon that poses a risk to you or the public.

The Court of Appeal relied on the officers' clear explanations for why they suspected Mr Peterkin carried a weapon, and upheld the conviction.

The defence arguments identify the important issues for police:

1. Identify and record the reasons why you suspected or believed someone did something wrong.  It often feels like instinct, but if you take time immediately after the event to record your observations of the scene and suspect, you can explain logically why your suspicions arose. Defence counsel will pounce on gaps in your notes, and accuse you of making things up on the witness stand. You'll be glad in court that you wrote a full explanation in your notes.
2. Explain to the suspect why you detained / arrested him. At trial, this officer offered two reasons for the detention. At the preliminary inquiry, he offered only one. On the street, he didn't really explain at all. I imagine the cross-examination wasn't fun. Some traffic cops like to ask speeders "Do you know why I stopped you?" It's a cute tactic to elicit an admission of speeding. But it violates s.10(a). You must tell people why you stopped them. You are not obliged to explain every reason, but you must explain at least one lawful reason for detention.
3. On "detention", your suspect is entitled to counsel, and the full explanation of the right to counsel.

2015.01.07 Search & Seizure - Text Messages - Production Orders or Wiretap? - Update

A few months ago, I reported that in Croft, 2013 ABQB 640, police obtained a production order against a telephone company to get text messages that the company stored in its servers after they were sent.  The court found that this constituted "interception of communication", and therefore unlawful.

This suggests that you should stop using production orders to get text messages from Telus.  If you have a case that did, let your prosecutor know about this decision.  The judge extended the reasoning in R. v. Telus Communications Co. 2013 SCC 16 beyond what the SCC decided.

However, a recently-published decision suggests otherwise. In Carty, 2014 ONSC 212, the police did the same thing - several times in a row. The judge reached the opposite conclusion. Production orders for stored text messages are a lawful method to obtain them.

Judges disagree. Get advice before choosing the easier route.

2014 Developments in the Law

2014.12.30 Presence isn't Participation

Mere presence at the scene of an offence isn't evidence of participation.

An undercover officer called a drug dealer, and met to purchase drugs. A guy named Santino answered the call, and gave instructions which the officer followed. The officer went to a hotel and knocked on the door of a room. Inside, the officer met Santino and another guy named Nyuon, 2014 ABCA 130.  The officer asked Nyuon "What's going on?"  Nyuon replied "not much...just hanging." Spread out on a table in the room were pieces of crack cocaine. Nyuon must have known what was going on. The officer bought crack from Santino in Nyuon's presence.

Mr Santino was trafficking in drugs for sure.  But what about Nyuon?

One may reasonably infer that Santino would not possess or traffick drugs with Nyuon present unless he trusted Nyuon. One may reasonably infer from the dangers of the drug trade that Santino needed Nyuon to provide security, and therefore Nyuon knowingly assisted Santino in the transaction. These facts lead to a reasonable inference that Nyuon was a party to the offence.

Therefore, you might lawfully arrest Mr Nyuon in these circumstances.  But does the evidence prove guilt?

No way.

The case against Nyuon is circumstantial. There are other possible inferences. He may have just been Santino's trusted customer who was "just hanging" around.

Presence at the scene of a crime may suggest participation, but you need more evidence than mere presence to prove guilt.

2014.12.19 Warrantless Arrest - Out of Province Warrant

When you find a guy who has a warrant outstanding in another province, can you arrest him?

An officer found Mr Marges 2012 YKTC 102 driving in Whitehorse.  Because Mr Marges smelled of liquor on his breath the officer investigated his sobriety, and eventually made him blow into a screening device.  Meanwhile, over the radio came information that a Saskatchewan justice issued a warrant for his arrest for trafficking.

Could the officer arrest Mr Marges?

It's easy to get this one wrong.

Because a Saskatchewan justice enjoys jurisdiction only in Saskatchewan, his or her warrant lawfully authorizes arrests only in that province.  The officer couldn't arrest Mr Marges because of the warrant.

The existence of the warrant suggests that a judicial officer heard enough evidence to decide that probably the accused committed an offence.

That could persuade you that the accused probably committed an offence.  And if you believe that the suspect committed an offence, then maybe you can arrest him.

But what kind of offence?

You can make warrantless arrests for indictable offences.  s.495(1)(a).

Trafficking is strictly indictable, right?  Nope.  Section 5(3)(a.1) of the CDSA allows for summary conviction prosecution for trafficking in some substances.

Therefore, the existence of the warrant for trafficking did not, by itself, establish reasonable grounds to believe that Mr Marges committed an indictable offence.

The judge found that this officer jumped the gun.  He should have made some radio calls to find out a bit more about the warrant, and the facts behind it.  (He actually did, but he got conflicting information as to whether the warrant would be extended beyond Saskatchewan.)

As a matter of practice, when you're deciding whether to arrest someone on the strength of a warrant from out of province, you want to know whether the prosecution will be by indictment, and it helps to know some facts about the case.  This judge found nothing wrong with detaining the suspect while you check out the details.

2014.12.13 Search and Seizure - Search of Cell Phones Incidental to Arrest

The Supreme Court of Canada finally explained what searches of cell phones police may do after an arrest.  In a 5:4 split, they decided that you can search a cell phone incidental to arrest, but set some limits and conditions which represent a compromise between the various different conclusions past judges reached.

Two men robbed a jewellery merchant at gunpoint and fled in a black car.  Eyewitness descriptions and the licence plate led the police quickly to locate and arrest Mr Chapman and Mr Fearon, 2014 SCC 77.  But they didn't find the jewellery or the gun.  In his pocket, they found a cell phone.  They checked the text messages and found an unsent text (“We did it were the jewelry at nigga burrrrrrrrrrr”).  In the photos, they found an image of a handgun.  At trial, the officers explained that they were in a hurry to find the missing items, and thought that the phone might provide leads.

Mr Fearon and various civil liberties organizations argued that police needed a warrant to search in his phone.  Three of the judges agreed.  But four decided that where an investigation requires prompt examination, you may search without a warrant - within limits.

What are those limits?

1. Lawful arrest - as with all searches incidental to arrest, the search depends upon a lawful arrest.  A lawful arrest requires reasonable grounds to believe (and belief) that the suspect committed an offence for which s/he may be arrested without a warrant.
2. Search truly incident to arrest - you can't poke around in a cell phone just because you arrested someone.  You need reasons connected to the arrest, such as protecting people, or preserving or discovering evidence relevant to the offence.  Even if you can justify looking at the suspect's texts or photos, you can only look back so far in history as is truly relevant to the offence.  You can't prowl through the whole phone.
3. Serious offence - "a search of a cell phone incident to arrest will generally not be justified in relation to minor offences."  When you stop a distracted driver, you can't snoop through his or her phone for evidence to prove they were texting and driving. Robbery, rape and murder plainly qualify.
4. Pressing investigative need - although the court rejected the notion that warrantless searches of cell phones should be done only in exigent circumstances, it introduced a requirement of "immediate investigative purpose".  You should get a warrant unless the circumstances render it impractical. For example, if you need to look into the phone immediately for fear of losing evidence during the time it takes to apply for a warrant, then you can look.
5. Detailed documentation - if you do search using this exception, you must take very detailed notes of what you searched in the phone and why.  If you're going to operate the phone, I suggest video-recording the process including your explanation of what you're looking for and why.

In Mr Fearon's case, the court found that the officers met the first three conditions, but not the last. The majority found that the failure to document breached Mr Fearon's rights, but not so much as to justify excluding the evidence. 

I found the third point the most confusing.  The majority rejected the notion that police can search only in "exigent circumstances".  But the judges created a pre-condition which closely resembles exigent circumstances.  The court rejected the notion that searches of cell phones incidental to arrest must require police to have reasonable grounds to believe that evidence will be found.  But in the many cases where there is no urgency in searching the phone, police must get a warrant.  To get a warrant, they'll need to meet that standard - even though it's a search incidental to arrest.

2014.12.10 Reasonable Grounds - Articulating your Beliefs

Tipsters told Cst Emberley that Mr Day, 2014 NLCA 14 was trafficking drugs.  Cst Emberley applied for and obtained a warrant to search Mr Day's house, but he didn't write all the information he knew into his application.  After obtaining the warrant, but before searching the house, surveillance officers saw Mr Day walk out of a bar with two young women in a manner that looked like a sale.  Cst Emberley directed the officers to arrest Mr Day.  They found drugs.  Although Cst Emberley later searched the house, the prosecutor withdrew all charges relating to what he found there.  The prosecutor didn't think the warrant would survive judicial scrutiny.

At trial, defence threw a clever question at Cst Emberley:

If the judge had refused your warrant, would you have arrested my client?

If the officer said "yes", defence could argue that the officer was an undisciplined rogue, who would arrest people even after a judge told him he lacked sufficient grounds.  If the officer said "no", then the defence could say that the officer didn't really believe that he had reasonable grounds to arrest.

Cst Emberley deflected this question:

He declined to speculate what he would have done.
He tried to point out that judges may refuse to grant a warrant for reasons other than the sufficiency of grounds.

Based on this, the trial judge found that at the time of the arrest, the officer didn't actually believe that he had sufficient grounds to arrest.  The judge excluded the evidence.

The Court of Appeal and the Supreme Court of Canada rejected the trial judge's findings because they had no foundation in the evidence.

The officer never said he wouldn't have arrested.

An officer may arrest when s/he believes that the suspect is probably guilty, and the evidence available to the officer makes this a reasonable conclusion.  You must take a judge's opinion about the sufficiency of your grounds very seriously.  But if you have information that the judge did not know, you may reasonably reach a different conclusion.  In this case, Cst Emberley had more information than the judge.  He was entitled to reach a different conclusion.

Cst Emberley failed to recite all of the information available to him in his application for a warrant.  That caused trouble.  When applying for warrants, recite or summarize all the evidence in favour and against issuing the warrant.

But Cst Emberley's answers in court were accurate and fair.  He declined to speculate on what he would have done if things had gone differently.  That's appropriate.  When testifying you can decline to speculate about things that never happened.

2014.12.07 Wrongful Conviction - The Harm of Non-Disclosure

In a big investigation, leads and minor bits of evidence can sometimes fall by the wayside. That can lead to problems.

In a basement suite in Surrey in 2004, a woman was raped.  She said three men were there, but only two assaulted her; and one of those two owned the place.  Mr Dhillon, 2014 BCCA 480 owned the place.  Police found him naked and intoxicated in the suite, only hours after the rape.

The woman said that one of the rapists fathered her child.

The judge convicted Mr Dhillon of the rape. After he served his sentence, he was deported.

Although police disclosed to the Crown that some DNA turned from the forensic examination of the victim, some DNA results never reached the prosecutor.

After the conviction, DNA sampling of the accused went to the DNA databank.  Nobody noticed it failed match either of the male profiles from the victim.  Only when one of those two male profiles matched some other guy, years later, did police re-examine the case.  Mr Dhillon's DNA didn't match either profile, nor the baby's DNA.

He could possibly be innocent.

The court granted him a new trial, and then stayed those proceedings.  He had already served his sentence, and the likelihood of conviction was low.

Full disclosure matters, even when it seems obvious that the right guy is charged.

2014.12.06 Search and Seizure Incidental to Arrest - Genital Swabs & Fingernail Clippings

I argued this case and I think it's interesting.  Perhaps that's why this summary goes longer than usual.

Early one morning, a naked woman screamed for help from the third floor balcony of an apartment building.  A neighbor called police, who attended and found her outside in the parking lot.  She said a stranger in the building raped her.  She said he used no condom.  She wasn't sure if he ejaculated. About 3 1/2 hours later, when Sgt Santosuosso knocked, Mr Harasemow, 2014 BCSC 2287 came to the door of the apartment in question.  Sgt Santosuosso noticed:

• he was alone
• he looked dishevelled
• he did not smell like he had recently showered

Mr Harasemow made a comment which reasonably led Sgt Santosuosso to believe he found the rapist, so he arrested Mr Harasemow.  After reflecting and conferring with a forensic identification member, he directed his team to seize DNA evidence from the suspect.

Before Mr Harasemow got to speak to a lawyer, the officers:

1. seized Mr Harasemow's clothes,
2. swabbed his hands and his penis for the victim's DNA, and
3. took fingernail clippings.
   

The woman went to a hospital.  She permitted a forensic nurse to swab her genitals for DNA evidence.

The forensic lab found traces of male DNA in the swabs from her body, but not enough to identify him.  At trial, a DNA expert testified that before ejaculation, men often leave too little genetic material in the woman to allow for identification.

But they found her DNA on the swab from his penis.

Mr Harasemow didn't want that evidence admitted.  He argued:

• police can't swab a suspect's genitals for DNA without judicial oversight: they need a warrant.
• before doing such an intimate search, police must let the suspect obtain legal advice.
• police can't clip fingernails of suspects because it violates their s.7 right to security of the person.

The judge rejected all of these arguments:

• Where police have reasonable grounds to believe that an intimate search incidental to arrest will preserve evidence of an offence, police do not need a warrant.
• Because this involves preserving evidence which has a short life-span (another person's DNA) rather that eliciting evidence from the suspect, legal advice would not have assisted the accused.
• Clipping the fingernails was reasonable under the circumstances.

The judge let the jury hear the DNA evidence.

Swabbing the genitals of the suspects of recent rapes can provide crucial evidence.  After being raped, not every victim will permit forensic sampling from her body.  According to the DNA expert in the case, even if she does permit it, many attackers leave insufficient genetic material in their victims to identify them - especially if he does not ejaculate.

Some judges in Canada think police need warrants to do genital swabs: R. v. Laporte, 2012 MBQB 227; R v Saeed, 2014 ABCA 238 (per Watson & Bielby J.A.)

Others don't: R v Saeed, 2014 ABCA 238 (per McDonald J.A.);  R. v. Amey, 2013 ONSC 5108; Harasemow, 2014 BCSC 2287.

I think you don't need a warrant.  But I do think that these searches raise specific concerns:

• You need reasonable grounds for the arrest.
• Furthermore, you need reasonable grounds to believe that you will recover evidence of the offence from swabbing genitals or clipping fingernails.  If the suspect subsequently showered, or the rape occurred more than 24 hours ago, such a swab looks like a fishing trip.
• The judges want you to think twice before doing it: get a senior officer to approve this kind of search.
• Protect the suspect's privacy as much as possible.  Minimize the number of people who observe his nudity (but have back-up on standby in case of resistance).  Don't make him strip fully naked before giving him replacement clothes to wear.
• Document the process carefully: audio-record it, and consider video-recording.  If you do video-record the suspect's private parts, permit access to the recording only to those who need it, and track who sees it.  If you do video-record, consider recording all but the genitals.  (However, in Laporte, the suspect screamed out in pain when the swab touched his penis.  The officers involved believed he was faking; but the judge accepted that the search did cause pain. Video-recording the swab touching the penis might have resolved this difference of opinion.)
• The suspect enjoys a right to legal advice without delay.  This right raises problems.  Telling the suspect of your intended search may motivate guilty people to destroy evidence.  While getting legal advice in private, the suspect may destroy the evidence by rubbing his genitals, or even simply peeing in his pants. Some lawyers may advise their clients to resist you; others may advise their clients to cooperate.  In Harasemow's case, the officers did the genital search while waiting for Legal Aid to call back.  In Laporte's case, the suspect tried to rub the DNA away.  If you decide to let the suspect talk with counsel before the search, make sure you can watch him, and intervene if he appears to be destroying evidence.  If you decide to swab first, document why you feared that you would lose evidence.

Rape victims endure forensic examinations of their bodies which last an hour or more.  Swabbing a rape suspect's penis takes seconds.  You may find the latter task distasteful, but you may recover valuable forensic evidence.  The expert in this trial testified that this kind of evidence perishes quickly - 4-24 hours.

This case suggests that in B.C., officers may proceed with some confidence.  The Ontario decisions suggest that police should give access to counsel before swabbing genitals.  In Manitoba and Alberta, genital swabbing without a warrant remains controversial.  I hope they re-litigate the issue there.

2014.11.28 Arrest and Detention - Getting your Grounds - Dispatcher Error

Someone shot Mrs Stevenson in the head.

Near the end of her messy divorce, she was just stepping out of her new residence to go to work.  Her new paramour found her moments later, dying.  He called police.

The Brockville police attended quickly, and asked him who might have done this.  He said that Mr Stevenson 2014 ONCA 842 was a "possibility", and that Mr Stevenson had the kids in Malloryville, 25km down the road.  This information did not provide reasonable grounds to believe in Mr Stevenson's guilt, but certainly reason to suspect him.

The officer radioed his dispatcher, who conveyed the information to the dispatcher responsible for Malloryville.

Unfortunately, the information changed as it travelled.  The officers in Malloryville received radio broadcasts that identified Mr Stevenson as the shooter.  Relying on that information, they arrested him.  They bagged his hands, and took him to Brockville.

By the time Mr Stevenson arrived in Brockville, the Brockville police had gathered sufficient evidence to justify arresting him: he drove a car similar to a vehicle which left the area at the time of the shooting; he threatened the complainant, and was serving probation for it; he had been in town that day; they learned of the messy divorce.  But they didn't arrest him, because the Malloryville officers had already done that.

The Brockville officers swabbed his hands, and found gunshot residue (GSR).  An expert explained to the jury how this suggested that he recently fired a gun.  They convicted him.

Defence complained that the police obtained this evidence as a result of an unlawful arrest.  Reasonable suspicion justifies detention, but not searches of the person for evidence.  Was the GSR admissible?

The court found that the original arrest breached Mr Stevenson's right to be free from arbitrary arrest.  The court could have excluded the GSR evidence.  Instead, the judge admitted the evidence, in part because:

• when the officers first arrested, they actually had sufficient grounds to detain;
• by the time they searched, they had grounds to arrest;
• the communications error was an inadvertent mistake.

Mr Stevenson's conviction for murder survived appeal.

This case shows why courts dislike hearsay: people can garble information as they hear and repeat it.

Grounds to arrest or detain often rely on hearsay.  Police officers can't operate like judges: to act quickly, you must rely on some information that comes to you second hand.  But even dispatchers get information wrong sometimes.  Double-checking the hearsay evidence you receive when drafting search warrant applications can save you loads of trouble later.  If you have time to double-check hearsay before arrests, you may avoid the embarrassments of this case.

For dispatchers, this case illustrates the importance of relaying information accurately.  Nobody wants to be the person whose error resulted in the release of a murderer.

2014.11.21 Possession - Willful Blindness & Innocent Possession

Mr Farmer 2014 ONCA 823 shared an apartment, and computer and a bed with Mr M.R..  Although M.R. had his own laptop, he used Mr Farmer's desktop computer extensively, often when Mr Farmer wasn't there.  On the authority of a search warrant, police seized both computers, searched them and found lots of child pornography on both of them.

Mr M.R. claimed full responsibility for the material.

Mr Farmer told the police that he knew, or at least had a good idea, that there might be child pornography on his computer, but that he had not downloaded or accessed it and had no interest in it. He said that he knew M.R. accessed child pornography in relation to M.R.'s diaper fetish, and that he had seen M.R. looking at images of teen males dressed in underwear on the desktop computer.  He put two and two together.  But he condoned it because M.R. was his partner for whom he cared.  He took no steps to confirm his suspicion or to delete all the child pornographic images to prevent further access.

Was Mr Farmer guilty of possession of child pornography?

The trial judge found that Mr Farmer was willfully blind to the presence of unlawful images in his computer.  In his view, that sufficed for "possession".  But he acquitted, relying on the doctrine of "innocent possession".

The Crown appealed.

The appeal court judges disagreed with the trial judge's reasoning, but upheld the verdict.

Innocent Possession

They rejected "innocent possession".  What's that concept?

It's like this.  Suppose I found a bag of cocaine in a playground. I decide to remove it, to protect children who might discover it.  But if I pick it up and take it home, knowing what it is, then at law, I "possess" a controlled substance.  Should I be convicted or congratulated?  If I take it home for the purpose of calling police and disposing of it safely, then I am in "innocent possession".  I possess it without any intention to exercise control beyond that needed to destroy it or otherwise put it permanently beyond my control.

Mr Farmer did not possess the pictures for the purpose of destroying them or removing them from his computer.  Innocent possession did not apply.

Wilful Blindness

The judges rejected "willful blindness" too.  Let's consider that.

“wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries”, “an actual process of suppressing a suspicion.”

These judges felt that the facts fell short of establishing that Mr Farmer actively turned a blind eye to what his lover was doing.

And besides, they reasoned, accessing differs from possessing.  Mr Farmer was charged with possessing.  What he ignored was the possibility that his partner was accessing child pornography.

I dunno.  If the evidence in this case failed to establish willful blindness, it came awfully close.

For police officers, when you have enough evidence that you figure that the suspect should have known about the contraband in his control, knowledge is a great topic to discuss.  Many of these folks will say "I didn't know, and I didn't want to know what was there."  Not wanting to know is wilful blindness.  Try asking him: "You're a smart guy.  You knew enough to know that whatever was in the package was trouble?"  "You decided not to look into it because you didn't want to see, and be sure of your suspicions."

2014.11.16 Right to Counsel - Internet Access and Google

A young impaired driver, Mr McKay, 2014 ABQB 70 got legal advice he didn't like.  At trial he complained that the police had failed to give him access to the Internet, to allow him to research lawyers to give him legal advice he might have liked better.  The trial judge agreed with this complaint, suggesting that police get with the times, and let prisoners use Google.

In this case, Mr McKay never asked for internet access, and never complained about the legal advice he got.  The officers could hardly be blamed for a problem they didn't know about.  The appeal court ordered a new trial.

But the appeal court agreed that police should permit prisoners to find their lawyers using modern information systems.

In my opinion, if your prisoner requests internet access in order to locate his or her lawyer, you should try to provide it - if you have the means.  However, you should supervise the prisoner's efforts to locate a lawyer because web pages can be used for many purposes other than research.  An impaired driver should not waste time playing Farmville on Facebook before providing breath samples.  After an assault, you should not let your suspect send threatening gmail to the victim.

If you can not allow the prisoner to use computers available to you (many police computers contain very sensitive information), then you might ask the prisoner what searches s/he wants to do, run those searches yourself, and give him or her print-outs.

You have a constitutional obligation to provide a reasonable opportunity to get legal advice.  The Yellow Pages have yellowed greatly since the passage of the Charter.  According to the Canadian Internet Registration Authority, 85% of Canadians connect to the Internet.  Google and other search engines provide us access to information like telephone numbers.  If you have that access at work, and a prisoner says he wants to use it instead of the Yellow Pages to identify a lawyer, you may find it difficult to explain to a judge why you turned him down.

2014.11.15 Search and Seizure - Reports to a Justice

"Do we really have to complete a Form 5.2?"

If you're a peace officer, and you took something away from someone without their permission by "seizing" it, then yes, you have to complete a report to a justice.  Read s.489.1 of the Criminal Code.

Mr Garcia-Machado, 2014 ONCJ 81 crashed his car, injuring himself and his passengers.  Police obtained his medical records by means of a search warrant but did not file a report to a justice for 4 months.  Those records established that drugs and alcohol impaired Mr Garcia-Machado.  Because the officer failed to report those records promptly, the trial judge excluded the evidence.

Here are the usual objections I receive.  Here are the answers:

• "Items seized during searches incidental to arrest don't need 5.2's" - Yes they do.  Read s.489.1: "...where a peace officer has seized anything ...in the execution of duties..."
• "Information obtained by way of production orders don't need 5.2's" - Yes it does.  Read s.487.012(6).
• "Illegal property, like drugs, get disposed of another way, so we don't need 5.2's" - Yes you do.  Read s.13 of the Controlled Drugs and Substances Act.

The officer who investigated Garcia-Machado thought he had several months. The section requires reporting "as soon as practicable".  Telewarrants require reporting "as soon as practicable" and within 7 days.

Save yourself embarrassment later.  Do the paperwork now.

PS: The Ontario Court of Appeal ordered a new trial.  They agreed that the police breached Mr Garcia-Machado, 2015 ONCA 569 s.8 rights, but didn't feel that it was serious enough to justify excluding this evidence.

2014.11.15 Search and Seizure - Automobile Crash Data Recorders

When modern cars crash, an electronic device records the car's speed and braking activity in the last few seconds before the crash.  Do drivers enjoy sufficient privacy in that data that police officers require warrants to read and analyze the data?

Two recent decisions do little to answer the question.

Hamilton, 2014 ONSC 447, an off-duty police officer, crashed his truck, killing someone.  Without obtaining consent or a warrant, an investigator downloaded the data from his "Airbag Control Module", which showed that he accelerated through an intersection instead of braking.  At his dangerous driving trial, Hamilton asked the trial judge to exclude the data.  Hamilton testified that he believed the data in his ACM was private to him.  The trial judge agreed, but admitted the evidence under s.24(2), in part because the law had been unclear whether this search required judicial authorization.

That judge seemed to treat these devices like personal computers or cell phones.

Mr Fedan, 2014 BCSC 1716 also crashed his car.  Again, without a warrant, police downloaded the data from his "sensing diagnostic module", without benefit of a warrant.  Section 8 of the Charter protects reasonable expectations of privacy.  These have two parts: what the claimant actually thought, and what the reasonable judge thinks about that belief.  Unlike Hamilton, Mr Fedan did not testify that he thought the data was private.  This trial judge found no subjective expectation of privacy.  The trial judge hinted that she did not agree with the judge in Hamilton's case that there should be a reasonable expectation of privacy in this data.

This judge distinguished crash data recorders from computers and cell phones.  The latter usually contain much more personal information.

For all police officers investigating accident scenes, remember that s.489(2) authorizes you to seize evidence if you are:

• lawfully in a place (most highways are public places where you may lawfully go),
• you believe that a crime occurred, and
• you believe that the thing you want to seize was used to commit the offence, or will help prove or disprove the offence.

All Canadian cops can seize the car.

But that doesn't authorize Ontario police officers to search the crash data recorders.  Apparently, they need warrants now.

In British Columbia, we still don't really know.

In the long run, if the electronic devices in vehicles retain significant information about the habits of their drivers, such as the routes and times that they drive, officers will need judicial authorizations.  In the short term, while these devices retain only a few seconds of driving data, reasonable people will disagree whether warrants are required.

2014.11.11 Search and Seizure - Strip Search

I like the way Mr Justice David Watt writes:

"Bart Alec Muller got arrested. And then he got searched. Twice. First, a frisk search. Three cellphones. Some money. No drugs. Second, a strip search. A plastic bag between his buttocks. Crack cocaine. Cocaine. Oxycodone tablets."

The trial judge convicted Mr Muller, 2014 ONCA 780, but Watt J.A. ordered a new trial.

Two confidential sources identified an apartment where a big guy sold crack, and they described him.  Police got and executed a warrant.  They found four people, but no drugs.  Just as the search team entered the building, officers outside the building saw Mr Muller - a big guy - leave the building.  He generally matched the informants' description. And he dropped an electronic scale as he walked away.

The officers arrested him for trafficking. 

Defence complained that the officers lacked grounds to arrest him: there are lots of big guys in Windsor.  The judge found that the timing of his departure, his similarity to the sources' descriptions, and the electronic scale together tipped the balance in favour of arrest.

The officers frisked Mr Muller, and found three cell phones and some cash but no drugs.  The search team found no drugs in the apartment.  The officers decided to strip-search the four people in the apartment, and Mr Muller.  They found the drugs between his buttocks.

A strip search requires you to believe you will probably find evidence. Mr Muller's counsel complained that the police lacked sufficient grounds.  Officers admitted that they find crack cocaine in underwear or between butt-cheeks only 5% or 7.5% of the time.  The mere possibility that police would find evidence of an offence may justify a frisk search, but it won't justify a strip-search.

The judge concluded that the officers had sufficient grounds for this strip search.  The last alleged drug transaction occurred only hours earlier.  The electronic scale bore apparent cocaine residue.  Strip-searches of the other occupants of the apartment located no drugs.  By process of elimination, if there were any drugs, they had to be on Mr Muller somewhere.

If the search was lawful, why did this smart judge order a new trial? Because the officers did the strip search badly.

Strip searches violate privacy.  When performing one, you should minimize the violation of privacy as much as possible.

• These officers, during the search, left the door open to a hallway from which others could have seen Mr Muller if they passed by.
• They made him face the doorway, naked.
  
• These officers made him strip naked.  They didn't have to.  He could have worn a shirt when they searched his buttocks.
• The video security system allowed others to observe the search remotely.
• The video-recording of the search captured Mr Muller's nakedness, and the officers took no steps to minimize the number of people who could view the video.
• The officers seized the plastic bag of drugs without letting Mr Muller remove it himself.
• No officer in charge independently approved of the search

In addition, the officers who strip-searched the other suspects kept no notes and destroyed all video of their searches.

Watt J.A. writes well.  You should read his decision.  Some lessons to draw from this case about strip searches include:

1. Second thought: If you're considering whether to strip search a suspect, you should first ask yourself whether you will likely find evidence of the offence for which you arrested.
2. Second opinion: Ask a senior officer to take responsibility for the decision to strip search.
3. Private places for private searches: Minimize the impact on the prisoner's privacy: minimize the number of eyes that watch; let him/her cover some parts while you search others.
4. Be aware of cameras: You become so accustomed to working under video cameras, you easily forget them.  For strip-searches, you need an objective record of the search process.  But recording a suspect's nakedness preserves it for future eyes to watch.  Therefore, I suggest erecting a narrow modesty screen - such as a high-backed chair - between the suspect and the camera.  If the suspect chooses to expose himself or herself to the camera - that's their choice.  But you offer as much privacy as you can while still preserving an objective record of the incident.
5. Minimize distribution: After the strip-search, whether it obtained evidence or not, preserve the recording in a sealed envelope.

2014.11.04 Confessions - Person In Authority

Canadian courts developed a hard rule that the prosecution must prove the voluntariness of all confessions given to a person in authority.  In the peculiar case of Mr J.J., 2014 ONCA 759, this led to a curious result.

Mr J.J. formed a relationship with a police woman.  Her 14-year-old daughter alleged that he had sex with her.  He denied it.  The mother kicked him out, but wasn't sure who to believe.  She called him and told him she would reconcile with him if it was her daughter who initiated the sex.  He admitted sex with the girl.

Ordinarily, if the mother were not a police officer, the trial judge would admit such a confession into evidence without question.  But this trial judge found that she acted as a police investigator at the time she made the offer.  She was a person in authority.

Therefore, the appeal court found that there should have been a voir dire to determine the voluntariness of Mr J.J.'s confession.  The appeal court hinted that they weren't sure that the mother was really acting as a police officer at the time.  But given the trial judge's findings, they had to order a new trial.

As police officers investigating offences, you should not offer inducements to suspects for the purposes of obtaining confessions.  The usual mistake involves intimating to the suspect that you, the prosecutor or the judge might treat him more leniently on bail or a trial if he would admit the crime.   This is the first time I've encountered a police officer offering to sleep with the suspect if he would just confess.

If you police officers, in your private lives, find yourselves discussing a possible crime with a potential suspect, beware of your role as police officer.  You may not be able to do what a private citizen could do in eliciting a confession.

2014.11.01 Right to Counsel - Taking it Seriously

After Mr Wood, 2014 BCPC 13 crashed his car, he acted as if he were in shock.  An officer also noticed that he smelled of liquor, and got him to blow into a screening device.  It registered a fail.  The officer read him his rights, and asked if he wanted to talk to a lawyer.  He said "no".  Ambulance attendants took him to hospital to see if he needed treatment.  The officer accompanied him in the ambulance, and turned on a recording device to capture conversation.

The officer followed these wise steps with some unwise remarks:

"So, Scott, I've already ah read you, your rights, that was all of the jabber before. Ah, ahum, before we took off there from scene. Do you have any questions for me? Do you understand all your rights and all that jazz?"

When they reached the hospital, the officer accidentally missed reading a small portion of the blood demand.  It might not have made any difference.  But the judge disliked the officer's attitude towards this suspect's Charter rights.  It wasn't "jabber" nor "jazz".  The judge excluded the blood test results.

By all means, record your conversations with your suspects, before and after you explain their rights.  But always take their rights seriously, because judges do.

2014.10.20 Wiretap Disclosure

Section 193(1) of the Criminal Code prohibits anyone from disclosing the content of - and even the existence of - intercepted communications.  A Part VI authorization would do you no good whatever if investigators couldn't discuss what they've overheard.  Therefore, s.193(2) provides exceptions to the general rule, one of which permits disclosure of lawfully intercepted communications "for the purpose of any criminal investigation".

Another exception permits disclosure "for the purpose of giving evidence".

In Imperial Oil v. Jacques, 2014 SCC 66, a majority of the Supreme Court appears to have rewritten that phrase to mean "for the purposes of preparing to litigate in any proceeding".

The Competition Bureau of Canada investigated price-fixing in Quebec's retail gas industry.  Its investigators obtained authorizations to record conversations, and gathered enough evidence to lay charges.

Meanwhile, a public interest group launched a class-action suit against gas retailers.  They applied under civil rules for disclosure of the intercepted communications.

If intercepted communications ought to be kept private, should the dozens of civil litigants involved in this case obtain the private conversations of the business people involved?  What if their conversations stray from the price of gas, to more personal topics, such as their problem children or their love lives?

The court found that the need courts to obtain the truth allows for such disclosure even in civil cases - subject to controls to prevent more dissemination than necessary to litigate.

This should not usually affect police investigations.  But it reinforces two concepts:

• Interceptions differ from regular evidence because it's an offence to disclose them, subject to the exceptions provided in s.193.
• What you gather during a criminal investigation may end up in unexpected hands.  Always assume that someone will scrutinize your work. 

Detention and Search

An officer stopped Mr Christie, 2013 NBCA 64 for driving with an expired registration sticker.  Mr Christie couldn't produce a licence or registration.  Seeing a hunting knife in a sheath in the driver's door pocket, and an open wine bottle on the floor behind the driver's seat, the officer detained Mr Christie, handcuffed him and placed him in the back of the police car.  The officer then searched the car for liquor and weapons.

When you detain a suspect, you may only search for weapons if you have reason to fear that weapons might harm you.  Generally, you can't search for evidence.

Unsurprisingly, the judges disliked this search, and excluded the evidence.  But they also disliked the detention.  In the absence of evidence of any threat to the officer, they found no need to handcuff Mr Christie or secure him in the back of the police car.  They found those actions "arbitrary", and therefore a violation of Charter rights.

Don't handcuff suspects or imprison them in your car for your safety unless you actually have reasons to fear for your safety.

But...

Canadian weather can freeze or overheat people.  Sometimes, you should put people in your police car for their comfort or safety.  Some of those people may become suspects - such as the driver of a car involved in a terrible crash.  Because the judges see such significance in putting people in the backs of police cars, you should tell people who aren't detained that they aren't detained.  Check on them frequently, in case they want to get out.

Searching Cell Phones incidental to Arrest

Ten months after busting Mr Vye, 2014 BCSC 93 for dealing in drugs, police searched his cell phone "incidental to arrest".  The officers examined everything except the ring-tones.  This included the photographs he apparently took of a naked woman, and his texts about her.  Defence challenged this search.

You can't search incidental to arrest unless there's evidence you think you might find.  No evidence explained what the officers thought they would find when they searched the phone.  A search "incidental to arrest" must be connected to the arrest.  The delay caused the judge to disbelieve that this search had anything to do with the arrest.

Cell phones can contain lots of data.  Because the officers did nothing to narrow the search to relevant information, the breadth of the search offended the judge too.  It was okay to duplicate the contents of the phone to preserve them, but not okay to examine everything.

2014.10.05 Search & Seizure - "Reasonable Expectation of Privacy" - Cop Ban

Mr Felger, 2014 BCCA 34 posted a sign on his store banning police officers from unless they possessed a warrant.  His lawyer wrote a letter to police demanding that they respect Mr Felger's prohibition.  Inside, Mr Felger sold marijuana to all members of the public who entered.  Undercover officers entered and purchased drugs without first obtaining warrants.  Mr Felger convinced the trial judge that by doing so, the officers violated his Charter-protected right of privacy.

The appeal court disagreed.

Section 8 of the Charter protects people, not places.  The court observed that Mr Felger's sign created an artificial distinction, which purported to make very public activities private.  They found that he did not enjoy a reasonable expectation of privacy by posting this sign.

Reading between the lines, I suspect that the police got some good legal advice before challenging Mr Felger's approach.  That's a good tactic for handling outrageous interpretations of the law.

2014.09.29 Search & Seizure - Warrants and Production Orders - "Reasonable Grounds to Suspect" that an Offence has been committed

Section 487 and section 487.012 both refer to reasonable grounds to believe that an offence was committed or was suspected to have been committed.  Long debates have raged over whether this justifies the granting of a warrant or production order where only suspicion exists that an offence occurred.

In R v Fedossenko, 2014 ABCA 314, the majority found that suspicion suffices for production orders.  Expect a further appeal.  Maybe the Supreme Court of Canada will finally answer the debate.

Postscript: The Supreme Court of Canada declined to hear this appeal.

2014.09.13 Search & Seizure - Night Search

Section 488 prohibits the execution of search warrants at night unless your application satisfies the justice that there are reasonable grounds to do so, and the justice authorizes it.  What justifies a night search?

Mr L.V.R.'s 2014 BCCA 349 stepdaughter complained that he sexually abused her.  She said he had photographs in his residence.  At 7:42pm, police arrested him at his residence and cleared the residence of people. With members standing guard to secure the contents, the lead investigator applied for a search warrant.  The Justice of the Peace rejected his first application because it failed to explain any need for a night search.  The officer applied again, this time explaining:

27.       I am re-submitting this application for a search warrant requesting night time execution for the following reasons:

The appeal court disagreed that the applicant's availability had any relevance.  Other officers could perform the search.  The prospect that L.V.R. could be released had some relevance - perhaps he could interfere with data on computers in the residence after his release.  Two things swayed the court:

1. The residence was empty.  Section 488 protects people from unnecessary invasions of their homes at night.  Because the home was empty, nobody would be disturbed by the search.
2. Therefore, police officers waiting until daybreak were wasting time ("idling").

The take-home lessons:

- When applying for Criminal Code search warrants to search between 9:00pm and 6:00am, always explain why you need to search at night.

- If you know that nobody will be in the place you intend to search at night (whether under the Criminal Code or the CDSA), say so in your application.

- Risk of loss of evidence is a good reason.

- Wasted time of officers is a valid reason.

- Unavailability of a specific officers is a bad reason.

Arrest & Detention - Plain Smell

Cst Moore stopped a speeding pickup truck.  He turned on a video-recording device before dealing with the driver.  After speaking with the driver, he walked towards his cruiser, and stopped mid-stride when an "overpowering" odour of vegetative marijuana struck him.  He returned to the driver and explained what he smelled.  He later recovered seedling marijuana plants from the truck.

Based solely on the smell, could he lawfully arrest the driver, Mr MacCannell, 2014 BCCA 254, and search the truck?

You may arrest people for indictable offences they committed in the past or are about to commit (s.495(1)(a)), for offences that they are committing now (s.495(1)(b)), or on an outstanding warrant (s.495(1)(c)).

Possessing less than 30g of marijuana is a strictly summary conviction offence.  Until Cst Moore looked inside, he could not know whether Mr MacCannell committed or was about to commit an indictable offence.  Cst Moore had no information about outstanding warrants.  Therefore, he could only arrest if he believed that Moore was in the course of committing an offence.

Because of Cst Moore's past investigations involving marijuana, the court found he could distinguish between burnt and fresh marijuana.  Smoke is evidence of possession of marijuana at some time earlier.  Because this smelled fresh, Cst Moore had evidence that Mr MacCannell continued to possess marijuana.

Was this enough evidence to establish reasonable grounds to believe that MacConnell was committing an offence?  Perhaps he had a medical marijuana licence.

The court found that an officer need not exclude the possibility of licences before making the arrest.

Mr MacConnell had no licence.  The court upheld his conviction.

Who is the Queen?

Mr McAteer and some friends, 2014 ONCA 578 wanted to become Canadian without pledging their allegiance to the Queen.  Some were republicans, one was a Rastafarian.  None felt any desire to promise good things for members of the House of Windsor.  The court responded that the oath is an oath to the Canadian way of governing ourselves, not fealty to a person:

"[T]he oath is a symbolic commitment to be governed as a democratic constitutional monarchy unless and until democratically changed..."

To become Canadian, Mr McAteer must swear an oath of loyalty to our Canadian system, which uses the monarch as a representative of the people and the people's way of organizing ourselves.

Search and Seizure - Courier Contracts

Mr Calkins sent a package of illicit drugs to Mr Godbout, 2014 BCCA 319 by courier.  Mr Calkins signed a standard form, which referred to the courier company's website for the full list of terms.  The website included this:

Without notice, DHL may, at its sole discretion, open and inspect any shipment and its contents at any time. Customs authorities, or other governmental authorities, may also open and inspect any shipment and its contents at any time.

Someone at the courier company suspected something about this package and opened it.  When she saw its contents, she told police.  They came and saw, and seized the package, and arranged for a controlled delivery.

Mr Godbout complained that the police violated his expectations of privacy.  The court observed that the police violated the sender's privacy.  It figured that as the recipient, Mr Godbout could enjoy no greater expectation of privacy than the sender.  The terms of the contract allowed police to examine the contents, and therefore nobody violated Mr Godbout's expectations of privacy.

What you find on a website about privacy policies may provide good evidence about a suspect's expectations of privacy.

Undercover Operations - Mr Big

Mr Hart, 2014 SCC 52 had twin daughters who drowned in a lake.  He explained to his wife that one fell off a dock.  He couldn't save her because he couldn't swim.  So, in a panic, he rushed home, forgetting the other one at the dock.  The police didn't buy this story, but he stuck to it.

Police launched a Mr Big operation, which completely beguiled Mr Hart and lifted him out of his poverty and social isolation.  He believed the fictitious gangsters were his best friends.

One undercover operator boasted of disciplining prostitutes for the gang, and hinted that he even killed them.  Mr Hart responded by claiming to have murdered his daughters.

Later, when Mr Hart met Mr Big, he gave conflicting versions of how he achieved this.  Did he push them off the wharf with his shoulder ... or his knee?

The judges agreed that this undercover operation went too far in persuading Mr Hart to talk.

Prejudicial effect: By involving the suspect in what appears to be crime, the operation creates evidence of the suspect's bad character, which the court feared could prejudice the jury against him.  After he spent every day for 4 months trying to join a criminal gang, "... it is easy to see how the jury could come to view the respondent with disdain."

Probative value: The prospects of wealth and a welcoming community can be powerful incentives for vulnerable people like Mr Hart to admit to crimes - regardless of the truth.  And fear of violence from gangsters could also encourage people to say what they think the gangsters want to hear.  Where the incentives are too strong, the court may lose trust in the confessions these techniques elicit. Of course, confessions which reveal details which only the true culprit  could know - such as the location of a murder victim's body - tend to reveal the truth of the confession.  Mr Hart lived in isolation; his confession revealed no confirmable facts.

By contrast, Albertan police persuaded Mr Mack, 2014 SCC 58 to confess to a murder by applying gentler techniques.  They gave him only modest payments for mild (apparent) criminal activity.  They didn't use scenarios involving violence.  His confessions led to remains of the body.  The judges agreed that the evidence from this undercover operation should be admitted.

Until now, the courts automatically admitted confessions elicited by this technique.  Now, they will examine the confession in a voir dire to determine whether its probative value exceeds its prejudicial effect.  If not, the jury won't hear anything about it.

This decision confirms what circumspect undercover units already know.  Beware of giving the defendant reasons (or excuses) to explain away his confession:

• Gratuitous comments and scenarios suggesting violence should not terrify this suspect into telling lies to save his skin. 
• Beware of turning suspect's vulnerability into a complete dependence upon his "new friends".
• The more heinous the "crimes" that the suspect agrees to perform, the less likely the judge will permit the jury to hear the confession.

Perhaps for some targets, Mr Big should be a reformed gangster, whose business involves mostly lawful transactions.  Maybe he runs a slightly shady private investigations firm, in which trust, loyalty and honesty are important business practices.

Detention - Reasonable Suspicion

Police received an anonymous tip that a man wearing a black T-shirt and jeans, having dreadlocks and a "baby-face" walking on a particular street in a troubled neighborhood carried a gun.  Police attended and found Mr Williams 2013 ONCA 772 fit this description.  They told him they were investigating a firearms complaint, and asked if he was armed.  He "bladed" his body, gave no verbal response, and reached for his waistband.  The officers told him to raise his hands and turn around.  He didn't.  They grabbed his arms, and quickly found a loaded handgun in his waistband.

Defence called it an arbitrary detention.  The judge agreed that the tip - by itself - did not provide reasonable grounds for suspicion.  But Mr Williams' behaviour when the officers addressed him added more information to the tip.  This rendered a detention reasonable.

The risk of a firearm rendered a pat-down search reasonable in the circumstances.  The firearm was properly admitted into evidence.

When justifying a detention, you should explain all of the details which gave you reason to suspect that crime was afoot.

Sexual Assault Investigation

Sexual assault complainants enjoy some additional protections when they complain to police.

To defend such complaints, defence often attack the complainant's credibility.  They ask for every police report which pertains to such complainants.  The Supreme Court of Canada concluded that these reports enjoy the special protections of s.278.1-278.4 of the Criminal Code.  Defence won't receive those police reports just by asking.  They need to prove relevance.  R. v. Quesnelle, 2014 SCC 46

Right to Counsel

After a party, Mr Taylor, 2014 SCC 50 rolled his truck, injuring three of his passengers.  An officer who attended the scene arrested him for impaired driving causing bodily harm.  Mr Taylor said he wanted legal advice, and he wanted to speak with his father.  A paramedic at the scene found nothing obviously wrong with Mr Taylor's health, but recommended that the officer take him to the hospital just in case.  The officer wisely took that advice.

The emergency ward was busy that night (perhaps tending to Mr Taylor's passengers).  He waited 20 minutes with the officer before medical staff attended to him.  Medical staff checked out Mr Taylor, and took blood samples for hospital purposes.

The officer did nothing about access to counsel before leaving the hospital.  He forgot.  He called it a "rookie mistake".

Next morning, the officer got a search warrant for the hospital's samples.  Analysis of the samples proved Mr Taylor drove drunk.

Mr Taylor's counsel complained that Mr Taylor did not receive legal advice at the earliest opportunity.  Even though the officer took no part in drawing Mr Taylor's blood, the appeal courts found sufficient connection between the officer's conduct and the evidence to justify excluding the blood test results.

The prisoner's right to counsel "without delay" does not mean that you must offer a cell phone to the man you arrest before you handcuff him.  You may delay legal rights until you protect people, property and evidence from peril.

"Without delay" can mean sooner than "when we get to the police station", especially if you expect detours and delays before calling lawyers.  Don't leave rights to counsel hanging.

Community Policing - Triggering a Detention

When you encounter suspicious people on the street, you may start a conversation which becomes a detention and then an arrest.

When the interaction changes from "conversation" to "detention", you must explain s.10(b) rights.  Lawyers often disagree when that moment arrives.

At 2:30am, young Mr B.S., 2014 BCCA 257 (yes those are his initials) walked with 4 other young people in a residential neighborhood.  An officer approached them because he thought they might be underage, intoxicated, and possibly interested in mischief.  He smelled liquor, but they denied drinking.  He asked them if they had outstanding warrants.  When he asked Mr K.J. for id, K.J. tried to walk away.  The officer called him back, and looked at his id.  Then Mr B.S. started to fidget with something behind his back.  The officer became nervous for his safety, and decided to search Mr B.S. for weapons.  He found a baton and drugs packaged for sale.

Mr B.S testified that from the moment the police officer first approached the group he felt he was not free to leave.  However, another member of the group testified that she felt free to go throughout the interaction with the police.

Defence argued that by approaching the group, the officer detained them.  The officer had no reason to suspect them of any offence, and therefore the detention was arbitrary.  Defence complained that the officer failed to give any Charter rights until long after the detention.

The trial judge and the appeal court disagreed.  The detention in this case occurred when the officer decided to search B.S..

But it ain't always so.  If your actions would cause a reasonable person to believe that he or she can not leave, then you trigger a "psychological detention".  Depending on how he called Mr K.J. back, this officer could have caused the other members of the group to feel that they couldn't leave either.

At the scene, you can control your words and actions.  In the court room, counsel will urge the court to interpret them differently.  If, at the scene, you clearly distinguish between liberty and detention, then, in the court room, you can describe that clear distinction, and dispel confusion about when the conversation turned into detention.

Searching a Residence in Exigent Circumstances - 911 call

A child phoned his grandmother complaining that his parents were fighting.  She called police, telling them that the child would call only if the fight got "pretty serious".  When police attended the residence, no sound came from the house, even after 25 minutes of knocking.  When they broke in, they found Mr Depace, 2014 ONCA 519., drunk, and the child's mother.  They searched the residence more widely, in case others were in the house, injured.  Downstairs, they found drugs and scales and sheets detailing who owed him money.  Defence argued that the police should have left the house when they found the three occupants unharmed.  The court observed "the police do not need to take the word of the occupant that everything is alright."

Search of Cell Phones Incidental to Arrest

To download and examine the contents of a cell phone, you need a warrant, even if you seized it incidental to arrest.  You may still be able to do a cursory examination of it without a warrant.  R. v. Mann, 2014 BCCA 231

Note-taking

In Acosta, 2014 BCCA 218 the court observed that no rule of law yet requires police officers to make contemporaneous notes.  Failing to take them in that case led to a costly appeal.

"Plain smell" of marijuana

The plain smell of vegetative (rather than burnt) marijuana emanating from a vehicle may suffice for grounds to arrest the occupants.  Acosta, 2014 BCCA 218

Right to Counsel

Two children complained that their stepfather, Mr T.G.H., 2014 ONCA 460 sexually abused them for years.  Their mom didn't believe them.  The boy told police that a peculiar flap of excess skin hung over Mr T.G.H.'s anus.  When interviewed in January, Mr T.G.H. denied having such a feature.

In October, police officers got a general warrant to permit them to examine his anus and if it was there, to photograph it.  The female officer who interviewed him executed the warrant.  Because she told him of his right to counsel at the interview, she felt no need to tell him of his right to counsel before the execution of this warrant.  She carefully avoided interviewing him during the process.

The defence complained that the execution of the general warrant was a "detention", and that triggered a right to counsel.  The court agreed.  The prior exercise of the right to counsel addressed the interview.  This search addressed a completely different (and unexpected) investigative technique.  The officer breached Mr T.G.H.'s right to counsel.  (The court admitted the evidence under s.24(2).)

When you execute a warrant which allows you to search a person's body, such as a DNA warrant, give the subject access to counsel.

General Warrant

Two children complained that their stepfather, Mr T.G.H., 2014 ONCA 460 sexually abused them for years.  Their mom didn't believe them.  The boy told police that a peculiar flap of excess skin hung over Mr T.G.H.'s anus.  When interviewed in January, Mr T.G.H. denied having such a feature.

Police got a general warrant to permit them to examine his anus and if it was there, to photograph it.  A female officer executed it.

She found and photographed the flap of skin.  This evidence helped prove the case.

The idea of getting a warrant to authorize this intimate examination was a good one.  I was surprised that a female officer executed it - ordinarily, you should only do such a search upon a person of the same gender.  I think that the warrant should have authorized photographs whether or not the skin flap was present - the absence of the skin flap could have been evidence that the child was mistaken.  It would be appropriate to obtain such evidence because it would have assisted Mr T.G.H. in his defence.

Interviewing the defendant - promises

Police had reason to suspect that Mr M.S.M., 2014 ONCA 441 sexually abused his daughter.  During an interview, the investigating officer suggested that unless he confessed his daughter would not get the psychiatric she needed.  The trial judge found this inducement rendered the confession involuntary.

Ordinarily, an inducement is improper if you have control or influence over it.  Linking lenient treatment in court to confession is a classic example.  This inducement was less clearly under the officer's control. While I suspect this particular case is close to the line, it highlights the dangers of pushing too close to that line.  Pick your leverage carefully.

Documents in Possession

Police saw Christine Black, 2014 BCCA 192 step out of a building, lock it and walk away.  Inside, sitting on a table, they found a grow operation, and a note addressed to "Chrissy" instructing her on maintenance of the operation.  Relying on Baldree 2013 SCC 35, the defence argued that the note was hearsay, and therefore inadmissible.  The court disagreed: documents found in the possession of the defendant may provide circumstantial evidence of their guilt.

When you search a place or person for evidence of an offence, take some time to record where you found documents, and read the documents you find.

DNA Transfer - The Achilles Heel of DNA Evidence

The great advantage of DNA is its sensitivity.  And sensitivity is its drawback too.

Mr M.C., 2014 ONCA 307 played "zerbert monster" with the neighbor's 5-year-old.  A "zerbert" is blowing a raspberry on a child's skin.  The next day, the little girl said that he blew zerberts on her vagina.  With his tongue.  She was wearing a sundress over underwear.  An external vaginal swab located only her DNA.  But her underwear bore his DNA too.

The trial judge convicted him, but the appeal court ordered a new trial.  The trial judge failed to consider whether the accused's DNA could have transferred to the child's underwear innocently.

When you find the suspect's DNA in a place that suggests guilt, investigate whether it could have transferred there innocently.

Impaired driving - Breath Testing - Taking Samples "As Soon as Practicable"

After a breath or blood demand, you must take both samples "as soon as practicable", and account for delays.  When police tested the breath of Mr Singh, 2014 ONCA 293, 28 minutes elapsed between the first and second samples.  Of course, law required the police to wait 15 minutes after the first sample.  But there was no explanation of the delay for the second sample.

The Court upheld Mr Singh's conviction in this case, but it was a gamble.  If something prevents you from testing the subject promptly, explain the delays in your report.

Value in Video-Recording Eyewitnesses

In Groves, 2013 BCCA 446, police responded quickly to a homicide in the downtown east-side.  Someone in a gathering of street-people pushed a woman under a bus.  Mr Emerson gave police a video-recorded statement very shortly after the event, before he had time to discuss what he saw with other eyewitnesses.  Unfortunately, Mr Emerson was “messed up” on heroin at the time of the event and the recording of the statement.  Even worse, at trial, he retained no memory of the incident.  However, the prompt video-recording of his evidence allowed the trial judge to admit his statement in evidence, which made all the difference at the trial.

There is great value in video-recording the statements of eyewitnesses, even if the witness does not seem valuable at the time.

Searching a Vehicle Incidental to Release

An officer caught Mr Valentine, 2014 ONCA 147 driving a car 20 minutes into his curfew.  The officer arrested Mr Valentine and put him in the back seat of a police cruiser.  The officer then considered releasing him, but because CPIC indicated that Mr Valentine was on bail for violence and threats, and that he posed an escape risk, the officer thought that Mr Valentine could pose a risk to the officers immediately after release.  The officer searched the driver's area of the car for weapons.

He didn't find any weapons, but he did find cash and a smell of fresh marijuana.  He arrested Mr Valentine for possessing it.  The officer then searched the trunk and found 18 pounds of shrink-wrapped bud.

At trial, Mr Valentine complained that while secured in the police car, he posed no risk to the officer.  Therefore, the officer had no authority to search his car.  These complaints fell on deaf ears.

Because of Mr Valentine's particularly nervous behaviour, and because of his past history of violence, this "officer safety" search was justified.

That doesn't mean you can search the car of every person you arrest for breach of bail.  If you want to search for "officer safety", you better have evidence which shows a real risk.

Arrest and Detention - Right to Counsel

Mr Taylor, 2013 ABCA 342 crashed his car, injuring his passengers, including his sister.  Police figured he drank too much, arrested him for impaired driving, and told him he could call a lawyer.  He wanted to call his lawyer and his father.  Mr Taylor figured he wasn't hurt, but the ambulance attendants persuaded him to go to the hospital to be checked out.  His speech was clear.

Half an hour passed before he left the scene.  Nobody arranged for him to make phone calls from there.  He spent 20 minutes at the hospital before the nurse took blood samples for the hospital's purposes.  Nobody arranged for him to get legal advice.  After the nurse took blood samples for the hospital, a police officer made a blood demand.  Nobody arranged access to counsel.  40 minutes later, a doctor drew blood from him for police.

Of course, you should never elicit evidence from a detained or arrested suspect without first permitting him to get legal advice if he wants it.

Investigators in this case realized this mistake.  They got a warrant for the hospital samples.

The trial judge figured that was okay.  Two appeal court judges found that Mr Taylor should have received the legal advice before the hospital took the samples.  The Supreme Court of Canada may hear argument in April.

All this could have been avoided.  The officer called it a "rookie mistake" when he failed to arrange access to counsel for Mr Taylor.

Don't make that same rookie mistake.

Arrest & Detention - Explaining why - s.10(a)

Vancouver police knew Boden, 2014 BCSC 66 had a history of violence, weapons, flight from - and confrontation with - police.  They also reason to suspect him of a series of sexual assaults.  So they set up a surveillance team.  Members of that team saw him approach a woman from behind and grab her right buttock.  He then fled in the direction of a dogmaster and his dog.

When the dogmaster saw Boden, the dogmaster said:

“City Police” “You’re under arrest.  Get on the ground or I’ll send my dog”

Boden replied:

“What? What for?”

The officer repeated his words, but did not identify any offence.

Mr Boden fled.  During a protracted struggle, Mr Boden asked:

“What did I do? What did I do?”

The trial judge found that the officers did not answer the question.

Did he obstruct or assault a peace officer in the execution of duty?

The trial judge found that the officers breached Mr Boden's s.10(a) right.  When deciding whether to submit to an arrest, Mr Boden was entitled to know what the officer was alleging against him.  The appeal court found that in exigent circumstances, you can delay the explanation for later, when things are under control.  It's entirely possible Mr Boden may win on further appeal.

None of this expensive litigation would be necessary if the dogmaster had added three words to the phrase "You're under arrest" ... "for sexual assault".

Get in the habit, and stay in the habit, of identifying the reason for a person's arrest or detention.  Section 10(a) of the Charter requires it.

Search Warrants - Swearing the ITO

Two courts now say that you can swear your Information to Obtain before a Commissioner for the Taking of Oaths (such as Crown Counsel), and then submit your sworn document to a Justice of the Peace to issue the warrant. R. v. D.G., 2014 ONCA 75; R. v. Spencer, 2009 SKQB 341.

I see this as one more slow step towards giving telewarrants equal status to ordinary search warrants.

Search & Seizure - Execution of Search Warrant - Read it

Police applied for a warrant to search 3325 McQueen Road for:

marihuana, marihuana plants, [and] documents identifying ownership and/or residency of 3325 McQueen Road, West Kelowna

The justice gave them a warrant to search that address for:

marihuana, marihuana plants, [and] documents addressed to 3325 McQueen Road, West Kelowna

When searching that place, they found marijuana in abundance.  An officer also seized a birth certificate and a passport of Mr Mandziak, 2014 BCCA 41.  The passport asserted that his address was 3325 McQueen Road, but directed anyone finding it to send it to the Canadian government at another address.  The birth certificate bore no address.

So neither identification document was "addressed to" 3325 McQueen Road.  Both linked Mr Mandziak to the residence.

During testimony, the officer provided no explanation why he seized these things, contrary to the wording of the warrant.  He could have relied on s.489; but he didn't say so.

Two of three judges in the Court of Appeal threw out the conviction and ordered a new trial.  We'll see if it goes on to the SCC.

Lessons to learn:

1. Read the warrant.
2. If you want to seize something not named in the warrant, figure out whether you have the authority to do so.
3. If you do seize something pursuant to s.489 or "plain view", say so when asked.

Note-taking

How does a traffic member know the importance of a traffic stop?  In a routine traffic stop, a police officer checked Mr Bains, 2014 BCCA 43.  His brief notes in a computer system caught the attention of a team of police investigating a major drug conspiracy.  Those officers showed him a picture of Mr Bains, to see if Bains was the driver.  The officer recognized him.  That information led to the grant of a wiretap authorization which sunk Mr Bains.

At trial, Mr Bains challenged the lawfulness of the traffic stop.  Because the officer could remember little to nothing about it, the court concluded it was an arbitrary detention.

You never know when a little matter will turn into a big matter.  Notes always matter.

Impaired Driving - Refusal & Right to Counsel

In a fairly routine impaired driving investigation after a car accident, an officer arrested Mr Bagherli, 2013 MBQB 189 and told him of his right to counsel. He wanted a lawyer.  The officer then asked him if he would provide breath samples.  He said "no".  The officer arrested him for refusal, and took him to the police station.  Instead of calling a lawyer, Mr Bagherli fell asleep in the phone room.  When asked if he'd like to speak to a lawyer, he said “No, I’ll talk to him later.”  The officer gave him the supplemental Charter warning.  He responded: “Yeah, whatever”.  He never offered to provide a breath sample, nor did the police re-read the demand or offer him another opportunity to provide a breath sample.

He beat the charge.

After he asserted that he wanted a lawyer, the officer had an obligation to hold off eliciting evidence until he got advice.  Instead, the officer asked a key question about the offence.

After you make a demand, proceed as if the suspect will comply.  Let the suspect come up with the idea of refusing.  Don't offer him a choice.

Computer analyses - Search Warrant or General Warrant?

The archaic language of s.487 raised doubts whether an ordinary search warrant could authorize forensic analysis of the contents of a computer.  Some legal minds in Alberta believed that a general warrant under s.487.01 would be more appropriate.

One Provincial Court judge there wrote an opinion that s.487 suffices.  K.Z., 2013 ABPC 203; on review to the Superior Court, the judge there agreed: R v KZ, 2014 ABQB 235.

This settles the question in Alberta for the short term.  But this is a topic on which reasonable people may reach different conclusions.

If your forensic analysis of a digital device requires more than just searching it, reconsider using a General Warrant.

This judge also required information about how long it will take to get the search done.  You might want to include such information in your ITO.

Detention - How to Cause a Detention while Trying Not To

Mr Koczab had 17 kg of cocaine hidden in secret compartments in his car.

A Manitoban police officer stopped Mr Koczab, 2014 SCC 9 as he sped east.  He had an Ontario licence but his vehicle was registered in B.C..  He explained he worked in the movie business.  The car, the driver, and his explanation seemed familiar to the officer.  He gave Mr Koczab a verbal warning, and told him he was free to go.  But the officer asked if minded answering a few questions.  Relaxed and comfortable, Mr Koczab replied "Yeah, go ahead".  His answers about the car, the movie business, and his past conviction for a couple of grams of cocaine left the officer with an ever stronger sense of deja vu.  He asked about the suitcases in the back seat, and whether Mr Koczab carried liquor, drugs, or large quantities of cash.  No.  "So what's in the suitcases?" asked the officer.  "Clothes, do you want to see?"  The officer made sure Mr Koczab was giving him permission to look for drugs.  Mr Koczab showed him the clothes, but the officer noticed something odd about the carpet that looked like a hidden compartment.

The officer thought that he might detain the accused for a further criminal investigation,  He called for back up for officer safety.  He told the accused “I just have to go to my car for a minute.”  And he did go to his car and call for back up.

The trial judge found that the officer detained Mr Koczab at that point.  He found that the officer implied by this remark that Mr Koczab should not leave.  He found that the background of the many questions and concerns about drugs established a context in which Mr Koczab would not feel free to leave.   Because the officer failed to tell Mr Koczab about his right to counsel at that point, the officer breached Mr Koczab's s.10(b) rights.  The judge excluded all 17kg of cocaine which the officer later discovered, and Mr Koczab beat the charges.

The appeal court disagreed, but the Supreme Court of Canada unanimously sided with the trial judge.

For police officers, just saying "You are free to go" doesn't necessarily make it so.  If you act like the person must stay, then the judge will find that you detained a person.

Prosecutorial Liability

Criminal defendants can only sue prosecutors for malicious prosecution.  Negligent prosecution is not a reason for prosecutors to pay defendants; negligent investigation is.  Henry v. British Columbia (Attorney General), 2014 BCCA 15

Grounds for Searching a Suspect for Officer Safety - "Suspicion" or "Belief"

Mr MacDonald, 2014 SCC 3 played music in his apartment too loud and too late at night.  His landlord complained.  Mr MacDonald swore at him, and kept the music playing.  The landlord called police.  A police officer attended and asked him to turn it down.  He swore at her too, and kept the music up loud.  She called her supervisor, Sgt Boyd.  He knocked and kicked at Mr MacDonald's door.  Mr MacDonald opened it just wide enough that the supervisor could see a black shiny object.  But Mr MacDonald hid it behind his leg, and refused to say what it was when Sgt Boyd asked.  Fearing it might be a knife, Sgt Boyd pushed the door open a bit further.  He then saw it was a gun.  He barged in and relieved Mr MacDonald of what turned out to be a loaded handgun, unlicenced for possession in that province.

Was this warrantless entry into Mr MacDonald's residence lawful?  The trial judge said "yes".  An appeal judge said "no".  The Supreme Court of Canada said "yes", but most of them used language which creates confusion.

Until now, reasonable grounds to "suspect" that life and limb is at risk suffice to justify intrusions into privacy.  If you want to search for evidence, you need reasonable grounds to "believe" that it's there.

In this case, the majority (4 judges) said that an officer safety search "will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search" (para 41).  As the minority (3 judges) pointed out, this significantly changes the law (para 65), eliminating an important protection for police.

It may not necessarily be the disaster for police described by the minority.

That's because the majority found that Sgt Boyd had the necessary grounds to justify this search.  But Sgt Boyd never testified that he "believed" that Mr MacDonald "actually" possessed any weapon, only that he "might" possess a weapon.  In my lexicon that's "suspicion".  To the majority of the Supreme Court of Canada, apparently, that's reasonable grounds to "believe" in a threat.

In my opinion, the minority decision is better reasoned and better explained than the majority.  If you read this case, read both decisions.  Because of the confusing language, this matter will doubtless return to the Supreme Court.  In the mean time, I expect confusion in the provincial courts.

Search & Seizure - Warrant Drafting - Source Documents

Mr Vuong 2013 BCCA 527 grew marijuana in a residence.

A junior officer drafted an application for a search warrant.  In it he explained that he saw window coverings, and detected a faint whiff of growing marijuana when he walked near the property (but he didn't walk all the way around it).  He recited the electrical consumption records for the residence, and observed that this residence consumed 4x more electricity than an average home in the area.  He obtained that statistic from what he summarized as a "BC Hydro document".  But the document didn't come from BC Hydro.

This gave the JJP a false sense of the reliability of the document.

On appeal, the court found that the warrant shouldn't have been granted.  The officer should have:

• gone all the way around the property, in order see all window coverings, and to prove that the smell didn't come from somewhere else;
• attached the statistics document, or summarized it accurately.

There is much value in attaching an exhibit to your ITO, if the exhibit explains succinctly some important evidence in your application.

Good Cop - Bad Cop - Violent Cop

A jury found that Mr Singh, 2013 ONCA 750 and his accomplice violently stole $350,000 worth of copper.  The evidence proved his guilt, but the police investigation tactics bought him freedom.

The police investigation included a tactic of assaulting him three times to get him to confess.  Because of his charges, Mr Singh chose not to cooperate with the police discipline process; the officers suffered no meaningful penalty.

The Court of Appeal found that the police tactics were so outrageous that it had to disassociate the court from the police conduct.  Mr Singh was freed.

Guilty people have rights too.  Your job includes upholding those rights.  Don't injure your prisoners.

[Subsequent investigations suggested that the police officers in this case actually didn't injure their prisoners. Ontario (Attorney General) v. Clark, 2021 SCC 18. The principle remains good law: don't injure your prisoners.]

2013 Developments in the Law

Right to Counsel - "Exigent Circumstances" - a Rookie mistake

Mr Taylor, 2013 ABCA 342 crashed his car, injuring himself and three of his passengers.  Police arrested him at the scene for impaired driving causing bodily harm.  Although they planned to make a blood demand, the junior officer with Mr Taylor waited until after the hospital drew blood for medical purposes.  While he waited, he could have - but didn't - give Mr Taylor an opportunity to get legal advice.

At trial, he admitted his error as a "rookie mistake".

An arrested or detained person enjoys the right to get legal advice without delay.  Whether it's at the detachment, the hospital, or somewhere else.

Although the officer got a blood sample for the purposes of the prosecution, the prosecutor didn't even try to get it admitted.  The trial judge admitted the hospital's blood sample, and convicted Mr Taylor.  The appeal court was less kind.  They observed that a lawyer might have advised Mr Taylor to refuse to give his blood to the hospital, thereby protecting himself from investigation.  They excluded the hospital's blood sample results.

The prosecution appealed to the Supreme Court of Canada.  Some time in 2014, we'll see how the case turns out.

In the mean time, be clear that the right to counsel means more than a phone call from the detachment.  It means a reasonable opportunity to get legal advice, given without delay after arrest or detention.

Search & Seizure - Searches for Firearms in a Car

A wiretap unit told an officer that Mr Wright, 2013 ONCA 778 had a firearm in one of two cars.  That officer told local police that one of the two cars contained a firearm, but did not identify Mr Wright.  Those officers found both cars outside a nightclub.  They questioned the driver of one vehicle, and let him go.  Mr Wright sat in the passenger seat of the other vehicle.

The officers felt they lacked grounds to search the car for a firearm.  They noticed liquor on the driver's breath, and made him blow into a screening device.  It registered "warn", and so the officers prohibited him from driving for 12 hours.  Because of an earlier driving prohibition, Mr Wright couldn't drive either.  Therefore, the officers started talking about impounding the car.  Mr Wright's demeanour changed.  He claimed the vehicle, and everything in it, belonged to his girlfriend.

The officers searched the trunk and found a handgun.  Was it admissible?

The court suggested that the officers could have relied on s.117.02 (exigent circumstances search for a firearm) to justify their search.  They didn't.  Nor did they get a warrant.  They hadn't arrested anyone, and so they couldn't search incidental to arrest.  They had no lawful authority to look in the trunk.  The court admitted the evidence anyways, because the gun would have been discovered during an inventory search.

When searching private places for evidence, make sure you know your authority.

Prostitution Laws Unconstitutional

Ms Bedford, 2013 SCC 72, a professional dominatrix, wants to work legally, in a business place.  She and other prostitutes applied to court for a declaration that current prostitution laws violate the Charter.  The judges agreed.

Although dangerous, prostitution is legal.  But soliciting customers in public isn't.  Nor are brothels or pimps.  Talking with customers on the street permits a prostitute to assess whether a John might harm her.  Brothels provide controlled, safer places to ply trade.  And hiring muscle as security would protect prostitutes.  The court recognized that pimps exploit prostitutes, and so Parliament might want to legislate against them.  Brothels can attract nasty people to a neighborhood.  There could be constitutional laws about them too.  Therefore, the court gave Parliament a year from December 20, 2013 to fix the legislation.

Right to Counsel - Exigent circumstances

Kidnappers captured a man over a drug rip-off.  They threatened to kill their victim.  Police captured an accomplice.  They feared that he would tip off the ringleaders, who would kill their victim.  So they questioned the accomplice, Mr Sidhu, 2013 ONCA 719 without giving him access to counsel.  Was this a breach of s.10(b)?

No.  Because the officers had good reasons for their fears, the court found this was acceptable.

They didn't like how the interrogator cast aspersions on defence counsel though.

Exhibit Retention

After his conviction for sexual assault, Mr Caron, 2013 BCCA 475 took steps to appeal.  He let the 30-day appeal period expire without notifying the Crown of his intention - he was too busy trying to convince Legal Aid to fund the appeal.  Five months after the trial, police disposed of a windshield which formed key evidence in the case.  A year after the trial, they destroyed a pair of shoes which also formed key evidence in the case.

Only after that did Mr Caron's lawyers let the Crown know that he wanted to appeal.

After an appellant misses the 30-day deadline, he must ask the court for "leave" to proceed with the appeal.  Mr Caron applied for leave.  Crown objected: the prosecution no longer had the exhibits.  If the ordered a new trial, Crown wouldn't have as much evidence as before.

The judge let Mr Caron proceed anyway.  The possibility that he might be innocent trumped the prosecution's interest in a presenting a good case.

Before you destroy exhibits, I suggest that you communicate your intentions to the accused.  That gives him an opportunity to let us know if he still wants to litigate.

Confidential Informants - Redaction

A lawyer named William Mastop, 2013 BCCA 494 went to jail for a year for contributing to the activity of a criminal organization.  The conviction ended his legal career.  The Crown appealed his sentence, and the Court of Appeal increased it to 2 1/2 years.  What did he do?

For $200 a week, he collected information for a group in Vernon known as "The Greeks".  He gave them Crown disclosure that he received from his clients - who were often underlings who worked with or for the Greeks.  He gave them a poorly-redacted ITO relating to a drug warrant.  The Greeks wanted to identify the rat who informed on their drug operation.  They assaulted people related to those identified in that ITO, and murdered one, in an effort to identify the confidential informant.

When you rely on confidential informants, you play with fire.  Mr Mastop illustrates the worst-case scenario, but innocent mistakes happen all too easily.  Redact with care.

Search Warrants - Searching a Computer

Computers differ from filing cabinets.

If you want a warrant to search a house for "documents", and you think the documents you seek are stored electronically in a computer, then ask the justice for a warrant to search computers in the house for the documents you want.

If you lack authority in the warrant to search computers and other electronic devices, and you find such things during your search, then if you think they contain evidence, seized them, and draft a new warrant application to search the electronics for the evidence you think they contain.

Police thought Mr Vu's 2013 SCC 60 house consumed more electricity than the meter recorded. They applied for and obtained a warrant to search for equipment related to that theft, and “records and documentation relating to occupancy and control over the property and electrical services supplied".

When they searched, they found a marijuana grow operation and two computers. They searched the computers and found evidence that Mr Vu was responsible for the grow.

The defence also argued that computers and other electronic devices contain so much private information that police must not search them without a warrant specifically authorising it. The judges agreed.

Defence also complained that the ITO failed to explain why documents of residency would be found in the house.  This time, the court was prepared to infer from what the ITO explained that such things would be present.  Next time, you might not be so lucky.  Explain in your ITO why you think the things you seek will be found in the place where you want to search.

Powers of Arrest - Offences, not Convenience

Tips led police to apply for a warrant to search a particular residence for drugs.  While awaiting the arrival of the warrant, some officers watched the house.  Ms Frieburg, 2013 MBCA 40 drove up in one car, went in for 20 minutes, and then drove away in another car.

To prevent her from interfering with the upcoming search, a couple of police officers arrested her before she returned to the house.  When asked why they arrested her, the officers explained that she was the target of an investigation which had obtained a search warrant.  And for safety's sake, they didn't want her interfering with the search.

Other officers found drugs in the car she abandoned.  It wasn't identified in the search warrant as a place to search.  Could they search it "incidental to arrest"?

No.

First, she wasn't in it when arrested.  A search "incidental to arrest" must involve the place where you found the suspect.

Second, it wasn't a lawful arrest.  A search warrant authorizes you to search a place for evidence.  It doesn't authorize you to arrest people.  On the other hand, if you know why the justice issued the warrant, then you will have reasonable grounds to believe someone committed an offence.  If you know who, then you can arrest them.

It would have been a great strategy.  But the arresting officers needed grounds to believe that she committed an offence.  They probably had them, but they didn't mention them when testifying.

Oops.

Sniffer-Dogs give Powers to Search

Tips led police to apply for a warrant to search a particular residence for drugs.  While awaiting the arrival of the warrant, some officers watched the house.  Ms Frieburg, 2013 MBCA 40 drove up in one car, went in for 20 minutes, and then drove away in another car.

Having reasonable grounds to suspect that the first car contained drugs, an officer brought a drug-sniffing dog to the first car.  It indicated drugs.  The officers opened up the car and found 150 pills of ecstasy.

Defence complained that the search warrant didn't cover the car.  It was a warrantless search, and the evidence should be excluded.

The court agreed it was warrantless, but held that sniffer-dogs may provide such good grounds that you can seize the drugs without a warrant.

Defence applied for leave to appeal.  We'll see what the SCC thinks.

Mr Big meets Mr Small - Limits of Undercover Tactics

Someone murdered Barry Boenke and Susan Trudel on an acreage near Sherwood Park, Alberta.  That night, two troubled 14-year-old youths, N.R.R., 2013 ABQB 288 and his buddy ADS left a group home nearby, and burgled various properties on their way towards and through that acreage.  They drove away in Mr Boenke's truck.  When police caught them, ADS confessed to the burglaries, but alleged nothing which would convict either of the murders.  NRR gave a statement too, but a judge found it was involuntary, and excluded it from evidence.

Both were charged with the murders, but NRR's trial fell apart when the judge excluded his statement.  Crown stayed the case, and police launched a "Mr Big" operation to gather more evidence.

The officers took advantage of his vulnerabilities.  He needed a family; the officers became his best friends.  He needed money; the officers paid him.  He needed a home; they gave him places to stay.

Because of he was 16, the officers found themselves in compromising situations.  During a scenario, NRR asked his "friend" to buy him a beer.  To refuse would have been entirely out of character.  The officer supplied a minor with liquor.  NRR boasted of a sexual relationship he was having with an adult woman who was in a position of trust and authority.  Failure to intervene left her free to continue what appeared to be a criminal sexual relationship.  Intervention risked undermining the operation.

In the end, NRR confessed to the undercover officers and to Mr Big that he murdered the two.  He gave conflicting accounts.  Because he had sat through his preliminary hearing before the Mr Big operation, he knew all the evidence police had.  He told the undercover officers no new details than had previously been disclosed.  He testified, denying the murder, and alleging that he lied to Mr Big.  A child psychologist testified that NRR would have been deeply vulnerable and dependent.

The judge excluded the undercover operation confessions for several reasons:

1. The officers established complete control over NRR, making their relationship to him functionally equivalent to a detention.  This idea derives from R. v. Hart, 2012 NLCA 61, which under appeal to the Supreme Court of Canada.
2. The officers gave such strong incentives to confess that they "coerced" him into speaking.
3. The confession wasn't reliable because it conflicted with other evidence.

Regardless how the SCC rules in the Hart appeal, officers conducting Mr Big operations will want to investigate their target.  How much pressure will be too much pressure to talk?  What other risks must you avoid?

Dirty Tricks & Undermining Religion

Police suspected Mr Welsh, 2013 ONCA 190, his brother and his buddy of murdering Mr Oraha in revenge for a murder of one of their close friends.  Police learned that Welsh's mom was superstitious, and believed that ghost of the close friend haunted her house.

An undercover officer posed as an "Obeahman" (Jamaican spiritualist), offering to help the family escape problems with the police ... but only if the family told him the whole truth.  He established his credibility in creative scenarios involving a dead cow, and a magic handkerchief.  (Read the decision if you want to know more.)

He got important admissions from the family.  Were they admissible?

Defence complained that the police conduct shocked the community, and infringed on the defendants' right to freedom of religion.

The judges disagreed.  This family sought spiritual powers against the state, to avoid accounting for their crimes.  Judges may well exclude evidence obtained from suspects this way if the suspects earnestly seek to make things right between them and God.

Undercover officers, read this one with care before creating a persona who uses spiritual beliefs to elicit confessions.

Photographing and Handling Exhibits - Separate Bits

Police suspected Mr Pitcher, 2013 NLCA 22 intended mischief, so they tried to follow him late at night.  They watched him perform heat checks before driving into the town of Arnold's Cove.  That night, "someone" broke into the Lions Club, and stole an ATM.  Was it Mr Pitcher?

His truck left Arnold's cove, and drove into a gravel pit.  Police stopped it an hour later, at another small town.

Police found the ATM in the gravel pit, smashed open.  They loaded it into the bed of the truck, and took the truck and ATM to the police station.  There, they found broken bits of ATM in the bed of the truck.  Did the bits get there before, or after police loaded the broken ATM into the bed of the truck?

One bright officer photographed the truck bed before putting the ATM into it.  The photographs showed no bits of broken ATM in the truck bed.  That helped the judges conclude that Mr Pitcher was guilty.  An even better idea would have been bagging the ATM before transporting it.

When handling exhibits large or small, beware of cross-contamination.

Search Warrants - Personal Property of the "Found-ins"

When Thao Hoang Thanh Le 2013 BCCA 442 visited her sister's residence, police raided the place, executing a drug warrant.  Police had grounds to arrest her sister.  Ms Le prepared to leave, and reached for a purse which sat on the kitchen table.  Could police search it before she walked out with it?

They did, and found drugs.  She argued that when she picked it up, it became personal property.  Because the officers lacked grounds to arrest her, they also lacked grounds to search her person.

The judges didn't buy this argument.  The warrant authorized a search of the residence for things that would easily fit in the purse.  The purse sat on the table in the residence when police arrived.  Ms Le couldn't neutralize the warrant by picking up the purse.

Exhibit Retention - How Long do You Keep Them?

In 1984, a court convicted Ms Chaudhary 2013 ONCA 615 of murdering an 8-year-old boy.  In 2010, she wanted to reverse the conviction.  Unfortunately some exhibits were gone.  She sought a judicial declaration that after a conviction for murder, police must keep all exhibits for life, unless the defendant or the judge gives permission for their destruction.  The court refused her the declaration she sought.  But they had to think about it.

Even after the appeal periods expire, you should keep the exhibits.  Get rid of them after you ensure that the defendant no longer wants them.

Explaining the Investigation vs. Feeding Information

When you detain or arrest a suspect, s.10(a) of the Charter compels you to explain why.  But what if you don't detain or arrest your suspect, but merely question him?  What should you tell the suspect about the matter?

Mr J.S.W.'s, 2013 ONCA 593 daughter told police that he sexually abused her.  When police first questioned him, they told him only that they were investigating a sexual assault.  Instead of telling him what physical acts she had alleged (eg "finger in vagina") they asked him if he "fondled" her.  He replied "I don't think so. ... I don't believe so, no".

At trial, he blamed police for his uncertainty.  He didn't clearly understand what they meant by "fondle".  Therefore, he couldn't clearly deny the allegation.

That argument failed at trial, but succeeded on appeal.

As a tactic, omitting detail sometimes succeeds in proving guilt.  If you tell a suspect "I'm investigating you for sexual assault", he might reply "Is this about the time I had sex with Suzie while she was passed out?"  That's pretty strong evidence of guilt.

But if he has (or pretends to have) no memory of the event, asking him vague questions about it may gather no useful information.

Therefore, give the suspect enough information to understand what's at issue:

Useless	"You're under investigation"
Weak	"You're under investigation for sexual assault"
Better	"You're under investigation for sexually assaulting your daughter"
Clearer	"You're under investigation for sexually assaulting your daughter while she was in your bed at your house."
Prompting	"She told us you touched her vagina with your fingers when she was sleeping."

How much detail to reveal to the suspect during the interview depends upon the progress of the interview.  You want the suspect's own memories, untainted by information from other sources.  But if the suspect can't or won't recount his version, prompting him with specific allegations may trigger or elicit memories.

"Holding" or "using" a cell phone while driving

A police officer saw Ms Kazemi, 2013 ONCA 585 holding her cell phone at a red light.  He gave her a traffic ticket because cell phones distract drivers.  She contested the ticket, explaining that it fell to the floor when she braked for the light, and all she did was pick it up.

Even so, the trial judge convicted her, and the appeal court agreed with the conviction.  The Ontario legislation prohibits a driver from "holding" a cell phone.  She did what the legislation prohibited.  Guilty.

Another police officer saw Mr Pizzurro, 2013 ONCA 584 typing or reading his cell phone.  Mr Pizzuro complained that the evidence didn't prove that the device was a working cell phone.  The appeal court found he was guilty too, on a technical reading of the legislation.

I observe that the BC legislation prohibits drivers from "using" and "holding" these devices.  Both drivers would be busted in B.C..

Reasonable Suspicion - Deploying Drug Dogs

The Supreme Court of Canada decided two cases about "reasonable suspicion", and considered the reliability of drug dogs.

Mr Chehil 2013 SCC 49, bought a one-way ticket from Vancouver to Halifax.  He paid cash -- just before the plane departed.  He brought just one piece of luggage.

When drug cops in Halifax checked over the manifest, these factors caught their attention.  They suspected that Mr Chehil might be a drug courier.  For that reason, they let "Boris", a black labrador dog trained in drug detection, sniff luggage which included Mr Chehil's suitcase.

Boris helped the officers find Mr Chehil's 3kg of cocaine.  Mr Chehil's thought that the officers lacked "reasonable grounds" for their suspicions, and asked the trial judge to throw out the evidence.  The trial judge agreed.  The Crown appealed, and all of the appeal court judges agreed with the prosecution.

Mr MacKenzie, 2013 SCC 50 didn't exceed the speed limit by much when he passed by a police officer.  He pulled over before the officer had time to signal him to stop.  He showed great nervousness when a police officer addressed him about his driving, which increased throughout the conversation.  Mr MacKenzie explained that he drove from Regina to Calgary yesterday ... no, the day before ... and was now returning to Regina.  His hands shook.  Pinkness tinged his eyes.  The officer remembered from a drug pipeline course that marijuana use can cause this effect.  He asserted that drugs tended to travel east along the Calgary-Regina route.

The officer suspected that Mr MacKenzie was delivering drugs.  The office just happened to have a drug dog, Levi, along with him.  Levi indicated drugs, and the officer found 31.5 lbs of marijuana in the car.

Like Mr Chehil, Mr MacKenzie, complained that the officer lacked reasonable grounds to deploy the drug dog.  Mr MacKenzie did better than Mr Chehil: 4/9 Supreme Court judges agreed with him.  But 5/9 found that the officer had sufficient grounds for his suspicions.

All the judges agreed that to deploy a drug-sniffing dog, a police officer needs "reasonable grounds to suspect" that the drug dog will detect illegal drugs.  They agreed this required less compelling evidence than "reasonable grounds to believe".  All agreed that an officer who acts on a "reasonable suspicion" must identify evidence, observations and knowledge which together raise more reason to think that a particular person or place is involved in crime than the innocent people or places around him / her or it.

They disagreed how much to trust police officers' experience and training.  The skeptics pointed out that officer in Mr MacKenzie's case lacked formal qualifications on which to base his opinions, and never tracked his false positives (suspicions which subsequent investigation dispelled).

When someone trains you on tell-tale signs of criminal behaviour, pay attention to their expertise, so that you can testify about it later, when you see those signs.

Serving and Protecting the Criminal

Mr Hanna, 2013 ABCA 134 drove way too fast.  When a sheriff caught up to him, Mr Hanna clipped his car and caused minor injury.  Mr Hanna eventually dumped his car and fled on foot.  A police dog tracked him.  When it found Mr Hanna, the handler released the dog, and it bit Mr Hanna in a couple of places.

At his sentencing, Mr Hanna complained that the dog handler should have given him an opportunity to surrender before releasing the dog.  He complained of remarks captured on a police video camera, in which an officer said he hoped that the dog would bite Mr Hanna, and the sheriff replied that he hoped Mr Hanna would get shot.

The court agreed, and reduced his sentence by 9 months.  Even though the dog handler had to track Mr Hanna for over an hour, there was no need to release the dog immediately.  And the angry remarks of the officers demonstrated "bad faith".  (Considering that Mr Hanna endangered the sheriff's life minutes before, another judge might have forgiven him his anger.)

Dog handlers: By successfully locating a felon at the end of a track, your dog may have earned a reward.  He probably wants to bite his quarry.  But unnecessary bites raise many problems.  Reward your four-footed star some other way.

Officers:  In-car cameras collect lots of lovely evidence against the felon, but also against you.  You won't need to watch what you say if you remember always that you serve and protect everyone, even the criminals.

Change of Jeopardy

Young Mr D.T. 2013 ONCA 166 drove a stolen car.  A police officer asked him about it.  At first he lied, but then he admitted the theft.  The officers arrested him and took him to the police station.

After properly explaining to him all his rights as a youth, an officer asked him further questions about the theft.  Mr M.T. answered everything.  The officer asked about property they found in the car.  The youth explained that he also burgled a residence.

Because the officer did not stop the interview and re-explain the rights in respect of the burglary, the appeal court excluded the latter part of the statement.

Changes of jeopardy arise unexpectedly.  You must recognize them when they come, and re-explain rights.

Reasonable Expectation of Privacy - Common Areas in a Condominium

Can you watch a suspect from the common areas of a condominium?  Judges disagree.  It's best to get the consent of someone in the building.  R. v. White, 2013 ONSC 1823

Charter Rights - "Oops" - Fixing a Mistake

What can you do to fix a mistake?

In a routine impaired driving investigation, police arrested Mr Manchulenko, 2013 ONCA 543.  Although they offered him access to counsel, he declined several times, but just before providing his first breath sample, he decided he wanted to call a lawyer.  The breath technician took him to a phone room where a poster gave phone numbers for local lawyers and legal aid.  Mr Manchulenko said that the officer gave him no assistance, and took him from the room after 40 seconds.  He then said “well, let’s get this over with”.

The officer should have given him the supplementary Charter warning.  Instead, the officer took a breath sample.

Mr Manchulenko decided to talk to a lawyer, and did.

The officer took a second sample.  The results led police to lay charges.

The trial judge threw both breath samples out because of the failure to tell Mr Manchulenko that police would hold off taking breath samples until he had a reasonable opportunity to get legal advice.  The appeal court ordered a new trial because Mr Manchulenko actually did get legal advice.

If you realize that you breached a suspect's right to counsel, or made an offer which might affect the voluntariness of a statement, then you must make a "fresh start" - separating the earlier part of the investigation from the present one.  Providing access to counsel helps.  Introducing a new investigator can help, particularly when taking statements.  When eliciting further evidence, make no reference to earlier evidence.  Wittwer, 2008 SCC 33.

2013.09.01 - Website went dark on this date

I started working at the Crown Counsel, British Columbia on September 1, 2013. For a year and a month, this site remained dark.  After October 2014, I started restoring the old material, and putting out new material. - HW

2013-08-13 Crime Scene of Dangerous Driving

In a late afternoon in November, Mr Artimowich, 2013 MBCA 62 set his cruise-control for 110km/h, and headed from Winnipeg to Morden.  At the small town of Oak Bluff, the posted speed limit dropped to 70 km/h and then to 50 km/h.  Mr Artimowich didn't notice the signs, but the driver in front of him did.  Mr Artimowich didn't notice the slower vehicle ahead of him until too late.  He crashed into the back of it, causing a chain reaction which killed an on-coming driver.

Was he guilty of dangerous driving?

The trial judge didn't think the evidence proved the case, in part because he had no evidence about:

• how far back the signs were from the collision;
• how close the buildings in the area were to the road;
• what traffic and pedestrians were usually there at that time of day

In car collision cases, the scene of the crime is not the scene of the collision.  Cars move.  The bad driving occurs before the collision.  Therefore, when you take out your cameras, get away from the collision scene, and photograph the routes which the various vehicles drove.

2013-08-10 Defence of Duress - The Wages of Sin

A gangster can't complain that his associates ganged up on him.

Mr Gilliland, 2013 BCCA 342 stole a truck.  When police tried to stop him, he almost rammed a police car.  In his defence at trial, he pleaded duress: He owed $3,000 for drugs.  The dealers threatened to kill him and his family.  He needed to steal the truck.  He was desperate.

The court offered him no solace.

"[T]hose who seek to rely on the common law defence of duress cannot do so if they knew that their participation in a conspiracy or criminal association came with a risk of coercion and/or threats to compel them to commit an offence."

Mr Gilliland's situation motivates many people to commit crime, but offers no real defence.  Some of these guys try to gain leverage using their criminal lifestyle: if you let me off, I'll tell you who's threatening me.  Usually, that's a bad deal.  You have strong evidence against the suspect.  Usually, the suspect can't give you any strong evidence against his foes.

If you suspect that your prisoner is a desperate debtor, then investigate fully, but beware of offering a quid pro quo.  Don't give him the idea that you will save his life only if he confesses to the crimes for which you arrested him.  If you do, any statement he gives will be inadmissible.

But nor should you blow off his concerns for his safety.  Your job is to investigate.  At the end of the day, saving lives is more important than convictions.

"I want to know about the threats you're facing.  But I can't make your charges go away.  So here's what I'm gonna do.  First, I'm gonna ask about the stolen truck.  You can tell me as much or as little as you want.  Then, I'm going to ask you about the dangers you're in.  They're two separate investigations.  They're not connected.  I'm going to do both. [Or I'll get someone else to do the second one.]  Even if you tell me nothing about the truck, I want to help protect you from harm."

2013-08-02 Arrest Procedures - s.10(a) - Informing the Suspect of the Reason for Arrest

A police officer who arrested Mr MacLean, 2013 ABQB 60 for sexual assault.  She interviewed him for 90 minutes before telling him who complained.  It was a 15-year-old girl with whom he had worked.  Mr McLean asked several times during those 90 minutes what this was about, and who the complainant was.  He wanted to know more before speaking with his lawyer.

The trial judge didn't like this tactic.  How was Mr MacLean to know whether to cooperate with the investigation unless he knew what transaction he must answer?  How could he get legal advice until he knew this was a matter where consent was irrelevant?

This doesn't mean you need to explain all the evidence you have before the suspect calls counsel.  But you should give enough information that the suspect can figure out what transaction is at issue.  It's better to say "you're under arrest for the murder of Jane Doe", than "you're under arrest for murder contrary to s.235 of the Criminal Code".

2013-07-29 Confidential Informers - Protecting Privilege - How much to Redact

Mr XY, 2013 ONCA 497 provided information to police authorities.  American authorities also believed he committed crimes.  They sought extradition.  Canadian court proceedings had to protect his identity from being disclosed, while also allowing the press to know as much as possible about the extradition.

The press wanted the Crown to justify each redaction of the materials: convince the court that this bit of information would identify the source, or disclose it publicly.  The court chose a much safer standard: "Will this bit of information, in the context of all the other disclosed information, 'tend' to identify the source?"

It's a nice short case which helps illustrate for you how to redact your ITOs to protect your sources.

2013-06-29 Investigative Fairness - Leaning on Witnesses

After someone executed Tyrone Downey on the dance floor of the Cheers Tavern, the investigating officers had reason to believe that Daniel Jackson, 2013 ONCA 445 pulled the trigger.  But the few people that talked didn't seem to want to tell all they knew.

They offered money and witness protection.  One witness gave a sworn statement which didn't identify Mr Jackson; the police later charged her with perjury.

Jackson concocted one alibi, and then at trial, disclosed another contradictory one.  Mr Jackson knew that the Crown would complain that he should have disclosed his alibi early in the investigation, so that police could confirm it.  Therefore, Mr Jackson attacked the investigators: how could he trust the officers to investigate his alibi fairly if they were trying to frame him?

None of this worked for him.  The jury convicted him, and the appeal court upheld the conviction.

Beware of such tactics.  When you're sure who your culprit is, and yet an eyewitness refuses to give you the information you think they have, it's natural to want to increase the pressure to loosen a tongue.  Jackson shows you how that pressure can come back to haunt you at trial. It reduces your credibility and the credibility of any information you get.

 2013-06-25 General Warrants v. Wiretap

In R. v.Telus Communications Company, 2013 SCC 16 police obtained a general warrant and assistance order which required Telus to produce every day from their stored database of customers' text messages, all text messages sent or received by two subscribers for the two weeks after the order was granted.

Three judges of the SCC thought that this activity was "interception" of private communication, and therefore, Part VI applied.  The officers should have obtained a wiretap authorization.

Two judges approached this from a slightly different angle.  Whether or not these text messages were "intercepted", they could have been obtained using Part VI, and therefore s.487.01(1)(c) prohibited police from using a general warrant.

The last two judges figured that this activity wasn't "interception", nor was it similar.

One judge suggested that where a general warrant resembles another warrant or authorization, the general warrant should require similar protections for privacy as the other provision.  (para 81)

What does this confusing disagreement between the judges mean for police?

1. Don't use general warrants to get text messages from Telus' database every day.  (The other cell phone companies don't store text messages in their computers.)
2. Before seeking a general warrant, look for other statutory authorities to get what you want.
3. If you don't know which authority applies, you're more likely to succeed at trial if you meet the prerequisites of the more difficult one.
4. Expect further litigation wiretap, general warrants and intrusions into electronic communications.  Whatever you do now may be wrong by the time the your investigation reaches trial.
   

2013-06-24 Informants v. Agents

Young Mr N.Y., 2012 ONCA 745 found God -- a violent Islamic God who wanted him to die gloriously, killing Canadians and Americans.  N.Y. attended jihad training camps, and shoplifted walkie-talkies and camping supplies for the cause.

Mr Shaikh, another devout Muslim, understood God differently.  He so feared the jihadist movement that he infiltrated it, and informed CSIS what they were doing.  CSIS realized that the leaders of this group were committing terrorism offences.  They passed the investigation to the RCMP.

The jihad leaders recruited Mr Shaikh to train the young warriors in the fine arts of killing Westerners.  He taught them how to handle handguns, in the course of which he committed some firearms offences.

With the RCMP, Mr Shaikh switched from informant to agent, signing documents to that effect after the training camps.

Defence complained of entrapment.  Mr Shaikh committed various criminal offences while training N.Y., and he aided terrorism.  The state's misconduct justified staying the case against N.Y. completely.

To establish entrapment, defence needed to establish that Mr Shaikh acted as a state agent, under the control of police.  Informing isn't agency.  The court found that Mr Shaikh wasn't a state agent when he went to the training camp.  His handlers encouraged him to attend the camp, but instructed him not to commit offences, but he went ahead anyway.

To establish entrapment, defence needed to show that Shaikh caused N.Y. to commit his crimes.  The evidence showed that even if Shaikh had not attended, the training camp would have proceeded anyway, and N.Y. would have attended anyway.

This case illustrates the difference between informants and agents.  Handling sources starts out looking simple, but becomes complicated quickly.  Officers who receive confidential tips from local criminals should read this decision from para 109 to the end, asking themselves "what could have gone wrong here, and what did the handlers do right?"

2013-06-23 Arbitrary Detention - Police Ruse

Undercover officers sought to worry Mr Vuozzo, 2013 ABCA 130, who they suspected of murder.  They wanted him to talk about the murder.  They arranged for a uniformed officer to pull over a car driven by an undercover officer, so that the uniformed member could tell Mr Vuozzo that the homicide squad wanted to talk with him.

The ruse worked.  Mr Vuozzo confessed to his "friends", the undercover officers.

At trial, his lawyer complained that the traffic stop was an "arbitrary detention".  The court found it wasn't.  The officers had good reason for the plan.

I liked the inventiveness of this trick.

If you try something like it, beware of s.10(a).  Somehow, you need to tell your suspect some truthful reason why he's being stopped.

2013-06-23 Right to Counsel - The Friday Arrest

In British Columbia, prisoners arrested in most towns on a Friday evening will remain in police cells until Monday morning, unless they can make bail.  For B.C. police, this offers a longer period to interview the suspect than they would get if they arrest the suspect on any other day of the week.

After Mr Bhander, 2012 BCCA 441 murdered Mr Bains, police planned a Friday arrest for this very purpose.  After the arrest, Mr Bander couldn't reach the lawyer he named, but got a 40-minute consultation with an associate of his chosen lawyer.  Police laid the charges.  The next day, by telephone, his chosen lawyer participated in a telephone bail hearing.  That lawyer specifically asked the justice to direct that police transfer Mr Bhander from police cells to a provincial lock-up.  The justice didn't make a specific order, but did recommend the move.

After the bail hearing, the officers kept Mr Bhander, and interviewed him.  They overcame his repeated assertions of silence by telling him about the evidence they had collected.  During the interview, the lawyer's student came to the police station asking to see Mr Bhander.  The police turned him away.

Eventually, Mr Bhander told police his side of the story, saying " And it’s going against for what my lawyer told me to do, and stuff like that right?"

That statement got him convicted of second degree murder.  Was it properly obtained?

Mr Bhander appealed complaining:

1. Laying the charges is a change of circumstances.  Mr Bhander should have received another opportunity to get legal advice.
2. Prisoners should have a right to the presence of their lawyer during police questioning, just like in the USA.
3. After the bail hearing, police shouldn't be allowed to question their prisoners.
4. The police should have let the student interrupt the interview.
5. Deliberate Friday arrests are unlawful.

None of these arguments succeeded, but only because Mr Bhander got a full opportunity to get legal advice about his problems:

1. Laying charges doesn't change jeopardy, unless the charges differ from the reasons you gave for the arrest.
2. Your suspect can not require his lawyer to participate in the interview.  (I observe that you can allow the lawyer to attend if you think it appropriate.  This is obligatory for youths.  It may be appropriate for other vulnerable suspects, such as mentally disabled or disordered people.)
3. You can question prisoners after the bail hearing.
4. The right to retain and instruct counsel belongs to the suspect not the lawyer.
5. Friday arrests are okay, if you make sure that the suspect gets all the access to counsel he is entitled to.

Ontario officers beware.  Your mileage may differ. There's an old decision from your Court of Appeal (Precourt) which reaches different conclusions from the BCCA about the consequences of a judicial remand order.

2013-06-21 Entrapment - "Reasonable Suspicion"

Mr Gingras 2013 BCCA 293 drew the interest of police.  Some information suggested he attempted in 1986 to bomb Tara Singh Hayer, an important prosecution witness in the Air India terrorism trial.  An undercover officer sought to get to know him better by posing as a shady South American businessman.

It worked.  The officer dropped hints that his business was illegal, and he had a problem with what to do with the money he earned.  Mr Gingras offered to help him launder it, and introduced him to Mr DiQuinzio, who police knew from old and recent investigations of drug trafficking.  Gingras boasted of his involvement in crime, telling many tall tales about himself.  He offered to - and did - launder large sums of money for the officer.  Gingras and DiQuinzio conspired with the officer to import cocaine.

You can not offer an opportunity to commit an offence to a suspect unless you have a "reasonable suspicion" that he is already engaged in crime, or you make the offer as part of an bona fide investigation.

After the bust, Mr Gingras complained that the officers lacked "reasonable suspicion" that he was involved in crime because he himself was such a liar.  The Crown responded that Mr Gingras could not complain of entrapment into money-laundering if he was the one who suggested the idea.

The court responded:

"[I]n the language of the common law of contract, Mr. Gingras’s approach to Officer A for money laundering was not an offer, but an invitation to treat – an indication of a willingness to enter into negotiations with a view to forming an agreement.  Presumptively an invitation to treat should be enough to satisfy the police that the person is already engaged in the proposed criminal enterprise and the police can take things to the next stage in the form of an offer." (my emphasis)

Mr Gingras's offer provided "reasonable suspicion", which, the court explained, is easier to establish than "reasonable grounds to believe".

Mr DiQuinzio similarly complained that police had no grounds to suspect he was a drug dealer except from the unreliable information Gingras gave them.  But by that time, Gingras had proved his reliability by laundering drugs; and DiQuinzio's past gave police further reason to trust him.

Those of you who do undercover work may find this decision a worthwhile read.

2013-06-19 Answering a Drug Dealer's Phone

Police officers arrested Chris Baldree 2013 SCC 35 and Chris Anderson for possessing drugs for the purpose of trafficking.  The officers found the drugs in another guy's apartment when investigating a complaint of a break-in.  Mr Baldree's cell phone rang, and so an officer answered it.  The conversation went something like this:

Caller	I'm at 327 Guy Street.  I'm a friend of Megan.  Is Chris there?
Officer	Chris who?
Caller	Baldree.  I want to buy an ounce of weed.
Officer	I'm running the show now.  Chris isn't here.  How much does Chris usually charge you?
Caller	$150
Officer	Okay.  I'll get it to you.

The investigators made no effort to meet this prospective caller, and they gathered no further evidence of calls on the cell phone.

Traditionally, judges admitted this kind of evidence because it tends to prove that the owner of the cell phone sells drugs.

Now, they take a more cautious view: it's hearsay, but it might be reliable enough to admit as evidence on a case-by-case basis.

The didn't like the risk that the caller might have made a mistake.  They didn't like the risk that someone set Mr Baldree up: Anderson was a drug dealer too.  Maybe the caller knew about the police arrest, and called Mr Baldree for drugs to divert attention from Anderson.  They didn't like the lack of follow-up on the call.

However, the judges conceded that multiple calls for drugs from different callers might put such concerns to rest.

What does that mean for you?

Not only should you make copious notes about such calls, but if you receive only one or two calls, you should follow them up if possible.  Try to meet with the prospective purchaser and take a statement.  The evidence may still be admitted.  It'll just take more work now.

2013-06-06 Right to Counsel - "Holding off"

Some defence counsel ... and some judges ... misconstrue a police officer's duty after arrest.

Recently arrested and in the cell block, Mr Abdullah, 2013 ONCA 372, told a police officer which lawyer he wanted to consult.  The officer left Mr Abdullah's sight, but overheard him speak to another prisoner about the offence.  The officer stood silently, and listened for a few moments, and recorded what he overheard.

The officer didn't get around to calling the lawyer for 20-25 minutes.  The lawyer never called back.  Mr Abdullah eventually waived his right to counsel.

Did the officer breach Mr Abdullah's right to retain and instruct counsel "without delay"?  Did he take a "statement" from Mr Abdullah before dealing with s.10(b) rights?

The trial judge thought so.  She threw out the evidence of that conversation, and acquitted Mr Abdullah.

Let's review the fundamentals:

1. You must offer your prisoner/detainee access to counsel, and give reasonable access if requested before talking about the offence with him.  Gone are the days that you could arrest Billy for the assault of Susan, recite his rights, and then ask "Why did you stab Susan?"  Some officers out there are still doing this.  Don't ... unless buddy tells you doesn't want legal advice.  (Of course, once legal advice is done, do ask about the offence.  That's your job.)
2. The rule about "holding off" applies to police officers, not suspects.  If buddy starts telling you, or anybody else within your hearing, about the offence before you resolve access to counsel, you aren't breaking the law.  You can listen, but you can't ask.  But do your duty promptly: tell buddy right away about his right to counsel, and his right to silence.  Let him babble after that.
3. The trial judge found that the few seconds that the officer waited to record this conversation breached Mr Abdullah's right to counsel.  That's wrong.  If you're at imminent risk of losing evidence, you can delay calling the lawyer.  For example, suppose you arrest Billy for stabbing Susan, and you see Billy's brother pick up the knife.  You should rescue the evidence before contacting counsel.  This officer had to stop, listen and record, or else he'd lose evidence.
4. The trial judge didn't like the 20-25 minute delay between naming the lawyer and calling him.  She got that part right.  Don't delay that call unless you need to do something important - like preserving evidence.

The appeal court found that the police officer's 20-25 minute delay was a problem, but it didn't make any difference to the evidence police gathered.  The prosecution won the appeal.

2013-05-26 Rights on Arrest - Delaying the Explanation

Using lawfully granted wiretap, police in Edmonton investigated gang violence.  They overheard Mr Mian, 2012 ABCA 302 discussing a drug deal; they watched vehicles arrive at the appointed time and place, and the deal went down.  The surveillance team feared that they would expose their wiretap investigation by arresting the parties themselves, so they arranged for other officers to perform a traffic stop.

Two other officers stopped Mian on the pretext of a traffic stop.  The stop devolved quickly into an arrest, but the officers didn't tell him why he was arrested until they located half a kilo of cocaine.

The officers rightly feared exposure of their wiretap operation.  After the arrest, they overheard other targets discuss amongst themselves whether police were intercepting them.  The targets concluded this was probably just a traffic stop.  By delaying the s.10(a) & (b) explanations, and by using other officers for the stop, the officers successfully protected a key tool in a murder investigation.

Was this tactic lawful?

The trial judge didn't think so, but the appeal court did.

I remain troubled by the untidy state of the law.  In the warrant and wiretap sections, you have specific legislation to permit what would otherwise be violations of s.8.  But the Criminal Code lacks legislation which authorizes police officers in appropriate circumstances to delay s. 10(a) explanations for the real reason for the detention or arrest.  In this case, the court saw the need for it, and seemed to accept that such an exception exists because it's necessary in cases like this.

Most cases aren't like this one.  Don't delay explaining the real reason for a detention or arrest, except in very pressing circumstances.

2013-05-25 Implementing the Right to Counsel

When detained for impaired driving, Mr McLeod, 2013 SKCA 28 said he didn't have a lawyer.  The officer re-read the police card information about rights to counsel and offered Legal Aid.  He accepted.  The officer never gave him a phone book, but instead contacted Legal Aid for him.  When he emerged from the phone room, Mr McLeod expressed satisfaction with the call.

At trial, he complained that the officers failed to let him choose which lawyer to call.

The trial judge agreed.  The appeal courts didn't.  The task of choosing how to find a lawyer falls on the suspect.  Your job is to assist him.

You don't have to shove a phone book into his hands, but give him one if he wants one.

You don't have to give him an internet-enabled computer for Googling, but if he wants to search using Google, then accommodate him if you can.

Make it clear to your prisoner that you will assist him in exercising his rights.  Then put the ball in his court: "What do you want to do?"  Document these exchanges, so that you can show the judge:

• you told him about his right to counsel;
• you listened to all requests he made;
• you helped him access such resources as he reasonably requested;
• when he emerges from a phone call, you asked to make sure he got sufficient legal advice to proceed.

2013-05-25 Investigative Detention

In the early morning chill of Saskatoon in January, two cops saw two guys in the car, yelling at two women on the street.  The women walked around a corner, and the car followed them.  When the officers intervened, the women said there was no problem, and walked away.

The officers stopped the car "pursuant to a traffic stop" and explained that they wanted to know what was going on with the women.  When asked for his identification, the passenger, Hebrada-Walters, 2013 SKCA 24, said "I don't have to tell you my name".  He tried to hide two cell phones.

An officer asked him about one of them, and he explained that he found it at 7-Eleven and was taking it back.  The officers seized the phone, and opened it to find out who it belonged to.  It showed a text message referring to cocaine.

The officers received information that the car hit another car earlier in the evening.  Its two occupants at that time refused to identify themselves, but talked about drugs to the other party.

The officers arrested both the passenger and driver for hit and run.  Hebrada-Walters' cell phone rang 7 times in 17 minutes.  Each caller wanted drugs.  The officers then told the two suspects they were under investigation for drugs.

The police found drugs in Hebrada-Walters' underwear, and he was charged.

The judges found that the initial detention was unlawful.  It wasn't a traffic stop at all, but an investigation into criminal harassment.  But they lacked sufficient objective evidence to justify a "reasonable" suspicion that such a crime had been committed.  But the judges seemed sympathetic.  They didn't think the officers missed the mark by much.

By seizing the phone, the officer removed any doubt whether Hebrada-Walters was detained.  This triggered s.10(a) and (b) of the Charter.

Defence complained that looking at the cell phone violated Hebrada-Walters' s.8 rights.  The judges disagreed.  By saying that he "found" it and was returning it, the suspect disclaimed any s.8 rights.

Was the arrest lawful?  Can you arrest the passenger in a vehicle after a hit-and-run?  These judges thought so.  Be careful doing this - you want good reasons for arresting a passenger for hit-and-run.

The judges decided that despite the unlawful detention, the evidence should be admitted.  Hebrada-Walters' conviction stuck.

The legal arguments make interesting read for officers who deal with the fast-changing events of street policing.  As the judges observed, police powers on detention are changing.  This case helps you understand how defence counsel and judges are thinking about them.

2013-05-17 Cell Tower Records  - Testing the Theory

Where was Mr Cyr, 2012 ONCA 919 after the murder of Donald Woods?  Cell tower records suggested that his cell phone made calls near the business of Tai Wah Trade, where goods stolen from Woods were sold cheap.

Cell phones "usually" connect to the nearest tower.  But sometimes they "bounce" to more distant towers.

Police wanted to be sure that they could rely on these cell tower records.  They tested the cell towers in the area.  They took their own cell phones there, and made calls.  Then they arranged with the phone company to check the cell tower records for their own phone calls.  Although there were some variations, these tests confirmed the the general theory.

Was this test evidence admissible to prove the reliability of the cell tower records?  The judges said "yes", but pointed out problems.  Cell towers behave differently in when call volume and weather change.  It's hard to replicate the precise conditions at the time of the crime.

For you, tests can help prove your theories, but take care to make them relevant.  Consult with experts to determine how best to make the test meaningful.

2013-05-17 Confessions - Proving Voluntariness  - Accounting for the Prisoner

Police watched Mr Wilkinson, 2013 SKCA 46 leave the residence of a known drug trafficker, so they stopped his car.  He admitted possessing marijuana.  They arrested him for possession of a controlled substance.  They found an ounce of cocaine in his sock.

17.5 hours later, an officer interviewed him.  Mr Wilkinson said that the trafficker "fronted" the cocaine for him to sell at $2,250 per ounce.

Although convicted of possession, he beat the charge of trafficking.  Here's why:

1. There was no evidence that anyone told him he was in custody for trafficking. (s.10(a))
2. At the voir dire into voluntariness, the Crown didn't produce all the officers who spoke with Wilkinson between arrest and confession.  That's because nobody gave the Crown a list of officers who dealt with him.

It was a great confession to elicit.  Too bad the investigative team didn't prepare a complete report for the prosecutor.  (Maybe the prosecutor should have asked for one.)

The law requires prosecutors to "prove a negative", that no person in authority (that's you) promised or threatened or abused or tricked the suspect into giving up the incriminating information.  The only way to prove a negative is by bringing the people who were present through the entire relevant time, to say "Nope.  Nothing improper occurred while I was with the suspect."

When you arrest a suspect, minimize the number of officers who speak to him.  Assign someone to record notes about every person who speaks to the suspect, and about what.  Always take notes about what you said to an arrested person, whether or not you did the arresting.  Or simply turn on a recording device.

2013-05-15 Statements - Defining Slang

After a robbery, Mr Grey, 2013 BCCA 232 told police how he assisted the robber by driving him to the town where it occurred.  He told the officer who interviewed him that the robber intended to "jack" his auntie.  But the officer never clarified what Mr Grey meant by the term.  Mr Grey was charged as a party to the robbery, but beat the rap because the Court of Appeal wasn't sure what "jack" meant.

Even when you're pretty clear what the suspect or witness means by slang terms, remember that judges need proof beyond a reasonable doubt.  Any ambiguity in the evidence will be interpreted in the accused's favour.  Therefore, when you hear ambiguous terms like "jack", take a moment to clarify: "Q: So, did he actually use that word, 'jack' when he was talking about his auntie?  What did you understand he meant by it?"

2013-05-04 Possession - Whose Bedroom?

At 5:00am police executed a search warrant on an apartment and found a loaded handgun. They found three people inside. Two swore they had nothing to do with the gun. Was the third person, Mr. Turner, 2012 ONCA 570, responsible for it?

When police entered, Mr. Turner stood at the doorway the bedroom where the gun lay hidden. His driver's license lay on the floor. $1,000 cash sat on a table by the bed.  The gun lacked any serial number with which to link it to anyone.

You might think it was Mr. Turner's bedroom. The court called it "bedroom one".  You might think Turner's presence in the bedroom suggests his responsibility for its contents.  The court found no link in the evidence between him and the bedroom.

Mr Turner beat the charges.

The perennial problem of searching residences which contain more than one person is linking the people in them to the objects you find.  What seems obvious at the time falls apart at trial.  Hindsight suggests some investigative angles:

• was the bed warm?
• did the clothing in the bedroom match Turner in size and gender?
• who do the others say used that bedroom?

Every case is different, but this problem keeps recurring.  When executing a search warrant for something, you want to find it and you want to know who put it there.

2013-04-24 Search of Cell Phones Incidental to Arrest

Police watched Mr. Hiscoe 2013 NSCA 48 drive to a drive-in.  There, he exchanged things with another driver. They watched him because they had reason to believe he dealt in drugs. After the exchange, they arrested Mr Hiscoe.  They found cash in the other vehicle and a bag of cocaine between the two cars. They also seized his cell phone. At the scene an officer scrolled through some incriminating text messages. Back at the police station, he and another officer scrolled through them again, writing notes of what they saw.

A month later, technicians downloaded the entire contents of the phone onto a DVD.

Mr Hiscoe complained that police needed a warrant to search his cell phone.  The trial judge admitted evidence of the preliminary examinations of the phone, but excluded the data dump.

Does the power of search incidental to arrest authorize searching a cell phone?

The appeal court found that the two cursory searches were okay, but the download was not because:

• it would capture far too much irrelevant personal information;
• it took too long, and was therefore not "incidental to arrest";
• cell phones contain so much information that the court must limit the power of search incidental to arrest.

Courts across Canada are reaching different conclusions on this power.  The highest authorities I know of in Alberta and B.C. say searches of cell phones incidental to arrest can be lawful.  Ontario and Nova Scotia appeal courts seem to think only a cursory examination of a cell phone may be done without warrant.

In a provincial court judge confirmed that in British Columbia, until a higher court says otherwise, a police officer may search a cell phone incidental to arrest.  Melchior, 2013 BCPC 82.

2013-04-16 Residential Perimeter Searches Using Drug Dogs

Acting on a tip that Mr Jardines' house contained a grow operation, a police officer took a drug dog to the front door.  It indicated drugs inside.  Police got a warrant and found the marijuana.  Was the search constitutional?

In Kokesch, [1990] 3 SCR 3, the Supreme Court of Canada rejected warrantless searches around the perimeter of residences.  In Evans, [1996] 1 SCR 8, the court rejected the technique of warrantless knocking on the front door for the purpose of sniffing the air inside to confirm the tipster's information.

In Canada, the answer to the Jardines question is "no".

The Jardines decision came recently from the USA's Supreme Court.  Their answer was also "no".

2013-04-13 Continuity - "Unimportant" witnesses

Mr Panrucker, 2013 BCCA 137 sat, alone, in cell five in the Fort St. John police station for 7 days.  At the end of that time, a guard found a bag of cocaine under his mattress.  Did Mr Panrucker put it there?  What evidence would prove it?

A guard testified that he cleaned and searched the cell on the day before Mr Panrucker arrived.  The same guard testified that at the end of that period, when Mr Panrucker left the cell to take a shower, he found the baggie.

The guard did not work continuously through that 7-day period.

The guard knew that nobody else occupied that cell, but only from looking at records written by others.  That's hearsay, and the court won't rely on it. 

Therefore, the only admissible evidence in this case proved:

• the cell did not contain drugs before he went in, and
• there were drugs under the mattress after 7 days.

But the admissible evidence did not prove who else entered the cell during that week.  Mr Panrucker beat the charge.

To prove this case, the prosecution needed all the guards.  Each one needed to testify that nobody else entered that cell during his watch.  If others did enter that cell, the Crown needed to produce them to say that they did not stow any cocaine under the prisoner's mattress.

Proving a "negative" (what didn't happen) often requires far more witnesses than proving a "positive".  This arises in many situations.  For example:

• Voluntariness: no police officer said or did anything to the suspect which rendered his later remarks to an investigator involuntary.
• Continuity: after the exhibits were seized, no officer handled them in a way which would alter their probative value.
• Coaching of children: between the time a child first complained of an offence and the video-recording of the child's statement, nobody told the child what to say.
• Exclusive opportunity: nobody else could have committed this offence

In your reports, document all the people necessary to prove these negatives

If you transported the suspect to the police station after arrest, you became an important witness if the suspect later confesses.  If you merely stood near the suspect, you became a witness in the voir dire into voluntariness.  Take notes of the conversation (or lack thereof).  If you received exhibits from another officer, who found them in the suspect's pockets, and all you did was deliver them to the exhibit officer, then you became an important witness.  Take notes of the exhibits.

2013-04-11 Detention - Search for Officer Safety

When Mr Nartey, 2013 ONCA 215 left a notorious strip club, patrol officers noticed him fail to come to a complete stop at a red light before making a right turn.  They pulled him over.  Computer checks indicated he had two PPT convictions, two firearms prohibitions, and he associated with a street gang.  They said they saw him grab a black duffle bag, rifle through it, and then toss it into the back seat.

Concerned for their safety, the officers asked him to get out for a pat-down search.  He complied.  They found no guns, but the officer thought he felt a large wad of money in Mr Nartey's pocket.

The officers then searched the car.  They found guns and half a pound of marijuana.

The trial judge figured that the whole thing was a fishing expedition.  He didn't believe the officers.  He excluded the evidence.

The Crown appealed, unsuccessfully.  That's because the appeal court must generally accept the facts as a trial judge finds them.  If the trial judge disbelieves a witness, the appeal court will too.

I didn't hear the evidence.  I can not say if the judge was right or wrong in this case.  But the acquittal of this drug dealer reminds us:

• When you detain a suspect, you do have powers to search for officer safety.  Use them specifically for that purpose.  If you use them to gather evidence against a suspect, you can expect trouble in court.
• The little details you saw before the big bust matter.  Make careful notes of what led to the arrest.
• When documenting investigations, police officers must cooperate with each other.  To a suspicious observer, this cooperation can look like collusion (joint fabrication of evidence).  Try to document your observations independently.

It doesn't always go against cops.  In a similar case, Morris, 2013 ONCA 223, the police stopped a vehicle on a traffic violation, and found guns.  In that case, the trial judge believed the investigating officers.  This week, the Ontario Court of Appeal accepted the trial judge's findings, and upheld the conviction.

2013-03-20 DNA Transfer

Three people complained to the kidnapping, but their statements varied wildly. DNA found at the crime scene proved the complaints were true -- but only if the DNA got there during the crime.

The police officers who dug through garbage bags at the crime scene found duct tape which bore the victims' DNA.  But did the DNA get there from being stuck to the victims, or from rubbing up against innocent objects which bore their DNA?  Did the officers (who wore gloves) touch objects which innocently carried the victims' DNA, and then touch the duct tape?

The science of DNA analysis is firm and clear; but the scientists are much less clear about the transfer of small quantities of DNA from one thing to another. 

The defence and the Crown called experts, who, of course, differed on the likelihood that DNA transferred innocently to the duct tape.  The trial judge convicted Mr Doan 2013 BCCA 123 and his friends, and the appeal court upheld the convictions.

DNA on a suspicious object packs a punch in the court room.  Defence will challenge how it got there.  Avoid contraversy, by minimizing the opportunities for DNA to travel from exhibit to exhibit.  If you're searching for objects which may be tested with DNA, it seems to me that you should:

• Wear gloves, and change them after handling items which
• Photograph often
• Don't rummage
• Prevent interesting exhibits from touching each other

Your forensic people may have other good suggestions on other techniques.

2013-03-07 Eyewitness Identification of Strangers

Mr. Desarmia cashed a cheque at Money Mart.  He walked down the street with a "friend", who greeted, and then walked away with, a stranger.  A few minutes later, the stranger walked up to Mr Desarmia, put him in a headlock, and demanded the cash.  Desarmia gave him all of it - about $450.  The stranger said he would cut off Mr Desarmia's head if he told police.

Mr Desarmia lived at a Salvation Army shelter, but after the robbery, he left town for a couple of weeks.  He suffered schizophrenia, and was off his medication.  When he returned to the shelter, encountered someone he believed was the robber.  He asked around, and learned that guy was Mr Gough, 2013 ONCA 137.

Five days later, he reported what he knew to police.  Police arrested Mr Gough, and charged him.  At trial, Mr Desarmia pointed out Mr Gough in the court room as the man who robbed him.  The trial judge convicted him.

The Court of Appeal ordered a new trial, hinting that the Crown should not bother to prosecute.

What's the problem?

Eyewitness identification of strangers tends to be unreliable, especially when the interaction between them is brief.  Stress doesn't help either.

When the robber stole the money, Desarmia had little opportunity to get to know his face.  When Desarmia saw Gough at the Salvation Army, he had a better opportunity to observe, particularly because he believed that Gough was the robber.  At court, he had no difficulty recognizing Gough (because of the encounter at the shelter).  He honestly believed Gough robbed him.  But how do we know he was right?  The encounter at the Salvation Army was effectively a 1-person lineup.

I observe that the investigators couldn't fix this investigation by presenting a photo-lineup to Desarmia.  He would recognize Gough from the Salvation Army.  But the "friend" who greeted the robber could make all the difference.

2013-03-04 Privilege - Clarity when Handling Sources

Mr B, 2013 SCC 9, committed lots of crime with bad folks.  When his relationships with them turned sour, he informed on them to a police force.

Those officers treated him as a confidential source.  But what he told them related to crimes outside their jurisdiction.  They handed him over to Quebec's provincial police force, Surete du Quebec ("S.Q.").

The S.Q. officers arrested him for various crimes.  Mr B continued to cooperate, confessing to crimes, and giving statements implicating others.  Before most statements, the S.Q. officers promised not to use the evidence he gave against him in any trial, but warned him that they would prosecute him if they obtained independent evidence of his involvement.

The S.Q. officers coded him as an informant.  The information proved useful, and charges were laid against other felons.  As trial approached, things came to a head.  Was he a confidential source, or a compellable witness against the felons he ratted out?

Mr B wanted the anonymity of a confidential source.  The police wanted a witness.  Which was he?

A judge held a special hearing to determine the question.  Mr B's lawyer argued that he was a source.  The judge disagreed: Mr B was an opportunist, who sold his information for maximum personal profit.  The S.Q. never explicitly promised him confidentiality.  He's a witness.

A majority of the Supreme Court of Canada ordered a re-hearing.  Maybe the S.Q. never made an explicit promise of confidentiality, but they may have given him that idea by their behaviour.  The judges sent the matter back for re-trial: was there an implied promise of confidentiality?

The lesson for police is simply said, but difficult to apply.  If you promise confidentiality in exchange for information, it's a promise we can't retract.  When the relationship with the source/witness begins, explicitly state whether or not they get anonymity.  And beware: "material witnesses" don't enjoy privilege.  Tell them if they were part of the crime that they will be compellable witnesses.

This makes the early exchanges difficult: "Q: Am I a confidential source or not? A: It depends on what you tell me."

2013-03-03 Conspiracy and Parties

Two teenage girls decided to kill the mother.  Another youth, J.F., 2013 SCC 12 chatted with them on MSN about their plans.  He offered suggestions, and wrote "I€™m involved this much, I€™m willing to help you out with any of it".  The girls succeeded, and were convicted of murder. Was he guilty of conspiring to commit murder with them?

The Supreme Court clarified two unresolved questions about conspiracies.

The crime of conspiracy occurs when people agree to commit a crime.  They need not do anything after the agreement to be found guilty. (To prove they were serious, it sure helps to have evidence that the conspirators took steps to complete the crime they discussed.)

That means the only way to be a "party" to a conspiracy is to help people agree to commit the crime.  Someone who helped the conspirators commit the crime afterwards, but did not participate in the agreement, is just a criminal, but not a conspirator.

The court found this youth plainly conspired with the girls. He was therefore a party to the conspiracy. Helping them after the conspiracy would have made him guilty of murder.

2013-02-22 Proving Possession & Its Purpose - The Ringing Cell Phone - All Evidence Matters

A tipster told police where and when they would find Mr Graham, 2013 BCCA 75 trafficking drugs.  Police went there, and saw Mr Graham arrive in a blue minivan at the predicted time.  They arrested him.

A pocked in a black leather vest in the front passenger seat contained a single flap containing one gram of cocaine and $60. But the vest contained no identification.  The investigators did not determine its size. A factory-made closed storage compartment, located in the rear side-panel on the passenger side, contained two baggies of cocaine weighing 13.2 grams, a digital scale, and paper flaps that matched the one found in the vest pocket.

He also recovered a cell phone from an open storage compartment in the driver’s door.  When it rang, the caller asked to purchase drugs.

The Crown offered no evidence about:

• Who owned the van
• Whose phone it was
• Whether the leather vest would fit Mr Graham
• Fingerprint comparison between the drug equipment and the accused.

The trial judge excluded the phone call evidence, and convicted.  Mr Graham appealed.

The appeal court found that cell phone calls on drug-dealers' phones are admissible and probative evidence, but noted a difference of opinion in the Ontario Court of Appeal (Baldree, 2012 ONCA 138).  The Supreme Court of Canada will soon deliver its opinion on that case.

The court agreed that without the cell phone call, the evidence that Mr Graham knew about the drugs was pretty slim:

• The tip was hearsay.  The prosecutor could not rely on it to get a conviction.
• No evidence (except the phone call) suggested that he had anything to do with the drugs or the van.  Perhaps he borrowed the van from a drug dealer for a few minutes.  Perhaps an enemy set him up.
  

This case illustrates how easily investigators can be lulled into false confidence in the strength of the evidence.  An informer's tip makes you think the suspect is guilty, but the judge will ignore it.  Another piece of evidence may convince you that it's an open-and-shut case.  The trial judge may (correctly or erroneously) exclude it from evidence.

Therefore, some prosecutors want "too much" evidence rather than " just enough".  One of the senior lawyers on the Pickton prosecution liked to call it the "belt-and-suspenders" approach.  He liked to be sure that at the end of his prosecution, his pants would stay up.  Having more than one way to prove the case helps prevent expensive appeals.

2013-02-20 Search & Seizure - Searching a Cell Phone Incidental to Arrest

Police arrested Mr Fearon, 2013 ONCA 106 for a robbery committed earlier that day by two men.  The arresting officer examined the contents of his cell phone, and found an incriminating text message and a photo of a firearm.  The officer explained that in his experience, criminals who work in pairs often communicate by cell phone.  Over the course of the evening, and into the next day, police examined the phone without a warrant.

Defence complained that cell phones contain so much personal information that police need warrants to search them, even if they obtain the cell phone during an arrest.

The judges disagreed.  A quick search, incidental to arrest, was okay without a warrant.  This came as a surprise, because an earlier decision (Manley) suggested otherwise.  The court also commented, without deciding, that a full analysis of the phone might require judicial pre-approval.

The court kept its decision narrowly focussed on the facts of this case: the phone was unlocked, unprotected by a password, and the officers did not examine all the data in it.  Never-the-less, they rejected the argument that police always need warrants to search cell phones.

When you arrest a person for an offence, you can search the person for evidence of the offence if you have some cause to believe evidence of the offence is present.  This principle seems to include cell phones.

THAT DOESN'T MEAN YOU CAN SEARCH THE CELL PHONE OF EVERYONE YOU ARREST.

To poke around in a prisoner's phone, you need reasons to believe that you will find evidence of the offence for which you arrested.  In Ontario, anyway, it remains unsettled how fully you can analyze its contents.

2013-02-20 Access to Counsel - Constitutional Right to Google

A police officer saw Mr McKay, 2013 ABPC 13 drive through a red light.  The officer stopped him, and found he smelled of liquor.  When Mr McKay blew into a screening device, it registered a fail.  The investigating officer arrested him and asked if he wanted to get legal advice.  He did.  The officer took him back to the detachment, and showed him White and Yellow Pages, a phone which allowed 411 inquiries, and a poster bearing the Legal Aid number.  Mr McKay called Legal Aid.  Afterwards, he told the officer that he spoke with someone.  Thereafter, he provided breath samples which must have been over 80mg%, because he was charged.

At trial, Mr McKay, aged 20, explained that he is a child of the internet.  He doesn't use phone books, and didn't understand 411.  He needs Google to find a lawyer.  Because the police failed to offer this option up front, they violated his right to counsel of choice.

The trial judge agreed.

I agree that your duty to provide a reasonable opportunity to retain and instruct counsel includes facilitating reasonable efforts to to identify a suitable lawyer.  Web-based services now provide faster and more informative searches than most paper-based methods.  Your offices (generally) permit internet access.   I think a request to Google lawyers is a reasonable exercise of s.10(b) rights.

I don't agree that failure to present a web-browser in the cell block breaches a prisoner's s.10(b) rights.  There are other reasonable methods of identifying a lawyer (such as calling a friend or relative who knows one).  In my opinion, it does not breach s.10(b) to fail to list all his options.  Perhaps your poster on the phone room wall should say:

"This office will accommodate all reasonable requests to identify and contact a lawyer of your choice."

You must facilitate the exercise of the right to counsel, but the prisoner must exercise his right diligently.  I think Mr McKay should have asked to use Google.

If your prisoner asks for internet access, then you should allow it for the purposes of identifying a lawyer.  But keep control of the situation.  His efforts to identify a lawyer are not privileged.  One prisoner may to search "Criminal defence lawyer Calgary".  Another may want to type "How to beat the breath test".

Maybe you want to do the typing.

2013-02-10 Use of Force - Protecting Life by Taking Life

Cst Stromner answered a 911 call:  A man with a knife was scaring people near a mall.

The officer found Mr Davis, 2013 ABCA 15, who charged at the driver's side window of his police cruiser, waving a large knife.  Cst Stromner called for backup.

Mr Davis backed off and started walking away, still holding the raised knife.  Cst Stromner followed, pistol trained on the man.  Cst Stromner demanded over and over that he drop the knife.  He didn't.

At one point Davis turned and faced the officer, who pepper-sprayed him.  This had no effect.  Mr Davis continued to brandish the knife, and make thrusting motions with it.  He kept walking towards a busy MacDonald's.

Without saying he was going to shoot, Cst Stromner fired.  Twice.  He hit Davis in the throat and the right chest, bringing him down.

Davis survived.  Police charged him with assaulting a peace officer and possession of a weapon for a dangerous purpose.

Should Cst Stromner have waited another 10 seconds?  He didn't hear the approaching sirens.  He didn't know that other officers arrived just before he pulled the trigger.

He pulled the trigger while Davis was still in an unpopulated parking lot, surrounded by a concrete wall.  Moments later, Davis would have reached the crowds, where the officer's bullets could strike innocent third parties.

At the trial, Mr Davis complained that the police officer violated his s.7 right to life and security of the person.  Using deadly force is irrevocable.  The officer should have yelled a warning before shooting.  He should have waited longer.  The judge disagreed, and two of three appeal judges upheld the convictions.

I express no opinion about the use of force in this case. It's outside my area of expertise.  But reading the decision inspired in me considerable admiration for Cst Stromner's managment of a stressful situation.

• This situation can face any general duty police officer. This can happen to you.
• When you've drawn your gun, and the danger persists, you have a problem.  Wait too long, and somebody may die. Shoot too soon and you will endure a purgatory of emotion and litigation.
• If you're rusty, refresh your training on the use of force.
• Whether or not you know your stuff, read the details in the decision.  The facts of this case make excellent discussion material for watch briefings.

It seems that the investigation afterwards was thorough: the trial judge heard the testimony of many eyewitnesses who helped prove Cst Stromner's version was accurate.  After a police shooting, investigate thoroughly, because everyone will want answers.

2013-02-08 Eyewitness Identification

Someone robbed the car rental shop. Was it Mr. Jack, 2013 ONCA 80?

A black man came in with a gun and took $2500 from the owner and his friend.  It took two minutes. When police came, the two victims said they recognized the robber as a customer who rented a vehicle several months before.  That transaction took only a few minutes as well.  The owner gave police a photocopy of the health card which Mr. Jack provided when he rented the car. Neither victim described the robber in any detail.  At trial, both identified Mr. Jack in the prisoners dock as the robber.

The jury convicted Mr Jack. The Court of Appeal acquitted him, because the evidence looked strong but was actually very weak.

Mr. Jack had a distinctive scar and two prominent gold teeth. Neither victim remembered these features appearing on Mr Jack nor on the robber.  He had a tattoo on his left hand.  Neither victim remembered that either.

There was a significant risk that one or both of the victims thought the robber resembled Mr. Jack and therefore sought out Mr Jack's health card. Thereafter, they became sure it was Mr. Jack because he was charged.  But the only evidence of guilt was a general resemblance.

Maybe the investigators did a thorough job -- I don't know, because the reasons for judgment don't say.  But the way it reads, the officers who attended this call probably felt that their job was easy. The victims identified the culprit; all police had to do was catch him.

Beware!  When eyewitnesses - particularly victims of traumatic encounters - try to identify strangers, they can make mistakes.  In this case, the officers should have pressed the eyewitnesses, separately, to describe the robber in as much detail as possible.  A photo-lineup may have helped, particularly if it contained other faces bearing a scar.

2013-02-05 Marijuana is Still a Controlled Substance

Mr. Mernagh, 2013 ONCA 67 convinced a judge to strike down the CDSA prohibitions on producing and possessing marijuana.  Last week, the Ontario Court of Appeal overturned that decision.  Mr Mernagh complained that his illness required him to use marijuana, and doctors would not give him a prescription.  Therefore, the whole legislative scheme should be brought down.  The appeal court found that the evidence did not establish the facts alleged.

Mr Voss, 2013 ABCA 38 also hoped to make marijuana legal.  The Alberta Court of Appeal dismissed his efforts too.

2013-01-31 Arrest & Release - Holding a Suspect for Questioning

In the late 1980s a Boy Scout complained of the sexual activity of leader, Mr. Viszlai, 2012 BCCA 442.  No charges were laid.

In 2007 another former Boy Scout complained about what he did. Detective Cottingham of the Victoria Police Department's sex crime section investigated.  She dug up the old file, and started looking for Mr Vizlai.

To her alarm, she learned that he was attending a Scout jamboree near Sechelt.  Grooming scouts was his m.o.  Was he abusing more kids?

She contacted Sechelt police, and explained the problem.  She asked an officer there to arrest him and hold him so that she could interview him the next day.  And that's what they did.

Except for speaking with counsel, Mr Vizlai did nothing but sit and wait for almost 15 hours for Detective Cottingham to arrive.

Why did it take so long?  There's no road between Victoria and Sechelt.  A traveller must choose between ferries and float planes.  Cottingham chose to fly, which was faster.

Detective Cottingham's interview succeeded in eliciting apology letters from Mr Vizlai.  After the interview, she released him on an undertaking.

Viszlai complained that she arbitrarily detained him, and asked that the interview and letters be excluded from evidence.  Section 497 and 498 of the Criminal Code require police to release prisoners "as soon as practicable".  Section 503 requires police to take prisoners to a bail hearing "without unreasonable delay" and in any case within 24 hours.  He argued that a Sechelt officer should have released him on an undertaking.  He didn't have to wait in a cell all that time for Det. Cottingham.

The judges disagreed.

These sections permit you to collect evidence before releasing.  Interviewing a suspect is collecting evidence.  As long as you don't dawdle in the process, you may hold the prisoner (up to a maximum of 24 hours) to gather evidence.

Viszlai argued that the Sechelt police should have interviewed him instead of Det. Cottingham.  Again, the judges disagreed.

Because Det. Cottingham chose the fastest route available to conduct the interview, they found the delay reasonable.  The primary investigator was not obliged to delegate the interview to an officer who knows little about the case.

This does not mean you have 24 hours to interview an arrested suspect!  If Det. Cottingham had chosen to travel by ferry, the court might have ruled differently.

The evidence remained admissible.

Unfortunately, the trial judge made a mistake in instructing the jury.  Mr Vislai won himself a re-trial. 

2013-01-29 "Gating" - Tactical Delay of Investigation and Prosecution

When police arrested Mr. Ferris, 2013 BCCA 30, for running a marijuana grow operation, he told them of an outstanding warrant in New Brunswick for aggravated assault.  He was right. Therefore, he was shipped to New Brunswick for trial.  In British Columbia, police investigated the grow operation slowly.  Charges were not laid until a year later, after the New Brunswick trial completed.  (He beat that charge.)

Mr. Ferris complained that the B.C. investigators deliberately delayed charges, so as to keep him in jail for as long as possible.

The trial judge found on the evidence did not support this claim. Mr. Ferris went down on the B.C. charges.

Beware: Tactical delay of charges so as to keep a suspect in jail for as long as possible ("gating") annoys prisoners.  Many judges dislike it too.

Sometimes, the impending release of a dangerous prisoner spurs investigators to complete a lengthy investigation just before the prisoner release date.  You can bet your bottom dollar that the prisoner will complain about the timing of new charges.  Defence counsel (and some judges) will assume your timing was malicious, unless you can show otherwise.

2013-01-24 Search & Seizure - Officer Safety - Entry into a Residence

When Mr MacDonald, 2012 NSCA 50, returned to Nova Scotia from the oil fields of Alberta, he invited friends to his apartment.  He turned the music up loud. Neighbors complained. A police officer attended.  She asked him to turn it down. He turned it up instead.  She called for backup.  A senior officer came and knocked at the door.  Nobody answerd.  He kicked at the door to get Mr MacDonald's attention.  Mr. MacDonald opened the door a few inches. In his hand he held something "black and shiny". The senior officer thought it might be a knife, and asked MacDonald what it was. MacDonald wouldn't say.  The officer pushed the door open to see it better. It was a loaded handgun.  The officers disarmed him, and because he had no authorization to possess it, was charged with firearms offences.

Mr. MacDonald complained that police had no right to enter his residence.  By pushing the door open to look at the object in MacDonald's hand, the senior officer breached his right to be free from unreasonable search.

The trial judge disagreed: police must be able to issue noise bylaw tickets in safety.  This search was necessary for officer safety, and the officer had no reasonable alternative.  MacDonald got 3 years for gun offences.  MacDonald appealed.

The appeal court split.  Two judges agreed with the trial judge, but one would have excluded all the evidence.  That judge emphasized the accused's right to privacy in his residence.  But that judge did not explain what he thought the officer ought to have done.

Mr. MacDonald appealed again to the Supreme Court of Canada. We may find out what they think some time this summer.

Meanwhile, there are basic points police can consider:

• Weapons can turn up unexpectedly, even in the most minor calls for service.  Be careful out there.
• Warrantless entry of residences engages s.8 rights, even at the front door. Cross the threshold only with:

1. clear permission of someone who can give permission (eg a resident);
2. warrant;
3. reasonable grounds to suspect life is at risk;
4. reasonable grounds to believe evidence will be destroyed.

I'm not sure, but I expect that the SCC may side with the police on this one.  When it comes to police officer safety, if you have no alternatives to ensure your safety, then I think they will let you search.  But if there is an alternative which keeps you safe, but avoids invading a suspect's privacy, then the court will likely require you to take the route that respects privacy.

2013-01-20 Seizing Firearms for Safety's Sake - Forfeiture

Mr Roggie, 2012 ONCA 808 upset his family.  His wife complained he threatened a friend and assaulted his daughter, and he drove away drunk.  Police seized 5 of his firearms from her house, and took another from his parents' place.  They filed no report to a justice describing these weapons.  Eventually, Mr Roggie pleaded guilty to assault.  He received a fine and probation.  One condition of his probation prohibited him from possessing firearms.

When it ended, he asked for his guns back.

Police resisted.  They wanted a lasting firearms prohibition, and forfeiture of the firearms.  Mr Roggie went to court and won.

A curious interplay of the legislation creates some unintuitive incentives and procedures.  When anyone receives a firearms prohibition - including a condition in a probation order - s.115 causes forfeiture of all the firearms in their possession.  By seizing his guns, police saved him from that fate.  If they had left the guns in the house, he would have lost them at sentencing.

But the officers had not followed the procedures set out in s.117.04 and 117.05 to obtain forfeiture or prohibition of firearms.  Therefore, Mr Roggie got his guns back.

The procedures in s.117.04 and .05 are cumbersome. They don't spell out whether you can seize firearms if the suspect's wife takes you to them.  Unless there are exigent circumstances, you need a warrant to enter places where the firearms are stored.  (s.117.04).  Once you seize the firearms, you must move promptly (30 days) to apply for forfeiture and prohibition. (s.117.05).

For a routine domestic violence case, that's a lot of paperwork.  If you don't seize the guns, then you risk him returning and killing the complainants.  Do you want to explain at an inquiry why you failed to protect the family?  If you arrest the suspect, then there are no "exigent circumstances" any more.  You need to write a warrant application to get the guns.  If you don't write the warrant application, then it's not clear how you can lawfully get the guns and start the forfeiture / prohibition process under s.117.05.

Bottom line: If you seize firearms, report them to a justice.  If you want to keep the guns, or prohibit the owner from possessing them, apply promptly under s.117.05.  Criminal charges may resolve in forfeiture or prohibition, but only if the charges stick.

2013-01-18 Reasonable Grounds - Smell of Burnt Marijuana

At a roadblock set up to catch drunk drivers, an officer stopped Mr. Boyd, 2013 BCCA 19.  Instead of liquor, the officer detected the odour of burnt marijuana.  He immediately arrested Mr. Boyd for possession of marijuana.  Did he have grounds?

He explained that in his experience people who smoke marijuana often carry more.

Possessing a small quantity of marijuana is strictly a summary conviction offence. You cannot arrest a person for those offences unless you "find" them "committing" the offence. s.495(1)(b).

The court agreed that an officer may draw inferences to come to the conclusion that they suspect "is committing" an offence.  But this inference ("if he smoked it, then he has more left over") wasn't strong enough by itself to lead to the conclusion that Mr. Boyd probably still have some marijuana left over.

This officer had reasonable "suspicion", but needed more evidence to form reasonable grounds to "believe" that Mr Boyd possessed marijuana.

In other cases, furtive behaviour - particularly to conceal things, has added that necessary additional information.

2013-01-18 Spousal Violence

Ms Ryan, 2013 SCC 3 tried three times to hire a hit-man to kill her husband. The third guy said he'd do it for $25,000. Unfortunately for Ms. Ryan, he was a cop, and he recorded their conversations.  They charged her with counseling murder.

Ms. Ryan claimed she acted under "duress": her husband was a violent and controlling man.  She claimed that her complaints to the police did not help: charges against him were dropped.

The Supreme Court of Canada rejected "duress" as an appropriate defense. It applies after coercion to commit a specific criminal offence.  Her husband didn't tell her to kill him.

If someone claims they committed an offense because somebody else made them do it, investigate what reasonable alternatives your suspect had.

But investigate the third party too.

In this case, Ms. Ryan claimed that the police dismissed her problems with her husband as just "a civil matter".  The judges accepted her claims, and felt sorry for her.  Instead of ordering a new trial, most of them stayed the proceedings against her.  (Surprisingly, Fish J. would have ordered a new trial.)

If you work in general duty policing for any length of time, you encounter people - usually women - who endure violence from their spouse, but protect their spouses from investigation and prosecution.  They frustrate police and prosecutors at every turn.  We all feel tempted to give up on them.

Don't give up.

The trial decision narrates her story of abuse.  I suspect that she lied more than once to protect him, but I'm sure he made her miserable.  She needed help from police.  The police officers who walked away from her 911 calls saying "it's just a civil matter" may have been right about the specific problem they investigated, but they were wrong if they gave her the message: "if you got problems with your man, we won't help."

Some of these people wind up dead.  Many get battered again and again.  And they feel trapped.  Always leave your door open: "If you're in danger, we want to help.  If he hurts you, please tell us."

2013-01-17 Impaired Driving - Keep the Car

When police caught Mr. Manning, 2013 SCC 1 driving impaired, he had three similar previous convictions, and was awaiting trial on another charge of impaired driving.

Police seized his car. After conviction, the prosecutor asked the judge to take his car away from him. The trial judge felt sorry for him. The Supreme Court of Canada did not. Mr. Manning lost his car.

How does this work? Can the prosecutors start collecting cars from drunk drivers now?

Not normally.

If you find the driver in a public place, s.489 authorizes you to "seize" "any thing" that "has been used in the commission of an offence".

So far so good.

After conviction for any "indictable offence", if the prosecutor asks the judge, the judge must order "offence-related property" forfeit. s.490.1.  "Offence related property" includes any property "that is used in any manner in connection with the commission of… an offence". s.2.

That would include the car. But only if the Crown proceeded by indictment.

Prosecutors don't proceed by indictment against drunk drivers unless they seek a high sentence, or people got hurt or killed.  In my jurisdiction, that starts around the 5th, 6th or 7th conviction for regular impaired driving (depending upon recency of the convictions).  Of course if there were serious injuries, we'll proceed by indictment, because that's the only way to prosecute those offences.

Therefore, seize only the cars of the repeat offenders, and the ones who cause bodily harm or death.  If you think the driver should lose his car, talk to the prosecutor about it.

2013-01-04 Sexual Assault - Physical Examinations

Medical expert opinions about injuries from sexual abuse used to be quite clear-cut.  Where hymens were ruptured or anuses had unusual colourations, many experts opined that these confirmed complaints of sexual abuse.  Recent medical opinions retreated from these clear assertions.  In England recently, several sexual assault convictions were overturned because the doctors no longer felt so sure about their opinions.  R. v. S, B, C & R, [2012] EWCA Crim 1433.

For you, this means:

• Medical examinations of sexual assault victims remain relevant, but
• Avoid doctors who lack expertise in the field.
• Don't rely solely on an expert's opinion.  Look for other independent evidence.
  

2013-01-03 DNA - Vehicle Airbags

Someone driving a Porsche Cayenne crashed into three people outside a nightclub, killing two and injuring the third.  The driver stopped momentarily, then drove away, and abandoned the vehicle.  During the collision, airbags deployed on the driver and passenger sides.  The DNA on the driver's side airbag was blood that came from Mr. Antunes, 2012 BCCA 104.  Most of the DNA on the passenger side airbag came from a Mr Barjaktarovic, but the passenger airbag also bore an unknown individual's DNA.  Did Mr Antunes kill the pedestrians or was someone else in the car, driving?

Defense argued that some doubt arose, because of the third person's DNA.

Evidence established it could have got there:

• during manufacturing;
• while occupants of this 2-door vehicle got out; or
  
• during handling of exhibits.

DNA analysis has become very sensitive.  You can deposit detectable amounts of your DNA just by talking at the exhibit.

You can't do anything about the first two possibilities. But you can take care during the collection of exhibits.  Handle both airbags carefully: make sure your DNA, and the DNA of other investigators doesn't contaminate them.

2012 Developments in the Law

2012-12-29 Tunnel Vision - Investigating Alternate Suspects

Kelly Spackman, 2012 ONCA 905 and Steve Chung sold drugs in downtown Toronto, and were seen doing a deal.  For $30,000, Alexander Christoff bought a kilogram of cocaine from Kelly Spackman, 2012 ONCA 905.  Later, Christoff gave Spackman another $30,000 for another kilo of cocaine, but a few minutes later, Spackman returned empty-handed.  Over the next month, they communicated often, but Christoff never got his drugs.  Police found Christoff's body dumped near Steve Chung's place, riddled with stab wounds.  Who killed him?

Christoff left his parents house saying he would meet Spackman.  Phone records showed that Spackman and Chung communicated often around the time of Christoff's murder, and that before the murder, Christoff communicated often with Spackman.  But there was little to connect Spackman and Chung.  On the night of the killing, the same cell phone tower routed Spackman and Christoff's telephone call: they were close.

The investigators focussed their attention on Spackman but not Chung.  Although they got a search warrant for his home, they didn't search his car.

At trial, defence argued that Chung might have been the killer, but because the police didn't fully investigate him, we'll never know.  The trial judge agreed that the investigation suffered from tunnel vision.  The jury acquitted Spackman.

The Court of Appeal agreed that the police should have investigated Chung, but ordered a retrial because of technical errors the trial judge made during trial.  We'll see what the jury thinks next time.

This case illustrates the value of cell phone call records and tower dumps to prosecution and defence.  Calls between Spackman and Christoff suggested Spackman was the killer; but calls between Spackman and Chung suggested Chung might have been the killer.

This case also illustrates the danger of pursuing your prime suspect too vigorously.  When solving who committed the crime, investigate all the suspects.

2012-12-08 Fair Trial - Exhibit Destruction

When Ms Berner, 2012 BCCA 466 crashed her car, she killed an innocent child.  Police investigated, and analyzed the vehicle's data recorder.  The car was a write-off, so Ms Berner released the vehicle to the insurance company, to salvage what value they could from it.  But did it still retain evidentiary value?

Before it was destroyed, Cst Parker wrote Ms Berner by registered mail, asking her if she wanted it examined, and warning that the police would release it to the insurance company.  She didn't reply.

Shortly before trial, defence demanded access to the car, to examine it.  Of course, it no longer existed.  Defence complained that police violated Ms Berner's right to a fair trial by destroying relevant evidence.

Cst Parker's wise letter undermined this application.

You possess exhibits not just for your investigation, but also for the defence.  Give the defence a fair chance to investigate relevant exhibits before you destroy them.

2012-12-08 Detention - Controlling People at a Crime Scene

How much can you control people at a crime scene without triggering s.9 and s.10 of the Charter?

On a hot day in July, Ms Berner, 2012 BCCA 466 crashed her car into a parked vehicle. The collision killed a four-year-old girl who was behind it, and injured her aunt.

The first police officer who attended directed Ms Berner where to stand. She suffered from shock. The officer asked her to wait in the back seat of a police vehicle, where  the air conditioning would make her more comfortable. The officer closed the car door; she could not get out. Because the others suffered greater injuries than Ms Berner, she had to wait for medical treatment.

There she sat for 30 minutes. Was she "detained”?

The officer had no reason (yet) to suspect a crime. Ms Berner had [falsely] denied drinking. The officer could smell no liquor. But the officer could not understand why the collision occurred.

After 30 minutes, the officer asked again about drinking. This time, Ms Berner admitted drinking two glasses of wine three hours earlier. This led to a screening device demand, a "fail”, and eventually breath tests which produced evidence against the accused.

The trial judge found that the officer’s purpose in placing Ms Berner in the police car was to care for her, and this caused no detention. The appeal court focused on Ms Berner’s perceptions instead. Would the officers conduct make her feel obliged to stay and cooperate?

The appeal court found that the officer did detain Ms Berner, and without access to counsel.  The officer obtained the admission of drinking in violation of her right under s.10(b). But in the context of this matter, the evidence could be admitted under s.24(2).  The court sympathized with the officer who did the best she could in a difficult situation.

When you arrive at a scene of chaos, you need to take control. You must direct the people present. You must ask them questions about what happened. If these efforts cause a suspect to believe on reasonable grounds that he or she is not free to go, or must answer police questions, then you are obtaining answers in violation of their rights.

Judges examine this question from the point of view of the suspect, not the police officer. Don't consider just your own intentions in handling people you find at the scene, but also what your target experienced.

Steps this officer could have taken to avoid breaching Ms Berner’s rights include:

• Telling Ms Berner that she was not required to wait in the police car
• Telling her that she was not required to give a statement
  

On somewhat different facts, the another court came to a different conclusion.  Police executed a search warrant for drugs at Mr Munkoh's, 2012 ONCA 865 family's home.  Although they prevented him from wandering around the house while they searched, they did not specifically keep him in the house. He made remarks admitting responsibility for the drugs they found.  At Munko's trial, the judge thought the officers' actions did not trigger s.10(b); and the appeal court agreed.  The trigger for a detention depends very much on the facts: what did the suspect experience when police attended?

2012-12-07 Detention and Search for Officer Safety - Convenience Or Necessity

The Nova Scotia Motor Vehicle Act prohibits new drivers from operating motor vehicles after drinking alcohol. Young Mr Aucoin, 2012 SCC 66 took that risk, and compounded it by driving a car which bore the wrong license plate. An officer noticed, and pulled him over. The officer tested his breath: 20mg%. The officer decided to write some tickets.

It was dark. Crowds of people milled around. The officer feared Mr Aucoin might wander away.  He decided to put Mr Aucoin in the back seat of the police car. Before doing that, he searched the young man "for officer safety". He found ecstasy and cocaine packaged for sale.

Mr Aucoin complained that the search was unnecessary for officer safety, and therefore violated his s.8 rights.  The court agreed.

The court confirmed the police power to detain suspects.  It also confirmed the power to search suspects for officer safety, where "reasonably necessary".  However, it wasn't necessary in this case:

"... I note that two police officers arrived at the scene while the appellant was being searched by Constable Burke.  That leads me to conclude that backup was close at hand, something Constable Burke could readily have ascertained."

While it was convenient to secure Mr Aucoin in the police car, this would cause the officer to search him unnecessarily.  The alternative - asking the other officers to watch him - would result in less serious violations of his privacy and liberty.

The court admitted the evidence anyway, because the officer generally acted in good faith, and the violation of Charter rights were relatively minor.

For police, this means your power of search for officer safety should be exercised only when necessary.  "Necessity" depends upon the circumstances.  In this case the court would likely have reached a different conclusion if:

• no other officers had been available to watch over the suspect; or
• the officer received information that this suspect tended to carry weapons or harm police officers.
  

2012-12-03 Interviewing Youth-Video

After police arrested 14-year-old M.D., 2012 ONCA 841, for robbery they interviewed him for 12 minutes. He told them he wanted to tell his side of the story, and did.

An hour later, after setting up a recording device, the officers explained his rights under the Youth Criminal Justice Act (YCJA).  After the offices mentioned the first conversation, the boy gave another confession.

The YCJA requires police to record the statements of young people. Therefore, at trial, the prosecution could not rely on what M.D. said in the first interview, because it was not recorded. The trial judge admitted the second statement.

On appeal, the court found that the failure to record the first statement undermined the admissibility of the second. The officers should have told him that nothing he said in the first conversation was admissible, and that the recording was a "fresh start".

This decision holds police to a high standard of recording their interactions with young people. Record everything. Informal "pre-interview" conversations should be recorded too.

2012-11-29 Impaired Driving Investigation

Some officers dread stopping drunk drivers, for fear of performing the investigation incorrectly, and exposing their ignorance in court, under cross-examination.

Some officers relish the opportunity to hone their investigative skills, and hunt for inebriated drivers meandering through the streets and lanes.

Regardless where you fall along this spectrum, here's a book on the topic which might interest you.  The authors wrote it specifically for police, and recently revised it.  Click the link to buy a copy.

I must disclose my interest in this book: I reviewed much of it before publication, and offered some suggestions.  The publisher pays me a small commission for each copy sold, which I apply to running this website.  If you buy a copy, not only will you get a useful book, but you'll help me pay for my internet name registration and web hosting.

2012-11-27 Hearsay - Preserving the Memories Of Aged Witnesses

87-year-old Ms. Dokaupe lived alone. She had saved $165,000 through her working life, and received a pension. She hired Ms Taylor 2012 ONCA 809 to assist her with her daily needs.  During the 20 months she worked for Ms Dokaupe, Ms Taylor took the cash. Was it fraud, or did Ms. Dokaupe give it to her?

The next caregiver read Ms. Dokaupe’s bank statements, and called police.  They asked why Ms Taylor got the money.  Ms. Dokaupe told police it was theft. Unfortunately, she died before trial. Was her statement admissible?

In this case, investigators realised that Ms Dokaupe might die. When taking her statement, they warned her against public mischief, and administered the oath.  They video-recorded her complaint. What she told them matched banking records, but nothing independently confirmed her claim that Ms Taylor had no right to the cash.

These steps sufficed to get the evidence into trial, but did not prove the case beyond a reasonable doubt.

Fortunately, two more pieces of evidence were available.

• Around the time police took a statement, a psychologist assessed her intellectual abilities in order to determine whether she could write a will.
• Ms. Dokaupe had no criminal record.
  

From this we can learn:

1. Elderly witnesses sometimes die. Taking sworn statements from them can preserve their evidence.
2. The K.G.B. procedure does not prove cases beyond a reasonable doubt. Investigate further to corroborate what the witness says.
3. Old people sometimes go senile. Getting a psychological assessment of the witness around the time of the sworn statement may help the judge to assess her reliability.
   

2012-11-07 Prior Testimony - Materials from Civil Proceedings

When Mr. Nedelcu, 2012 SCC 59 crashed his motorcycle, he suffered minor injuries. But his passenger wore no helmet.  The crash damaged his brain permanently.

The passenger sued Mr Nedelcu.  This compelled Mr. Nedelcu - during "discovery", to answer questions under oath about the accident.  He swore he remembered nothing.

Independently, police charged Mr. Nedelcu for dangerous driving causing bodily harm. During that trial, he testified that he clearly recalled everything that occurred, and gave an innocent account of his driving.  The lawyer for the passenger gave Crown counsel a transcript of what Mr. Nedelcu said during discovery.  With it, the prosecutor demonstrated that Mr. Nedelcu's new story could not be believed.

Mr. Nedelcu complained to the appeal court about s.13 of the Charter.

When Americans testify, and someone asks a question which might get them into trouble, they "plead the fifth".  In their country, no one can be compelled to give an answer which would get them into trouble. In Canada, we do things differently. The witness must answer the question, but s.13 of the Charter prevents any future prosecution from using the answer to incriminate the witness. The prosecution used his answers in the civil suit to get him convicted of the criminal charges.

This protection applies when:

• The person was compelled to testify in some other proceeding; and
  
• The answers the person gave tended to make the person look guilty of a crime.
  

A majority of the Supreme Court held that although Mr. Nedelcu was compelled to testify at the civil proceedings, the answers he gave during discovery did not make him look guilty of anything.  The cross-examination was proper, and his conviction stuck.

Does this mean that anytime a suspect gets entangled in a civil lawsuit, you should obtain transcripts of his evidence in discoveries? Certainly consider it, but beware.  There is a significant expectation of privacy over those transcripts.  To get them, you need a search warrant, or permission from the court in which the lawsuit is proceeding.  Juman v. Doucette, 2008 SCC 8.

2012-10-31 Search & Seizure - Warrant Drafting - Describing a Confidential Source

A confidential source told police that the Rocha 2012 ONCA 707 brothers sold cocaine from their restaurant and possessed it in a house.  A officer drafted a warrant.  When they executed it, they found cocaine.  At trial, defence complained about the drafting, and the judges agreed.

In the ITO, the officer wrote:

"The SOURCE in this matter is a registered human asset of the Toronto Police Service for over two years. The information they provided is of such detail, timing and geographic specifics that it goes beyond mere chance and/or coincidence. In some cases the information has been corroborated, by Handlers or investigators forming Reasonable Grounds to Believe. The SOURCE has no convictions for Perjury or Public Mischief. The SOURCE previously provided information to police that has led to persons arrested/charged in addition to the seizure of illegal narcotics and stolen property. The SOURCE acknowledges that they will face criminal charges for making false reports to police regarding information on past, present and future investigations. The SOURCE understands that there [sic] assistance is only "eyes and ears” and they are not to participate in any criminal activity whatsoever as a Confidential Source."

The judge should decide for him or herself whether to trust a source.  Unfortunately, this paragraph prevents the judge from making this determination.

Text	Problem	Solution
"The SOURCE in this matter is a registered human asset of the Toronto Police Service for over two years."	"Registering" a person as a "human asset" merely means that the police decided to trust the source. But this sentence gives no reason for the judge to trust the source.  This sentence means "We trust this guy."	The facts that police knew this source and worked with him/her for 2 years does give the judge some reason to trust the source: "Over the past 2 years, the source gave information to the Toronto Police Service".
"The information they provided is of such detail, timing and geographic specifics that it goes beyond mere chance and/or coincidence."	The first part of this sentence suggests that the source gave detailed information.  The second part is the officer's conclusion that because the information was detailed, therefore it was trustworthy.  But the officer gave the judge no opportunity to assess this.	"This source provided detailed information about where and when criminal activity would occur".
"In some cases the information has been corroborated, by Handlers or investigators forming Reasonable Grounds to Believe."	This sentence fails to explain how the information was corroborated, nor how often.  Again, the officer has decided that the source was "corroborated", without letting the judge make an independent determination.	Let the judge understand the quality of previous tips.  For example: "On (how many) previous occasions, this source provided private details such as the type of drug trafficked, the identities of distributors of drugs, and their associates, which matched information from other sources."
"The SOURCE has no convictions for Perjury or Public Mischief."	The source may have other convictions relating to dishonesty such as fraud, false pretences. The court inferred from this cute language that the officer concealed convictions relevant to credibility.	"The source has criminal convictions, which I list in Appendix A." (Naturally, Appendix A should be redacted from what you disclose to defence.)
"The SOURCE previously provided information to police that has led to persons arrested/charged in addition to the seizure of illegal narcotics and stolen property."	How often? Was this the one time that the source gave good information, and all other tips were false? Beware of alleging "charges": courts consider people innocent until proved guilty. If charges were laid, did the court convict?	"On one (or 3 or 5) occasion(s), this source gave information about the location and quantity of illegal narcotics and stolen property which was confirmed at subsequent arrests. In total, 4 people have been convicted of offences which this source reported."

For officers who apply for warrants on the basis of confidential sources, I recommend reading this decision.

The court also worried about the wasted effort which occurs when police with good information cannot rely on it because of their obligation to protect the identity of the source.

The judges urged prosecutors to rely upon "judicial summaries" of redacted material. If the redacted version of your warrant fails to convey the good quality of information you received, the prosecutor can ask the judge to approve a summary of the redacted information, which can then be disclosed to defence. Talk to your prosecutor about this idea.

2012-10-30 Impaired Driving - "Care or Control"

Mr Boudreau 2012 SCC 56 got drunk. He called a taxi service which specialised in getting drunks and their cars home.  While he waited for his ride, he created a warm sanctuary from the cold and wind.  Mr  Boudreau got in the driver's seat of his car and started the engine; he passed out. When the taxi driver came, instead of waking Mr Boudreau and taking him home, the driver called police. Police arrested Boudreault.

Was Mr Boudreau in "care or control" of the vehicle?

S.258(1)(a) requires a court to presume that someone sitting in the driver's seat had "care or control" of the vehicle, unless the driver explains  that he had some other purpose than setting the vehicle in motion. Mr Boudreau's explanation obviously fit the exception.  The presumption did not apply,

Without the presumption, a court may still find a driver to be in care or control, if the drivers behaviour, in the circumstances, create a realistic danger to persons or property.

If the driver had a plan not to drive, this reduces the danger. If the driver's mood and plans changed from minute to minute, this increases the danger.

Therefore, when investigating the drunk sleeping in the drivers seat, you want to know:

• what were his plans when he got in the car?
• what are his plans now?
• does he now think he is safe to drive?
• what is his destination?

If you question him at roadside, none of these answers will be admissible trial. Therefore, ask these questions after access to counsel.

The court found Mr Boudreau did not pose a realistic danger. He was acquitted.

2012-10-21 Possession - Knowledge

Ms. Schepannek, 2012 BCCA 368 visited her husband in jail.  She tried to deliver a plastic package to him secretly, but got caught.  It contained drugs.  At trial, she testified that she didn't know about the drugs.  She thought it was just tobacco.  She said her husband instructed her to meet with a stranger, who would supply a package of tobacco.  She met with the stranger, and received a sealed package.  She never looked inside.

If she knew the package contained drugs, then she's guilty of trafficking.  There was no direct evidence of this knowledge.

The prosecutor carefully cross-examined her, to show that she was reckless: the package could have contained drugs, weapons or bombs.  She didn't know, and she didn't care.

The judge agreed with the prosecution: Schepannek's recklessness sufficed to establish sufficient knowledge for trafficking.

When investigating the mule who delivers the contraband, look for evidence of actual knowledge of the contents of the package.  But even if you don't get that, discover as much as you can about the circumstances by which the mule received and handled the package.

2012-10-20 Search & Seizure - Expectations of Privacy in Information - The Company Laptop

"Canadians may reasonably expect privacy in the information contained on their own personal computers.  In my view, the same applies to information on work computers, at least where personal use is permitted or reasonably expected." - Fish J., Supreme Court of Canada.

While doing routine maintenance, a computer technician at a school found a nude photo of an underage student on a school laptop.  The laptop belonged to the school, but Mr Cole, 2012 SCC 53, a teacher at the school, had exclusive use of it, and permission to store private information on it.  The school seized the computer, searched it, and copied child pornography from the computer onto separate disks.  They gave the computer and the disks to police.  Police copied the hard drive and searched it without getting a warrant.

Did Mr Cole enjoy any expectation of privacy over his computer as against the school?  Did the police violate his expectations of privacy?

Factors affecting the reasonableness of Cole's expectation of privacy

Private	Non-Private
The school's written policy permitted personal use. In practice, teachers used their laptops for personal purposes. Computer was password-protected. Cole kept pictures of his wife on the laptop.	The school's written policy asserted that it owned the computer and the data on it. Remote access software permitted other school personnel to access the entire contents of the laptop. Cole knew of this technical capability and used it himself on other laptops on the school network.

When the officer received the computer from the school, the officer did a sensible thing: he investigated the teacher's expectation of privacy. He read the policies affecting it.  Unfortunately, he thought that ownership of the laptop and data determined whether Cole enjoyed a reasonable expectation of privacy.

The court disagreed.  Ownership doesn't determine expectations of privacy.

That makes sense.  Your doctor owns your medical records, but their contents are private to you.

Although I think it was a close call, the court concluded that Mr Cole enjoyed a reduced expectation of privacy, but one which s.8 still protected.

• The school's responsibilities to protect students justified the school's search of the computer.
• The police did not "search" anything when they received the disks, and so their receipt of those disks did not violate s.8.
• The police did violate Mr Cole's reasonable expectations of privacy when they searched the computer without a warrant.
  

The good sense of the investigating officer paid off.  Because he cared about Cole's expectations of privacy, and because he thought about privacy rights in the laptop, the court found it could admit the evidence in spite of the breach of s.8.  The prosecution will be able to tender all of the evidence against Mr Cole.

The take-home messages are

• Before searching, think about expectations of privacy.
  
• The law gives personal electronic information devices (like smart-phones, laptops, home computers) lots of s.8 protection.
  
• Don't search personal electronic devices unless you have clear lawful authority.
• Err on the side of caution - consider getting a warrant.
  

2012-10-20 Search & Seizure - Third Party Permission

Mr Cole, 2012 SCC 53 stored child pornography on a laptop he got from work.  When his employer found out, they took it from him, and gave it to police.  With the employer's permission, police searched the laptop.  Without a warrant.

The court found police violated his s.8 rights.  It held that when there's a reasonable expectation of privacy, nobody but the suspect can "consent" to a police search.  (paras 74-79)

This thoroughly surprised me.

Suppose a parent and child live in the parent's house.  Obviously, the child enjoys an expectation of privacy, even in the common areas of the house.  For example, if police suspect that the child is growing marijuana in the kitchen, police need a warrant to enter.

Suppose the child stabs the parent in a heated argument, and the parent goes to a hospital for treatment.  You visit the parent in hospital, and ask for permission to enter the house.  On its face, this ruling suggests that police can not rely on the parent's consent to enter the house and search the kitchen for evidence against the kid.  Even if the parent owns the house.

This seems quite wrong to me.  I am not sure how broadly future courts will interpret this passage. 

For sure, don't search office computers for personal information relying only on the consent of the business.  But be more wary of relying on one person's consent to snoop on another.

2012-10-16 Wiretap - Text Messages On Disposable Cell Phones

In order to avoid electronic surveillance, gangsters change cellphones often. Judges may grant wiretap authorisations which permit police to intercept private communications over "new" cellphones if the police have reasonable grounds to believe that the gangster is using the new phone.

If you listen for a few moments, you can identify the speaker in a telephone conversation. But you can't listen to a text message. How can you tell who sent it?

Police knew enough about Mr Doroslovac, 2012 ONCA 680 that they persuaded a judge to authorise interception of his private communications. The authorisation included a general term to intercept his communication on new devices.

Then a confidential source told police Mr D's new phone number. Officers doing surveillance saw him discard the instructions for a new phone. They included the new number.

Rather than applying for a new authorisation to intercept communications on this cellphone, police relied on general terms in the authorisation. They heard him using the phone. They intercepted text messages in which he planned a drug deal.

When the day came, police watched him sell 3 kg of cocaine. Afterwards, they arrested him.

At trial, defence complained that police could not identify the author of the text messages as Mr D. Therefore, the wiretap authorisation did not permit them to intercept those messages.

The trial judge agreed. The Court of Appeal did not. Because the officers saw and heard Mr D (and nobody else) speaking on the phone, it was reasonable for the officers to believe he authored the text messages.

Most importantly, the general provision in the authorisation specified that no live monitoring was required of "non-oral telecommunications".

This authorisation did not refer to "text messages". For those of you who draft wiretap applications, you may wish to include that phrase in future applications, along with language to authorise intercepting them from new known phones without live monitoring.

2012-10-11 Wiretap - Sharing the Fruits

It's an offence for anyone to intercept private communications using electronic technology. s.184  Except a judge may permit a peace officer to do it when investigating a serious offence; and peace officers can do it in dire emergencies.  If you lawfully intercept private communications, it's an offence to disclose those intercepted communications.  s.193(1).  Except for law enforcement purposes.  s.193(2).

Canadian officers intercepted Mr Wakeling 2012 BCCA 397 conspiring to ship drugs to the USA. Rather than prosecute him here, Canadian authorities shared information from the interceptions with US Customs officers, who intercepted the shipment: they found 46,000 ecstasy pills.  The Americans sought Mr Wakeling's extradition.

In Canada, resisting extradition, Wakeling complained that police should obtain judicial permission to share this information outside the country.  The court disagreed.

The rules for sharing wiretap across the border remain the same.  But let this remind you generally of the care you must take with evidence obtained by wiretap.  It's private.  Don't share it around except according to law. You should request assurances that the foreign investigators will maintain the privacy of the material.

The Supreme Court of Canada upheld this conclusion Wakeling 2014 SCC 72.

2012-10-11 Sex with HIV - When to Tell your Partner

Mr Mabior, 2012 SCC 47 and Ms D.C., 2012 SCC 48 carried the HIV virus.  Each engaged in sex without telling his or her partner.  Both got charged with aggravated sexual assault, because of the risk of transmitting the virus.  The SCC decided only one should be convicted.

Mr Mabior ran a party house.  He seduced the young women who got drunk there.  Although he was getting treatment, he told none of them about his disease, and lied to one of them about it.  Sometimes he used condoms; sometimes he didn't.  When he did, sometimes they broke.  None of the women got the disease.

Ms D.C. also knew of her disease, and got treatment.  At the beginning of Ms. D.C.'s relationship with a new boyfriend, she had sex with him once without telling him about her HIV.  They used a condom.  Then she told him.  The continued to have sex.  He assaulted her.  She complained.  He was charged and convicted of assault.  Then he complained about her failing to tell him about her HIV.  She was charged with aggravated sexual assault.  He never got the disease.

In R. v. Cuerrier, [1998] 2 S.C.R. 371, the court said a person would be guilty of sexual assault from non-disclosure of HIV status if there was a "significant risk of serious bodily harm".  The odds of transmission of HIV from a single act of intercourse is usually below 1%.  Is that a "significant risk"?

The court concluded:

"... a person may be found guilty of aggravated sexual assault under s. 273 of the Criminal Code if he fails to disclose HIV-positive status before intercourse and there is a realistic possibility that HIV will be transmitted.  If the HIV-positive person has a low viral count as a result of treatment and there is condom protection, the threshold of a realistic possibility of transmission is not met, on the evidence before us."

Mr Mabior's viral load was low; Ms D.C.'s was undetectable. The court held Mr Mabior to account for the times that he failed to use condoms.  Because Ms D.C. used a condom, she was acquitted.  If either had high viral loads, they would have been convicted even for the times they used condoms.

Therefore, when you receive a complaint of an HIV positive person engaging in sexual intercourse without telling their partner of the disease, you want clear evidence about:

• condom use,
• the suspect's viral load at the time, and
• what the suspect knew about his or her disease at the time of the sexual contact.
  

2012-10-11 2012-10-11 Credibility of Complaints of Sexual Assault during Marital Breakdown

During divorce proceedings, emotions run high.  Some litigants make false allegations against each other, particularly when disputing custody and access.  When one side alleges sexual misconduct by the other, we often discount the claim because of the context.

Mr R.W., 2012 ONCA 682 had a child with his girlfriend, but the relationship broke down.  They litigated custody and access.  After he visited the child at her place, he persuaded her to let him stay the night.  Afterwards, she said he raped her; he said it was consensual.

Some objective evidence supported her story: she suffered injuries to her mouth.  But she also wrote a note which appeared to express affection for him.  She explained away the note at trial, and the judge accepted the explanation.

She also consented to a custody order in his favour shortly afterwards.  This contradicted the suggestion that she made the rape allegation in order to improve her position in court.

The trial judge convicted him, and the appeal court agreed.  Her reasonable conduct in the custody litigation made the difference.

Of the many complaints of sexual misconduct during marital separation, some are true.  Some men under relationship stress will use force to control the sexuality of others.  It isn't fair to the victims to dismiss every complaint because they're fighting for their children.  Nor is it fair to the suspects to believe every complaint.

Look for independent evidence which helps answer the issues.  In this case, someone found it in the proceedings in Family Court.

2012-10-04 PIPEDA requests to Internet Providers

Police received information that an IP address in Canada accessed child pornography.  It belonged to Bell Canada's block of IP addresses, so police asked Bell Canada, pursuant to PIPEDA, which subscriber used that IP address at the time.

Bell Canada's subscriber contract prohibited users from accessing child pornography on the internet; and their privacy policy said they would cooperate with police.  So they identified the subscriber, Mr Ward, 2012 ONCA 660.  That gave police enough information to get search warrants, which uncovered thousands of images and videos of child pornography.  The trial judge convicted Mr Ward of accessing and possessing child pornography.

Mr Ward complained that the police violated his expectations of privacy by making this request.  The court disagreed.  It looks like PIPEDA requests for subscriber information from Internet Providers will generally fly in Canada.  But that doesn't mean all PIPEDA requests will survive s.8 of the Charter.

I found this case interesting because it raises a deep question.  "When is it okay to ask a third party for information about a suspect?"  Long ago, in a case called Dersch, the SCC established that police can violate s.8 simply by asking third parties for information.  In that case, police asked a doctor for the blood-alcohol level of a driver who was being treated at a hospital after crashing a car.  The doctor looked into the private medical records of the patient, and gave an answer.  The court excluded that evidence because the police request violated a reasonable expectation of privacy.

In this case, police asked for something rather less personal, and the court said it was okay.  But officers ask third parties (witnesses) for information about suspects all the time.  I'm not sure where the dividing line falls between lawful and unlawful requests.

2012-09-30 Residential Arrest - Feeney Warrants

After a lengthy investigation, police swore charges against Mr Alcantara, 2012 ABQB 341 and Mr Knapczyk of trafficking, conspiracy and doing so for the benefit of a criminal organization.  The justice issued warrants for their arrest.

The officers prepared for trouble.  They brought emergency response teams to the houses of these two fellows.  Officers knocked on their doors, they answered, and the officers stepped inside to arrest them.

Inside each residence, the officers could see clothing bearing Hells Angels colours.  This came as no surprise to the officers, who seized them incidental to arrest.  Each item of clothing contained documents linking the suspects to criminal organizations. 

At trial, the defendants complained that the officers had no authority to enter their residences, because they had not obtained "Feeney" warrants (s.529).

The judge agreed, and excluded the jackets as evidence.

A warrant of arrest gets you into many places, but not a residence.  Ask a justice for permission to enter a residence to arrest someone.

2012-09-29 Voice Identification - Voice Lineup?

Someone wearing a balaclava robbed a clerk at a convenience store.  Was it Mr Clouthier, 2012 ONCA 636?  The clerk said that she would recognize his voice if she heard it again.  While one officer interviewed Mr Clothier, another officer allowed the clerk to listen in.  She said she recognized his voice.

The trial judge thought this evidence had some value.  The appeal court didn't.

Suppose you show a single photograph to an eyewitness and ask "is this the felon?"  She might say "yes".  But you may cause the witness to remember the face on the photograph instead of the face of the culprit.  A lineup of one tests recognition very badly.

In Cloutier's case, because the clerk heard a live feed, I doubt that the court heard a recording of what the clerk heard.  I imagine she might have heard conversation like this:

Q: You are under arrest for robbing Mac's Milk yesterday evening.  Do you understand?
A: Yes.  But I didn't do it....

Hearing the accusation might persuade the witness to "recognize" the voice, even if police got the wrong person.

The appeal court suggested that voice identification should require procedures similar to photo lineups.  You should play many clips, and see if the witness recognizes any voices in them.

You probably have dozens or hundreds of recordings of suspects talking with officers from which to take clips.  If you do try this investigative technique, I suggest:

• Gather recordings: collect recordings taken in similar locations as the suspect's conversation, so that the manner of conversation and background noise is the same.  Ideally, the officer who interviews the suspect should draw from his or her own past interviews with other suspects.
  
• Edit recordings: remove from all recordings any discussion which identifies the offence for which the main subject is being interviewed.
• Label recordings: mark the recordings clearly, so that you can track which is which.
• Script: prepare a script for the eyewitness which modifies the language of the "Sophonow" photo-pack procedure for recordings.
• Video-record: capture the audio-lineup on a video-recording device.
  

2012-09-29 DNA - Testing a Village

Someone raped and murdered a 13-year-old girl in the town of Zeballos, on Vancouver Island.  Lacking clear leads, police asked men in the community for DNA samples, to clear them.  Like many men in this small town, 21-year-old George Osmond 2012 BCCA 382 signed a consent form which he police drafted, and agreed to give DNA.  His matched the sperm found at the scene, mixed with her blood.

After his conviction, he complained that testing everyone's DNA was random virtue testing, and should not be allowed.

The court disagreed.  Although expensive, this technique remains constitutional.  If you're considering doing it, read the decision to see what procedures these officers used to get valid consent from the men whose DNA they tested.

2012-09-28 Informer Privilege - Messier than it first appears

For years, Roy Sundstrom, 2012 BCCA 385 and his common-law wife grew marijuana in a sophisticated operation at their residence.  She wanted out of the relationship, but couldn't find a way to tell him.  So she ratted him out, on condition that police not identify her as an informant.  They got a warrant, but carefully redacted the ITO, so as to conceal her identity.  Police told her when they'd execute the warrant; she made sure she left the house that day.

The search turned up evidence showing that both he and she were responsible for the plants.

If the Crown charged only him, it might indicate that she was the source.  She was charged too.  Police never told the prosecutor that she was the source.

Sundstrom and she hired the same lawyer.  Nobody told that lawyer she was the source.  Because she was, the lawyer was actually acting in a conflict of interest.

Eventually, Mr Sundstrom pleaded guilty, on condition that the prosecution drop the charges against his common-law wife.  Crown agreed.  She left him.  Later, she wrote him a letter confessing her role in the investigation.

This upset Mr Sundstrom.  He figured he'd been shafted.  He appealed, seeking to withdraw his guilty plea.

He had been shafted.  But not by the state.  The police and the Crown had an obligation to keep the identity of the source secret.  Innocence was not at stake.  The guilty plea stood.

The lesson here is that your promise not to reveal identity of a source creates weird and unpredictable duties.  ("In order to protect you, I'm going to let the Crown charge you with production.")  The court recognizes those duties.  Sometimes, the source goes public.  Until they do, you have a heavy obligation to protect the source's identity from discovery.  When the source goes public, your actions will undergo scrutiny.

Therefore, take care to understand what your duties are when receiving informer information: reveal nothing which tends to identify your source.  Be clear with the source what that means.  In this case, it meant that the prosecutor didn't know her role in the case, and laid charges on her.  Even if the prosecutor had known her role, laying charges on her might be the best protection of her identity.

2012-09-25 Expectations of Privacy when Leaving Canada

Ms Nagle 2012 BCCA 373 attempted to smuggle just over a kilo of meth to Japan.  On her way out, a border services officer questioned her about her travel plans, and how much money she was taking out of the country.  Her answers caused him to suspect she was moving drugs.  He detained her, gave her access to counsel, and removed her luggage from the plane.  X-rays discovered the drugs.

At trial, she suggested that privacy expectations differ between international travellers arriving in Canada and those leaving.  The ones arriving could bring in contraband which poses risks to Canadians.  The ones leaving don't.  The trial judge agreed, and exluded the evidence.

The Court of Appeal ordered a new trial.  Canada has international obligations to stop money laundering and terrorists.  Therefore, travellers can expect our border security officials to screen travellers whether entering or leaving Canada.

The decision also discusses what is and isn't a detention in the context of border security.  Travellers can expect interference with liberty and privacy when crossing borders, and therefore border security officials can stop and question travellers in ways that would not be acceptable for police officers on the streets.

2012-09-23 Right to Counsel

Police arrested Mr K.W.J., 2012 NWTCA 3 for sexual assault.  They found him at Kakisa, NWT, which is south of the Great Slave Lake, about 100km from the nearest police station.  He wanted to talk with a lawyer.

On the drive to Hay River, the officers wisely refrained from talking about anything.

When they got to the police station, Mr K.W.J. asked to call his wife.  The officers refused.  He then asked to talk to duty counsel.  After that conversation, he confessed.

At trial, Mr K.W.J. complained that the reason for wanting to call his wife was because he thought she knew the name of the right lawyer to call.  The trial judge found that the officers should have let him call her.  Because they didn't, the trial judge found that they breached his rights, and excluded the confession.  He beat the charge.

The appeal court saw it differently: police are not required to read minds.  Because Mr K.W.J. failed to explain that calling his wife would help him find a lawyer, the police didn't have to let him call her.

The learning points from this case are simple ones:

1. If you arrest or detain someone, don't ask questions about the offence until you have explained the right to counsel, and the suspect exercises the right, or declines to call a lawyer.
2. If the suspect wants to call relatives or friends to get the name or phone number of the lawyer of their choice let them.  (But those calls are not privileged.  Make it clear you will listen.)
   

2012-09-13 Proving Possession of Digital Information

Mr Caza 2012 BCSC 627 lived alone. Foreign police investigations discovered that the Internet connection in his apartment had been distributing child pornography on a file-sharing site. Canadian police got a warrant. In his apartment, but separate from his computer, they found a hard drive full of child pornography configured to share, and multitudes of chats about sharing the stuff. Who was responsible for putting it there, and sharing it to the world?

Proving who is responsible for digital information stored in a hard drive isn't easy. These officers took no chances: this guy had a history of sexual offences.  They relied not only on forensic examination inside the box, but also basic investigation outside the box.

Inside the box

Did some malicious hacker take over his computer? The forensic examiners looked for malware, but found none.

Did anything inside the hard drive link to Mr Caza? It contained a video showing the inside of his apartment, narrated in his voice. There were photographs of children playing in the snow in the school outside his apartment, taken with a camera they found in the apartment.

The was also digital evidence that when police arrived to execute their search warrant, someone had pulled the computer's power cord from the wall.  Mr Caza was alone in the apartment when they arrived.

Outside the box

Someone had removed the serial number from the outside of the hard drive. Fortunately, the serial number was encoded digitally inside. Forensic examination discovered this number. Police tracked the drive to the store which sold it. The salesman remembered selling it to Mr Caza.

The name of the subscriber for Mr Caza's Internet service was Mr Feltham. Police found Mr Feltham, and learned that he had lived with Mr K for a short time. Who paid the Internet bill?  Police enquired with the Internet provider. After Mr Feltham moved out, their bills were paid by anonymous postal money orders.

Who else used Mr Caza's computer? Police interviewed the landlord and tenants in his apartment block.  Some people used his computer for short periods of time; only the landlord used it regularly. By luck, circumstantial evidence established that the landlord wouldn't have put child pornography on the drive.

Conclusion

The judge convicted Mr Caza.

I summarized the judge's summary of this investigation.  I suspect that these officers investigated much more.  They were wise to do so.

Even if you can prove that your suspect had physical control over a digital device such as a memory stick or hard drive, you need more evidence to prove who loaded it with the data of interest.  Look inside, to find evidence which identifies the users by content and date-stamp, and to eliminate the prospect of a malicious hacker.  Investigate outside the device, to identify (and eliminate) people who accessed the device.

2012-09-11 Articulating Grounds on the basis of Experience

Two police officers in a marked police car drove through a bad part of town.

The driver saw Mr Brown, 2012 ONCA 225 extend his closed hand toward another pedestrian.  The second guy, who was facing toward the police car, ignored Mr Brown, but walked away.  Mr Brown turned around, then walked away fast.  The police officer figured that the first guy was delivering drugs, but the second guy saw the marked police car, and therefore abandoned the transaction.  When Mr Brown turned, he must have seen the police car, and fled.

The police officer in the passenger seat saw none of this.

None-the-less, the officers arrested the first guy, took his drugs, and charged him.

At trial, and on appeal, defence complained that the first officer lacked reasonable grounds to arrest.  The Court of Appeal agreed. They observed:

"[The first officer] testified that the way the appellant held his hand led him to believe that the appellant was concealing drugs in his hand.  He also indicated that his belief that a drug transaction was ongoing was based in part on his "experience of seeing hand-to-hand transactions in the past and arresting people based on that”.  Officer Manafo did not particularize how it was that his prior experience led to this conclusion."

I can't assign blame for this failure.  Perhaps the prosecutor should have asked the officer more questions about those previous experiences - remembering to ask can be difficult.  Perhaps the officer lacked language to explain - many officers find it difficult to explain why these little observations mean so much.

If the question is "did you have grounds?" then every time you rely on your experience to interpret an observation, you need to spell out what those experiences were.

2012-09-09 Prisoner Telephone Calls

While serving time at the Edmonton Remand Centre, Mr Drader, 2012 ABQB 168, an experienced identity thief, continued to work his trade.  He had with him a collection of personal information.  Over the telephone, he directed associates on the outside to take the necessary steps to make fraudulent purchases using his valuable collection of identities.

An informant ratted him out.

Detective Gauthier knew Mr Trader's propensities, and when he heard what the informant said, he enlisted the help of the senior officials at the jail. He explained what he knew, and asked them to confirm whether Mr Drader was doing this.

Albertan jails record the telephone conversations of inmates, but legislation prevents staff from listening unless a specific senior official has reasonable grounds to believe that the inmate is up to mischief.

Unfortunately, the right guy was away when Det. Gauthier contacted the Centre.  Someone above him permitted staff to listen to the recorded telephone call.

The recordings were damning: Drader had instructed various young girls about which identities to use, and how.

Prison officials then told Gauthier what they heard.  Gauthier got a warrant for the recordings, and charges were laid.

Defence complained that the legislation which permits these recordings breached the privacy rights of prisoners.  The judge disagreed:  prisoner's privacy is almost an oxymoron.

Defence complained that the wrong official gave the permission to review the recordings.  The judge agreed.  This was a s.8 breach.  But Det. Gauthier had delivered good information to the Centre, and an even more senior official gave permission to listen to the recordings.  This was a technical error.  Evidence admitted.

Dedicated criminals don't stop committing crime after the arrest.  Some use telephones to influence witnesses or frighten victims.  Others extort people for money.  Institutional recording systems exist to prevent that abuse.  But institutional officials don't always know which telephone calls matter.  You can give them grounds.

I've long been interested in this topic, so I wrote a web page on it.  As remand and correctional centres increasingly use this technology throughout Canada, you will increasingly want access to the recordings they contain.

My experience is with B.C.' system.  Do any of you know the policies and procedures involved in getting intercepted telephone calls from prisons in other provinces?  I would be grateful for an email from the folks who know the answers.

2012-08-31 Confessions - Voluntariness - Interviewing skills

When questioning Mr Pappas, 2012 ABCA 221, about the shooting death of his "friend", Detective Brydges sat close to him, touched his knee with his hand, and poked his leg to get his attention.  When Mr Pappas said he would answer no more questions, Detective Brydges kept talking, describing the evidence the police had gathered so far, and exaggerating its quality. He then accused Pappas of executing his friend, and stealing his money and his car.  "What could of possibly possessed you to do that?” he asked.

Pappas hesitated, then explained.

The "friend" had been extorting money from him for approximately 18 months by threatening to reveal details about his offshore investments to the Canada Revenue Agency.  The "friend" threatened to hurt his mother if he stopped paying, or went to the police.  Pappas took a gun to confront him, and shot him after the "friend" made a veiled threat against his mother.

A jury found him guilty of murder.

At the appeal, defence complained that the officer "assaulted" Mr Pappas during the interview by touching him. They argued that the persistent questioning deprived Mr Pappas of any choice whether to answer. They said the officer lied about the evidence.

These arguments failed, but only because

• the touching was gentle and sympathetic;
• the interviewing did not force Mr Pappas to speak; and
• the exaggeration of the evidence was slight.

To prepare Mr Pappas for this interview, police gave him full opportunity to get legal advice; they gave him food and access to a washroom. These help the judge come to the conclusion that the officer's efforts to persuade were balanced against the suspect's ability to decline to speak.

Detective Brydges is an expert interviewer who pushed close to the line. Beware of exaggerating evidence.  Don't intimidate a suspect with unwanted physical contact. Never force a vulnerable person into confessing.

But learn from his skills in persuasion. Take care of the suspect's needs. Give access to legal advice when requested. After that, ask for an explanation of the offence. Don't give up just because the suspect decides not to answer a question.  It doesn't matter whether you are investigating murder or shoplifting.  An investigator should ask the suspect for an explanation.

2012-08-22 Search and Seizure of Cell Phones Incidental to Arrest

A British Columbia trial judge decided that searching cellphones seized during arrest may be done without warrant. However, he identified limits to this power: you may search only for evidence of the offence for which you arrested. You may search the cellphone only if you have reason to believe that it was likely employed in the commission of the offence, and there is a reasonable prospect that it will contain evidence of the offence. If you cannot limit your search to relevant information, the search may violate s.8. R. v. Mann, 2012 BCSC 1247.  See particularly para 66.

In British Columbia, this breathes new life into R. v. Giles.

It comes with a limitation. After you seize a smart phone, you should limit your examination of the data to those areas which you can justify as "likely relevant" to the offence.  Even if you copy the contents, you should limit your examination of the copy to the bits which are relevant.

In Ontario, officers still require good reason to scan any of the contents of a cellphone without a warrant.

See this discussion.

2012-08-21 Possession of Things in a Car - Having and Knowing

Police found "a substantial quantity" of cocaine under the steering column of a rented vehicle operated by Mr Lincoln, 2012 ONCA 542.  In his wallet were $800.  The trial judge convicted him of possession, on the basis that the driver is guilty of possessing anything in his car, unless the driver explains why he didn't know it was there.

The appeal court ordered a new trial.  The trial judge's reasoning got it backwards.  The prosecution must prove he knew; the defendant has no obligation to explain anything.

For a conviction of "possession" of anything illegal, the prosecution must prove (beyond a reasonable doubt):

• The accused had control over it (which is usually the case when the illegal thing is in a vehicle the accused drove) and
• The accused knew about it.

Obviously, Mr Lincoln had control of the car and its contents.  But did he know about the cocaine?

There are reasons to believe he did:

• Cocaine is expensive and attracts police attention - it's unlikely that the owner would leave it in the control of a stranger
• $800 is a lot of money for ordinary folks to put in their wallet, but it's consistent with amounts that drug dealers carry
• Drug dealers often use rented cars.
  

But there are possible innocent explanations:

• Travellers rent cars.
• Travellers often carry more cash than regular folks, to pay for their expenses.  Maybe Mr Lincoln was travelling.
  
• Drug dealers often use rented cars.  Perhaps a drug dealer rented this car before Mr Lincoln.  That guy hid cocaine under the steering column, but he got arrested for some other crime before he could remove it.  After the arrest, the rental company recovered the car.  The drugs remained hidden in the car until Mr Lincoln rented it.

When you investigate, it's perfectly appropriate (after offering and arranging access to counsel if desired) to ask the suspect to explain the drugs in his car.  But he enjoys a right to remain silent: his failure or refusal to answer isn't evidence of knowledge.  To charge him, you still need strong evidence to show that he must have known it was there.

2012-08-19 "Belt and Suspenders Prosecution" - Why the Crown wants a Perfect Case

Sometimes, prosecutors seem like cowards.  Sometimes, police gather pretty good evidence of a guy's guilt, but the Crown declines to proceed.

Why?  Because the burden of proof is "beyond a reasonable doubt".  Because trials are expensive.  We don't like wasting public money on weak cases.

Here's a case which illustrates how easily things can go wrong, and how good investigation saved the day.

In 1990, someone murdered Cindy Burk.  Weeks after she disappeared, some people in northern B.C. found her.  Her naked body lay, face up, covered in sticks and branches, about 300m from the Old Alaska Highway.  Jewellery she recently stole lay scattered about the area.  Someone had cut her throat, causing her to bleed out.  Forensic pathologists found semen in her vagina.

The DNA matched Mr Felker, 2012 BCCA 346.  Was that enough to prosecute him?

In 2006, police launched an undercover operation, which led to Mr Felker describing the offence.  Except his description didn't match completely.  He denied having sex with her.  He claimed to have strangled her to death.  But he did identify the place where he took the body.  Overall, this evidence made the case much stronger.

The jury convicted.

At the end of the trial, the judge made a mistake when instructing the jury.  It was an easy mistake to make, and many judges have made this mistake before.  It only took 15 words to say.  But usually, appeal courts order a retrial when this one comes up.  And that's horribly expensive.

Instead, this appeal court upheld the conviction, but only because the evidence was so strong.  The match of forensic evidence from the scene to the confession after the fact provided too many reasons to believe in his guilt.

I prefer proving the key points in the case at least two different ways.  A senior prosecutor, Darrell Prevett, Q.C., called it the "belt and suspenders" approach: even if one support fails, the trousers stay up.  Even if one way of proving guilt fails, the trial results in conviction.

Getting extra evidence costs more in the short term.  But when you deliver compelling evidence:

• Defendants admit guilt, saving trials.
• Appeals fail, saving retrials.
  
• Even when appeals succeed, and time eliminates some evidence, good evidence remains.

Sometimes, there is no more evidence to investigate.  If you canvassed all "reasonably available" sources of evidence, then you did your job.  ("Reasonably available" means "obey your budgetary constraints".)

But if you pass by sources of evidence without inquiry, your investigation is incomplete.  There are expensive risks to incomplete investigations:

• unnecessary trials
• unnecessary retrials
• wrongful convictions
• recidivists commit more crime
  

Felker's case was a big one.  But this concept applies even in routine cases:

• Many impaired driving cases fall because the officer fails to observe and note all the symptoms of impairment at the roadside, and again at the police station.
• Many spousal assault cases fail because nobody really tries to interview or photograph the suspect after arrest.

General duty work forces officers to respond to crisis after crisis.  Rarely do you enjoy time to finish an investigation properly, because a new emergency arises requiring immediate attention.  Try to resist the bad investigative habits this teaches.

2012-08-16 Right to Counsel on Detention s.10(b) - Changing Focus

Andrew MacDonald, 2012 ONCA 495 drove his car too fast.  A police officer pulled him over for speeding.  During the stop, another officer noticed brown cardboard boxes in the car consistent with contraband cigarettes.  "What's in the boxes?" asked this other officer.  "I don't know" replied Mr MacDonald.  The officer asked again.  "Cigarettes for my mother-in-law."  Because of special training the officer had just completed, he now believed these boxes contained contraband cigarettes.  He knew he lacked the power to conduct Tobacco Tax Act vehicle searches, but he could call a senior investigator who could direct him to do that search.  He made the call, and explained what he saw, and what Mr MacDonald said.  The Tobacco Tax Act investigator authorized the search, which discovered contraband cigarettes, and marijuana packaged for sale.  The trial judge convicted Mr MacDonald.

MacDonald appealed on many grounds.  One worked.

S.10(b) of the Charter requires you to tell everyone who is "detained" of their right to counsel.  There are exceptions.  For example, the Criminal Code requires screening devices to be deployed "forthwith", so s.10(b) rights don't apply in those situations.

In ordinary traffic stops, the investigation doesn't collect further information about the offence from the driver. The driver may expect to leave so shortly after the stop, that calling lawyers would unnecessarily extend a simple procedure.  In ordinary traffic stops, you don't need to mention s.10(b) rights (see para 29)

But when the second officer started asking about the cigarettes, this investigation changed focus from speeding to Tobacco Tax Act infractions.  It ceased to be an ordinary traffic stop.  The officer was gathering information from a detained suspect.  The court found that the officer should have told Mr MacDonald about his s.10(b) rights before asking the question.

Evidence excluded.  MacDonald beat the charges.

The relaxed rule relating to s.10(b) rights for a "traffic stop" detention apply only to traffic stops.  When the focus of your investigation changes, the ordinary rules of s.10(b) kick in again.

2012-08-12 Distinguishing murder and manslaughter

On August 2, 2007, Nadeem Jiwa 2012 ONCA 532 killed 43-year old Detective Constable Robert Plunkett of the York Regional Police Special Services Unit. Was it murder?

Mr. Jiwa was on bail on charges of stealing airbags.  The terms of his bail included a curfew of 1:00 am. From approximately 2:30 a.m. to just before 5:00 a.m., plainclothes police officers watched him and a buddy steal airbags. When they decided to reel him in, Cst Plunkett reached him first.  Plunkett approached Jiwa's car yelling "police, police, police”.  Mr. Jiwa put the car into reverse.  Cst Plunkett was caught in the crease of the open driver’s door.  He had no choice but to cling to the car, with one hand on the top of the open door and the other on top of the car, as it sped backwards. He was crushed when the door of the car hit a tree.   Mr. Jiwa continued to drive the car in reverse, stopping only when another police officer rammed his car with a police car. Jiwa fled on foot.  Cst Plunkett died, leaving his wife and three children to grieve.

The prosecution charged Jiwa with murder.  The jury convicted him of mere manslaughter.

Horrific as the facts are, I think the jury was right.  The difference between murder and manslaughter is the accused's intention at the time of the offence.  When Jiwa threw the car into reverse, do you think he was thinking "I'm gonna kill this cop"?  Based on the facts described in the judgment, I don't think so.  Do you think, when the officer was clinging to the side of his car, and Jiwa was driving backwards, Jiwa was thinking "If I drive this car towards that tree, I'll hurt this cop so bad he will likely die"?  I suspect Jiwa wasn't thinking of anything except escape.

Unless the accused intends to kill or inflict deadly serious injuries, it ain't murder.  s.229.

What he did was evil, and he got a bigger sentence than most folks who commit manslaughter.  But when investigating homicide cases, don't let the evil of the deed confuse you.  The difference between murder and manslaughter is intent.  What did the suspect mean to do?

I mentioned this case for three reasons.

1. It effectively illustrates this legal point.
2. It reminds you how quickly a routine arrest can deteriorate into a fatal situation.  Take care of yourselves out there.
   
3. It causes us to reflect on the memory of Robert Plunkett, who died in public service. 
   

2012-08-09 Search & Seizure - Searching cell phones incidental to arrest

At the end of an extensive investigation involving wiretap, police arrested Mr Cater, 2012 NSPC 2.  They seized his cell phone, removed its batteries (to prevent changes to data in the phone), and sent it to the forensic lab for examination.  The officers had no warrant; they relied on powers of search incidental to arrest.

Defence argued that police required a warrant.  The judge disagreed.  This phone was a "dumb phone", not a pocket computer.  There was no password protection.  Although it could send, receive and store text messages and take photographs, the judge did not think it attracted the high degree of privacy that computers seem to enjoy.  And besides, police had been monitoring this phone using wiretap.

Unfortunately, this decision does not answer the ongoing debate whether police can search cell phones incidental to arrest.  The judge specifically limited her decision to the facts in this case.  But her reasoning supports police.

I thank Cst. Rob McCamon, a Nova Scotia member of the RCMP for bringing this decision to my attention.

2012-08-02 Good Faith reliance on a Warrant - When all you have is confidential source information

Somebody shot bullets at James Bacon, 2012 BCCA 323, and if he had not been wearing body armour, he might have been killed.  He and his brother were engaged a war with a rival criminal gang, and were prime suspects in many offences.   There were shell casings on the street where the shooters were.  But it looked like James shot back.  There were more shell casings of a different calibre where James had been.

Relying mostly on confidential source information, police obtained a warrant to install a tracking device in James' car.

During the installation, police found a secret compartment in his vehicle, which contained handguns and ammunition.  This led to charges against both brothers.

At trial, defence attacked the warrant.  Informer privilege prevented the prosecution from revealing sufficient information in the ITO to satisfy the trial judge that there were reasonable grounds to justify issuing the warrant.  Therefore, the judge found that the tracking warrant installation breached Bacon's s.8 rights.

The trial judge admitted the evidence anyway, and the appeal court upheld that conclusion.

At least there was a warrant.  The officers who installed the tracking device acted in good faith.  Although there was a s.8 breach, the vehicle attracted a lesser expectation of privacy.  And besides, this search was to stop serious violence.  

Sometimes, all you have is confidential informer information to support a warrant.  Most of the time, drafting a warrant based on that information alone will not result in admissible evidence.

This case is the exception.

Where there are serious risks to public safety, and you actually have reasonable grounds to act (even though they are protected by privilege) getting judicial pre-authorization may help you at trial.

2012-07-29 Kidnapping & Parties to Offences

After others kidnapped Mr McMynn, Mr Vu 2012 SCC 40 helped confine him in a residence.  The kidnappers moved Mr McMynn a couple of times, and Mr Vu assisted their efforts to collect a ransom.  Was he party to kidnapping or the less serious offence of unlawful confinement?

The difference between unlawful confinement and kidnapping is moving the victim from one place to another.  Mr Vu argued (successfully at trial) that there was no evidence that he helped move the victim, and therefore he could not be convicted of kidnapping.

The Supreme Court of Canada disagreed.  Kidnapping is a continuing offence which starts with the abduction and ends with the release of the victim.  People who knowingly help in holding a kidnap victim are parties to kidnapping.

2012-07-12 Search & Seizure - Searching cell phones incidental to arrest

An informant alerted Edmonton police officers that Mr Franko, 2012 ABQB 282 traveled to Mexico to buy drugs, and would shortly collect them from his supplier in Calgary.  Edmonton police officers watched him collect what could be a bundle of cash, and then drive south from Edmonton.  Red Deer is about half-way between Edmonton and Calgary.  In less time than it takes to get to Calgary, police in Red Deer saw him driving north.  They figured he met his supplier just south of Red Deer, did the deal, and then turned around.

Police arrested him when he returned to Edmonton.  The first part of this decision addresses whether the officers had reasonable grounds to believe that Franko possessed drugs.  The trial judge found he did.

When police arrested him, they searched his cell phone incidental to arrest, and found text messages consistent with drug dealing.  Defence complained that the law requires police to get a second warrant.

This judge disagreed.  He says searching cell phones incidental to arrest - for evidence of the offence for which you arrested - is okay.

This question remains unsettled throughout Canada.  For the time being, this decision gives Albertan police officers support for search incidental to arrest.  I don't think Ontario police officers can rely on it.  In B.C., there is no clarity.

In Hiscoe, 2011 NSPC 84, the judge suggested a compromise between the two lines of authority. An arresting officer can quickly scan data which obviously relates to the arrest, such as the recent text messages of a drug trafficker. But you need a warrant to perform a total data dump of the cell phone's memory.

While this may yet become the answer, it isn't the law in Canada on this issue.  I can't predict what the Supreme Court of Canada will say, when this issue eventually gets there.

I thank Paul Jomm, an investigator with the CBSA, for drawing my attention to the Franko case.

2012-07-12 Search & Seizure - Analysis of digital devices

I propose an answer to the judicial concerns around the search of digital devices.

In Hiscoe, 2011 NSPC 84, the judge didn't mind a quick scan of a cell phone, but objected to the police copying the whole of its memory and analyzing it.  In Jones, 2011 ONCA 632, the court liked a search warrant which permitted searches only for evidence relevant to the offence.

Forensically, the only proper way to analyze a computer system is to copy all its memory, and then search the copy.  This preserves the original.

Defence lawyers argue that this technique exposes all private data in the device to police scrutiny: "that's a huge violation of privacy, which requires a warrant!"

It ain't necessarily so.

Making a copy of data violates no privacy if you don't peruse its contents.

You can control (and document) how much privacy you violate.  You can limit your searches to relevant data.  You can record what steps you took to search for it.  You can restrain yourself and others from poking through every document in the device.  You can limit the exposure of the suspect's private information to the investigation at hand.

If you document this minimization of violation of privacy, then the Charter complaint withers.

2012-07-11 Criminal Organizations

Mr Venneri 2012 SCC 33, a drug dealer in Montreal, used to buy cocaine from Mr Dauphin, who ran an organization which imported it from Vancouver and sold it in Montreal.  When police busted some of Mr Dauphin's underlings, Mr Dauphin needed a steady supply of cocaine to feed his Montreal distribution network.  He asked Mr Venneri if he could deliver cocaine.  Venneri did.  Unfortunately for them, police listened to their conversations on wire, and watched them in action.

The court found that Venneri wasn't a member of Dauphin's criminal organization.  Although they did business together, neither directed the other.  They were independent actors.  Criminal organizations need some kind of structure.  Whatever Dauphin's group was, Venneri wasn't part of the structure.  Therefore Venneri couldn't be convicted of directing offences for the benefit of a criminal organization (s. 467.13)

On the other hand, the court found that Venneri knew of (or was wilfully blind to) Dauphin's organization.  By helping him out when his supply of cocaine dried up, Venneri knew he was helping Dauphin's organization.  Venneri could therefore be convicted of trafficking in association with a criminal organization. (s. 467.12)

General duty officers can ignore this decision with impunity.  Gang task forces should read it to remind themselves what evidence they need to gather to succeed in criminal organization investigations.

2012-07-02 Search & Seizure - What's the Difference between a Production Order and a Search Warrant?

Police arrested Ms Huynh, 2012 ABCA 37 and her daughter when they emerged from a house.  Their purses contained large quantities of cash and jewellery.  Before giving the Ms Huynh access to counsel, one officer pressed her for her correct address.  Then the officers got a search warrant for that address.  They found a couple of kilograms of cannabis, lots of loose jewellery, scales and safety deposit box keys.  Based on what they found, the officers then obtained a production order for financial instruments and documentation and jewellery, which they believed would be in the safety deposit boxes.  A police officer used the safety deposit box keys to open them and look at the contents.  He found jewellery worth hundreds of thousands of dollars.

Everything fell apart at trial.

The address information was essential to the search warrant, but it was obtained during a breach of s.10(b).

Production orders are "executed" by people independent of the investigation.  They are not search warrants for police to execute.

Production orders are for documents or data.  Not things, like jewels.  See s.487.012.

2012-06-24 Search & Seizure - Whose Bedroom?

When you search a residence for evidence, you often learn who uses which bedrooms from conversation at the scene. But the people who live with the suspect rarely want to testify against him.

Responding to a tip, police watched Mr Wong, 2012 ONCA 432 for several days. Just as the tipster suggested, Mr Wong acted like a drug dealer - driving around town meeting people for brief transactions. Police arrested some customers in the act of snorting ketamine. They arrested him, and searched his house (with a warrant).

Mr Wong shared a basement with his brother. They had separate bedrooms. Police found drugs, trafficking supplies and a sawed-off shotgun in one bedroom.

Who put them there?

Wong's brother told police whose bedroom was whose. But the prosecution did not ask this uncharged brother to testify. (Perhaps they feared he would lie to protect his brother.) What evidence was there to prove responsibility?

These officers photographed the bedrooms as they searched, and were fortunately able to identify some clothing in the photos as belonging to the trafficker. This (just) sufficed to establish which bedroom belonged to which brother. Other prosecutions have failed, for failure to discover evidence of this sort.

When you search, you want more evidence than just the subject of the offence. You also want evidence identifying who is responsible for it. Try to draft your warrants accordingly. While respecting the limits of the powers of search spelled out on the face of the warrant, investigate all elements of the offence.

2012-06-23 Impaired Driving - Breath Technician's Evidence - Breath goes "directly into" the instrument

"Mother, mother, may I?"

This is the name of game I played as a little child. To win, the players must remember to recite just the right phrases at the just the right time. If a kid forgot to say "mother, mother, may I?" at the winning moment, then the referee would send him or her back to the start. And all the kids would laugh.

It seems like we play the same game when police testify in impaired driving cases.

Section 258(1)(d)(iv) requires evidence that samples of breath be "analyzed" by an approved instrument. In most cases, the certificate of the breath technician states this. But when problems prevent the prosecutor from relying on the certificate, the technician must testify.

At Mr O'Meara's, 2012 ONCA 420 trial for impaired driving, the technician testified "the first result was 188 grams percent” and the second sample resulted in a reading of "181 milligrams of alcohol per 100 millilitres of blood.”  But he didn't say that the breath samples were "analyzed". Although the trial judge convicted, it took two appeals (and lots of money) to repair the damage.

Now that you're a grown-up testifying in court, you don't want the kids in the fancy suits to laugh at you for forgetting to say the magic words. When preparing to testify about a technical area of the law, please remind yourself of the technical points that need to be covered.

In an ordinary impaired case, here is a list of facts which the trial court requires to presume that the suspect was over .08 when driving:

Section 258	Fact	Usual source
(c)(ii)	each sample taken as soon as practicable after offence was committed	investigator
(c)(ii)	not later than two hours	investigator / eywitnesses
(c)(ii)	interval of at least 15 minutes between samples	investigator / technician / certificate
(c)(iii)	each sample received from suspect directly into instrument	investigator / technician / certificate
(c)(iii)	approved instrument	technician / certificate
(c)(iii)	operated by a qualified technician	technician / certificate
(c)(iv)	who made an analysis of each sample	technician / certificate

Results are measured in "milligrams of alcohol per 100 millilitres of blood". s.253(1)(b).

2012-06-19 - Forensic Science - Fingerprint Experts

What happened when Scottish fingerprint examiners mis-identified a fingerprint?

In Kilmarnock, Scotland, somebody murdered old Ms Ross. Detective Constable McKie, attended the victim's house, but she claimed she never entered.

Around the same time as the murder, Mr Asbury left a suicide note, and disappeared for long enough to worry his relatives. Mr Asbury's fingerprint turned up inside the victim's house.

McKie found a small tin box containing money at Asbury's house. It bore DC McKie's fingerprint. It also seemed to bear Ms Ross's fingerprint suggesting that Asbury stole it from the old lady, and killed her in the process.

At Asbury's trial, defence suggested that DC McKie planted evidence: she moved the box from the victim's house to Mr Asbury's house. DC McKie denied ever having entered the victim's residence.

After Asbury's conviction, the Crown charged DC McKie with perjury. If she never entered Ms Ross's house, how could her fingerprint be on the door?

An Inquiry answered: it wasn't her fingerprint. Nor did the box necessarily bear the victim's fingerprint. The experts were mistaken. McKie, and, eventually, Asbury, were acquitted.

The commissioner found that fingerprint experts were encouraged to give absolute opinions about matches ("I am 100% certain that this print came from this person"). He explained that fingerprint comparison doesn't necessarily result in "match" or "different". Blurry marks can lead experts to disagree. Biases and peer pressure can influence opinions; for example if a senior expert says "match", how can a junior expert voice dissent? Receiving information from the investigation can cause an uncertain expert to become more certain.

Defence counsel will use this report to challenge fingerprint comparison evidence. Fingerprint examiners who have not read this report should take the time to go through it.

For the rest of us, the Commissioner observed:

"All forensic evidence should be approached with an open and questioning mind both by those who practise the discipline and by the legal community. It should not be assumed that any forensic evidence is irrefutable or infallible, if only because of the risk of human error. Nor should it be assumed that any form of forensic evidence is necessarily routine. Fingerprint evidence is no different. There is no evidence before the Inquiry to suggest that fingerprint evidence as a class is inherently [un]reliable. On the other hand there is no basis for a claim to infallibility. It is opinion evidence and where appropriate, it should be subject to robust scrutiny and challenge." (page 600)

2012-06-16 Search & Seizure - Warrantless Search - Clarifying Detention and Consent

A police officer responded to a radio dispatch: "Asian males fighting at Subway". When he arrived, he found 9 Asian males. They denied fighting, but one had a history of violence. A car was parked diagonally across several parking stalls, as if it had arrived in a hurry. The middle console contained scissors and rolling papers, suggesting marijuana.

There was no smell of drugs.

The officer suspected weapons and drugs; in his experience the two were often connected.

He asked who owned the car. Another guy, Mr Dhillon 2012 BCCA 254 came forward and produced his licence. The officer told him he was concerned what might be inside the trunk, and asked if there was anything he "needed to worry about", and "if he had … drugs or weapons in the car". Mr Dillon said no. The officer asked Mr Dillon if he would consent to a search of the vehicle. Mr Dhillon "didn't have a problem with it" as "there was nothing in the vehicle".

This was mostly true ... except for the assault rifle (a prohibited weapon) in the trunk. At trial, defence complained of the search.

At trial, the officer said it was a consent search. "They weren't detained."

None of the judges could agree with this idea. The officer failed to take the necessary steps to establish a consensual search:

1. the individual must be advised of his right to refuse or withdraw his consent at any time;
2. the individual must be made aware of the consequences of his consent to the search; and
3. the individual must be informed of his right to counsel in order to have explained to him the consequences of his consent to the search
   

The trial judge figured it was a detention, which justified a search for officer safety. The appeal court didn't buy that either. The officer had not done enough to cause Dhillon to believe he was not free to go.

The Crown argued that a police officer may search for weapons even in the absence of a detention.

Maybe, responded the appeal court, "but [the decision to search] cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition".

Instead of describing the risks he saw, this officer testified about what he didn't know (see para 17).

Lessons to learn from this case:

1. "Consent" survive judicial scrutiny only if you have clearly obtained voluntary consent;
   
2. Searches for "officer safety" survive judicial scrutiny only if you can identify and describe real reasons to fear that weapons are present that could hurt you.
   

2012-06-09 Privacy & Government Transparency - "Who are the people in your neighborhood?"

Someone asked Ontario's Corrections authorities to prepare and release statistics about sex offenders registered under Ontario's sex offenders registration act (known as "Christopher's Law"). In particular, this person wanted to know how many sex offenders live in each area defined by the first 3 characters of their postal code.

In Canada, sex offender registration requirements are constitutional, in part because they are confidential. (Dyck, 2008 ONCA 309; S.S.C., 2008 BCCA 262) Because of this, the corrections authorities withheld the statistics.

The privacy commissioner ordered disclosure, because in this form, this information would not tend to identify any particular sex offenders. Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2012 ONCA 393.

Public institutions (think Crown, courts, police) exist and work for the benefit of the public. The records you create while working for the public belong, ultimately, to the public who pay your wages. Public records can never be entirely private.

Although you may handle confidential and privileged information, never assume that anything you do or write will remain secret. Write your notes and reports as if they will become exhibits in the next public inquiry.

Just as sex offenders don't enjoy complete privacy in government records, nor do police officers.

2012-06-09 Search & Seizure - Knocking on a Suspect's Front Door

Untrained puppies sometimes poop on the floor.

Burglars who sneak into houses containing untrained puppies run the risk of stepping in poo.

One night, a burglar stole a TV from Ms. Rosicki's living room. But she owned an untrained puppy. And it left soft smelly piles in the house. The burglar left poopy footprints on the carpet in the living room.

Ms. Rosicki called the police, and told them why she suspected Ms Atkinson, 2012 ONCA 380.

An officer visited Ms Atkinson's house, and knocked on the front door. It opened into an enclosed verandah/mudroom. She opened it, and he stepped into the mudroom. He saw some shoes on the floor. He saw something sticking to the soles. He asked if they belonged to her. She said yes. Then she said no. He picked them up and sniffed them. They smelled like dog poop.

Other evidence suggested that Ms Atkinson stole the TV. This proved it.

Did the officer breach Ms Atkinson's s.8 rights? Yup. He entered without informed consent. He examined the contents of her house without a warrant. He "searched" it with his eyes and his nose.

The judge gives a tight review of the principles of search and seizure which relate to these facts. (He omitted only s.489(2) which every officer should read carefully.)

Can you knock on a suspect's door for the purpose of talking with her? Yup. Talking isn't a search.

Can you knock on a suspect's door (without a warrant) for the purpose of discovering evidence when she opens the door? Nope. Snooping is a search.

This investigating officer conceded that he attended for the purpose of gathering evidence. That's a search. He breached Ms Atkinson's s.8 rights. (The trial judge found that it wasn't a very serious breach, and admitted the evidence anyway. The appeal court agreed.)

Please save yourself the embarrassment. If you have no lawful authority to search (warrant, exigent circumstances or consent), only knock on suspects' doors for the purpose of discussing your investigation. Tell them up front what you're investigating. If you want to enter, ask for permission.

If you're "lawfully in a place", and you see evidence of an offence, you can seize it. (s.489(2)) But that section doesn't allow you to search for evidence.

2012-06-06 Dangerous Driving - "Marked Departure"

Mr Roy, 2012 SCC 26 drove his motor home through fog and snow. From a side road, he attempted to turn left onto a busy highway. He pulled in front of a tractor-trailer which was going about 80km/h. The collision killed his passenger, and left him with no memory of the incident. Mr Roy was driving while prohibited, as a result of a previous conviction for impaired driving.

The trial judge convicted him of dangerous driving causing death. The Court of Appeal Agreed. But the Supreme Court of Canada acquitted him.

Driving onto a highway in the fog before you know what's coming is dangerous. It was bad driving. But there was no other evidence of bad driving. His dangerous act was a split-second decision, not a course of conduct. It wasn't a "a marked departure from the standard of care expected of a reasonable person in the circumstances".

The court said we must give careful attention to the fault element of the offence "if are to avoid making criminals out of the merely careless."

Therefore, to prove dangerous driving, the prosecution will generally need more than evidence that the driver made a bad split-second decision. For example, did the driver:

• declare an intention to take unnecessary risk "I'm gonna play chicken with this guy"?
• >make a series of reckless maneuvers?
  
• have a long time to consider or react to the risk?

When you come upon the scene of a terrible collision, the wreckage and carnage draws your attention to the aftermath. Naturally, one feels appalled by injury and death. But if there was a crime, it occurred before the collision. You need to investigate what happened in the seconds, minutes or hours before the crash. That can be hard to do. Some obvious basics include:

• Photograph which the route the suspect drove
• Interview people who saw the suspect's vehicle on that route
• Analyze the crash data recorder (if there is one).

Be curious. Think: "What can tell me what led up to this?"

And maybe, this crash was just a moment of carelessness.

2012-05-30 Strip Search

Dan Greenhalgh, 2012 BCCA 148 worked on the Canadian side of the American border as a border guard. He told travellers that he found traces of drugs on their vehicles. He decided that strip searches were necessary. Of young women. By him.

He offered each woman a choice: the formal procedure, which involved delay, vehicle impoundment, and in one case, the loss of a boyfriend's visa. Or she could let him do the search. It wasn't much of a choice. Some women let him search them.

He took them to a public washroom, or a picnic area, and made them disrobe in front of him. He touched breasts and felt genitals.

Eventually some women complained. He was fired and charged with sexual assault and breach of trust. He denied doing anything wrong. A jury convicted him and the Court of Appeal rejected his appeal. He lost his job, his family and his reputation.

You have policies for strip searches. Follow them - for your own protection and the dignity of others.

2012-05-30 Similar Fact - Preventing the Aura of Collusion

When two young American women (let's call them A and B) crossed the border into Canada, the guard, Dan Greenhalgh, 2012 BCCA 148 made them each undergo a gratuitous strip-search, conducted by him. When they proceeded on their trip, they decided not to contact police. However, a later similar complaint from C about him led police to contact A & B, and each gave a statement.

At the preliminary hearing, defence suggested that A & B concocted their story together. They denied discussing any details of their experience after their trip home.

At trial, A admitted that before the preliminary hearing, she discussed the date of the event with B.

Defence called her a liar for her denials at the preliminary hearing. Defence urged the jury to find that she and her friend colluded.

In this case, two other young women, C and D, independently made similar complaints about Mr Greenhalgh. What made the similar fact evidence so compelling is the unlikelihood of coincidence that the four women would independently describe the same unusual behaviour.

Witnesses who discuss the details of their complaints undermine this effect. Would C & D's complaints pack so much punch if they discussed it first with A & B?

Courts won't admit similar fact evidence from witnesses who colluded.

You would expect A & B, travelling together afterwards, to discuss Greenhalgh's gratuitous strip searches. That's not necessarily collusion.

Collusion is the manufacturing of a similar story, whether deliberate or accidental. (Accidental collusion could happen as a byproduct of repetition or vulnerability to suggestion. See Dorsey 2012 ONCA 185)

I always ask witnesses who have similar independent allegations not to discuss their evidence with each other. I hope you do too. But this case illustrates a problem with that approach.

I suspect that A had been warned so severely not to discuss details of the incidents with B that she feared getting in trouble at the preliminary hearing for doing so. That's probably why she lied about discussing the date. If that's all she discussed with her friend, the discussion wasn't significant. But the lie damaged her credibility in front of the jury.

When dealing with any witnesses, but especially similar fact witnesses, tell them:

1. Comparing stories is a natural instinct.
2. Unfortunately, it can do great damage to your credibility.
   
3. From now on, please don't discuss any more details of the offences with each other.
4. Comparing details makes you look like a conspirator against the suspect.
5. Tell the truth about any comparison of details that has happenned.
   

2012-05-27 Detention - Interviewing Possible Suspects

A knife pierced Mr Richard's heart, killing him. His young common-law wife, Katie Way, 2011 NBCA 92 called 911 and explained that he slipped and fell on it. The only people in the house when it happened were herself and her infant children. Was it murder?

Police officers asked her to come to the police station to give a statement. She attended with her mother. They didn't mention her right to access counsel.

At trial, her lawyer argued that the police "detained" her, triggering her right to counsel. The investigating officers didn't think so.  What do you think?

1. Her mother asked to participate in the interview.  The officer said "no".
2. Her mother twice asked if Katie needed a lawyer.  The officer said "no".
3. The officer put her in an interview room and told her to ask a police officer if she needed anything.
4. When Ms Way asked if she could leave, the officer told her she could leave when the interview was over.
5. They interviewed her for two hours.

Detention occurs when a reasonable person in the position of the suspect would believe that they aren't free to go.  Here are the factors which the Supreme Court of Canada said mattered (Grant para 44).  I added some highlighting:

1. The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
2. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
3. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
   

If you guessed she was detained, give yourself a gold star.  The trial judge excluded all statements she made, and the Crown's murder case collapsed.  The appeal court upheld the trial judge's decision.

At the scene of a suspicious event, you need to take control, and find out who's who.  But beware.  Your "take charge" approach may cause a person to believe reasonably that they aren't free to go.  Even if they attend willingly at a police station, your conduct may have triggered a detention.  Failing to give the information that s.10 requires can have consequences.

Don't tell suspicious subjects they can't talk to a lawyer.

Think about the subject's experience with police.  If you intend to undertake a non-custodial interview of a suspicious person, you may want to tell your subject clearly - preferably with a recording device running - that they are free to go.

2012-05-26 Note-taking - Writing the Important Stuff

After arresting Mr Ahmadzai, 2012 BCCA 215 for driving while prohibited, an officer searched the vehicle incidental to arrest.  He may have smelled marijuana from the driver's seat.  In other parts of the car, he found marijuana packaged in sealed plastic bags, throwing stars, brass knuckles and scales.  Did Mr Ahmadzai "possess" these things, or his passenger, or both?

Of course, for the Crown to prove possession, the Crown must prove more than the presence of these things in his car.  The Crown must prove he knew about them.

The officer testified that he smelled marijuana in the car when he searched it.  This would suggest that anyone in the car would know about the drugs.

Defence pointed out that he made no note of this smell.  Indeed, the officer himself, couldn't clearly recall whether he first smelled the smell from the driver's seat, or later, when he opened the bag that contained the marijuana packages.

The court agreed that the absence of notes of the smell undermined the Crown's case.

For police officers, the things you find in a drug-dealer's car are, of course, important.  You should note where you located them.  (I like photographs.)

At trial, the lawyers will often focus on the observations you made before you made the big discovery.  A whiff of marijuana detected at the driver's seat may direct your investigation.  That whiff is also important.  A wise officer will make notes about it too.

(The court upheld the conviction, relying on other evidence.)

2012-05-23 Confirmation of Historical Sex Assault Complaints

Did Mr K.M., 2012 ONCA 319 molest his daughter when she was little?  She claimed her mom beat her often, and her dad interfered with her sexually from age 3 to 24.  Consistent with such a dysfunctional upbringing, she abused alcohol and drugs, formed a relationship with an abusive man.  She also suffered some mental deficits: she couldn't do simple math, and suffered short-term memory problems.  She decided to report while taking the 12-Step programme for her substance abuse.

Unsurprisingly, the judge could not rely on her testimony without evidence from others confirming the reliability of her memory.  But there was some.  For example:

Complainant	Mom
When I was little, Dad took baths.  He played a game with me involving a bath toy called "Freddie the Fish".  He used it to make me touch his penis.	We did have a bath toy called "Freddie the Fish".
Dad used to parade around the house in his bathrobe.	He did wear the bath robe a lot.
After an abusive incident, I told mom.  She said "I know already.  He told me."  Mom punished me by bashing my head on the ground.	He did tell me he touched her inappropriately once.  But she didn't tell me about it.

Because of this additional evidence, the trial judge could convict him of some of the offences she alleged, and the Court of Appeal upheld the conviction.

Sex abuse usually occurs in private.  Criminal prosecutions require proof beyond a reasonable doubt.  The complainant's version alone rarely beats the accused's denials and the burden of proof.

Therefore, taking a statement from such a complainant is only the beginning of the investigation.

Look for details - even non-sexual ones - which others can confirm or deny.  Your job isn't to prove the guilt of the accused.  (Some complainants lie.)  But you should investigate to discover evidence which supports or contradicts the complainant's assertions.

And if the suspect gives you a statement (always ask for one), investigate his/her details too.

2012-05-18 Causation - Expecting the Unexpected

The Maybin 2010 BCCA 527 brothers played pool in the Grizzly B'ar Pub.  Mr Brophy interfered by moving a couple of balls.  The Maybin brothers assaulted him, and knocked him out.  Mr Gains, a bouncer, heard the commotion, and approached asking who started it.  Because another bar patron pointed out Mr Brophy, the bouncer punched Brophy in the head, and then dragged him out of the bar.  Mr Brophy died from head injuries.  The Crown charged both Maybin brothers and the bouncer.

Who killed Brophy?  The doctors disagreed whether the first assault, the second assault, or a combination of them caused his death.

The trial judge acquitted them all.  When considering whether the Maybin brothers "caused" Mr Brophy's death, the medical evidence gave him reason to suspect that Mr Gains inflicted the fatal blow.  Therefore, he couldn't be sure beyond a reasonable doubt of their guilt.  Similarly, when considering whether Mr Gains "caused" Mr Brophy's death, other medical evidence gave him reason to suspect that the Maybin brothers did the fatal damage.

The Supreme Court analyzed causation differently.  When the Maybin brothers started the fight, they might not have known precisely what the bouncer would do, but they knew they were starting a fight in a crowded bar which could result in many sorts of mayhem.  Violent intervention by others was reasonably foreseeable.

The judges ordered a retrial of the Maybin brothers.

When there are multiple causes of death or bodily harm, judges and lawyers wrestle with the question whether to hold each individual criminally responsible for "causing" it.

• If you leave an unconscious man on a road at night, and a car later runs over him, killing him, did you "cause" his death?  (Yes: Sinclair 2009 MBCA 71)
• If you agree to have a gunfight on a busy street, and your opponent accidentally kills a bystander, did you "cause" the death of the bystander?  (Probably: J.S.R., 2008 ONCA 544; J.S.R., 2012 ONCA 568)
• Suppose you assault someone, and inflict life-threatening injuries which could easily be treated.  But the idiot refuses medical treatment and dies.  Did you "cause" his death?  (Yes: Tower, 2008 NSCA 3)

When you're investigating harm or death which started with a crime, but was completed by some other person, the original person might be guilty of causing the harm or death.  So draft your warrants and give your Charter warnings accordingly.

2012-05-15 Standing & Watching

A confidential informant told police that Bob Stevens, 2012 ONCA 307 had a gun and ammunition, and dealt drugs.  The officers drafted a search warrant (which the defence alleged contained fatal errors).

Police prepared to execute the warrant in the middle of the night without alerting Mr Stevens, but I guess he saw them coming.  "As police were at the door and moments before they entered the residence three officers outside saw someone throw an item inside of a white sock out the window.  The item landed in an adjacent yard.  It was found to be a semi-automatic firearm."

The only person in the residence was Mr Stevens.

At trial, defence applied to exclude the gun, on the basis of the errors in the search warrant.  The trial judge didn't care.  By throwing the gun into the neighbor's yard, Mr Stevens abandoned his privacy in it.  He had no "standing" to complain about the discovery of the gun in the neighbor's yard.  The appeal court agreed.

On this occasion, the officers outside the residence made more difference than the ones who entered.  I offer it as food for thought when you prepare your next search, but I'm not qualified to advise you how to organize your search teams.

2012-05-15 Investigating the Identity of a Stranger

A paranoid schizophrenic complained to police that three weeks earlier, a guy she had met a couple of times raped her at his apartment.

She gave the police his licence plate and a description of the guy.  An investigator wisely:

1. video-recorded her complaint; and
2. asked her for a detailed description of the apartment.

She drew a sketch.

Three weeks later, she picked Mr Charbonneau, 2012 ONCA 314 from a photo lineup.  In that lineup, his face was the only one with a moustache.  She had mentioned no moustache in her description.

The officer who arrested Mr Charbonneau in his apartment prepared a sketch of the place.  It closely resembled hers.

Even though she couldn't recognize Mr Charbonneau at trial, the jury convicted, and the appeal court upheld the conviction.

This brief case illustrates how your investigation can affect the trial.

Collateral detail

When only one person witnesses an offence, courts need reasons to trust that person's evidence.  This witness suffered credibility problems.  The matching sketches proved she had been in his apartment, which suggested she picked the right guy, and that accurately described what occurred inside.

In similar cases, you might consider getting a warrant to take photographs of the scene of the crime.

Fair Lineups

When you prepare a photo-lineup, it's impossible to create a perfect test of recognition - a collection of identical pictures of different people.  But beware of gross and obvious differences between the suspect and the other photos.  At least some fellows with moustaches should have been included in this lineup.

2012-05-10 One-Party Consents - Victim calls Offender

Dr Rohani, 2012 BCCA 198 fellated his patient, a boy who was almost 17.  The boy went to police.

With the boy's consent and a judicial authorization, police recorded 3 phone calls the boy made to the doctor.  The boy complained about how the incident affected him.  The doctor made incriminating remarks which sunk him.

Many offences, particularly spousal and sexual offences, occur in private.  At trial, the court hears the complainant and the accused give opposing stories.  This boy had a difficult time testifying, and inconsistencies crept into his evidence.  Without more evidence to support one story over the other, courts often acquit guilty people.

This technique is one way to get more evidence.

Don't expect it will always work easily.  The trial decision summarizes the conversations in this case.  In the first two, neither the boy nor the doctor explicitly stated what they're talking about; in the third, the doctor got cagey, and denied the sexual activity.

In this case, police obtained the doctors' medical records for the period of the sexual activity, but not the period of the telephone calls.  It seems that the doctor made notes about the last call which differed markedly from the recordings.  Failure to seize the last few notes led to a ground of appeal.  (The lawyers and judge were to blame for that, not the officers.)

Only with the benefit of hindsight do we now see that the search warrant for the medical records should have sought all records relating to the period of the sexual activity, and to notes of discussions with the patient regarding the sexual activity afterward.

2012-05-08 Witnesses in Foreign Lands - s.714.4 & s.714.2

In a confrontation between hostile groups, someone chopped "Billy" Law's wrist with a machete, almost completely severing his hand.  Did Mr Li, 2012 ONCA 291 participate in the attack?

Lots of people saw it.  Only Mr. Yii would identify Mr Li.  He testified at the preliminary inquiry, but he moved to Singapore before the trial.

At first he said he was willing to come to Canada to testify, if someone would pay his airfare.  When the Crown agreed to pay his airfare, he changed his mind.  He asked if there was some other way his evidence could be heard.  The police officer said he had to come to Canada.  He refused.

Because of this, the judge permitted the prosecutor to enter his preliminary hearing testimony at the trial.

After Mr Li's conviction, he appealed: the Criminal Code allows for audio- and video- testimony from other countries.  The trial judge should have permitted Mr Yii to testify by audio or videolink.

The Court of Appeal agreed, and ordered a new trial.

The investigator was correct that courts prefer live witnesses in person.  When essential witnesses leave the country, you should encourage them to return to testify.

But Mr Yii's request was reasonable: there was another way.  Videoconference evidence can solve jurisdictional problems.

The Criminal Code also permits video- and audio- conference evidence for witnesses in Canada.  Judges tend not to grant applications for this kind of testimony unless the witness's personal circumstances absolutely require it, or the witness will give uncontentious testimony.

2012-05-08 Special Investigations Unit - Jurisdiction

Civillians long complained that when police commit crimes, they escape punishment because police protect their own.  Ontario created the "Special Investigations Unit" - a civillian investigative agency - in 1990 to investigate allegations of crimes committed by cops.

Someone complained that a police officer of the Peel Regional Police (PRP) sexually assaulted her in 1981 or 1982.  Who should investigate this old offence?  The PRP resisted the SIU investigation.  They said that the SIU had no jurisdiction because:

• The alleged offender had retired and was no longer a police officer; and
• The alleged offence occurred before SIU existed.

The Ontario Court of Appeal disagreed.  It was an offence committed by a police officer.  That's why the SIU now exists.  Peel (Police) v. Ontario (Special Investigations Unit), 2012 ONCA 292.

2012-05-07 Alibi - Investigating an Alibi Immediately

As Cst Marshall drove around a corner, he spotted Mr Ryan, 2011 NLCA 53 sitting in the driver's seat of an oncoming vehicle.  That was a problem.  Mr Ryan wasn't allowed to drive.  The officer tried to stop him, but he took off, leading the police in a dangerous pursuit through the streets of St John's.

At trial, Mr Marsh, a rogue with a lengthy criminal record, testified that he drove the car, not Mr Ryan.  During cross-examination, the prosecutor asked him to name people who could confirm his story.  Reluctantly, he named two people he claimed to have visited while driving the car.

A police officer wisely sat in the gallery, listening to this evidence.  He immediately investigated whether these folks existed.  They didn't turn up on any computer database to which he had access.

Two common issues arose in this case: identification and alibi.

Identification - Fleeting Glimpse

If you briefly recognize a felon, and then lose him, defence will attack your identification on the basis of its brevity:

"If you don't remember now whether he was wearing a hat, then the glimpse you got wasn't sufficient to recognize him."

This often arises when an officer sees the driver of an oncoming car.

Judges usually want more evidence identifying the driver than merely "I saw him for an instant, and I knew it was him."  It helped in this case that the car in question belonged to Mr Ryan's girlfriend.

Alibi

When defence discloses an alibi, take action.

Often, the details of the alibi arrive at the last minute.  This undermines the strength of the alibi.  Why should the judge trust the this evidence of innocence if the accused only remembered it on the day of trial?

Your job is to investigate whether it's true; and if the defendant gave you insufficient time to investigate it properly, then to explain what steps you could and could not do with the limited time you were given.

In this case, the alibi arrived too late to do anything but preliminary database checks.  Because nobody could investigate it and check it for accuracy, the judges viewed it with skepticism, and Mr Ryan was convicted.

2012-05-06 "Bald" Opinions - Note-taking and Judgment-calls

When Mr T.S., 2012 ONCA 289 and his wife split up, she called the police.  They helped her move to a hotel, and then a women's shelter.  She asked one officer questions about a family court order which prevented her from taking their child away from the jurisdiction.  Then she accused her husband of raping and assaulting her.  He wrote in his notes that she was "very preoccupied” about custody issues, but at trial, he couldn't remember why he thought so.

At the rape trial, defence argued that she fabricated her allegations for the purpose of gaining advantages in the custody hearing.  They called the police officer to testify about his impression that she was "very occupied" about custody issues.  The lawyers battled over whether the officer's opinion was admissible.

The officer's note caused trouble because it lacked any details which led him to this conclusion.

Lawyers call these remarks "bald opinions".  We dislike them because the absence of detail prevents the judge from using them as evidence.  For example, early in my career, in an impaired trial, I asked these questions and got these answers:

Q: What did you observe about the driver?

A: He was too drunk to drive.

Q: What was it about him that made you think that?

A: He had that impaired look.

That officer provided no symptoms of impairment, such as odour of liquor or slurred speech.  Unsurprisingly, the judge acquitted.

In the case of Mr T.S., I doubt the officer expected so much fuss over such a brief note.  Because the woman's questions related little to his investigation, a summary of his impression probably seemed sufficient.  He could have saved much trouble if he wrote the reasons for it instead.

I suggest that when you find yourself writing a bald opinion, such as "drunk", "suicidal", "mentally ill", you should add some hair: "strong odour of liquor, slurred speech", "said 'I want to die' three times" etc.

2012-05-02 Child Pornography - "Making Available"

In Saskatoon, Sgt Parisien went looking for child pornography.

He searched on Gnutella, an internet-based network designed to allow people to share files from their own computers to the world.  On this network, hash values - very short abbreviations of the digital content - identify files uniquely.  He sought files whose hash values matched known child pornography.  He found some on a Saskatoon computer.  When he tried to download it, the program responded "host busy".

When SaskTel told him the physical address of this computer - a house belonging to Mr Benson's 2012 SKCA 4 parents - Sgt Parisien got a warrant to search the residence.  He found a computer upstairs and another downstairs.  Analyses of these computers located child pornography which had been deleted, as well as two different programs which work on the Gnutella network: Limewire and Frostwire.  Frostwire was turned off.  Frostwire was configured not to share files, just to collect them.  There was child pornography on separate CDs.

Sgt Parisien interviewed Mr Benson.  He denied any responsibility for sharing the child pornography.  However, Sgt Parisien wisely inquired into his computer skills.  Whatever Sgt Parisien asked must have got Mr Benson bragging.  The judges were impressed by his wide knowledge.  Mr Benson knew all about how to move files around computers and how to configure file-sharing programs.  And his parents didn't.

Defence argued that because he deleted the child pornography, therefore he didn't "possess" it.  I observe that's like saying "okay, I drove the stolen car around for a while, but then I dumped it in the river.  You never caught me driving it, and so I'm not guilty of possessing it."  This argument failed.

Defence argued that because Sgt Parisien never actually downloaded child pornography from Benson's computer, therefore, Benson never "made available" any child pornography.  Fortunately, Sgt Parisien understood the software so well that he was able to explain that this was merely a temporary delay.  The message wouldn't appear unless the program was configured to deliver the file to a computer that requested it.  The judge found that Benson "made available" the files in question.

Sgt Parisien's investigation shows the importance of several avenues of investigation of offences involving computers:

• His technical knowledge of how the software works led the court to conclude that the child pornography was "available" even though Sgt Parisien didn't succeed in downloading any.  (The prosecution would have been easier if he had succeeded in downloading the offending files.)
• Analysis of the computers established more than the presence of child pornography; how the file-sharing programs were configured, and when they were installed also helped the court understand how Benson could be guilty.  I suggest that when you draft an application for a warrant to examine computers, you should ask for authority to search for more than just the contraband.  What software was used to obtain it?  What other files or data was created close in time to the obtaining of the contraband?  Do those documents or data identify who was using the computer at the time?
  
• Proper investigation of computer offences requires more than peering into computer systems.  Interviewing people establishes who uses the computers in question, and what computer skills they have.
  

2012-04-28 Trafficking - Includes "offering for sale"

This case discusses an old, old principle, which every police officer should know (but one judge forgot).

Ms Crain, 2012 SKCA 8 offered to sell cocaine to an off-duty police officer when he was checking into a hotel.  He found an officer on duty, and Ms Crain's legal troubles began.  They found "spitballs" of white powder in her possession.

The white powder wasn't cocaine.  Because of that, her lawyer convinced the trial judge to acquit her.

"Not so fast", countered the Court of Appeal.  If you read the definitions in the legislation:

“traffic” means, in respect of [... cocaine],

(a) to sell, administer, give, transfer, transport, send or deliver the substance,
(b) to sell an authorization to obtain the substance, or
(c) to offer to do anything mentioned in paragraph (a) or (b)...

Offering to sell most illegal drugs is a crime, even if you have no drugs to sell.

2012-04-26 Arrest - Interprovincial warrants - "Canada-Wide Warrant"

Ontario police officers persuaded Saskatchewan R.C.M.P. officers to arrest Mr Charles, 2012 SKCA 34 on an Ontario warrant for attempted murder.  During the arrest, the Saskatchewan Mounties discovered that Mr Charles possessed a loaded semi-automatic handgun from which the serial number was removed, so they charged him with various firearms offences.

At trial, Mr Charles complained that the Ontario warrant could not be executed in Saskatchewan, and therefore this was an unlawful arrest.  The trial judge, the lawyers, and the officers who testified at trial, all misunderstood how the legislation works.  The trial judge agreed with Mr Charles, and acquitted him.

The appeal court explained why the arrest was good and allowed the Crown's appeal.  Here's how it works.

Jurisdiction

Most arrest warrants come from provincially-appointed judges and Justices of the Peace.  They can order the arrest of people within their jurisdiction.  Of course, an Ontario J.P. has no jurisdiction in Saskatchewan, and can not order Saskatchewan Mounties to arrest someone there, no matter how strong the grounds may be.

"Canada-wide warrant"

There is provision in the Criminal Code for superior court judges to order the arrest of people anywhere in Canada. s.703.

But most of the time, what you and I call "Canada Wide Warrants" are issued by provincial courts, who lack the power to make a "Canada-wide" order.  The "Canada-wide" term comes from an administrative decision by police or prosecutors that they will spend the money to bring the suspect back to the original jurisdiction.  That decision does not extend the reach of a warrant issued by a provincial court.

Endorsement by Local Justice

Of course, a Saskatchewan J.P. can authorize arrests of people in Saskatchewan.

A peace officer can bring an Ontario arrest warrant to a Saskatchewan justice.  If persuaded that the warrant is authentic, the Saskatchewan justice then authorizes its execution in Saskatchewan by making an "endorsement" on the warrant.  s.528.

Arrest without warrant

In this case, the officers arrested Mr Charles without obtaining the endorsement of a Saskatchewan justice.  Therefore the defence lawyer was correct: the Ontario warrant did not authorize the arrest.

But s.495(1) authorizes you to arrest people even without a warrant.

In this case, the Ontario officers had briefed the Saskatchewan officers why they suspected Mr Charles of attempted murder.  When they made the arrest, the officers had reasonable grounds to believe that Mr Charles was guilty.  Therefore, they acted lawfully.  The guns could be admitted into evidence.

After Arrest

Section 503(3) requires you to bring an arrested person before a justice without delay, and before 24 hours elapse.  After a warrantless arrest of someone on a "Canada-wide" warrant, the justice can order the person detained for up to 6 days, so that you can bring the warrant to a local justice and prove its authenticity.

Your Choice

You can choose which to do first: get the warrant endorsed, or arrest the suspect.  But you need to do both steps before moving the suspect back to the province where the offence occurred.

Conclusion

When arresting someone for an offence on a Canada-wide warrant:

• you can execute it immediately if it was one of those rare warrants issued by a superior court.
• you can execute it after a local justice endorses it for execution in your jurisdiction
• if you find out why the suspect is likely guilty, you can arrest the suspect without warrant.

After the arrest, you must take the suspect before a justice. s.503(1)

2012-04-26 Impaired driving - "Care or Control"

Police found Mr Andersen, 2012 SKCA 37 asleep in the driver's seat of his motor vehicle at 4:20am.  The lights were on and the engine was running.  They saw vomit on the outside of the driver's door.  They tried to wake him up by knocking on the roof; he gave them the finger.  After further unpleasantness, they got him out of the car.  He blew 110 & 100mg%.

At trial, he testified that he had no intention to set the vehicle in motion until he was sober.  He entered the car drunk, and intended to sleep off his intoxication.  This evidence defeats the presumption in s.258(1)(a) that by sitting in the driver's seat he was in "care or control".  But ignoring the presumption, was he in care or control?

The judges interpret the legislation "purposively".  "Care or control" is behaviour which involves "a risk of putting the vehicle in motion so that it could become dangerous".  Mr Anderson sunk himself when he testified that when he police awoke him, he felt safe to drive:

• His intention was to drive once he felt safe.
• He felt safe when the police arrived
  
• But he was still actually over the legal limit.
• Therefore there was a risk, at the time police dealt with him, that he would set the vehicle in motion.

After you find an intoxicated driver sleeping in the driver's seat, you might well ask him:

"How are you feeling right now? Do you think you're safe to drive?"

Don't ask this question until after the driver has waived or exercised his or her right to get legal advice.

2012-04-21 Search & Seizure - Warrant Drafting - Residential Searches

After a killing at a nightclub, police got a warrant authorizing them to search for a handgun hidden somewhere at Mr Le's 2011 MBCA 83 "premises" at his address.  An officer went to the back yard, and noticed that in the flower bed, dirt had recently been moved around a rock.  Under the rock, he found the gun.

Did the warrant authorize him to dig in the garden?

The court found that the word "premises" covered a broader area than "residence".  The flower garden might well have been part of the curtilage of the residence, but even if it wasn't, it formed part of the "premises".

When describing the target of your search, you should be as vague or precise as the evidence permits.  Sometimes, when you don't know where an object is hidden, you should use a broad description, such as "premises at (address)" or "property and buildings at (address)".  Sometimes, you have specific information, requiring a narrower description, such as the "dwelling-house", or the "basement suite" at some address.

Although the court delivered its decision last year, I couldn't find it on the CanLII.  Email me if you want a copy.

2012-04-20 Search & Seizure - Warrant Drafting - Anonymous Tipsters

Toronto police received an anonymous tip that "Morrison" had drugs and guns at his home, carries a gun and deals drugs.  The tipster claimed to have seen him "flashing his gun".  The tipster described "Morrison" in detail.  Police got a warrant and raided Mr MacDonald's, 2012 ONCA 244 home at 3:00am and found the guns and other evidence.  The trial judge convicted him.

Defence complained that you can't trust an anonymous tipster.  You need more to justify intruding on someone's home.

These officers found evidence which corroborated the tipster.  Here's a table showing how:

Information Given by the Tipster	Corroboration
The appellant’s date of birth is “January 24”.	Police databases confirm that the appellant’s date of birth is January 24, 1988.
The appellant is male, non white, 6’ 2” tall and 160 pounds, with black long hair and brown eyes.	CPIC describes the appellant as male, non white, 6’ 4” tall and 146 pounds.
The appellant has a tattoo of a spider web on his hand.	CPIC describes the appellant as having a tattoo of a spider web with flames on his left hand.
The appellant is a drug dealer and has drugs in his house.	In January 2006, the appellant was found in possession of 6.58 grams of crack cocaine and was charged with possession for the purpose of trafficking.  He was ultimately convicted of possession of cocaine.
The tipster saw the appellant “flashing his gun”, and the appellant has guns at his house.	The appellant has a lengthy criminal record.  His record lists several serious offences of violence, including assault, robbery, assault with intent to resist arrest, aggravated assault, carrying a concealed weapon, and escaping lawful custody. In January 2006, the appellant was found in possession of a loaded AK 47 assault rifle that had been converted to fire ammunition in fully automatic mode.  He was convicted of possession of a prohibited firearm. The police affiant, a member of the Guns and Gangs Task Force, knows that it is very common for drug traffickers to arm themselves. The appellant was bound by two separate firearms prohibition and probation orders that prohibited possession of a weapon.
The appellant uses the alias “Morrison”.	CPIC lists “Morrison” as the appellant’s alias.
The appellant resides at his surety’s house.	The appellant is currently before the court  accused of aggravated assault and several related offences.  The allegations pertain to a stabbing in which the appellant allegedly chased down the victim and stabbed him in the back and slashed his face.  As a result of these charges, the appellant is bound by a recognizance that requires him to reside with his uncle under house arrest. On April 7 and April 8, 2008, police observed the appellant coming and going from his uncle’s house.
The appellant’s surety’s house is in Etobicoke.	The appellant’s uncle’s house is located at 54 Alhart Drive, in the north-west area of Toronto near Islington Ave and Albion Rd.
The appellant usually hangs out at his mother’s house or at his uncle’s house.	Police occurrence reports confirm that the appellant has resided with his mother in the east end of Toronto and has been investigated by the police in that area on numerous occasions.
The appellant is affiliated with a gang.	No corroboration.
The appellant drives a rental vehicle.	On April 7 and April 8, 2008, police observed the appellant driving a vehicle registered to a car rental company.  On April 8, 2008, police observed the appellant attending at the car rental outlet and exchanging one rental car for another.

The judges loved this table because it makes analyzing the evidence so much easier.  When explaining why a source (known or anonymous) is credible, consider using one like it at the end of your ITO to summarize why the source is to be believed.

The judges distinguished between public information (green), which anybody who knew the suspect would know, and private information (red), which indicated that the source had special knowledge.  Public information isn't particularly compelling, except, as in this case, if it's very detailed.

It was this detail which persuaded the court that the warrant was properly issued.

2012-04-20 Note-taking

Kelowna police officers believed that Mr Madore, 2012 BCCA 160 dealt in large quantities of marijuana.  When they saw him drive his truck onto a logging road, they followed him, suspicious of his motives.  The found his truck parked off the road beside a Jeep.  Mr. Madore stood near the open passenger door of the Jeep.  Another guy, Mr. Madeira sat in the Jeep’s driver’s seat.  The officers detained, and then arrested both men.  In the two vehicles they found over $100,000 in cash and 20 kg of marihuana.

The arresting officer testified that she smelled marijuana, which gave her grounds for the arrest.

But she made no notes of this smell.  Not in her notebook.  Not in the police report.

The trial judge didn't believe her.

The excitement of catching a major player may distract some officers from mundane tasks like documentation.  This bust arose entirely spontaneously.  Nobody expected it.

Control your excitement, and return to basic police work.  Take notes.

The defence often argue "if it isn't in the officer's notebook, then it didn't happen".  That's not fair, because you can't record everything, especially during dynamic events.

However, courts hold you accountable for every exercise of police powers, like arrest, and detention, and breath demands.  Therefore, expect special scrutiny of your notes every time you use those powers.  Record your grounds.  The bigger the case, the greater the scrutiny.

2012-04-16 Wiretap in Emergencies - Interception without Judicial Authorization

Mr Tse, 2012 SCC 16 and his associates kidnapped a drug-dealer and extorted $1.3 million from his family.  When police first learned of it, they tapped phone lines without any judicial authorization.  (s.184.4 of the Criminal Code permits this in emergency situations when used to protect life and property from serious harm.)

Defence persuaded the trial judge that the section is unconstitutional, not because there shouldn't be emergency wiretap powers, but because this section lacks accountability.  As drafted, police can use s.184.4, and never tell anyone about their snooping - not even the people whose conversations they intercepted.

The Supreme Court agreed that lack of accountability after a search breaches s.8 of the Charter.  One way to prevent police from abusing search powers it making sure that the people affected find out.  The judges concluded that Parliament should require police who use this section to notify people after the fact that their conversations were intercepted.

The court gave Parliament 1 year to fix this defect in the legislation.  In the interim, I recommend that police officers who use s.184.4 should, after the emergency passes, notify the people whose communications they intercept.

2012-04-04 Expert Witnesses - Forensic Gait Analysis

Security video cameras often show a felon approaching or leaving the scene of a crime, but rarely reveal their face with clarity.  Sometimes, they show how the felon walks.

Mr Aitken, 2012 BCCA 134 didn't like Adan Merino.  Someone murdered Adan Merino.  A security camera showed someone walking to the murder scene with a gait similar to Mr Aitken's way of walking.  Was it him?

English courts accept the evidence of forensic podiatrists who can compare the gait of a suspect to the gait shown on a video.

Someone had the bright idea of bringing an English podiatrist to Canada.  The trial judge accepted his evidence, and the jury convicted him.  The court of appeal agreed: forensic gait analysis is admissible expert evidence in Canada.

This could be useful in future cases, but expensive.  Does anyone know of Canadian forensic podiatrists?

2012-04-02 Search & Seizure - Missing Persons investigations

When someone goes missing, you don't always know that an offence was committed.  You can't get any Criminal Code warrant unless there's reason to suspect or believe that a crime occurred.

Therefore, while a worried mom wrings her hands and begs you to find her indebted, drug-addicted son, the phone company refuses to give you any information about his recent cell phone usage because of privacy legislation.  And no judge or JP will force the phone company to help you.

The Province of Alberta enacted legislation to solve this problem.  Their Missing Persons Act provides for warrants and - in exigent circumstances - police officer demands which allow police to obtain necessary information to find people.

To satisfy the concerns of privacy watchdogs, information obtained in this fashion stays confidential unless the investigation reveals a crime.

The Albertan Act is not yet in force, so it won't help anyone yet.  But many an officer would be assisted in these difficult investigations if all provinces enacted similar legislation. Senior police officers may wish to interestthe politicians in similar legislation.  Those of you who work lower in the ranks might want to mention it to the higher ranks.

2012-03-26 Prostitution offences - Are they Constitutional?

Are the prostitution offences in the Criminal Code are constitutional?  The professional dominatrix, Ms Bedford, 2012 ONCA 186, persuaded the Ontario Court of Appeal to strike down and amend some of these offences.  At this time, this decision affects only Ontario, but it may eventually persuade other provinces to follow.

There is no ban on prostitution in the Criminal Code. However, the legislation bans:

• the keeping of bawdy-houses (places where prostitutes do business)
• living off the avails (pimps)
• communicating in public for the purpose of prostitution.
  

Ms Bedford complained that prostitution is a dangerous business.  Prostitutes would be safer if they could set up controlled environments (bawdy-houses), pay people for security (body-guards), and at least interview their clients to assess whether they are dangerous (communicating).

She complained that the legislation put prostitutes in danger, thus violating their s.7 right of security of the person.

The Crown responded that the customers make prostitution a dangerous business, not the government's legislation.  The Charter applies only to government activity.  For example, suppose Canada enacted a new penalty for theft which involved cutting off the left hand.  It would be government activity which violated the security of the person, and the Charter would apply.  If a private religious group started cutting off the hands of thieves in its numbers, the Charter would not apply.

All five judges court sided with Ms Bedford.  Even though:

• prostitutes voluntarily place themselves in risky situations,and
• the risks come from private individuals instead of the government

the court found that these limits on how prostitutes can protect themselves violate their s.7 rights.

Two judges would have would have struck down the communicating provision, but the majority upheld that offence.

Communicating in a public place for the purposes of prostitution (s.213(1)(c)) remains an offence in Ontario (and everywhere else in Canada).

The court said the offence of keeping a common bawdy-house for the purposes of prostitution (s.212) should cease to be an offence; but it suspended this declaration for 1 year, to allow time for appeals or legislation.

They concluded that living off the avails of prostitution (210(1)(j)) is an offence only when done in circumstances of exploitation; and that change in meaning in the legislation takes effect 30 days after the decision.

Will there be an appeal?  Will Parliament create new legislation?  Will brothels open in every city and town in Canada?  Stay tuned.

2012-03-24 Similar Fact Evidence - Collusion

Drug users and prostitutes complained that Mr Dorsey 2012 ONCA 185 raped and abused them in similar ways.  At trial, the prosecution relied on the similarities between their complaints to show that they spoke the truth.  Defence pointed out the gossip flowing through the informal networks of drug users, and the media reports which accumulated about his activities to suggest a possibility of "inadvertent collusion" - the witnesses inadvertently tailored their allegations to match what they had heard about him.  The trial judge wouldn't let the jury consider this possibility.  The appeal court ordered a new trial.

They might as well have acquitted him.  The events occurred in 2003 and 2004.  These witnesses will be difficult to locate.

When you receive multiple complaints from different sources about an offender, some perfectly natural behaviours can damage the prosecution.  The press, in its enthusiasm to inform readers, can eviscerate a good case by reporting details too early.  The complainants, by seeking comfort from similarly afflicted people, can undermine their own credibility.  Your press releases, designed to identify and stop a predator, can also hurt a prosecution.  At the trial, defence will argue that the shared information caused the witnesses to give similar stories.

This problem arises equally with the serial rapist in the big-city drug zone, and the village or town pedophile.  News and gossip travel through big communities and small ones.

Try to minimize the details which get shared between witnesses.  There's usually little harm in reporting or sharing that a victim was harmed.  The danger lies in sharing the details like how the harm was done, who did it, and where.

When the press asks for details of a high-profile investigation, you can reply: "I'd love to tell you more, but our experience is that early publication of details can undermine a prosecution.  Take a look at the Dorsey case."

When you meet one of the victims, tell her or him, "it's okay to talk with other people about the fact that you were hurt, but please keep the details confidential.  It's okay to tell a friend who isn't a witness, so long as they don't gossip about it.  But when talking with other victims or their friends, please don't discuss what happened to you.  That's like giving the offender a get-out-of-jail-free card.  It looks to the court like collusion."

2012-03-22 Privilege - Confidential Sources - What's a "Material Witness"?

A person who gives police information about crime in exchange for confidentiality enjoys "privilege" - legal protection of his or her identity from being revealed.  But there's an exception.  Privilege yields when an innocent person could get convicted - that is, when "innocence is at stake".  That arises when the source is a "material witness to the crime".

What's a material witness?  When is innocence at stake? For sure, if there is only one eyewitness to the crime, that person is a material witness.  Only that person can tell the court whether the accused is guilty or not.  Few decisions illustrate the difference between confidential source and material witness.  In R. v. X  & Y, 2012 BCSC 325, in exchange for confidentiality, a source told police that s/he helped clean up after a kidnapping-murder, and one of the offenders confessed to him/her. Because this witness affected the chain of evidence (by cleaning up), some senior police officers figured this witness was a material witness.  They disclosed identifying information to defence.  The court disagreed.  This was not a "material witness".  The witness never waived the privilege, and therefore, the officers erred.

When you first receive information on a confidential basis, you don't know what the information will be.  Therefore, it's inappropriate to guarantee confidentiality before hearing the information.  On the other hand, you won't get any information unless the witness knows you'll protect their identity.  The discussion about confidentiality will probably trigger the privilege.

Source: I wanna tell you something, but you never heard it from me.
Officer: Okay.  But if you helped commit a crime, or you watched it go down, then I can't keep your name out of it.

If it's privileged, you can not reveal the identity of the source unless the source voluntarily decides to waive privilege.  In this case, the officers figured he had waived privilege.  Really, they pushed him into it.  The judge found no waiver, and therefore the privilege remained.  Therefore, even though the defendants know who the source is, the judge wrote the decision to conceal the informant's identity.

2012-03-14 Impaired Driving - Screening Devices - Expiry Date

At 3:30pm on Christmas Eve, as he drove home from work, Mr Biccum, 2012 ABCA 80 struck two pedestrians - a mother and child - who had been crossing the road in plain view.  Cst Watt investigated.  Crying, Mr Biccum admitted consuming a few drinks after work.  His cigarette prevented Cst Watt from smelling an odour of liquor.  Mr Biccum's tears made his eyes look glassy.  Cst Watt demanded that Mr Biccum blow into a screening device.

Then Cst Watt noticed a problem: the calibration had expired the day before.  Furthermore, he knew that in his office, all the devices were calibrated on the same day.  All the screening devices available to him had the same problem.

Should he test Mr Biccum's breath anyway?

He did.  The device registered a "fail".  Relying on that, and the circumstances of the accident, Cst Watt demanded breath samples for analysis.

Naturally, defence complained that the officer should not have trusted the expired screening device.  The court agreed that the officer could not place as much faith in it as if the calibration were more recent.

But this instrument passed its self-test.  The expiry of the calibration was recent.  And there was other evidence to suggest that Biccum drove badly.  The appeal court found that the officer had sufficient grounds for the second breath demand.

This decision suggests:

1. Don't use an "expired" screening device if you can get a current one.
2. Do use an "expired" screening device if nothing else is available.
   
3. Other evidence of bad driving or impairment can supplement a "fail" from a screening device, whether or not the screening device was properly calibrated.
4. Check the calibration procedures in your office, to prevent this problem from arising.
5. If you use screening devices often, ask an expert how reliable the screening device is in the days or weeks after the calibration expires.
   

2012-03-14 Third Party Charter Rights - Victims in the Slums

Hans, a drug addict, lived in a one-room apartment in the worst part of town.  He told Cst Meikle that he had ongoing problems with "unwanted guests" moving into his home and taking over: gang members, drug users and drug dealers.  Hans wanted help, but he feared their reaction if they knew he cooperated with police.  Therefore, he and Cst Meikle agreed on a "safe word" to use when Cst Meikle stopped by to check on him.  If Hans used the word, that meant everything was fine.  If Hans didn't use the word, then he was in trouble and needed help.

It worked.  On April 2, Cst Meikle cleared out some unwanted guests.  They had gang affiliations, and a history of violence and trafficking.  He found a sawed-off shotgun once they were gone.

On April 13, Cst Meikle knocked on Hans's door again.  Hans opened the door, gestured inwards and said he had "friends" over.

Hans didn't use the "safe word".

Cst Meikle figured the "friends" were unwanted guests who endangered Hans.  He entered, and found Mr Schmidt, 2011 ABCA 216, high on drugs, holding a steak knife.  Cst Meikle arrested Schmidt for possession of a weapon for a dangerous purpose.  A pat-down search for officer safety revealed a shotgun shell.  The bag beside Mr Schmidt contained a sawed-off shotgun.

Mr Schmidt complained that the police violated his rights by entering the apartment without consent.  Hans testified for the defence.  Unsurprisingly, Hans now said he didn't consent to police entering his place.  The trial judge didn't believe Hans.  He admitted the evidence and found Schmidt guilty.

The appeal court upheld the conviction:  Even if the police entered the apartment without consent, the only person whose rights they violated was Hans.  Schmidt was a mere visitor, and enjoyed no expectation of privacy over the apartment.

Judges apply this "third party Charter rights" concept inconsistently.  For example a majority of judges found that Mr Spencer, 2011 SKCA 144 reasonably expected privacy over identifying information about his sister's internet account, which he was using to access child pornography.  It's risky to breach one person's Charter rights for the purpose of investigating another.

The bottom line is that you should always strive to respect people's s.8 rights.

I liked this officer's agreement with Hans.  A "safe word" agreement may permit a vulnerable person like Hans to communicate urgency in time of need.  But folks like Hans suffer great pressures on the street, and may change their story.  If you make an agreement like Cst Meikle's agreement with Hans, I suggest that you document the "safe word" and the terms of the agreement in your notebook, in case your vulnerable person turns into a hostile witness at trial.

2012-03-07 Calls on a Drug Dealer's Cell Phone

Responding to a 911 call about a B&E, police entered an apparently empty apartment.  They found 3 men and some drugs there.  Which of the 3 men were responsible for the drugs.  They arrested Mr Baldree, 2012 ONCA 138 at the apartment, they took his cell phone.  When an officer documented exhibits, the phone rang.  He answered it.  The caller asked for Mr Baldree by first and last name, and asked that $150 of marijuana be delivered to him at a specific address.

The officers didn't meet the caller.  They didn't deliver any marijuana.  The caller must have been disappointed.

The trial judge admitted the evidence of the single call as evidence of who was responsible for the drugs in the apartment.

Mr Baldree appealed his conviction.

Two of three appellate judges thought that the trial judge erred.  All the judges agreed that the legal basis for admitting this kind of evidence needs clarification.  I feel an appeal to the Supreme Court of Canada coming on.

It looks like the law on this topic became less clear.  What do you do in the meantime?

Even the majority conceded that evidence of this sort may be admitted, if it's strong enough.  They gave some suggestions on what to investigate:

• Investigate the callers.  Maybe they'll give you a statement implicating the dealer.
• Multiple calls are more persuasive than single calls.  Therefore, don't turn the phone off after the first call.
  

Because this decision departs from established authority, these suggestions don't yet appear to be crucial in other provinces.  But they will matter in Ontario, at least until we get further word from the higher courts on this issue.  Expect an answer in 18 months.

2012-03-07 Impaired Driving - Compelled Sobriety Testing at Roadside

When Mr Brode, 2012 ONCA 140 drove into Canada from the USA, he smelled of liquor.  He admitted to drinking 3 alcoholic drinks before driving.  The Border Security Officer figured he was too drunk to drive, and made him hand over his keys.

Ordinary Border Security Officers ("BSOs") lack the power to made breath demands of drivers passing through Canada's borders.  But some BSOs can, if designated under s.163.5 the Customs Act.  The first BSO called in a designated BSO.

When the designated BSOs told Mr Brode to get out of the car, he stumbled, he had bloodshot eyes, smelled of alcohol, and spoke in a “loud and cocky” manner.  The officers concluded he was too drunk to drive.

The trial judge relied on these observations to convict Mr Brode of impaired driving.  (Some problem with the breath testing led to an acquittal on the over .08.)

Mr Brode appealed.  He said:

• The officers forced him into performing a disguised physical sobriety test: they asked him to get out of the vehicle just to see how well he would perform.  This was done before they explained his s.10 rights.
• BSOs aren't peace officers, and lack the authority to investigate impaired drivers.  Therefore, none of the evidence they collected was admissible.
  

Mr Brode lost both arguments.

The powers of BSOs matter to BSOs.  Those of you who patrol borders might want to read the decision.

The court agreed with Mr Brode's legal argument about "trick" sobriety tests.  If you ask a driver to get out of the vehicle for the sole purpose of assessing his or her ability to open the door, get out and stand, then the courts will likely ignore any evidence you discover of impairment, at least when deciding an "impaired" charge.  But Mr Brode lost his case because the officers didn't ask him to get out of the vehicle for the sole purpose of assessing his sobriety.  They just wanted to talk with him.

When you stop a driver and begin to suspect that the driver's drunk, don't ask the driver to get out for the sole purpose of seeing whether he or she can perform the action.  On the other hand, your concerns about drinking may justify removing the driver from the controls of the car - for fear of accidental driving.  You may separate the driver from odours of liquor in the car.  You may be able to hear or see the driver more clearly outside the vehicle.  And if you do make such a request, what you observe about the driver's stumbling and swaying, or inability to operate the door-handle becomes admissible.

2012-03-06 Search warrants - Drafting - Telewarrants - "Impracticable"

Section 487.1 permits you to apply by telecommunication for a warrant  when "it would be impracticable to appear personally before a justice".  Your application must include "a statement of the circumstances that make it impracticable for the peace officer to appear personally".

A junior officer in a small town applied for a telewarrant against Ms Scott's 2012 BCCA 99 residence.  Was it "impracticable" to make an application in person?  What should the officer write about the availability of justices?

Posted on the wall in the police station was a chart which indicated the few days per month that provincial court judges came to town for criminal and traffic hearings.  After looking at the chart, the officer wrote in the ITO: "there is no Justice of the Peace in Princeton", but he wrote nothing explaining how he knew this.

"What about family court or small claims?" asked Ms Scott's counsel.  "If a provincial court judge came to town to hear those matters, it wouldn't appear on your chart."

The court concluded "a bald statement as to the unavailability of a justice will not suffice as a statement of the circumstances creating impracticability. There must be something more to permit the issuing justice to assess the reasonableness of the officer’s belief that an application for a warrant in the usual course is impracticable."

It would therefore be wiser to write how you know that a justice isn't available:

"I believe that there is no Justice of the Peace available in <my town> because

• I read the schedule of sittings supplied by <the nearest court registry>, and it shows that court does not sit here until <date>."
• I called <the nearest court registry>, and they told me that ..."
• ...

If you do write something like that, counsel will next suggest that you could have applied personally to a justice in some nearby jurisdiction, and that you should have investigated that possibility.

In this case, the defence arguments failed.  The nearest community was 110km away.  The court noted that in Erickson, 2003 BCCA 693, even a trip of 30km could be "impracticable".  How far is too far?  The answer isn't yet clear.  The Erickson decision doesn't mean "30km is always too far to travel for a search warrant application".  If you work in a small office, where one officer leaving town deprives the community of adequate policing, then 30km is too far to travel.  But some judges find that well-resourced detachments can afford some travel time.

This decision assists the prosecution in future arguments on this issue.  It doesn't clearly answer when it's "impracticable" to make a personal application to a justice for a search warrant, but it does make it clear that you should explain how you know there's no JP available.

2012-03-05 Similar Fact - Identity

Mr Logan, 2012 BCCA 102 drove a stolen car at high speeds while police chased.  After he crashed, he fled, but police caught him.  Follow-up investigation suggested that in the middle of the night, Mr Logan sneaked into the owner's (occupied) residence through an unsecured rear window, and stole cash from the owners' wallets, and keys to the car.  The thief did no other damage.  In that area, in the previous month, there had been five similar residential break-ins: the thief entered through unsecured rear doors and windows; stole cash but left wallets and purses behind; took keys, and a car.  The cars were located abandoned a few blocks from Mr Logan's residence.   Did he commit the other break-ins?

In court, there's a two-step process: the first one requires the judge to consider whether the other acts were sufficiently similar to the known one as to make it probable Logan was the guy.  The second step requires the judge to decide whether the evidence all together proves the case beyond a reasonable doubt.

Defence challenged the first step, and lost.  Maybe he should have attacked the second step instead.

How do you make this "similar fact" magic work?  Prosecutors and judges are often reluctant to use it.

Proving identity using similar fact evidence requires full information about the "other" offences.  The prosecution succeeds only if you can show there exists between the offences:

• a highly unusual pattern of similar behaviour; or
• many ordinary similarities.

Gathering all these separate investigations under one investigative umbrella takes significant institutional willpower, particularly when the offences occur in different jurisdictions.  Expanding your focus increases your work.  For example, consider reviewing closed files as well as open ones.  You may find unusual details or patterns which mark them as "likely committed by the same felon".  If so, document those similarities for your prosecutor.

2012-03-02 Domestic Violence - Investigating & Releasing Suspects

Mr Schoenborn 2010 BCSC 220 suffered from a mental disorder.  He and his wife had three children.

He suspected his wife of infidelity.  He got into minor irrational scuffles with strangers, and his wife called police several times when he threatened and hurt her.  She alleged he sexually assaulted her, but then retracted her allegations.  She asked authorities to keep him away from her, and she asked that the restrictions be dropped.

At a bail hearing after Mr Schoenborn breached his peace bond, a police officer asked the justice to detain Mr Schoenborn.  The justice released him on conditions, without a bail supervisor.

Shortly thereafter, Mr Schoenborn murdered their three children in their sleep.  That surprised the social workers, because his primary risk appeared to be violence against his wife.

The Representative for Children and Youth, an agent independent of government social services, investigated whether these killings could have been prevented, and released a report.  Although she focussed primarily on social workers, she also found fault with police (see page 86):

• Police did not fully investigate the domestic violence incidents.  They interviewed only the wife, and not the children, nor the suspect.
• Police did not immediately refer the wife to domestic violence support services in the community.
• At the bail hearing, the officer did not provide to the justice of the peace all relevant information that could have been mentioned, such as his terrible track record for attending court.

I'm sure this case looked like a routine nuisance domestic dispute problem: low-level violence and a recanting complainant.  These cases are hard to investigate, hard to prosecute, they consume lots of time, and they never seem to resolve.

They're also high-risk for serious violence.  Ignore them, and you risk facing the next inquiry.

If the officers in this case had the time, the resources and the expertise to delve deep enough, the higher risk for violence would have been easier to identify and describe at the bail hearing.

Time: The electorate and the politicians decide how many cops they'll put on general duty.  They bear some responsibility.  But take such time as you do have on these cases.  Really try to interview the suspect.  Photograph the scene.  Follow up afterwards, when the complainant has calmed down.  Difficult though she may be, give her reasons to trust you.  You may need her cooperation to save lives.

Resources: Standard resources which help you investigate spousal violence include your computer systems and the court computer systems.  BC legislation is changing to permit social workers to share information with you more freely in domestic violence situations.  Research, before the bail hearing, sometimes pays off.  Find out what resources there are in your community, and use them.  Bail supervision is a term you can ask a justice at a bail hearing to impose.

Expertise: Experience as a cop goes only so far.  Psychologists studied spousal violence for years, and identified the big flags for violence.  Some of them are not intuitive - like this guy killing his kids.  If your work involves investigating spousal violence, seek out some training on risk assessment, so you can distinguish between low-risk and high-risk cases.

2012-02-26 Impaired Driving - Screening Devices - "Forthwith"

At 3:03am, Mr Quansah, 2012 ONCA 123 slept in his motionless vehicle, facing a green light.  A police officer woke him, and he drove away.  The officer pulled him over and got him out of the car and handcuffed him.  Mr Quansah smelled of liquor and was unsteady on his feet.  His eyes were red and glossy.

Instead of reading a screening device demand immediately, the officer searched him for weapons and asked him about alcohol consumption.  Mr Quansah claimed that another person was present.  The officer looked around, but couldn't find this other person.  The officer walked Mr Quansah to his police vehicle, and, at 3:17am, read a screening device demand.  Mr Quansah failed, and later analysis showed he had over 80mg% in his body.

Section 254(2) requires you to screen drivers "forthwith".  Defence complained that the officer took too long to get around to making the breath demand.

The Court of Appeal disagreed, but only because the officer identified all the pressing things he had to perform before he got around to reading the demand:

• Pull over Mr Quansah (2 mins)
• Handcuff Mr Quansah because of his erratic behaviour
• Frisk for weapons because the officer feared Mr Quansah might behave erratically
• Find the alleged "other person", in case this person was affected by Mr Quansah's peculiar behaviour
• Move Mr Quansah off the highway to a safer place near the police vehicle.

Don't be fooled.  This case does not say that you can delay making a screening device demand for 14 minutes after you form the suspicion that a driver has alcohol in his or her body.

Read the breath demand "forthwith", and test the breath with dispatch.

But the court recognized that there can be more urgent duties to attend, such as ensuring your safety and the safety of people around you.  If you deal with them promptly, you can delay testing breath for a short time.  But don't perform tasks which you could leave until after the screening.

2012-02-25 Investigating Historical Offences - Coroborration required?

When Mr Sanichar's, 2012 ONCA 117 brother died, he married the widow, thereby becoming step-father to his niece.  His niece hated him.  Was it because of her hate that she accused him of sexual abuse, or was it his sexual abuse that caused the hate?

At the trial, 25 years later, only the niece testified.  Although she testified that she reported allegations at various times to police, her school and a Children's Aid worker, none of these witnesses testified as to whether she did or didn't complain.  The trial judge believed her, and convicted him.

Two of the three appeal court judges ordered a new trial.  They held that the absence of evidence whether officials at the time received any complaints from her was something the trial judge should have considered in determining whether her memories were reliable.

For investigators, this highlights how strongly the courts apply the requirement of proof beyond a reasonable doubt.  If there's any reason to doubt the complainant, the trial judge or jury must consider it.

Many years ago, the courts invented a rule that men could not be convicted of sexual offences unless independent evidence corroborated the complaint.  Parliament abolished this rule.

The rule may be gone, but its ghost haunts the tower of "reasonable doubt".  Particularly when relying on the word of a witness about events long past, courts want evidence independent of the complainant to establish whether the witness's memory is reliable.

This does not need to be an independent witness to the abuse.  Sexual abuse usually occurs in private.  But testimony which confirms her memories of the house she lived in or the dress she wore for her 6th birthday helps judges assess whether the adult complainant remembers events from her childhood, or reconstructed them.

2012-02-25 Entrapment - Investigating Child Prostitution

Saanich police learned that teenagers sold sex on Craigslist.  They set up a sting, advertising "young tight bodies".  People who responded to the ad received emails describing two prostitutes aged 16 and 17.  Fake photos were included.  Most respondents lost interest, but Mr Chiang, 2012 BCCA 85 agreed to meet the procurer in a hotel parking lot.  An undercover officer wearing a wire recorded the conversation.  The officer made sure that Mr Chiang knew that the girl was 16, under "the legal age" of "19" (it's 18 really), that he had money for sex, and that he had a choice not to engage her services.

The conversation ended:

Q: Ok, so you’re in for the $150 for the half hour?
B: Yeah, I’ll check it out.

Was Mr Chiang "communicating" for the purposes of child prostitution?  Defence argued he merely "reacted" to the remarks of the police officer.  In the context of all the earlier communication, neither the trial judge nor the Court of Appeal could buy that argument.

Did it matter that the undercover officer consented to the underage sex?  No.  The offence is communicating.

Did police entrap Mr Chiang into committing an offence?  The court approved of the highly focussed approach of the police.  They posted the Craigslist ad in the erotic services section.  The ad and subsequent communications clearly focussed on underage sex.  The undercover officer did not press Mr Chiang into committing an offence.

The court approved of policing the internet by sophisticated methods.  "Modern Internet facilities afford easier access to young people for individuals minded to exploit their youth and vulnerability."  "In this shadowy new Internet universe...the police must be given considerable latitude in the effort to enforce the standards of behaviour established in the criminal law".

Internet investigation is now part of policing duties.

2012-02-22 Impaired driving - Drug Recognition Evaluations - Right to Counsel

How many times does a driver need to get legal advice during an investigation into the offence of driving while impaired by a drug?

Mr Bourdon, 2011 MBPC 83 caught the attention of a police officer by droving his vehicle very slowly down the road.  When the officer stopped him, Mr Bourdon smelled slightly of liquor and admitted drinking only two beer; but he trembled, sweated profusely and had trouble getting his identification from his wallet.  The officer required him to perform "physical coordination tests" as required by s.254(2).

Mr Bourdon failed.

The officers then demanded that he comply with a Drug Recognition Evaluation, and told him of his rights to counsel.  He spoke with a lawyer.

After that, police demanded a breath sample, and after more evaluating, a urine sample.

Mr Bourdon argued at trial that he ought to be given a second opportunity to contact counsel.  The judge agreed, but admitted the evidence at trial anyway, so the Crown won't be appealing this ruling.

What worried the judge?  When Mr Bourdon spoke with counsel, he didn't know what investigative steps the police were going to take, so he couldn't get advice about the demand for the urine sample.  Should he comply?  Should he refuse?

In R. v. Sinclair, 2010 SCC 35 at para 43, the Supreme Court said that a suspect should get a second opportunity to speak with counsel when "new or newly revealed circumstances" arise which the initial advice did not address.

While DRE evaluations remain unfamiliar to the judges and lawyers, I suppose it's possible that the lawyers won't anticipate your demands for breath and urine.  (They should: the Criminal Code permits these demands.)

Therefore, to save the suspect from repeated trips to the phone room to contact counsel, perhaps the Drug Recognition Expert officer should provide a list of the tests and demands the suspect may face before giving him access to counsel.  For example, you might give the suspect a piece of paper which says:

This Evaluation will consist of:

• the steps set out in s.3 of the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations (pulse; eye, mouth and nose examinations; balance tests, blood pressure; temperature; examination of arms, legs, neck)
  
• a demand for breath pursuant to s.254(3.3) of the Criminal Code, if no breath testing has yet been performed; and
• a demand for oral fluid, urine or blood, pursuant to s.254(4) of the Criminal Code.

This decision comes from the lowest trial court. Do not think this is the last word on procedure in DRE evaluations. My idea is just a suggestion which may protect future cases from similar arguments in future. Eventually, if DRE demands become common, defence counsel will be expected to anticipate the demands made in this case. When that happens, this bit of paper will become redundant.

2012-02-20 Investigative Techniques

Mr Benji, 2012 BCCA 55, and likely Mr Bhatti, murdered Mr Singh, over a debt.  Mr Bhatti escaped conviction, but Mr Benji was convicted.  Aside from technical legal points about trial advocacy, I found this case interesting because it identified which types of evidence made a big difference.  Each case differs -- your mileage may vary.  But here are some angles that worked in this case:

1. Motive - establishing who owed who, and how much, helped establish a reason for the killing.
2. Cell tower evidence - established the areas where the accused's phone was on the day of the murder.  Of course, this evidence packed much more punch after a witness testified that the accused carried and used that cell phone that day.
   
3. Security video - capturing the video of a nearby mall showed Benji and Bhatti together just before the killing.
4. Voice identification - just before Mr Singh was killed, he called a guy named Russell asking to borrow money.  Russell testified that another voice came on the phone.  This voice recommended a lawyer named "Ian Dawson", but the voice gave the phone number for "Ian Donaldson".  This evidence packed more punch after police found a witness that who testified that Mr Donaldson had acted for Benji, and that Benji routinely mispronounced Donaldson's name as "Dawson".
5. Holdback - Police kept details of Singh's body, including how he was killed, under wraps, so that they could account for who knew what.  Benji told a close confidante how Singh died.  Her version of his confession matched the state of Singh's body.  She was, in many other respects, a proven liar.  But because of the hold-back, this part of her evidence could be trusted.
6. Crime scene investigation - The confidante said that Benji said that he used a courtesy car from a car dealership to transport the body.  Examining that car discovered it had been wiped down.  The officers investigated further, and learned from the dealership that the mats in the trunk went missing while Benji used the car.
   
7. Time line - Benji admitted he met Singh on the day Singh died, but testified that he was elsewhere at the time of the killing.  Analyzing the many places he claimed to have gone that afternoon established that he must have been lying.

I always feel embarrassed giving advice to investigators on how to investigate.  I'm a lawyer, not an investigator.  As armchair quarterback, I want officers to investigate every reasonably available source of evidence.  For example:

• In impaired driving investigations, someone should interview the passengers.
• In assault investigations, especially spousal assaults, you should always make a real effort to investigate the suspect's version of the incident.  Photograph the injuries of both parties.  If you can, photograph all the locations where the argument and fight occurred.

All too often, one officer investigates an offence, and an unrelated officer later arrests the suspect on an outstanding warrant, and releases him without asking about the offence.  This always strikes me as a waste of an investigative opportunity.

2012-02-16 "Bill C-30" - Proposed Lawful Access Legislation

I don't usually comment on bills before Parliament, because the texts of the bills often change before they become law.  But Bill C-30 may change your set of investigative tools; if you want to add your voice to the debate, you may want to inform yourself about what it says.

As Michael Geist points out, much of the rhetoric around this bill is uninformed or misleading scaremongering, both for and against the bill.  The critics complain that police may obtain some private information without a warrant.  This includes subscriber information to telephones and IP addresses.  Some oppose the creation of new warrants which authorise production.

I don't agree with everything Geist says about the bill either.  But at least he knows a bit more about the issues than most.

He recites an assertion that IP providers give subscriber information 95% of the time on PIPEDA requests.  Is that right, in your experience?

2012-02-09 Entrapment - Reasonable Suspicion

A motorist with a bad record asked a police officer not to give him a ticket. In exchange, the motorist offered information.  "Dave and Chris" operated a 24-hour, 7-day-a-week dial-a-dope line. He gave the number.

At 2 am, a drug cop called the number and asked either “can you meet me?", or “where are you?" The person who answered asked no questions about who was calling, but moved easily into the lingo of drug transactions. They arranged a meeting place, but the dealer did not appear. The officer called again and asked for an explanation. The voice explained that he saw police cars. Eventually, a police officer arranged a transaction and arrested Mr Olazo, 2012 BCCA 59.

Mr Olazo persuaded the trial judge that the police officers “entrapped" him. Before offering a person an opportunity to commit an offence, a police officer must have “reasonable suspicion" that the target is already engaged in criminal activity. This judge felt that the motorist was a source of unknown reliability, and the officers needed more information before relying on him.

The Court of Appeal observed that someone answered the phone at 2:00 a.m., and asked no questions why someone would call such an ungodly hour. The voice understood drug lingo. This tended to confirm the motorist's information (“24-hour", “dial-a-dope").

Like R. v. Imoro, 2010 ONCA 122, the court found that an officer who calls a suspected dial-a-dope number may use the beginning of the conversation to confirm whether the other person is a drug dealer. Having received such confirmation, the officer may proceed to offer the opportunity to commit an offence.

2012-02-06 Warrant Drafting - Choosing the Charge

Sometimes, you suspect that the target of your investigation committed several different offences.  When drafting an application for a warrant or wiretap, which one(s) do you choose?

A source told police that Mr Ahmed 2011 BCCA 254 wanted to sell drugs in exchange for weapons to send to a "cell" at a mosque.  Another source told American authorities about his drug dealing, and set up an agent to deliver cash to Ahmed in Canada. Canadian police recorded that meeting with a one-party consent wiretap.

Canadian police had strong reasons to suspect Ahmed of drug trafficking, and some reason to suspect him of running guns.  They obtained two wiretap authorizations, one for drugs and one for guns.  The conversations recorded proved both suspicions, and the trial judge convicted him.

Ahmed appealed - the officers lacked grounds to justify the wiretap based on guns.  The court didn't care because there was so much evidence establishing the drug authorization, and what the police could record was the same in both authorizations.  A lawful authorization permitted the recordings.

The court treated the two applications as one.

If you have several offences to investigate with a warrant or wiretap application, this decision suggests you should list them all.  As long as the ITO or affidavit contains sufficient evidence to justify that one offence occurred, then your application should stand up at trial.

(Don't go overboard.  Don't list every possible offence.)

2012-02-01 PIPEDA & Freedom of Information Requests

When a police officer found that a computer on SaskTel's internet service published child pornography on a peer-to-peer network, she sent a request to SaskTel for "any" information SaskTel had on the subscriber.  SaskTel responded with Mr Trapp's, 2011 SKCA 143 name, address, phone number, email address, cell phone number, and a list of the television channels to which he subscribed.  This led to a conviction at trial.

Defence appealed on the ground that the officer's request violated his s.8 rights to privacy.

SaskTel is a provincially owned corporation.  Information it holds is governed by Saskatchewan's legislation addressing public organizations: FIPPA.

Two of three judges found that he enjoyed a reasonable expectation of privacy over this information, but because his contract allowed SaskTel to disclose personal information to police, and because FIPPA authorized SaskTel to do it, the "search" was "prescribed by law", and therefore did not violate s.8.  The last judge came to the same conclusion (the "search" did not violate s.8) by a different route: the contract and the legislation extinguished Mr Trapp's expectation of privacy.

The court generally upheld these freedom of information requests, but identified errors the offficer made.

Mr Spencer, 2011 SKCA 144 used his sister's internet connection to share child pornography over a peer-to-peer network.  By using this public network, police found the pornography, and the IP address of Mr Spencer's computer.  The IP address told police that Shaw Communications Inc. provided the internet subscription to the computer which purveyed the porn.  They asked Shaw to provide the subscriber information for this IP address  With the information Shaw provided, police got a warrant and busted Mr Spencer.  He complained that police violated his s.8 rights.

Shaw is a national private corporation.  The federal Freedom of Information and Protection of Privacy Act ("PIPEDA") governs their customer information.

The court found that Mr Spencer enjoyed an expectation of privacy over the account information even though he was using his sister's account.  However, the Shaw contract made provision for disclosure to police investigating an offence, and even if it didn't, PIPEDA sets out the corporation's power to disclose to police who are investigating an offence.  Therefore, the police "search" was lawful.

The officer who made this request did identify the legislation on which he relied, but forgot to identify himself as a peace officer whose duties included investigation of child pornograpy.  Fortunately, the officer used police letterhead, from which the court was able to infer this detail.

Several practice points emerge from these decisions:

1. When making a freedom of information request, you should identify the applicable legislation in your request.  (The officer who investigated Trapp didn't.)
   
2. The request should identify what information you want.  (The officer who investigated Trapp asked for "any information".  She got more than she needed.  That irked the judges a bit.)
3. The request should identify yourself as a peace officer whose duties include the investigation of the offence in question.
   
4. When assessing s.8 claims, judges do consider the subscriber's contract.  You may want to get a copy before making the request, to see what it says about confidentiality.

For more information on freedom of information requests, see this page.

2012-01-31 Warrants - Drafting - “Full" Disclosure

How “full" must “full disclosure" be in a search warrant application? Can you leave out detail which only makes your application stronger?

The BCCA rejected a warrant when a police officer omitted information which tended to support the issuance of the warrant. (Ling)

In Darby, 2012 ABCA 27, the court gently supported this argument. “[I]t would have been better" if the officer had included all relevant information. However, the court found that the missing evidence supported issuance of the warrant the officer showed good faith.  The court upheld the warrant in question.

If you have 10 strong reasons for a warrant to issue, and 3 bits of weak supporting evidence, it seems silly that an Information to Obtain must recite all 13 facts.  Surely, the 10 good reasons suffice.

Defence will argue that the 3 weaker bits may support inferences which undermine your application.

For example, suppose a reliable confidential source A gives you corroborated information that Evil Eddie is trafficking cocaine from his apartment.  Of course, you would recite that information in your ITO.  Suppose an anonymous tipster B reported that he, B, gave a prostitute money for drugs, and she went to that same apartment building, and emerged with cocaine.  You might think that B supports A's information, but is not particularly strong.  You might be tempted to leave B's information out.

Beware.

Defence will say that B's information suggests that someone other than Evil Eddie is the one trafficking cocaine from that building.  By omitting it from your ITO, defence will say you tricked the justice into thinking that all the evidence points at Evil Eddie.

Unfortunately, this idea can be taken to ridiculous extremes.  Must you include Evil Eddie's discharge for possession of marijuana 25 years ago?  Or his sister's ongoing cocaine addiction?

At present, in B.C. particularly, you should err on the side of over-inclusion.  In other provinces, the Ling case suffered criticism, but these comments from the Alberta Court of Appeal show that other courts also want "full" disclosure of your investigation in the ITO.

2012-01-28 Warrants - Drafting a General Warrant

When drafting a general warrant to intrude on residences belonging to Mr Darby, 2012 ABCA 27, police officers took a short-cut.

In the ITO, they described the investigative technique they wanted (covert entries into apartments once the officers had reasonable grounds to believe that the apartments contained drugs), but they did not put that language into the warrant itself.

Instead, the warrant referred to the ITO (eg. "… this authorises you to enter and search in the manner described in paragraphs 38 and 39 of the attached information to obtain…").

Defence complained that a warrant should describe what it authorises a peace officer to do. To understand the warrant, nobody should have to read the ITO as well. The court agreed in principle, but found nobody was misled by this drafting technique in this case.

The "copy" and "paste" functions work in all word processors. Draft the description of your search once, and paste it into both the ITO, and the warrant itself.

2012-01-28 Warrants - General Warrants with Conditional Triggers

Mr Darby, 2012 ABCA 27 had some bad luck. A petty thief broke into his SUV.  That was bad.  Police caught the thief, and tried to return the property.  That was worse.  Mr Darby trafficked drugs. He registered his cell phone under a fake name.  When police looked in the console to identify the owner of the car, they found a loaded unregistered handgun. When they tried to discover who owned the phone in the thief's bag, they saw text messages relating to drug dealing.

Combining this information with surveillance, the officers formed grounds to believe that Mr Darby received and distributed shipments of illegal drugs from time to time, and would in the future receive more. They obtained a General Warrant permitting them to search Mr Darby's apartment at any time that they formed reasonable grounds to believe that drugs or proceeds of crime were in the apartment. Nearly a month later, they searched his place and found drugs and guns.

This kind of warrant is lawful. But you must have clear grounds at the time you execute it

When testifying, an officer said he executed the warrant for the reasons set out in the ITO. Defence argued that although the ITO  gave reasons to believe that drugs would one day arrive in Mr Darby's apartment, it did not establish when. The court found what justified the search (which did find drugs) was subsequent surveillance.

These "conditional warrants" are lawful, but only if the trigger is clear and unambiguous. If you describe the trigger in the warrant as the formation of reasonable grounds to believe that drugs in the house, then before you execute the warrant, you must be very clear what evidence you have discovered which causes you to believe the drugs are there.

2012-01-23 Identification evidence

Two black men robbed a white man at gunpoint.  The white man picked Mr McDonald, 2012 ONCA 40 out of a photo lineup.  Is that enough to prove guilt beyond a reasonable doubt?

Defence argued:

• interracial identifications can be unreliable;
• witnesses under stressful situations tend to be less reliable;
• the presence of the gun tends to distract a witness's attention from the face behind it.

The court agreed with the validity of these arguments, but upheld the conviction in this case because of the great care this eyewitness took in making his identification.

For you, the point is that a single identification from a photo lineup does not always prove the case.  I like having some other shred of identification evidence to offer the court in addition to the lineup.  For example:

• Did the suspect live in the vicinity at the time?
• Does the suspect possess clothing similar to the offender?
• Did the suspect have a motive to commit this crime?

2012-01-15 Testifying - Preparation

Suppose a witness testifies twice, and gives contradictory versions.  Would you trust him?  Suppose he was essential to the chain of continuity.  What should the prosecutor do?

Suppose the witness was a cop.

Officers F and P arrested Mr Ximines, 2012 ONCA 20 for street-level drug dealing.  At the preliminary inquiry, officer F testified that he never saw any hand-to-hand transaction between Ximines and a customer.  At trial, he said he saw the deal go down.  He wrote his notes about the incident after discussing his observations with Officer P; he had no notes about finding the drugs in the back alley where Ximines fled.

Defence counsel accused him of making up evidence, and planting the drugs in the alley.  The jury convicted anyway.  Perhaps Officer P's evidence saved the day.

What happened to officer F can happen to you.

I suspect that the excitement of the foot-chase distracted officer F from taking full notes.  I suspect that officer F lacked notes to refresh his memory before the preliminary hearing, which is why he couldn't remember the transaction.  I suspect officer P reminded him later. That's why at trial, officer F could remember.

Some police officers forget that they are witnesses, and fail to prepare themselves for court.  Preparation starts at the investigation.  Take a witness statement from yourself (ie notes):

• What did you see of the drug transaction?
• What are all the things the driver did and said when refusing to blow?
• How much you see of the interaction between the drunk and your partner when the drunk assaulted her?
  

Avoid appearances of collusion.  You know already not to take joint statements from eyewitnesses.  If you find two witnesses to a crime, you ask each witness - separately - what they saw, so that neither witness can hear what the other says to you.

The same principle applies to you.  If you and your partner saw the same incident, it looks suspicious if you need to confer with your partner before you can figure out what to write about what you saw.

2012-01-12 Warrants and Wiretap - Describing Future Offences

When American authorities arrested Mr Deakmon for serious drug offences, he agreed to give information about other offenders in return for a lenient sentence. He told police that a Canadian, Mr Della Penna 2012 BCCA 3, bought large quantities of drugs from him in the past, and had been in recent  telephone conversation with him. Canadian police interviewed Deakmon, who told them Della Penna wanted to buy cocaine.

American law permitted the American officers to intercept communications on Mr Deakmon's phone with his consent. They got his consent, and recorded a conversation in which the other voice said he just received 40 kilograms of cocaine from Pakistan and wanted to buy 50 kg more from Deakmon.

Was this good enough information to justify issuing a wiretap authorisation against Mr Della Penna? The crime had not been committed. What offences should the officers allege?

The trial judge threw the case out, sharply criticising the police officers for inadequate disclosure in the application, misleading remarks, and false testimony at trial.  These made some sensational headlines at the time.

The appeal court disagreed with his conclusions.

The officers treated Mr Deakmon's information like that of a confidential source-in need of corroboration. They found corroboration, and described it in the application. The officers needed evidence that Mr Della Penna's voice conversed with Deakman in the recorded telephone call. An American officer played it over a telephone to a Canadian officer who recognised Mr Della Penna's voice. This did not prove beyond a reasonable doubt that Della Penna was the man, but it sufficed for “reasonable grounds".

The wiretap application alleged a belief that Della Penna would conspire to import, conspire to traffic, traffic, and possess for the purposes of trafficking, cocaine. The trial judge said the officers didn't know enough about what offences Della Penna was going to commit.  The appeal court found it was enough that such offences were "on the cards".  It's impossible to predict the future.

Defence also complained that the American wiretap evidence wouldn't be admissible in Canada without judicial authorization.  Because it was lawfully obtained in the USA, the appeal court found no fault with policehere relying on it.  (However, don't rely on evidence obtained by violation of basic human rights, such as by torture - see Khadr 2011 ONCA 358 for example.)

2011 Developments in the Law

2011-12-30 Search and Seizure - Search of Electronic Devices

Does a search warrant need to say anything special about “documents" in order to permit you to search electronic devices for electronic documents?

Police thought Mr Vu's 2011 BCCA 536 house consumed more electricity than the meter recorded. They applied for and obtained a warrant to search for equipment related to that theft, and “records and documentation relating to occupancy and control over the property and electrical services supplied".

When they searched, they found a marijuana grow operation and two computers. They searched the computers and found evidence that Mr Vu was responsible for the grow.

At trial, the defence complained that the police provided insufficient information in the ITO to explain why they thought documents of residency would be found in the residence. The trial judge agreed.

The defence also argued that computers and other electronic devices contain so much private information that police must not search them without a warrant specifically authorising it. Again the judge agreed.

The appeal court saw it differently. Because the ITO described a residence registered to a person living there, which had a subscription for electrical service, it was reasonable for the justice to infer that it would likely contain documentation about the residents.

It's nice to know that a justice may use common sense when issuing a warrant. But this case highlights the importance of explaining in your ITO why you think such documentation will likely be where you want to search.

The big news in this decision came at paragraph 64:

"I do not accept that the law governing search warrants needs special rules to deal with computers and similar devices."

The court found that a warrant to search a residence for documents may authorise a peace officer to search computers and cell-phones in the residence, even if the warrant does not specifically authorise the search of electronic devices.  (The judge made similar remarks in Ballendine, 2011 BCCA 221 at para 63).

Because this conclusion differs from remarks made in the Ontario Court of Appeal, I expect further litigation in the Supreme Court of Canada.

The court came to this conclusion because it expected such searches of computers to be limited to the documents identified on the face of the warrant.

For police officers, this means:

• on the face of the warrant, carefully describe what you're looking for; and
• when executing the warrant, search only for those things, particularly when searching electronic devices.

Can you search electronic devices incidental to arrest without a warrant? Although the court specifically left that question for another day, its reasoning hints that you can.

2011-12-30 Search and Seizure In Exigent Circumstances

A neighbour called police: “I see 3 strange men prowling around Mr Batanov's place." As officers attended, another radioed in to say that Mr Batanov 2011 BCSC 1749 grew marijuana pursuant to a medical marijuana license. As the officers arrived, a van sped away, and was abandoned. A dog track led to one suspect. Could the officers enter the residence and check for injured people?

The judge found they could. The officers had every reason to suspect a grow-rip, which are often more violent than ordinary burglaries.

When they entered, the officers found over 150 plants. On the floor, they found a licence to grow 49.  The got a warrant and busted the place.

Defence complained that by counting the plants during the warrantless entry, the officers “searched" more broadly than the authority which exigent circumstances granted them. The judge agreed: if the purpose of entering was to save lives, why did the officers stop to count plants and examine certificates?

This is only a trial level decision - other judges may disagree. However it highlights for you the limits of your power to search in exigent circumstances.

2011-12-27 Searching in Exigent Circumstances - Choosing the Least Intrusive Alternative

Nadine's mom called the police: “Nadine is being abused by her boyfriend. Please go help her."

Nadine's mom couldn't say exactly where this boyfriend lived, but she knew him to be a drug dealer. Police records suggested this was true.

After several hours, police spoke with Nadine. She said she was fine. They came to the door. An officer heard what he thought was a muffled scream. They saw a chain suitable for a guard dog. The officers approached the door with guns at the ready. Nadine opened it, and said she was fine. The officers  cleared the residence, and found  dry marijuana and growing equipment.

At the drug trial, Nadine's boyfriend, Mr Timmons, 2011 NSCA 39, complained that the police entry into his house violated his s.8 rights. The court found attendance at the residence appropriate, but observed that the police could have checked on Nadine's welfare by asking her to step out.

Although you may enter a residence without a warrant to protect people from death or serious harm, you should not search the place if there are less intrusive ways to satisfy yourselves that nobody is in danger.

Unfortunately, I could not find this decision on CanLII. If you need a copy, e-mail me.

2011-12-27 Is Marijuana Still Illegal?

Mr Parker, 2011 ONCA 819, and Mssrs McCrady, Hearn, Pallister, MacDonald & Ms McIntyre 2011 ONCA 820 told the court that past decisions regarding access to medical marijuana ended the prohibition on possession, production and sales of marijuana. The court disagreed.

Possession, production and trafficking of marijuana remains illegal in Canada, subject to exemption as set out in the legislation and regulations.

2011-12-24 Executing Search Warrants - When (and how) to arrest or detain "found-ins"

When police executed a warrant on an abandoned residence, they used a public address system to order everyone out of the house through the front door. Mr Chaif-Gust, 2011 BCCA 528 and Mr Thomas emerged out the back. Officers detained him in a police van without telling him why, nor offering him access to counsel.

Clearing the residence took longer than expected. Many rooms were used for growing; but nothing in the house suggested that anyone lived there.

42 minutes after detaining him, the officers arrested Mr Chaif-Gust, and found a key for the residence in his pocket.

A trial, he complained that the officers lacked grounds to detain or arrest him:

“Just because the officers found him at a grow operation did not establish reasonable grounds to believe he was involved."

The court agreed that generally, mere presence at the scene of a crime does not establish guilt. However in this case, there could be no explanation for MrChaif-Gust's presence except to tend the plants. Nobody lived in this house; it was completely occupied by grow operations.

The court quickly dismissed Mr Chaif-Gust's complaint about detention. It is reasonable to suspect anyone at a grow operation.  But it's rarely reasonable to believe they're involved from mere presence at the scene of the crime.

The trial judge and the Court of Appeal disliked the officer's failure to tell Mr Chaif-Gust why he was arrested and that he would soon be permitted to speak to a lawyer. However, no officer questioned him nor found any evidence as a result. Therefore the court granted no remedy for this breach of Charter rights.

Lessons to learn:

• after you detain people, explain why and offer access to counsel;
• don't arrest "found-ins" unless the only reason for their presence is participation in the crime.

2011-12-17 Entrapment  - Undercover Officers

A school principal complained to police about Mr Bayat, 2011 ONCA 778.  Students said that that a 16-year-old student met him online; he had consensual sex with her, recorded it, and showed the recording to one or more of her friends.

Using an undercover identity of a 13-year-old girl, a police officer emailed Mr Bayat, asking to be his friend.  He engaged 'her' in a chat which led quickly to him suggesting that they meet for sex.  Police arrested him at the meeting place.

He complained of entrapment.  The trial judge agreed, but the appeal court did not.

Entrapment is offering a person an opportunity to commit an offence without any reasonable suspicion that:

1. the target is already engaged in criminal activity; nor
2. there is crime to be uncovered by the technique.

It wasn't clear that this guy was engaged in luring children, nor that the police would uncover any specific crimes by introducing themselves to him.  Therefore, neither of these two points applied.

But the undercover officer didn't offer any opportunity to commit crime.  'She' just tried to make friends.  Only Mr Bayat turned the conversation toward sex.  Only Mr Bayat suggested meeting for sex.

This decision might transfer into dial-a-doper investigations.  If you lack reasonable grounds to suspect a particular phone number belongs to a dial-a-doper, but want to find out, you could call the number but not specifically ask to buy drugs.  "A friend told me to call this number, but he didn't say why."

I suspect some of you considered this approach before and rejected it.   Maybe this decision will breathe new life into that investigative technique.

2011-12-10 Child Pornography - Internet Providers Report

Internet providers must now report information they discover about purveyors of child pornography.

On December 8, 2011,  "An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service" came into force.

When an Internet provider learns an IP address at which child pornography may be obtained, they must report it to the Canadian Centre for Child Protection.

When an Internet provider discovers that someone makes child pornography available on their service, they must report to a peace officer, and keep for 21 days such data they may possess related to the child pornography.

When you receive such report, move quickly. The legislation permits Internet providers to destroy private information in their possession after 21 days.

The new legislation refers to regulations which are published here.

2011-12-02 Investigating Impaired Drivers

The IRP program, BC's shortcut solution to deterring impaired drivers suffered a significant setback this week. In Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639, the court found that the penalties provincial legislation imposed on drivers who failed a roadside screening test were heavy, but the legislation provided inadequate means to challenge the accuracy of the instrument.

For BC police officers this means you may still use the IRP penalties for a “warn", but until the legislature amends the legislation, you should investigate those who fail for a criminal offence (though I suppose you could treat them as if they nearly blew a “warn").

To assist them, and everyone else who investigates impaired drivers, I offer a new page on the basics of investigating impaired drivers.

2011-11-29 Eyewitness identification

Who robbed Mr McFadden?

While drinking in a pub in the worst part of time, Mr McFadden met a man and a woman who asked him for a ride. He agreed. During the ride, the man robbed him. A bystander called 911. Mr McFadden  described the robber but could not recognise him at court. The bystander described the robber but could not identify him in court.

Fortunately, Mr McFadden drank regularly at that pub. The staff remembered him leaving with a man who had previously rented a room in the attached hotel. They gave descriptions of the man who left with Mr McFadden, and one found a copy of his driver's licence in the register. That licence belonged to Mr Pierce, 2011 BCCA 485.

The trial judge convicted him, relying on the similarity of the descriptions each of the eyewitnesses gave. Mr Pierce appealed: the staff met hundreds of customers a week; perhaps they mistook Mr Pierce for another. The police showed no photo lineups to the eyewitnesses; those who identified him in the courtroom picked the only dark-skinned man present.

The appeal failed, but only because of the detail in the descriptions each witness could give of the robber, and because the staff knew him well enough to recognise him.

Rarely do witnesses recall at trial every detail they gave the investigating officer.  You notes of their descriptions are not admissible at trial unless you follow this simple procedure:

1. ask the witness for a complete description;
2. record the description on paper or otherwise;
3. show or review the description with the witness;
4. ask the witness to confirm its accuracy (preferably in writing).
   

2011-11-15 Primary and Secondary Investigators - Opportunity for Conflict

In the Toronto Jail, prisoners visited with family and friends.  After those visits, a female correctional officer noticed a bulge about the size of a soft-ball in the pants of one of the prisoners.  Because the officer was female and the prisoner male, she couldn't search him.  She asked another correctional officer to watch him, along with two other prisoners, Mr Hewitt, 2011 ONCA 702 and a third guy, while she sought out a male correctional officer to search the prisoner.

When she returned the bulge was gone.  It was time to search the three prisoners to find out what and where it was.

She remembered putting one prisoner into an interview room, and the other two into another interview room.

The male correctional officer remembered putting the three prisoners into three separate interview rooms.

When they got to Hewitt, they found a sock full of drugs on the floor.  He said it wasn't his.  If he had been searched in the double-occupancy room, then it was possible that he had nothing to do with the drugs, and he should be acquitted.

Obviously, one of them remembered the incident incorrectly.  Searches of this sort are probably routine.  Whoever got it wrong probably thought at the time "I'm just helping the other officer.  My involvement here is minimal.  I don't need to take detailed notes."

If you're a minor player in a larger investigation, you may feel unmotivated to make notes.  Beware.  Especially where you perform routine functions, you can undermine a perfectly good investigation by remembering things differently from the lead investigator.

2011-11-12 Exigent Circumstance search of residence

Mr Larsen, 2011 BCCA 454 flagged down a passing motorist and begged for help to escape assailants who would shoot him.  The driver agreed and drove him a short distance.  Mr Larsen pepper-sprayed him, and fled into the safety of Shuswap lake.  The driver summoned the police.

Police officers fished Mr Larson out of the lake.  He was terrified and irrational.  He complained that two men invaded his home.  The officers knew Mr Larson used drugs, he lived alone, and might be growing marijuana.  It was obvious he was crazy.  They figured he was hallucinating on drugs.  They took him to a hospital.

Just to be sure, they sent officers to his residence.  Those officers found nothing outside the residence which suggested anyone intruded.  They went in and searched.  They found the grow operation.

At court, the officers explained their purposes were:

• to investigate the complaint of home invasion;
• to determine if an assault occurred;
• to determine if there was any public safety concern.

Two of three judges rejected this search because the only power the officers had to enter and search was to protect life and limb.  Without Mr Larsen's consent, they could not enter to search for evidence of offences.  Those judges found that the officers lacked sufficient reason even to suspect that anyone needed saving or protecting.

One judge accepted that there remained a possibility that someone in the residence might need help from attackers.  That possibility justified an entry and cursory search for people.

You can't enter a private residence to search for evidence without a warrant unless:

• you obtain informed consent from someone with authority to permit you to enter;
• you have reasons to suspect that someone is in danger of serious harm;
• you have reasons to believe that evidence of an offence will be lost unless you enter;
• you have reasons to believe that the resident(s) want(s) you to enter to protect their property.
  

Know why you're going in before you enter.

2011-11-12 Warrants for Telephone Records - Reasonable Suspicion?

To obtain most private records under warrant or production order, you require reasonable grounds to believe that they will assist your investigation.  The ITO must persuade the justice that "probably" the records contain useful information.

Section 492.2(1) empowers a justice to grant number recorder warrants where there are reasonable grounds to suspect that information that would assist in the investigation of an offence could be obtained.  Think "possibly" it's going to help the investigation.

"Possibly" is easier to explain than "probably".

Of course, a number-recorder warrant differs from a production order or search warrant because it records future information.

This week, in Mahmood, 2011 ONCA 693, the Ontario Court of Appeal decided that using s.492.2(2) you can get records of past telephone calls even without applying for a number-recorder warrant.  The test is the same as for a number recorder: reasonable suspicion.  "Possibly".

In B.C., the case of Nguyen 2004 BCSC 76 held that "suspicion" is too low a standard: number recorder warrants require reasonable grounds to "believe".  Courts in other provinces disagree, (Cody, 2007 QCCA 1276; Mahmood, 2008 CanLII 51774 (ON SC)).

In my opinion, the time is ripe to relitigate this question in B.C..  You officers in other provinces now have an easier way to discover who phoned who.

2011-11-08 Camera Date Stamps

Using his cell phone, a hotel security guard called 911 in a panic.  A guest behaved most strangely.  The guard followed him in a car, and the guard wanted the police to arrest him. The guard explained where he was and screamed.  The line went dead.

Police officers attended, and found the guard wrestling with Mr Asp, 2011 BCCA 433, half in and half out of Mr Asp's car.  The struggle between them dislodged the lid of a box.  Inside was marijuana.  Police arrested Mr Asp for drug offences.

Mr Asp admitted the Crown's case at trial, and argued that the hotel security guard breached his Charter rights.  That argument failed because the Charter controls only state action, not private action.

On appeal, he argued that the admissions failed to establish when the police searched the car.  Perhaps the search wasn't truly "incidental to arrest".  Maybe it was done days later.

The officers who searched the car set their cameras to stamp the time and date on each picture.  Those pictures were part of the admissions.  They searched the car two-and-a-half hours after the arrest.

Problem solved.

To accommodate the change in seasons, we all just changed our clocks by an hour.  Did you check the time-stamps on your cameras and other digital devices?

2011-10-27 Informer Privilege - Defence efforts to discover your source

Relying in part on a confidential informant, police got a warrant to search Mr Quereshi's place.  They found drugs and guns, and charged Mr Quereshi and his friends.  Quereshi hired a lawyer, who hired Mr Barros, 2011 SCC 51, a private investigator, and ex-cop.  Barros investigated to discover who ratted out them out.

He testified that defendants in such cases want to find the informants, and how they do it:

• If your ITO/Affidavit reveals your confidential source's convictions, defendants compare those convictions to the criminal convictions of their associates.
• Defendants demand the cell phone records of their associates, to discover who's been talking to cops.
• They arrange polygraph interviews of their associates, and confront them with accusations to see who flinches.
  

When drafting your sworn documents, take great care to draft them in a manner which protects informants' identities.  Generalize their convictions, and when you spoke with them, and whether it was on the phone.  If you handle sources by phone, beware of revealing your phone number to defence.  If you don't, some source will die, and the others will stop talking.

2011-10-27 Informer Privilege - Lawfulness of Penetrating Privilege

Acting for defence counsel, Mr Barros, 2011 SCC 51, a private investigator, and ex-cop, claimed he knew the identity of a confidential source.  He told the investigating officer, and suggested that the charges should be dropped.

The trial judge acquitted him of extortion and attempting to obstruct justice.

The Alberta Court of Appeal figured that taking active efforts to discover the identity of a confidential source was an attempt to obstruct justice all by itself.

The Supreme Court disagreed.  Defence are entitled to investigate who the source is, for the purpose of making full answer and defence.  But they can't use that information to extort a stay of proceedings or otherwise prevent a prosecution on the merits.

This means that defence will continue to investigate to discover your sources.  They are obliged to share their findings with their clients. But they probably won't call you when they identify your source.

2011-10-27 Extortion - Veiled Threats

Mr Barros, 2011 SCC 51 tried to persuade an investigator to drop a prosecution.  Barros never directly stated that anyone would get hurt.  He merely hinted at the risks.  The trial judge acquitted him because there wasn't any clear threat.  The Supreme Court of Canada disagreed.  The context may make even veiled threats quite clear.

When someone complains to you of extortion, you don't need a black-and-white threat: "If you don't do X then I will make a terrible thing occur."  Discover the context.  The trial judge must consider all of the evidence.

2011-10-27 Expert Evidence - Limiting your Opinions

Someone shot Eugene Moses in an altercation at a bar.  Was it Mr Belic, 2011 ONCA 671?

When Shane Staniek testified as an expert in toolmark and firearms identification, defence counsel changed the subject.  Counsel asked whether an observer who sees a muzzle flash can accurately identify the shooter.  Staniek wisely responded:

"I don’t know if I can really give any kind of qualified answer to that."
"That's really beginning to be outside my area of firearms expertise."

Staniek conceded that he didn't think an eyewitness could accurately tell who shot the gun.

At the end of the trial, counsel suggested to the jury that nobody could properly claim to identify the accused as the shooter based upon the muzzle flash.  Because of Staniek's careful responses, the defence was prevented from telling the jury that Staniek's opinion was based on science.

If you have special expertise, it doesn't matter which side wants your help.  When counsel asks you for an opinion for which you have no special expertise, tell the court that you have no expertise to answer that question.

2011-10-22 Accomplice Evidence - Taming the Rats who Abandon Ship

Three young men and a kid in an SUV drove to a drug deal.  Mr Youvarajah, 2011 ONCA 654, planned to rob the dealer because the dealer ripped him off in the past.  Someone killed the dealer with a gunshot to the chest.  Who should take the blame?

Two other occupants in the car said the kid pulled the trigger.  One of them said that Youvarajah had a gun similar to the one which killed the dealer.  At his (separate) trial, the kid pleaded guilty to second degree murder.  In an agreed statement of facts which the kid signed, the kid admitted shooting the dealer, but alleged that Youvarajah gave him the gun and told him to do it.

At Youvarajah's trial for first degree murder, the kid remembered things quite differently.  He said he found the gun when committing a B&E; and he decided himself to shoot the dealer when the dealer behaved disrespectfully.  Now that he was serving time, the kid remembered Youvarajah's innocence.

The prosecution asked the trial judge to accept as evidence at Youvarajah's trial, the statement of facts which the kid signed at his own sentencing.  The trial judge refused, and the Crown's case collapsed.

The appeal court disagreed with the trial judge, and ordered a new trial.  The appeal court's decision provides useful legal direction on the admissibility of KGB statements.  But that's not why I'm writing about it here.

How could the police and prosecution have avoided these problems?

When an accomplice offers a deal in exchange for evidence, you should:

• structure the deal so that the accomplice must tell the truth at all times;
• leave no escape hatch through which the accomplice can wriggle.

This kid wriggled.

The kid's signature on the formal statement of facts didn't impress the trial judge.  He pointed out that the Crown could have taken a full KGB statement:

• take a video-recorded statement from the kid before or after his guilty plea;
• ask him to swear to its truth;
• warn the kid of criminal consequences if he lied.

These are valid suggestions, but not binding rules of procedure.  Indeed, the court found they aren't always necessary for the admission of a hearsay statement.

The pressing concern with accomplices is always the risk that they will say whatever suits their purposes; as their circumstances change, so does their evidence.  When getting information from these guys, seek truth, but expect deceit.  Take sworn statements only when you expect to receive reliable evidence.  When making deals, plan for the future.

2011-10-21 Child Pornography - Defences and Investigation

Mr Katigbak 2011 SCC 48 collected child pornography for 7 years.  He stored it in his computer, mixed with his collection of adult pornography.  At trial, he admitted that he kept the adult pornagraphy for "personal entertainment", but he claimed that he collected images of child abuse for the purposes of creating an art project which decried child exploitation.

The trial judge accepted his explanation.  The court of appeal did not.  The Supreme Court of Canada ordered a new trial because the trial judge misunderstood the legal defence in s.163.1(6).

That section says a person may make, transmit, possess or access child pornography if they have a "legitimate purpose related to the administration of justice or to science, medicine, education or art" and doing so "does not pose an undue risk of harm to persons under the age of eighteen years."

The defence is a good thing.  Without it, you could not handle of child pornography during an investigation without committing a crime.  But how broadly does it extend?

A "legitimate purpose" is one objectively connected to the result.  You can't use this defence if you borrow some child abuse images from the exhibits, and install them on your buddy's screen-saver as a joke.

An "undue risk of harm" must be proved by evidence.  By the Crown.  That means when the defendant says "I'm an artist doing art", we need evidence of the harm done to kids by his collecting child pornography.  This means we need experts who can explain the dynamics and economics of the child pornography world.

Okay, enough law.  Let's look at the investigation.

The reported decision doesn't say much about how police cracked the case.  But the judges recited the fact that 638 images of  child pornography were "intermingled" with 46,000 images of adult pornography.  The accused collected the images for 7 years.

These statistics suggest:

• the accused had a strong and lasting interest in pornography; and
  
• this interest did not distinguish between adult and child pornography.

To discover these statistics, the investigators:

• Counted the images.
• Analyzed more than merely the illegal images, but also the legal ones amongst which they were stored.
• Examined more than just images of child pornography, but also metadata related to them (internal date-stamps etc).
  

When searching a computer for child pornography, you want not just the images, but also the data and documents related to them either by content or by date and time.

2011-10-19 Fingerprints - Explanations which Raise a Doubt

Someone broke into a boat moored at a public marina, and stole a tacklebox and a toolbox.  The owner wanted to sell it, and had cleaned the windows only 6 weeks earlier.  On the outside pane of a window, police found fingerprints which matched Mr Ricketts, 2011 BCCA 402.  The trial judge thought this proved Mr Ricketts broke in.  The appeal court disagreed.

The orientation of the prints suggested that Mr Ricketts placed his hand against a window as he crouched down to peer into the boat through the window.  Prospective buyers and curious passers-by would want to examine the interior of the merchandise and could innocently leave prints in that position.  This evidence did not prove guilt.

When you rely on fingerprints alone to prove identity of a felon, you need something about their location or position which is inconsistent with innocence. 

2011-10-19 Hyperlinks on the World Wide Web

... aren't the content.  Therefore, on the web, a person who publishes a link to defamatory material does not, by that act alone, defame someone.  Crookes v. Newton, 2011 SCC 47.  This makes sense in the balancing act of protecting reputations and defending free speech.  Does it work in the criminal sphere?

Suppose A emails/tweets/messages B a link to a webpage created by C which threatens B with death.  Has A uttered a threat?  I expect the answer will come from context of the link - the rest of A's communications with B.

2011-10-15 Charter Rights at the Crime Scene

Ms Côté, 2011 SCC 46 called 911 for an ambulance.  She said she found her husband, hurt, in the gazebo in the garden.  An ambulance took him to hospital.

A doctor there told the police that there appeared to be a bullet lodged in the man's skull.  Apparently, he had been shot in the back of the head.  Police fficers decided to visit Ms Côté.  They arrived near midnight, almost 3 hours after the 911 call.  That's when they started making mistakes, for example:

• They suspected her of pulling the trigger but didn't tell her what they knew about her husband's injuries;
• Therefore, they entered her house without getting proper consent;
• They searched the house and garden for evidence without a warrant nor informed consent;
  
• They detained her as an "important witness", but gave her no access to counsel;
• They drafted a misleading application for a search warrant;
• They kept her up all night before arresting her.  She got an hour's sleep before they interrogated her;
• During the interrogation, although she repeatedly asserted her right to silence, and complained that she needed sleep, the officers persistently questioned her;
  
• They denigrated the defence lawyer who advised her, and gave her advice about whether to remain silent;
• At trial, they gave implausible explanations for their conduct which the trial judge did not believe.

Although the evidence suggested that she murdered her husband, the trial judge excluded it, and Ms Côté walked away free.

Sometimes, in serious cases, officers forget the basics.  Section 8 of the Charter protects privacy of residences even after a murder.  When you detain someone, you should say why, especially after a murder.  Even murderers need food and sleep; don't interrogate them without considering their bodily needs.  Suspects do enjoy a right to silence; and defence lawyers are just doing their job when advising them so.  So never suggest that the lawyer's advice is wrong, or that the judge or the prosecutors will go easier on the suspect if he or she confesses.

It used to be that more serious the case, the more errors you could get away with.  Not any more.

2011-10-13 Search & seizure - Warrants to search computers

An American guy offered a motorcycle for sale on EBay.  A Canadian bought it with a forged money order.  The internet data trail led to the residence of Mr Jones, 2011 ONCA 632.  Police got a warrant to search his house, take his computers, and search them for emails and images and documents relating to the transaction.

They found images of child pornography.

The officers sought legal advice.  Did they need another warrant to search for more child pornography?

Their lawyer said "no".  The court said "yes".  Therefore the videos the officers later found were obtained unlawfully.

This should come as no surprise.  A warrant to search a house for marijuana does not turn into a warrant to search for firearms even after you find the first bullet.  As you search for marijuana, you can seize the guns that you find.  But if you want to search for guns, go get a new warrant.

In the same way, a warrant to search a computer for one kind of data does not authorize a search for every kind of data.

Now the interesting part.  Drafting warrants for computers is difficult, especially finding words to describe what you want to look for.  Are you looking for JPEGs, MP4s and GIFs?  At paragraph 43, the court gave a helpful suggestion:

"The focus on the type of evidence being sought, as opposed to the type of files that may be examined is helpful, it seems to me, particularly in cases where it may be necessary for the police to do a wide-ranging inspection of the contents of the computer in order to ensure that evidence has not been concealed or its resting place in the bowels of the computer cleverly camouflaged."

The court liked the language these officers chose.  Instead of searching for "emails", they sought "documents or data relating to email transmissions from <target> to <victim> ...".  Instead of seeking "images of Western Union money orders" they sought "documents ... images and digital representations and templates of counterfeit tokens of value including but not limited to counterfeit Western Union money orders".  (They might have done even better to seek "documents or data relating to" those things.)

Don't copy what these officers wrote!  I think they should have omitted the words "all" and "any".  You can do better!  But take ideas from this decision.

You don't just want the documents.  You want the metadata which indicates which user created them.  You don't just want the images.  You want to examine the contents of files created at around the same time as they were created or accessed, in order to determine who created or accessed the documents or images of interest.  You want the documents and data "relating to" the damning files or data that you find.

If that's what you want, say so.  But express the target of your computer search in terms of the offences to which the evidence relates, for example:

• images, digital representations and templates of counterfeit tokens of value including Western Union money orders, and documents and data related to them in time or content.
• emails between <target> and <victim> and documents and data related to them in time or content.

2011-10-12 Planting Decoys & Predicting the Explanations

Mr Bhullar 2011 BCCA 395 adopted his 5-year old nephew.  When his nephew reached 20, he worked in a greenhouse for around $20,000 per year.  At that point, Mr Bhullar tried to insure his nephew's life for $1M.  The insurance agent wouldn't agree to insure such a lowly paid worker for such a large sum, but agreed to insure the boy for $500,000.  Two years later, someone stabbed the boy to death.

Who killed the kid?

A week after the murder, police executed a search warrant on Bhullar's work-place - a hair salon.  Above the ceiling tiles, they found a plastic bag containing bloodstained clothing.  Police seized it, and replaced it with another plastic bag containing similar clothing.  When they completed their search, they did not arrest Mr Bhullar.  Instead, they told him that their search was incomplete; they would return a week later to finish the job.

Then they watched Mr Bhullar.

He entered the shop, and emerged half an hour later with a package under his coat.  The officers arrested him.  He was carrying the decoy.

At trial, he explained that after the search, he noticed the ceiling tiles askew.  He investigated, and found the peculiar package.  He planned to take it home to his wife.  But he swore he didn't commit the murder.  The jury didn't believe him.  Nor did the court of appeal.  I guess he lied about those ceiling tiles.

With the benefit of hindsight, we can see that creating the replacement package was a brilliant plan.  Many officers would want to arrest Bhullar immediately after finding the plastic bag.  This tactic generated compelling evidence that he was the one who hid the package there.

Mr Bhullar provides some useful hindsight too.  If you're going to plant a decoy where the felon will use it, photograph the decoy, and its surroundings.

2011-10-07 Search - Implied Licence - When can you knock on a suspect's door?

A witness saw a drunk get into his car and drive badly.  He called police, and followed the drunk from a safe distance.  The drunk drove home, got out of his car and went in.  The witness waited.  An officer arrived.  He knocked on the door.  Mr Oulton, 2011 ABQB 243 appeared at the garage door.  Without mentioning the complaint about impaired driving, the officer asked him two questions and got two answers:

Are there any other males in the house?	No.
Were you driving this evening?	Yes.

Cst Henley arrested him, and charged him with impaired driving.  Mr Oulton complained that Cst Henley violated his s.8 rights to be free from search in his own home.  They complained that the officer detained him.

Was Cst Henley searching?  Was there a detention?  The trial judge said "yes" and "yes".  The summary conviction appeal court disagreed.

The law draws a confusing distintinction between attending at the door of a residence to communicate with the occupants, and going there to search for evidence or make an arrest.  The former falls within the implied licence that every resident offers to the world to approach the door to his residence to communicate with him or her.  But to the extent that you believe that the residence contains evidence that you can collect, such as the smell of growing marijuana, you know that the residence doesn't want you knocking on his door.

This decision usefully reviews the leading cases, and concludes "... the police generally act within the implied licence where they approach a dwelling house to communicate with the occupants in furtherance of an investigation."

You can ask questions at the door, but you can't peer into the house looking for evidence.  You can't even knock on the door to find out what an occupant looks like, if you already know he committed an offence.  (Vu, 1999 BCCA 182).

All of this really depends upon the homeowner's ability to choose whether to talk to you.  Although in this case, the court admitted the evidence, I think it would have been safer for the officer to say why he was there.  "I'm investigating a complaint about impaired driving.  Are there any other males in the house?"

2011-10-05 Possession - Mere Presence at the Scene

When you catch 5 people at the scene of an ongoing crime - like a marijuana grow - can you arrest all of them?  Can you arrest any of them?

Police arrested Mr Doan, 2011 ONCA 626 for growing marijuana.  On three separate days, he spent long periods of time in a house which contained little furniture, but lots of equipment and marijuana.  The court had no problem with the idea that he could only have attended for the purpose of caring for the crop.

Security cameras installed in the house captured images of his parents attending once for a 3-hour period.  All the video showed they did was gardening outside the residence.  The video provided no evidence of knowledge of what the house contained and no evidence of control over the marijuana.  Therefore the court acquitted them.

When you execute a residential search warrant, you may find folks inside a house which stinks of crime (like marijuana).  Beware.  Mere presence isn't enough.  The occupantsmay know about the plants/drugs/guns, but you need more.  Who controls the plants/drugs/guns?  Arrest only the occupants against whom you have evidence of knowledge and control.  (Detain the others.)

2011-10-04 Investigating Impaired Drivers - Every Question Answered

Greg Koturbash, a prosecutor, spent about a decade preparing a book for police officers which answers questions on impaired driving investigation.  I recommend that you buy his book because:

1. It answers most questions police officers ask about impaired driving.
2. It applies Canada-wide.
   
3. I agree with almost all his answers. (What kind of lawyers would we be if we always agreed?)
4. My website lacks a page on impaired driving investigation; this fills the gap.
   
5. I helped proofread the book.
6. Greg will pay me a small percentage for the copies you buy.
7. Chapter 3 includes the answer to the question: "Can you be in care or control while having sex?"

I have never used my website to sell anything before.  I won't often in the future.  I'd be very interested to know what you think of his book.

2011-10-01 Holdback - Preserving and Tracking the Secret

Who set fire to Bolingo Etibako's home?

After charges of aggravated assault were laid on Bolingo Etibako and Nathan Fry, 2011 BCCA 381, Etibako went to the police and "ratted out" Mr Fry.  Sometime after that, in the middle of the night, someone poured gasoline intoEtibako 's home, and ignited it with a propane torch.  Explosions and fire blasted the propane torch out to the patio, and melted the five plastic containers which carried the gas.

The fire killed most of his family, but Bolingo and his brother survived.

Mr Fry later confessed to undercover police officers.  He mentioned starting the fire with a propane torch.  Was the confession true?  At trial he testified.  He denied setting the fire.

How did he know about the propane torch?

He claimed that he knew about the propane torch from neighborhood gossip, and added that detail to make his confession sound true.

Police officers at the scene found and seized the torch, but didn't identify it and secure it as holdback evidence until months later.  Police officers asked Bolingo's brother about propane torches, but did not caution him to keep this question to himself.  TheEtibako brothers naturally discussed what they knew of the investigation.

Defence argued that police or witnesses could have gossiped about the propane torch.  The argument didn't work, but it could have.

The case illustrates for general duty officers as well as major crime investigators the importance of identifying holdback quickly, and preserving the secret.

So when you arrive at a scene of criminal chaos, you don't immediately know whether you need holdback and if so, what matters.  One fool with a cell-phone camera and a YouTube account can destroy holdback.  One investigator or witness blabbing to the neighbors can destroy a secret.

Therefore, at a scene of chaos, you might want to seal it off, and stop folks from taking pictures by giving warnings against obstruction of justice, and seizing cameras from those who did take pictures.

Or not.

When you're controlling chaos, some brilliant bystander may capture on camera the key piece of evidence which your other concerns prevented you from seeing.  Officiously seizing bystanders' cameras looks like a cover-up, and annoys the citizens who pay your wages.  Sometimes, you want folks to record the scene and help you investigate.  (Think Vancouver riots.)

At law, you can seize a bystander's camera if you have reasonable grounds to believe it will afford evidence of an offence.  (s.489(2)).  Don't take cameras based on speculation.

Common sense suggests that winning the cooperation of eyewitnesses will bear more fruit in the long run than alienating them by taking their stuff.  And if you do have to take their stuff, try to return it promptly.

You should always ask witnesses not to discuss the details of their observations with other witnesses.  If they know holdback, you should ask them to keep it to themselves completely.

2011-10-01 Drawing Inferences - An exercise in logic

Police responded to a "disturbance" call.  The officer at the front door heard voices and music.  He knocked but received no answer.  30 seconds later, he knocked again.  He heard scurrying noises that suggested more than one person occupied the suite.  He sent another officer round the back.  He knocked a third time, and finally, Mr Lee, 2011 BCCA 376 answered.  The officer saw a loaded handgun, and what looked like drugs.  He arrested Mr Lee and ended up searching the apartment.  Police found:

• a loaded handgun on the kitchen counter
• marijuana, crystal meth and cocaine on the kitchen counter
• a bullet-proof vest in the closet
• ammunition for the handgun under the sofa in the living room.
  

The officer who went around the back found another guy hiding in bushes 250 feet from the apartment.

Was Mr Lee responsible for the gun and the drugs?  Although Mr Lee rented the suite, he argued that the court could convict only if there was no other logical explanation.  He said it was possible that the other guy left the gun and drugs on the counter when the police showed up, and therefore Lee should be acquitted.

The court didn't buy that argument.  What's useful in this case is why.

The court didn't say "It's your apartment, therefore it's your stuff."  That argument doesn't address the logic of the defence argument: a visiting drug dealer who sees the police arrive may well want to drop his contraband and go hide.  The homeowner who answered the door might not know what his visitor left in his kitchen.

The judges used more careful logic.

• If the drug dealer took time to hide his ammunition under the sofa before fleeing from the police, he wouldn't leave his gun and his drugs in plain view.
• Because the drug dealer had so little time to flee, he wouldn't have had time to deposit his effects in two different places.

The trial judge drew another logical inference:

• The collection of drugs suggested drug-dealing.
• Drug-dealing is a dangerous activity, which carries the risk of being struck by bullets.
• Handguns provide another means to defend oneself against aggressors.
• The bullet-proof vest in the closet suggested that the homeowner feared being struck by bullets.
• That fear suggests that he is the one responsible for the gun and the drugs, not the visitor.

All of this was probably "perfectly obvious" to the police who investigated the case.  But in my experience, it's hard to find words to explain why it's "logical".

Defence lawyers often ask you:

"Why did you arrest my client?" or  "What were your grounds for demanding breath samples?"

Inexperienced officers will recite some of the facts they knew and hope that their conclusions become obvious.  More articulate officers describe what each fact by itself suggested, and then tie them all together with logic, like the judges did in this case.

Here's an exercise.  Suppose you conduct a roadblock, and you find a driver with slurred speech, bloodshot eyes, swaying balance and a strong odour of liquor on the breath.  But you saw no bad driving.  Try explaining why you thought alcohol impaired the suspect's ability to drive.  Try to answer these arguments:

• slurred speech means nothing to the ability to drive - you don't need to speak clearly to drive a car safely.
• bloodshot eyes mean nothing to the ability to drive, so long as the driver can still see.
• the ability to stand without swaying isn't necessary to the skill of driving - drivers sit.
• a strong odour of liquor proves only consumption.  Because recent consumption causes the strongest odours, the strength of the odour tells you nothing about the quantity of liquor consumed.

For these reasons, an officer at a roadblock who finds a driver displaying all of these symptoms may have reason to believe he consumed liquor, but has no reason to believe that alcohol impaired the driver's ability to drive.

2011-09-30 Does Drug Addiction Create a s.7 Right to Use Drugs?

"Insite" is an organization which provides a safe place for drug addicts in Vancouver's drug-infested Downtown-East Side to consume drugs.  For it to operate legally, they required, and obtained an exemption from the Controlled Drugs and Substances Act. The federal Minister of Health granted it, renewed it, but finally decided not to grant it any more.

Health is actually a provincial responsibility.  But prohibiting drugs is federal.  Did the federal action intrude on the provincial power to manage health?  The court said no.

But relying on the trial judge's finding that drug addiction removes the ability of many addicts to choose to stop using, the court found that the Minister's decisionaffected the addicts' life and security of the person.

The purpose of the CDSA is to protect life; shutting down Insite endangers life.  Therefore, the Minister's decision violated s.7 of the Charter, and conflicted with the purpose of the Act.  Insite should remain open.

A drug activist group asked the court for a broader decision: that the court strike down s.4(1) of the CDSA, and make possession of prohibited drugs legal.  The court rejected that idea.  No.  Addiction doesn't make possession legal.

2011-09-27 Luring - Text Messaging - Cell phone network is a "Computer System"

Mr Woodward, 2011 ONCA 610 "met" a 12-year old girl in a web-based chat room.  Their conversation quickly turned to sex.  They texted each other.  He offered her $57 million to have sex with him.  Then he offered her $100 million, and then $200 million.  Then, by conference call, he let her listen to a message purportedly from the Bank of Montreal indicating he had $300 million.  She began to take his offers seriously.  Her family was suffering serious financial difficulties.  She decided to meet him.

In her presence, he called a Bank of Montreal number, and gave instructions to them to open an account in her name and transfer millions of dollars into it.  (The number he called was just a recorded voice message at the bank.)

She let him have sex with her.  Afterwards, the bank told her there was no account, and no money for her.  She kept it all secret for 6 months.

The investigation must have been very good -- the evidence apparently proved everything the girl said.  The trial judge convicted him.  On appeal, he raised one argument:

The offence of luring involves communication "by means of a computer system".  Does text messaging use a "computer system", or is it just a function of a telephone?

Because a telephone company representative testified that the phone system uses software to perform logic and control in the delivery of text messages, the court foundthat texting is communication by means of a computer system.  Mr Woodward's appeal failed.

Bill C-10, currently before Parliament, would replace the phrase "computer system" in the s.172.1 with "telecommunication".  Considering that all telecommunication uses computer systems now, this change just simplifies proof.  No telephone expert will be required.  If it passes and comes into force, then the offence will cover luring by telephone.

2011-2011-09-22 Search & Seizure incidental to Detention - Safety of Officer & Public

Ms Kelsy, 2011 ONCA 605 spent the night at a drug dealer's apartment with her two-year-old daughter.  She said she did so because the drug dealer was the child's father, and he lived close to the child's daycare. It was an eventful visit.

At night when she was alone with her daughter, someone tried to break in.  She found a handgun and put it in her knapsack.  Later, a stranger with a gun did break in, and searched the apartment.  He left.

In the morning, armed men attacked her drug-dealing ex-boyfriend when he left the apartment.  She asked a neighbor to call police.  Police attended, operating on limited information: men with guns may have taken someone hostage.  They caught one assailant, but sought the other. 

An emergency response team officer knocked on the apartment door.  Ms Kelsey and her daughter came out, carrying bags and her knapsack.  Ms Kelsey said she was unhurt and that there was nobody else in the apartment.  The police took her and her daughter away, but made her leave her bags.  An officer searched her knapsack, and found the gun, a scale, and a plastic bag containing heroin.

The officer explained that he searched for the safety of officers and the public.  The defence complained that there was no need - Ms Kelsey couldn't access anything in the bag because she left the area.

The Ontario Court of Appeal agreed with defence.  The officer had insufficient grounds to believe that the knapsack contained evidence of any offence; and any risk it posed to police was speculative because Ms Kelsey couldn't access it.  (They admitted the evidence anyway under s.24(2).

In a similar situation, R. v. Ferris, the B.C. Court of Appeal observed that the risk to police of weapons in the bag would arise when they return it to the owner.  The Ontario court did not consider Ferris.

What is the court saying?  On detention, you may search for officer and public safety, but only if other tactics will not allay your fears.  If you think a backpack might contain weapons that pose you a risk, perhaps the court would prefer you to separate the suspect from the pack, rather than violate the suspect's privacy expectations by searching it.

Of course, you have greater search powers on arrest.

2011-09-17 Self-Defence in the Home - Whether to Retreat

Cedric Forde 2011 ONCA 592 lived a complicated life in a complicated home.  Cedric and his girlfriend Carol sold drugs from their apartment.  Carol had two children by another guy, Clive.  Here's the complicated part: Clive was Cedric & Carol's drug supplier, and although he lived elsewhere, Clive often sold drugs from their apartment too.

Another guy, Joe Grasso, apparently owed money to Clive the supplier.  When Clive heard Joe was over at Cedric and Carol's place, Clive went to collect.

Clive barged into the bedroom, where he found Joe and Carol.  Carol reproached Clive for entering her bedroom, and Clive argued with her.  He may have slapped her.

Cedric intervened, and argued with Clive.  Clive pulled out a knife.  Cedric - being in a business which invited trouble - kept a knife in the closet.  Cedric grabbed it and stabbed Clive, killing him.

At the end of the murder trial, the Crown argued that Cedric didn't have to kill the guy.  Cedric had the alternative of leaving the apartment.  The jury convicted him of manslaughter.

Killing someone in self defence is lawful only if you reasonably believe you have no other option.  Those of you investigating killings should always look into what alternatives the killer had to deal with an aggressive opponent.

But the Court of Appeal held that your home is your final refuge.  You need not retreat from there.  They ordered a new trial, because for Cedric, the option of leaving his home was not a relevant consideration to whether self-defence applied.

2011-09-10 Execution of Duty - Trespass and Assault

Cst Lariviere 2011 SKCA 19 went to the Severight farm to arrest Mr Severight Junior, who had a reputation for violence.  He met Mr Severight Senior on the property.  Severight Senior told him to leave the property and waved his finger in Cst Lariviere's face, yelling "colourful" language at the officer.  Cst Lariviere took fright, and pepper-sprayed Severight Senior's face.

The court convicted the officer of assault because he could not explain why his fright was reasonable.  I suspect that the judges suspected the officer acted not out of fear, but wounded pride.

This decision should remind you of the importance of measuring your escalations of force dispassionately.  That comes only with training and practice.

I am no expert in that field - get advice from experts.

The judges omitted mention of trespassing.  Was the officer trespassing on the land?  Was the officer in the execution of his duty?

This incident occurred on the land, not in the house.  At common law, if you had reasonable grounds to believe that the suspect is arrestable and is present on a property,then you can lawfully trespass. (See Feeney at para 23)

Feeney narrowed this power, requiring you to get a warrant if you wanted to enter a dwelling house.  So it was still okay for this officer to trespass on the land, right?

Not in this case.  The Severights told the officer that Junior wasn't home.  The officer had no reason to disbelieve them.  I don't think he was in the execution of his duty after the Severights told him to leave.  You can't keep trespassing on the land if you don't believe your quarry remains on the property.

2011-09-08 Reasonable Suspicion based on a tip - Entrapment

Some of your powers begin when you form a "reasonable suspicion" that someone has or will commit a crime:

• you can detain someone to investigate an offence;
• in most provinces you can get a tracking warrant; (s.492.1)
  
• you can get a specialized production order to link names to bank account numbes; (s.487.013)
• you can offer suspects an opportunity to commit a crime, to see what they will do.
  

If you don't have a reasonable suspicion that someone's engaged in crime, then offering them an opportunity to commit a crime is "entrapment", and leads to a stay of proceedings.

A tipster told Edmonton police officers of a dial-a-doper's phone number.  Only the phone number and the bare allegation was passed onto the undercover unit.  They phoned it, and busted Mr Gladue, 2011 ABQB 194 for selling drugs.

Defence complained that the undercover unit operated on a bare suspicion instead of a reasonable one.  The court heard no evidence to establish the reliability of the source.  The judge stayed the charges.

This case establishes no new principles, but highlights an old one.  "Reasonable grounds to suspect" require more than a mere allegation.  An anonymous tipster cannot be held acountable for false information.  Giving a false tip anonymously can be a great way for a malicious person to annoy someone they don't like.  To prevent abuse, courts limit your powers.  Act only on tips that pack some credibility.

I think this case would have turned out differently if the evidence established that an officer knew the tipster to be reliable in the past, or if more than one tipster gave this phone number.

2011-09-07 Search Warrant Drafting - Night Search

A young teen told police that Mr L.V.R., 2011 BCSC 1158 sexually abused her for several years and made child pornography with her.  She said the images remained on his home computer.  She also said that he sexually assaulted her on two recent days. 

After Mr L.V.R's arrest at 7:42pm, an officer hurriedly drafted a long ITO.  She made some mistakes.

The warrant alleged only the recent sexual assaults, but authorized the officer to search for child pornography.  At trial defence complained that there was no evidence that the child pornography had anything to do with the recent sexual assaults.  The trial judge admitted the evidence anyway, because:

• the child pornography offence was fully described in the ITO, and
• the phrase "afford evidence of the offence" should be construed broadly - the child pornography probed the sexual relationship between the accused and the complainant.
  

The warrant authorized a night search of the residence.  In the ITO, the officer (wisely) gave reasons for the night search:

• haste - the accused's bail hearing was imminent;
• convenience - officers were tied up maintaining continuity of the scene
• lack of resources - this was the officer's last night shift.
  

At trial, defence complained that the night search was unlawful: the house was empty, nobody would destroy evidence.  Convenience for the police is no reason to violate Charter rights.  There was no urgency.

The trial judge observed that s.488 protects residents from the surprise and indignity of a night search.  But neither Mr L.V.R. nor any other resident of his home were present.  Section 488's protection assisted nobody; it merely created an obstacle for police.

With the substantial benefit of hindsight, one sees the clearest reason for the night search.  Section 516 permits you to delay a bail hearing up to 3 days to complete an investigation.  Delaying the search could have delayed Mr L.V.R.'s bail hearing and extended his incarceration.

Lessons to draw from this case include:

• A warrant authorizes you to search for evidence relevant to an offence.  Allege offences relevant to the evidence you want to seek.
• Give reasons for night searches.  If the suspect is already in custody, delaying the search may delay his bail hearing.  If the place to be searched is empty, a night search imposes little hardship; if it's occupied, you need good reasons to enter before 6:00am.

I observe that the case law says s.488 protects "residents" from the unpleasantness of night search, but the section applies to all places, whether you search a house on private property or a car or computer in your custody.  I suggested to my people that someone needs to rewrite this section.

2011-08-24 Handling exhibits and suspects after arrest - s.10(b)

It should have been basic.  An officer formed reasonable grounds to believe that Mr Nicholson, 2011 ABCA 218 possessed drugs for the purposes of trafficking.  The officer arrested Mr Nicholson and seized a half-kilo of cocaine.  It turned into a difficult trial, and an appeal.  The prosecution succeeded, but the case reminds us of the importance of some basic skills.

The arresting officer told Mr Nicholson that he could call a lawyer.  Mr Nicholson wanted legal advice.  The officer postponed that request because he wanted to search Mr Nicholson's residence, and didn't want Nicholson abusing his s.10 rights to interfere with the investigation.

You can do that, but you should have good reasons to fear such interference.

During the next 9 hours, before granting access to counsel, the officer twice attempted to question Mr Nicholson about the offence.

You can't do that, except perhaps in extreme exigent circumstances.

After an arrest or detention, if your suspect wants to talk to a lawyer, ask no questions about the offence until you satisfy the suspect's s.10 rights.  I know I'm repeating a point I made two weeks ago.  But only last week, the issue arose twice in cases I handled.  I see junior and senior officers forgetting this basic principle:

Grant access to counsel before eliciting information from the prisoner about the offence.

Please document exhibits.  What did you find?  Who found it, and where?  (I like photographs.) Who handled it thereafter?

Perhaps because the officer focussed on the search warrant, he neglected to tag and document the cocaine and other exhibits he seized.  This caused significant difficulties for the prosecution when they attempted to prove continuity of the drugs.  They could have lost the case on this issue alone.

Here are some reasons to document seized exhibits immediately:

• S.489.1 requires you to report all seized exhibits to a J.P. "forthwith or as soon as practicable".  This applies to seizures on arrest just as much as items found when executing a search warrant.  Failure to report can lead to exclusion of evidence at trial.
• When you seize valuable items like cash or expensive drugs, your prisoners would love to accuse you of corruption.  Clear accounting proves you're not stealing.
• Unless you write down immediately who handled which exhibits, the prosecutors will not discover which witnesses will be needed at trial to prove the case.  After the acquittal, they'll blame you.
  

Handling prisoners and exhibits are basic skills.  Your many other tasks and duties may distract you.  But it's good to remind yourself and your peers of the basics.

2011-08-15 Mens Rea of Possession & trafficking - Knowing or not wanting to know

Mr Rai, 2011 BCCA 341 asked an acquaintance to accept delivery of a package for him.  He would pay her $500.  He asked her to stop calling him on his personal phone number, and only contact him on a new cell phone he obtained, which was registered in the name of a corporation.

Canadian Border Services staff discovered heroin in the package when it arrived in Canada.  Police contacted the acquaintance, and she cooperated with them.  When she gave the package to Mr Rai, he drove circuitously, and shook off police surveillance.  Police found the package dumped in a wooded area.  A black truck picked it up, shook off surveillance.  Later the same day, the black truck went to Mr Rai's house.

The defence pointed out that there was no evidence that Mr Rai packed or opened the package.  Therefore, there was no evidence that he knew specifically wht was in it.  Therefore, he couldn't be guilty of possession nor importation of "heroin".

The judges disagreed.  The Crown must prove it was indeed heroin - the substance named in the charge, but the Crown need only prove that Rai knew the package contained a controlled substance.

This applies to stolen property too.  If your suspect drives a van full of stolen property, the Crown need only prove that he knew it was illegal property; the Crown need not prove that he knew whether the van contained bicycles or computers.

Furthermore, "wilful blindness" is as good as knowledge.  Even if he didn't know what was inside the package, Mr Rai took extraordinary steps to dissociate himself from the package - changing his phone, driving circuitously, dumping it in the woods to be picked up by others.  If he didn't know what was in it, he knew enough about it to be sure that it was illegal.

When interviewing a suspect of this sort, knowledge is a great topic to raise.  Many of these folks will say "I didn't know, and I didn't want to know what was in the package."  Not wanting to know is wilful blindness.  Try asking him: "You're a smart guy.  You knew enough to know that whatever was in the package was trouble?"

2011-08-11 Rights to Counsel - Getting Past s.10(a) and 10(b)

Between periods in a hockey game, Don Cherry replays the parts of the game where players made questionable plays.  Here's an interesting one.

Mr J.W.C., 2011 ONCA 550 checked himself into a psychiatric hospital because he felt depressed.  He called the police, and told them he wanted to confess to historical sexual assaults.  The investigating officers asked his doctor whether removing him from the hospital endangered him.  The doctor answered that Mr J.W.C. was "of sound mind" but suffered bipolar disorder; he could be released to the police.

When the police took Mr J.W.C. to the police cruiser, they told him about his rights to counsel and asked him if he wanted to call a lawyer.  He replied:

"Not right now."

At the police station, they recited his rights to him again, and asked "do you wish to call a lawyer now?"  He responded:

"Ah I dont know."

The officer pressed on with the interview.  Mr J.W.C. confessed to sexually abusing mentally disabled people.  At trial, he claimed that voices in his head made him give this false confession.  The jury convicted him.

On appeal, he said the police should have taken more care to determine whether he wanted to speak with a lawyer or not.

The trial judge found that Mr J.W.C. had plenty of time (12 minutes) to digest the information police gave him about access to counsel and to decide whether or not to get advice.  His comment "ah I dont know" did not indicate a failure to understand his rights, just an absence of any expression of desire to exercise them.  The Court of Appeal agreed and upheld the conviction.

I found this result interesting because many judges come to the opposite conclusion on similar facts.

Section 10(a) requires you to explain a suspect's jeopardy, which helps the suspect decide whether he or she  wants a lawyer.  The completeness of your s.10(a) information matters.  If you arrest Nobby Knuckles for "assault" two months after a bar fight, he may not know which melee you're investigating, and therefore he may not know whether he wants a lawyer.  In this case, only Mr J.W.C. knew what the confession would contain. Section 10(a) was well satisfied.

Section 10(b) requires you to provide information about access to counsel, and to provide the opportunity to exercise it.  While the law does not require you to obtain a "clear waiver" of the right at this stage, it's only fair to give the suspect  a real opportunity to decide what to do.  This guy was vulnerable, and could have been easily confused.

My job as armchair quarterback requires me to suggest some safer responses this officer could have used after Mr J.W.C. said "I don't know":

• "What do mean?  Is there something you don't understand?"
  
• "Now's the time to decide if you want a lawyer.  I'll give you another minute or two alone to think about it."
• "If, at any time during our conversation here, you decide you want to talk to a lawyer, you let me know, and we'll make that happen."

Don Cherry also replays the brilliant moves.  I should too.  Notice how wisely the investigating officers addressed the mental health question: they investigatedMr J.W.C.'s sanity before taking the statement.  As Cherry would say, "Beauty!"

2011-08-07 Search & Seizure - Execution of Search Warrants - Vehicles

Because police in Brandon had good reason to believe that a residence contained drugs for sale, they applied for a warrant to search it.  Meanwhile, an officer watched the house.  Ms Frieburg, 2011 MBQB 58 parked her car across the street and entered.  Later, she left, with two men, in another vehicle.  When the officers executed the warrant, the house contained so many odours of drugs that the drug dog couldn't help the officers locate drugs.

Someone looked at Ms Frieburg's car and noticed air fresheners and "Bounce" sheets tucked into the air vents.  They deployed the drug dog, which indicated drugs on the handle and in the trunk.

The trial judge found no problem with deploying the drug dog near the car: its driver associated with a drug house, and the vehicle contained unusual items consistent with an effort to conceal odours of drugs.

The officers searched the car without getting another warrant.  The judge found this violated Ms Frieburg's rights, and excluded the evidence:  The warrant to search the residence didn't authorize the police to search the car oustide it.  They could have obtained another warrant - there was no risk the vehicle would escape them.

The question often arises: "If I have a warrant to search the residence, can I search the car in the driveway?"

It depends.

What is the exact wording of the warrant?  Does it say "the residence at 123 Marijuana Street", or does it say "the structures and property at 321 Cocaine Avenue"?  You can search as widely as the justice authorized you to search.

Many a junior officer, after considering this idea, started writing warrants allowing broad searches of everything related to the residence where he or she thought the evidence would be found.  Should you draft your warrant using broad language, to include vehicles associated to the residence?

It depends.

A justice may only authorize you to search where there are reasonable grounds to believe you will find what you seek.  If you have no evidence to suggest that the thing(s) you seek will be in cars in the driveway, then don't add those cars to the places to be searched.  If you do have such evidence at the time of your application, then by all means, mention them.

2011-08-04 Right to Counsel - s.10(b) - Waiting for Duty Counsel to Call Back

Twenty-year-old Mr Balgobin, 2011 ONCJ 108 lived through some hard times.  He split with his girlfriend.  He drank, drove and a cop stopped him.  He failed a screening device.  He had never been in serious criminal trouble before.  He just wanted to go home.  But he also wanted legal advice.  He asked the officers how long it would take for a legal aid lawyer to call him back.  The officer told him it would take up to two hours.  Mr Balgobinsaid he'd blow right away.  During the breath testing process, he also made incriminating remarks.

At trial, defence tendered affidavit evidence that Legal Aid always returned calls within 45 minutes.  The accused gave an affidavit that he wanted legal advice but was frightened at the prospect of staying in police cells for two hours.

The judge found that the police officer had dissuaded a frightened and vulnerable person from getting legal advice.  This violated his s.10(b) rights.

The officer denied any improper intention.  He did have one experience in which duty counsel took two hours to call back.  But the court relied upon the effect of his comment, not the officer's intention.

The judge didn't like the imbalance of power.  Mr Balgobin was young, naive and vulnerable.  The officer probably felt comfortable in the police station, but the suspect didn't. All defence needed was some evidence that the officer pushed the suspect away from getting advice.

Don't get worked up about this specific (low court) decision.  Reasonable people may disagree about the result in this case.

Use it instead to remind yourself how differently you and your suspects experience arrest and detention.  It's proper to give factual information about access to counsel.  It's improper to slant that information in any way to discourage the exercise of s.10(b) rights.

Here in B.C., some officers suspect that duty counsel deliberately delay responding to calls for impaired drivers.  Perhaps the lawyers think that delay assists the suspects.  In my view, it is unethical for a lawyer to withhold legal advice from a client for the purpose of interfering with the administration of justice.  But making an allegation of unethical conduct requires strong evidence.  If there's a significant problem in your jurisdiction, you should gather statistics, and bring them to the managers of Legal Aid, or, in the case of a private lawyer, the Law Society.

2011-08-03 Exigent Circumstances Entry into a Residence - More than 911 calls

Late at night, wearing a trenchcoat, a tuque and a scarf, Mr Farrah, 2011 MBCA 49 tried to rob someone at an ATM.  His victim leapt into a nearby car and fled.  Mr Farrah fired a sawed-off shotgun at the car, damaging it, but injuring no one.

Someone saw two males fleeing the scene.

A police dog led officers from the scene to an appartment building three blocks away.  The dog showed interest in the door to suite 16, but it continued on to suite 12.

Out of concern for the safety of people in the two suites, the police decided to enter the suites without warrants.  They entered suite 12 first, where they found Mr Farrah hiding under a pile of clothing.

Could they enter suite 16?

They did, and they found the gun, the trenchcoat, the tuque and the scarf.

At trial, defence complained that this was not a 911 call, and therefore police had no authority to enter either suite; and having found Mr Farrah, they had no reason to enter the second suite.  The trial judge agreed with defence. The appeal court found the officers did the right thing.

It isn't the 911 call which justifies entry into a residence, but your concern that someone's life is threatened or they may suffer serious injury.  When someone calls 911, it tells you they want help.  The hangup tells you either:

1. they dialed 911 by mistake, and don't need help; or
2. they have lost control of the circumstances which caused them to want help

The second possibility justifies a fear that someone's in danger, and that justifies warrantless entry.

In this case, the police learned of two suspects leaving the scene.  When they found Mr Farrah, they still didn't know where the gun or the other suspect was.  They did know that someone was desperate or crazy enough to shoot a gun at innocent people.  Therefore, they had reason to fear that the occupants ofsuite 16 were injured or in danger.

The officers looked only in places big enough to contain a person.  That was smart: their power to enter and search was only for saving people, not recovering evidence.  They found the gun in a closet large enough to contain a person.  Had they searched in dresser drawers and wastebaskets, the result would likely have been different.

2011-07-28 Detention - s.10(a) - Saying why

A senior officer watched a car speed down a lane in a bad part of town.  It stopped, and a passenger got out quickly and entered an apartment building.  The officer followed the car and stopped the driver, Mr Perjalian, 2011 BCCA 323, as he got out of the car.  The officer asked for the driver's licence and registration, but didn't say why.  The driver turned his body, as if to block the officer's view.  The driver dropped a black film cannister on the floor of the car, and then told the officer he couldn't find his registration.

The officer believed the cannister contained drugs for sale.  Instead of arresting Mr Perjalian, the officer directed him to stand with another officer.

The officer then seized the cannister and opened it.  It contained drugs.  He then arrested Mr Perjalian and searched the him and the car.  He found $270 and a scoresheet.  Mr Perjalian wanted to speak to a lawyer.  The officer asked Mr Perjalian if he had a crack pipe or needle, and Mr Perjalian replied "Do I look like a fucking junkie?"  The officer asked the question in order to determine whether Perjalian was a user or a dealer.

Defence complained that the officer breached s.10(a) of the Charter, twice, and s.10(b).  When stopping someone for speeding, you should say so, not merely demand licence and registration.  When an investigation changes, you must tell the suspect of the new purpose of the detention.  After a detention or arrest, you must hold off eliciting evidence until after your prisoner exercises or waives his rights to counsel.

The Court of Appeal agreed.  This officer should have told Perjalian at the beginning that it was a speeding investigation, and after seeing the drug cannister, the officer should have said it was now a drug investigation, and after the arrest, the officer should not have asked questions in order to obtain evidence.

Despite all this, the court upheld Perjalian's conviction for possession.  The Crown had never even tried to tender Perjalian's comment in evidence.  The court considered the s.10(a) breaches minor in this case because they didn't cause any evidence to be discovered, and the situation was unfolding rapidly.

I found this case interesting because it highlights common mistakes which senior and junior officers make.  I think the result could easily have been worse.

2011-07-28 Articulating Reasonable Grounds

A senior officer watched a car speed down a lane in a bad part of town.  It stopped, and a passenger got out quickly and entered an apartment building.  The officer followed the car and stopped the driver, Mr Perjalian, 2011 BCCA 323, as he got out of the car.  The officer asked for the driver's licence and registration, but didn't say why.  The driver turned his body, as if to block the officer's view.  The driver dropped a black film cannister on the floor of the car, and then told the officer he couldn't find his registration.

The officer believed the cannister contained drugs for sale, and ended up arresting him.  Defence complained there weren't grounds: the officer knew of no record, nor any information linking Perjalian to drugs; the officer neither saw nor smelled drugs.  Therefore all the officer had was suspicion.

The officer explained:

1. In his extensive experience investigating drug offences, drug traffickers use film cannisters to store and secrete drugs.
2. Perjalian seemed more intent on hiding this film cannister from a police officer than responding to a request for registration.
3. It must have contained something that Perjalian believed would cause a police officer concern.
4. Because it was a film cannister, that something most likely would be drugs.

The Court of Appeal agreed with the officer.

I find many police officers have trouble explaining their inferences.  When asked "what were your grounds?", officers will respond with an information dump: "I observed the following ...".

But there's one more step.  What did those observations cause you to think?

In the list above, the first two points are observations.  The second two are inferences.  This experienced officer was able to explain his thinking, which made the court comfortable with his grounds.

Often, when you put two and two together, it feels instinctive - like a hunch.  Only if you work it through afterwards ("Why did these observations make me come to those conclusions?") do you realize that your belief was purely logical.

If you get that "aha" moment, and arrest someone because of it, take some time afterwards to think through what information you received, your observations, your previous experiences and what inferences you drew from these things.

2011-07-27 Searching Residences - Residual Expectations of Privacy

Mr Stevens, 2011 ONCA 504 lived in his girfriend's apartment and stored some guns there, unsecured.  She and her landlord disagreed about rent payments.  Her landlord obtained an eviction order, but agreednot to execute it if she paid by January 14.  She paid by the deadline, but the landlord inadvertently sent the papers to  the sheriff's office to evict her.

Stevens and his girlfriend were absent when the sheriffs entered.  The sheriffs found two gun cases, a bullet-proof vest, an OPP shirt and a police badge from PEI.  They changed the locks and called police.  The officers who attended opened the gun cases and found unsecured guns.  Two officers stayed in the residence while others sought a warrant.

Meanwhile, Mr Stevens returned.  Police arrested him.

Mr Steven's complaints that the police violated his expectations of privacy drew no sympathy from the trial judge and the first appeal judge.  But the Ontario Court of Appeal agreed with him.

Because the rent was paid, Mr Stevens and his girlfriend did still enjoy a reasonable expectation of privacy in the home.  The sheriffs did not violate it when they entered because they had alawful order authorizing them.

The sheriffs could only call for the assistance of police when they believe there will be a breach of the peace.  The court found that there was no risk of a breach of the peace.  Even if it was appropriate for the police to accompany the sheriffs, there was no need to search the gun cases, and no authority.  Therefore, the police breached Mr Stevens' expectations of privacy.

Incidentally, the court found that the officers had the authority to accompany the sheriffs into the place.  Therefore, it found nothing wrong with the officers remaining in the apartment while others sought the warrant.

If you want to find out whether Mr Stevens ultimately won or lost, you should read the case.

For police officers, this case illustrates a point I'm seeing more and more.  Courts no longer ask "did the officer have authority to violate the suspect's privacy?" but "how much of the suspect's privacy did the officer have authority to violate?"

Just because you can enter a person's residence without their consent doesn't always mean that you can peer into their closets.

2011-07-24 Searches and Undercover Officer Trickery - More warrant applications for cops?

Undercover police officers promised to help a guy eliminate evidence linking him to a murder.  He gave them key exhibits, which the officers then examined forensically, and discovered evidence linking him to the crime.  The officers didn't get a warrant.

Defence persuaded the trial judge that the officers needed a warrant: Although the suspect abandoned his property interest in the exhibits, he relied upon the officers to protect his privacy interests in it.  Based on the officers' promises, the accused retained a reasonable expectation of privacy over the exhibits.  Therefore, the trial judge found that the police violated his s.8 rights.  (Because the judge admitted the evidence anyway, the Crown can't appeal this ruling.)

This is only a trial level decision.  An appeal court may well come to a different conclusion.  It depends heavily upon the officers' promises to conceal the very evidence they searched.  However, it represents another incremental step of increasing court supervision over police investigations.

If you're going to the trouble of an undercover operation which gathers physical exhibits, or private data from a suspect, you may need a warrant before conducting any forensic examinations of what the target gives you.

I received only a scan of this decision (for which I'm grateful to Cpl Doug Craig).  I offer no link because it isn't published on the court's website.  There may even be an outstanding publication ban.  Email me if you need a copy of the decision.

2011-07-23 Privacy for litigants - everyone matters, even cops!

Officer X, 2011 BCSC 943 investigated criminal gangs, but he also responded to other calls.  While driving a police motorcycle, he responded to a radio call that a pedestrian overpass collapsed, and people might be in distress.  As he approached the scene (with lights and siren), a truck driver made a U-turn right in front of him.  Officer X collided with the truck and suffered serious injuries.

(Take care of yourselves out there.  People do crazy things, especially in unusual situations.)

Officer X sued, but he asked the court to seal up anything tending to identify him and his family.  Civil suits often reveal a great deal of private information.  He feared that his gangster targets would use this information against him.

Courts don't like to censor any of their activities: justice should remain "transparent", so that anyone can see what judges do.

But the plaintiff provided good evidence of a real risk to himself and his family.  The judge agreed to seal and censor the records which tended to identify the officer.

This decision doesn't break any new legal ground.  However, it demonstrates an ongoing tension in our legal system.  Litigants and witnesses often want privacy.  To win public trust, courts must expose their operations to public inspection.  The modern way to achieve that is to publish on the internet.  The courts' propensity toward openness exposes some people to embarrassment, and others to the danger of real physical harm.

If your testimony could expose you to harm, raise your concerns with the prosecutor and the lawyers who act for your police force.

If witnesses balk at testifying because they fear significant harm, know that in criminal trials, s.486.5 of the Criminal Code allows a judge to order a ban on publication of anything which would tend to identify them. 

2011-07-07  Search & Seizure - Execution of Search

Mr Neuman, 2011 BCCA 313 was born in East Germany under a dictatorship.  His family fled to Canada when he was young.  Apparently that made him fearful of police.

He did business with Ms B, whom the tax auditors suspected of tax evasion. Police obtained a search warrant for Mr Neuman's business, to obtain financial records relatingto Ms B's transactions with him.  When they arrived at the business address, they found it was his home.

The execution of the search warrant frightened him terribly.  He sued and won $1.3M in damages against the police.  His psychiatrist explained why he might suffer PTSD from the experience:

• He was peculiarly sensitive to police intrusion
• Surprise increases the likelihood of trauma
  
• Loss of control over the event increases likelihood of trauma
  
• Lack of trust increases the likelihood of trauma
  

I have worked with this psychiatrist.  He's no quack - he has a good reputation.

The Court of Appeal found that the police had a valid warrant, and the police behaved professionally in the circumstances.  They overturned the award.

I think this case is interesting because it reveals a cultural phenomenon which police should consider.

Canada contains many cultures.  Crime thrives in some.  Some are quite law-abiding.  But not everyone trusts police.

Every time you execute a search warrant, you run the risk of permanently alienating the people you encounter.  If you can develop their trust instead, they may turn out to become useful sources or witnesses in the future.

Consider the psychiatrist's list. There's little any officer could do differently:  You don't know how sensitive the occupants of a residence are going to be.  You need surprise - for safety and for success in the search.  You need control, for safety.

But you can develop trust by explaining to people what is going on, and dealing with them as warmly as the circumstances allow.

2011-06-26 Detention - Reasonable Grounds to Suspect

How much evidence do you need before you have reasonable grounds to suspect an offence?  In my experience, judges disagree on this question, which confuses police officers and prosecutors.

An officer pulled over Mr Savage 2011 SKCA 65 for speeding.  The officer noticed:

cluttered with wrappers, drinks and maps	consistent with drug courier who won't leave the drugs unattended
very strong odour of air-freshener	consistent with drug couriers who mask smells of marijuana
very nervous driver	consistent with fear of detection for a more serious crime
driver described odd travel arrangements	inconsistent with normal drivers
travelling east to Toronto	drugs tend to travel east

Although these observations caused the officer suspicion, he didn't think he had sufficient grounds to detain until he discovered the driver's 18-year-old conviction for drug trafficking.

Then he detained Mr Savage, offered him counsel, and called in the drug dog.  It found four pounds of marijuana.

The trial judge found that each observation could be innocently explained, and that even with the conviction the officer lacked grounds to detain.  The appeal court disagreed.  Each observation made it more likely that drugs were in the car.  Together, these observations (along with the officer's knowledge of their significance) justified detaining the driver for further investigation.

In close cases, your prosecutors will appreciate this decision, whether it's the deployment of drug dogs, or demanding roadside breath screening.

2011-06-25 Sexual Assault - Mistaken Belief in Consent

Mr Dippel 2011 ABCA 129 was 54.  When his daughter threw a party, he got drunk.  Witnesses described him as "vulgar and outrageous".  He approached people at the party and asked if they wanted to have sex with him.  The conscious ones said "no".  He found a 24-year-old woman asleep in a bed.  She didn't say "no" until his fingers in her vagina woke her up.

He explained that he advanced his sexual contact with her respectfully.  He rubbed her back "and she didn't do anything".  He felt her breasts, and "she didn't do anything".  When he reached under her blouse, she lifted her arm up, and he interpreted that as a green light.

Naturally, if she consented to sexual activity, then he committed no crime.

If he honestly believed that she consented, then he has a defence - so long as he took "reasonable steps" to ascertain whether she consented.  s.278.3

The trial judge accepted the accused's belief as reasonable.  The appeal court didn't.  Silence or ambiguous acts is not consent.

The young woman was entitled to know who sought sexual contact with her.  Because he knew she didn't know who climbed into the bed with her, he couldn't "honestly" believe that she consented.

All this may seem perfectly obvious.  In the strange world of proof beyond a reasonable doubt of what a drunk man thought, common sense sometimes gets pushed to the side.

This complaint arises so routinely that at one office, we called it a "Type A" sexual assault.  Proving guilt is often challenging because the girl at the party usually passes out from drunkenness, and can not distinguish between fragmented memories of consensual sex, or being woken by non-consensual sex.

Good investigation made a big difference here:

• Witnesses at the party described the accused's blatant search for sex.
• Investigators persuaded him to talk about the incident, and he gave a detailed description of climbing into the bed of a sleeping girl.

When interviewing a suspect in such a case, it might be helpful to ask whether he did anything to let her know who he was, and whether he relied on her failure to object to infer that she consented.

2011-06-24 Search Warrants - Breadth of Search

While investigating a murder committed by someone else, police found prohibited firearms in Mr Campbell's 2011 SCC 32 residence.  He complained that the police lacked grounds to search his place.

Someone left a gym bag outside an apartment complex in Toronto.  Inside the bag, police found the dead body of a half-naked woman.  Telephone cord bound her legs.  She was obviously murdered.  Packed in the bag were several documents bearing the address of a townhouse.  Police went there, removed everyone from the unit, and interviewed the occupants including Mr Campbell, 2010 ONCA 588.  They learned it was a rooming-house: the residents shared the kitchen and bathroom, but the bedrooms were locked.  It appeared that the girl had roomed there too, and was probably murdered there too.

Whodunnit?

Mr Campbell had convictions for violence to women, but another resident, Mr Imona-Russell faced an outstanding sexual assault.  Police sought a search warrant for the entire unit.  They found evidence that Mr Imona-Russell, murdered the woman.  But they also found prohibited firearms in Mr Campbell's room -- and he was under a firearms prohibition at the time.

Defence argued that the search warrant was overbroad: it should have permitted a search only of the common areas and Mr Imona-Russell's room, but not Mr Campbell's room.  Two of the three appeal judges disagreed.  There was enough evidence to make Mr Campbell a suspect:  As a resident, he had opportunity.  He had moved in using black bags like the one in which the woman was found.  His history of violence made him a viable suspect.

The Court of Appeal made an important point.  Your ITO doesn't need to prove "whodunnit".  It need only establish that you will probably find evidence relevant to the offence in the place(s) you want to look.

But this "place" contained multiple residences of different people.  A justice can only issue a search warrant for the place(s) where you have grounds to believe evidence will be.  The warrant should not violate privacy without good reason.  The Supreme Court observed:

"In drafting ITOs proposing to search more than one unit within a multi-unit dwelling, this principle should be reflected by clearly setting out reasonable and probable grounds for each unit to be searched.  In this respect, the drafting of this ITO left much to be desired." (emphasis added)

The Supreme Court of Canada said the application was badly drafted, but agreed that it contained sufficient grounds to justify a warrant to search each room.

2011-06-22 Warrant drafting - Omitting what you didn't observe

When drafting an application for a warrant to search a suspected grow operation, the officer failed to mention that he didn't observe suspicious activity around the house when he watched it, he didn't hear fans or blowers, he didn't look at photos from the previous search of the same property.

The trial judge thought he should have, and excluded evidence of the marijuana grow operation at an unoccupied house associated to Mr Nguyen, 2011 ONCA 465.

The appeal court disagreed: You don't have to record non-information.

I would add: unless it's important.

If your tipster says you can hear fans running, but you attend and hear nothing, you'd better say so.

2011-06-22 Warrant drafting - Distinguishing between inference and evidence

When investigating a tip of a grow operation at an unoccupied house associated to Mr Nguyen, 2011 ONCA 465, a police officer noticed:

• parts of the roof were noticeably warmer than rooves of similar houses on the street; but
  
• the electrical bill for this house was significantly lower than the bills for similar houses on the street.
  

In his ITO, the officer said that he "believed" that theft of electricity was occurring to support a marijuana grow operation.

Defence complained that the officer made no observations of any electrical equipment which was used to bypass the electrical meter.

The appeal court disagreed.  You are entitled to draw inferences from the evidence you gather.  Because the officer stated a belief, the officer made it clear that this was an inference, not an observation.  From the observations noted above, and other observations, this inference was a reasonable one.

I suggest that you set out inferences explicitly in your application.  For example:

I believe that a bypass was installed to steal electricity because:

• the grow operations I have investigated in houses all required many hot electrical lights to encourage the plants to grow;
• Power utility experts told me that more power is required to operate these lights than residences usually consume;
• Power utility experts told me that they tend to notice unusual residential power consumption, and they tend to investigate it.
• I would expect marijuana growers to want to avoid such attention.
• I would expect that paying for high power usage would tend to reduce the profits of a marijana grow operation.
• These expectations are confirmed in my experience by the many grow operations I have investigated where I saw by-pass circuits which allowed electrical power to flow directly into the residence, without the electrical meter recording it.
• The power consumption at this residence was unusually low, but the heat emanating from it appeared to be unusually high.
• This strange combination suggests to me that marijuana is being grown inside, and power is being diverted to avoid detection, and reduce costs.
  

2011-06-16 Eyewitness Identification - When Police Officers "Recognize" a Suspect

An undercover officer called what he believed to a drug dealer's phone number.  A voice answered.  The officer thought he recognized the voice.  They arranged a meet.  The officer said that he recognized Mr Geddes, 2011 MBCA 44, when he turned up, because the officer had dealt with him while in uniform.

To avoid making it look like he was unsure of his recognition of the man he met, the undercover officer didn't follow his usual practice of looking at known photographs of Mr Geddes to confirm his identity.

The trial judge believed him, but didn't express his decision very well.  The Court of Appeal sent the matter back for retrial.

I'm not so sure the officer would have damaged his credibility if he had followed the routine practice - particularly if he made it clear that he was simply following the routine.

Courts treat eyewitness identification of strangers with great care.  When you say you recognize a person from previous dealings, it's an important claim.  You should be ready to back it up with more information.

What evidence would make it clear whether you recognize someone from previous dealings?  Here are some bits of information I'd appreciate being able to tender as a prosecutor:

• dates of previous dealings
• durations of contact with the person on each of those occasions
• your ability to describe differences in appearance between the earlier meetings and the time in question.
  

2011-06-11 Impaired driving - Reasonable Grounds

How many observations do you need to make before you can make a demand for analysis of breath?

You need "reasonable grounds" to believe that:

1. the driver's blood contains more than 80 milligrams of alcohol per 100 millilitres of blood; or
2. the driver's abilitly to operate a motor vehicle is impaired by alcohol.

If you use a reliable screening device, it answers the first question.  You should know at what blood-alcohol level your screening deviceregisters a fail.  If it exceeds 80mg%, then you know you can make a breath demand.

The second question is fuzzier, particularly because trial judges differ about what "reasonable" means.

How sure do you have to be that alcohol impaired driving ability?  In Usher, 2011 BCCA 271, yesterday, the court said:

"The test for establishing reasonable grounds is not onerous. The Crown need not establish a prima facie case; it will be enough to show the findings of fact objectively support the officers subjective belief that the suspect was impaired, even to a slight degree."

What's impairment "to a slight degree"?

"Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road."  Bush, 2010 ONCA 554.

If the trial judges listen to these appeal judges, you don't need proof of impairment before you can make a breath demand.  You don't need gross impairment either.

The appeal courts also say you must consider all of the evidence for and against making a demand.  If the driver manages some difficult driving successfully, this would suggest that the driver's ability to operate the vehicle isn't impaired.

If your driver drives okay, but smells strongly of booze, you have evidence of alcohol consumption, but not alcohol impairment.  Rhyason, 2007 SCC 39.  You need to be able to say why the driver shouldn't drive.

Every observation you make can be explained away or minimized.  For example:

Symptom	Explanation
Odour of liquor in car	Came from passengers, empties on the floor, liquor spilled on driver's clothes.
Odour of liquor on breath	Recent consumption of a small quantity of liquor can give a strong scent without impairing the driver at all.
Flushed face	Weather, exertion, or embarrassment on meeting an officer can cause a flush. Some folks always have ruddy complexions.
Watery eyes	Allergies; emotions; contacts.
Bloodshot eyes	Allergies; emotions; tiredness.
Slurred speech	Speech impediment; language difficulties.
Poor balance	Uneven ground, high heels, injury or disability.
Mood swings	Hormones; medications; life stresses; mental illness.
Bad driving	Distractions in vehicle; tiredness.

Because each symptom is so easy to explain away, only a collection of symptoms is compelling.

Some officers just make a list of symptoms.  I prefer detail:

Less persuasive	More Persuasive
"an odour of liquor ..."	"... with a stale yeasty, beery smell to it." "... with that chemical, medicinal smell you get from hard liquor"
"slurred speech"	"he said 'wash oo want wiv me, offisher'"
"unsteady on his feet"	"He never stood unsupported.  He always touched a car or a wall." "As he stood outside his car facing me, his head rotated in a 10cm circle" "When he walked to my car, he suddenly raised both arms from waist to shoulder height, and his right foot suddenly moved right about 12 inches.  It appeared he lost his balance."

Unless you record these details during the investigation, you'll never remember them at court.

None of this provides a practical answer your question: how much evidence must I collect before I can make a breath demand?

The only practical answer I can give is this: Every life experience loses impact in the re-telling.  What seemed obvious on the street becomes difficult to convey in the court room.  If you have only enough to make you think the driver "probably isn't safe to drive", then you need to record more detail, so that the judge will agree that your belief was reasonable.

2011-06-11 Access to Counsel - Passing the Buck

Police officers in Victoria wanted to arrest Mr Mzite, 2011 BCCA 267 for knowingly exposing his sex partners to AIDS.  Vancouver police officers found him first.  They arrested him.  They offered him access to counsel.  He asked to call a friend to get the name of a lawyer and gave a phone number.  Nobody called his friend.  Mr Mzite spoke only with a Legal Aid lawyer, who told him to call Legal Aid when he got to Victoria.

Officers from Victoria flew to Vancouver, and took him from the Vancouver officers.  They flew him back to Victoria, where spoke with another Legal Aid lawyer.  Fortunately, a Victoria police officer phoned Vancouver police, and learned of Mzite's request to call his friend.  The officer called the friend's number, but reached only a generic voice-mail.

Unfortunately, the officer left no message.

Mr Mzite confessed to a Victoria police officer during an interview.  At trial he complained that the police frustrated his efforts to contact counsel of choice, and the confession should be excluded.

Did the police violate Mr Mzite's s.10(b) rights?  In this case, the court said "no", because he seemed satisfied with the advice he got from Legal Aid.  But next time you might not be so lucky.

An officer who arrests someone must accommodate a prisoner's reasonable requests to get a lawyer.

I think it's reasonable for a prisoner to call a friend or relative to get the name of a lawyer.  That conversation need not occur in private, but someone should make that call.

When you receive a prisoner from another officer, you become responsible for granting any unsatisfied requests for counsel, whether or not you know about them.

In this case, when Vancouver passed the buck (double-entendre intended), they endangered Victoria's investigation.  They should have addressed the request, or told the Victoria police officers about it.

When you receive a prisoner from officers who arrested him, you should inquire into his access to counsel.  Don't assume "he talked to Legal Aid" means "he got the legal advice he asked for".

2011-06-07 Criminal Investigations at Motor Vehicle Accident Scenes - Compelled answers

Someone drove into Mr Soules' 2011 ONCA 429 car.  Police attended the accident scene smelled alcohol on his breath.  Mr Soules told the officer he was driving.  Could the officer make a screening device demand?

Sections 199 and 200 of Ontario's Highway Traffic Act requires people involved in accidents to make a report about it to a police officer.  Until July 1, 2008, s. 67 of B.C.'s Motor Vehicle Act contained similar provisions, but now merely requires the driver to report to the provincial insurance company (ICBC).

One of the principles of fundamental justice in s.7 of the Charter is the right not to be compelled to give evidence against yourself in any criminal matter.

Forcing a driver to give information and then using that information to prove the driver's guilt of a crime violates this fundamental principle.  White, [1999] 2 SCR 417.

Therefore, if the legislation compels a boozy driver at an accident scene tell a police officer that s/he was driving, the officer can't use that information to make even a screening device demand.  Powers, 2006 BCCA 454; Soules, 2011 ONCA 429.

Until B.C. changed its legislation, the only way to investigate alcohol-related offences at accident scenes was to explain to the driver a clear distinction between making an accident report (which was obligatory) and answering questions relating to the criminal investigation (which is the driver's choice).  An officer could use only the voluntary answers to make Criminal Code demands.

It appears that Ontario police officers must do the same.  Good luck.  We in B.C. found this distinction unworkable in practice, which is why the B.C. legislation changed.  Most drivers have no clue whether or not they have a legal obligation to explain to the officer what happened.  It ain't easy to explain to a drinker who has just been in a car accident that s/he must answer questions at one stage but doesn't have to say anything at another stage.  Those few drivers intelligent enough to understand the difference between civil obligation to report and criminal right to silence will inevitably tell the officer nothing that would assist in making a breath demand.

Therefore, at accident scenes, gather as much information as you can from other sources than the driver about

• who was driving and
• when the collision occurred.

In my view, this idea applies across Canada, but especially now in Ontario.

I'm interested in the Ontario experience.  Did you folks receive standard warnings to read at car accident scenes?  How is it working for you?  Do you expect changes to the legislation too?

2011-05-30 Possession - Proving what you think you know

Firemen entered Ms Murphy's apartment in response to an alarm.  Although smokey, nobody remained.  Someone had extinguished the fire.  While ventilating the place, the firemen found a loaded handgun on the bed, a roll of money and crack cocaine in the living room.  They reported what they found to police, who got a warrant.  In addition to the drugs, gun and money, they found:

On a shelf in the bedroom	a wallet containing the identification of Mr Beals, 2011 NSCA 42
On the dresser in the bedroom	Correctional Services work performance sheet bearing Mr Beals' name
Kitchen table	Mr Beals' Nova Scotia identification card

Was this enough to prove he had possession of the drugs or the gun?

The trial judge and the appeal judges said no way.  Not even close.  This evidence was consistent with him making a casual visit, and leaving in a hurry when the fire broke out.  Even if he knew it was there, there was no evidence he had any control over it.  It appeared to be the woman's apartment.

No evidence established:

• what relationship he had with the woman who rented the apartment;
• whether any of his clothing was in the residence;
• how much time he spent there.
  

This is a common issue.  Many officers think finding things in a residence or a bedroom proves who put them there.  But when considering circumstantial evidence like this, the court asks "is the accused's guilt the only explanation for this evidence?"

"Found in" doesn't mean knowledge and control.

In this case, they also found cell phones.  Perhaps those, and the associated phone company records may have assisted in establishing Mr Beals' connection to the residence.

2011-05-29 Arrest & Detention - s.10(a) Explaining Jeopardy

When police arrested Mr Black, 2010 ABCA 349 at the airport, they reasonable grounds to believe he assaulted someone, but they also suspected he committed murder.  One officer arrested him for assault.  Later, another arrested him for murder.  After the second arrest, Mr Black confessed to the murder.  Defence complained that the second arrest was "arbitrary", and in violation of s.9.

The court found the first arrest already deprived him of his liberty, so the second one didn't make any difference.

What made the difference here was the reason for the second arrest.  The second officer wanted to make sure Mr Black knew what jeopardy he faced before speaking with his lawyer.  The judges liked this approach because it favoured the accused.

In hindsight, perhaps the better way to address this scenario would be:

• arrest for the offences you know about, and
• detain for the further offences which you suspect.

2011-05-28 Screening Device Demands - s.10(a) Promptly Explain What You're Doing

An officer with just 7 months of experience hurried to the scene of a car accident.  With boozy breath, Ms Yamka 2011 ONSC 405 explained that the truck she hit had cut her off.  The officer then realized he'd left his screening device back at the police station.  He helped Ms Yamka into the back of his police cruiser, then called for someone to deliver a screening device to him.

When it arrived 13 minutes later, he read his screening device demand to her.  After several attempts, she provided a "fail".

The judge found that Cst Hunter violated her s.10(a) right to be informed of the reason for the detention.  He should have told her why she hadto wait.

This keeps coming up in motor vehicle investigations.  When you stop someone, promptly tell them why.  Whether it's for a speeding ticket or a breath demand, don't delay the explanation -- except to address officer safety concerns.  (If you're standing alone on a road with a grumpy drunk, don't put your nose in your notebook to read a demand card.  Put the drunk somewhere safe first.)

2011-05-27 Warrant Drafting - "Full Disclosure" - A Chip in Ling

A tiny chip in this difficult decision appeared today.

By way of review, in Ling, 2009 BCCA 70 the court said that police officers who apply for a warrant must disclose:

1. everything they know which supports the issuance of a warrant, and
2. everything they know which undermines the issuance of the warrant.

There's no contraversy about #2.  #1 can be problematic.

Anyway, in R. v. Wilson, 2011 BCCA 252 at para 37-48, the court didn't overturn the Ling decision, but did downplay the seriousness of #1.

2011-05-27 Sexual Assault - "Consent"

Mr J.A., 2010 ONCA 226 had a common-law wife who said that from time to time, they engaged in bondage and erotic asphyxia - he would choke her to unconsciousness during sex.  On this one occasion, she testified that she consented to being choked to unconsciousness.  He did further sexual acts with her while she was unconscious.  She left unsaid whether she consented in advance to these acts while she was unconscious.  The court took this absence of evidence to mean she could have consented to them.  The Crown said whether she consented in advance or not, once she was unconscious, she was in no position to change her mind, and therefore the consent was invalid.

Most of the Supreme Court agreed with the Crown: after the consenting stops, the rest of the sexual activity is assault.

The dissent responded: Surely you can kiss a sleeping spouse?

For most investigations, this case does not change how you do business.  In cases where the complainant passes out from excessive alcohol consumption, if the evidence proves that suspect continued with sexual activity, the case is now easier to prove.

The majority hinted that this issue may yet return in the form of a Constitutional application based on the sleeping spouse situation.  If so, the court may redraft the legislation.

2011-05-26 Synchronization and Standard Time

In Toronto, during a rash of gang shootings, three armed men shot at a crowd outside a nightclub.  They killed two people and injured another.  People called 911.  Who were the shooters?

The cell phone towers in the area the presence of cell phones belonging to Hamilton, 2011 ONCA 399 and two others nearby at around the time of the killing.  Rather unhelpfully, the suspects used different phone companies.  Each company had towers in different locations.

The shooters fled.  It appears that one of them separated from the others.

What was the time of the killing?  You would expect the cell phone company clocks to be synchronized.  They weren't.  According to the technicians, some cell phone company clocks differed from the 911 clock by as much as 3 minutes.

Sychronizing time pieces can make the difference between conviction and acquittal in simple matters like impaired driving cases and in murders.  By how much does the investigator's watch differ from the breath testing instrument?  Was there enough time for the murderer to reach or leave the murder scene between pings on the cell phone tower?

This raises the difficult question "What is the time?"  If everyone's timepiece differs, whose should you trust?

Usually, all that matters is that you compare one time-piece against another.  If you seize a cellphone, what time does it say compared to your watch?  And what time does your watch say, compared to your dispatch computer?

If you want a precise time-reference, you could use the National Research Council of Canada's time webpage.  Your mileage may vary.  When I tried it this morning, it didn't work on Firefox/MacOSX, but it did work using Safari.

2011-05-26 "Off the record" & "On the record" - Interviewing accomplices and making deals

Mr Coward bought a gun which was used a short time later in a murder.  While Mr Coward was in custody on an urelated home invasion case, police arranged to interview him.  In a video-recorded 5-hour interview, he told police he wanted to help, but feared repercussions.  Police offered him immunity on charges relating to possessing the firearm, in exchange for information about the murder.  They offered him the witness protection programme.

Mr Coward asked to speak with his wife by phone.  After a brief conversation with police off-camera, the officers took a KGB statement.  Mr Coward gave compelling (and coroborrated) information about the gun.  After another break, he gave damning information against two fellows involved in the Hamilton, 2011 ONCA 399 murders.

A few months later he gave another KGB statement, just shortly before he resolved the outstanding charges against him.  The officers reviewed the offers they had made previously.  He confirmed that there were no other deals, and the officers did not threaten him in any way.

Guess what?  Right after his sentencing on the home invasion, he recanted.  Doubtless, he had obtained a sweet deal for the home-invasion (the report doesn't say).  Now he wanted to make friends with the murderers.

At the preliminary inquiry into the murder, Mr Coward testified that the officers told him what to say.  He even said one of them frightened him.

By the time trial came around, he had fled the country.

Fortunately, the officers were able to account clearly for what they said and did with him off-camera.  The judges accepted that the police conducted themselves properly.  They liked the efforts that the officers took to confirm on the record in the second statement what occurred off the record before the first statement.

The lessons to draw are:

• Beware of offering immunity in exchange for evidence - these guys are unreliable.
• Beware of "off-the-record" discussions with unreliable people.  Record everything you can.
• Confirm on the record what occurred off the record.
  

I feel compelled to add that offering immunity from prosecution in exchange for evidence or information is a big deal.  Don't do it without getting approval from very senior people.  In B.C., you should confer with Crown Counsel.

2011-05-23 Warrant Execution - "Found-ins"

Police got a warrant to search a residence for marijuana.  Inside, they found Mr Orr, 2010 BCCA 513.  At first, they detained him, because they suspected he had something to do with the operation.  An officer found marijuana growing in the house, and so another officer arrested him for cultivation.  The trial judge found that the initial detention was a "de facto" arrest - that is, the detention was so complete that it was an arrest even if the officer didn't say so.  The trial judge excluded the evidence.

On appeal, the judges observed that when the officers got around to making a formal arrest, they still had no information that connected Mr Orr to the cultivation.  For this reason, they agreed with the trial judge.

A search warrant authorizes you to enter and search for things.  It doesn't, by itself, establish anyone's guilt.  (But sometimes the ITO tells you enough to justify arresting people you find.)  So when you enter, and find people at the scene, always stop and consider what evidence you have in the ITO or at the scene which establishes the guilt of the person you found there.

These officers tried to distinguish between detention and arrest.  These judges found they moved too quickly from detention to arrest.  From what I saw in this case, I think this case is pretty close to the line.  The officers had considerable reason to think that Mr Orr was associated to the grow operation.  Just not quite enough to satisfy these judges that he had some control.

2011-05-13 Search & Seizure - Production Orders - "Control" of documents and data

Production orders compel "persons" to produce documents or data in their "possession or control".  What's "control" and why does it matter?

It matters because some corporations take the view that production orders should be addressed only to the corporation, and not to any employees personally.  They argue that all their records and data belong to the corporation, and therefore the employees don't have "control" of the records.

This is inconvenient if the corporation's legal address for service is outside your province.  JPs don't have jurisdiction to order someone outside their bailiwick to produce documents or data.

But what if the corporation has employees inside your jurisdiction?  Can a production order make them produce documents or data?

The answer is now more likely "yes".

In the slightly different context of the Access to Information Act, the Supreme Court found "control" means:

1. the record relates to the business of the institution; and
2. the person could request and obtain a copy of that document.

Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25.

2011-05-09 "Reasonable Grounds to Believe"

The Supreme Court of Canada says that "reasonable grounds to believe" are exactly the same as "reasonable and probable grounds to believe".  While I still recommend that you use "reasonable grounds" when discussing this concept, you shouldn't argue with defence counsel that there's any difference.

Sgt. Topham stopped Mr Loewen, 2011 SCC 21 for speeding, and noticed a smell of freshly burnt marijuana coming from the vehicle.   Mr Loewen was alone.  He gave a false name, and produced no licence. Sgt. Topham invited him to move into the police vehicle to check his identity, but did a pat down search for officer safety reasons.  He found $5,410 in cash, mostly in $20's in Loewen's pockets. Loewen then gave a different (false) name.

The officer inferred from the smell that Loewen might be in possession of marijuana.  But he inferred from the quantity of cash that Loewen was a drug dealer, and would therefore be in possession of large quantities of marijuana.  The officer commented on the smell of marijuana.  Mr Loewen responded:

"There's no marijuana in there.  None.  I don't do drugs."

The officer explained that many people he deals with give answers which distract the police.  By saying that there was no marijuana present, he figured Mr Loewen might be tacitly admitting that there were other drugs.

Sgt. Topham arrested Mr Loewen for possessing a controlled substance.  He thought it was marijuana, but also thought it might be some other drug.

The court found he had reasonable grounds for this arrest under s.495(1)(a) - an indictable offence.  Because the officer arrested for "controlled substance" rather than "marijuana", it didn't matter that the officer harboured doubts about the type of drug.  The court agreed that the marijuana smell alone would not have justified this arrest; but the cash elevated the officer's suspicions to reasonable grounds.

I was surprised that the court unanimously agreed with the officer.  When dealing with marijuana smoke, defence usually argues "to the extent that you smell marijuana smoke you know that there isn't any more marijuana".  When dealing with cash, surely the same argument applies: "To the extent that you thought the cash showed he was a drug dealer, you also knew that he had sold his drug supply.  The more cash he had, the less drugs he would possess."  If you deal with drug dealers, you might want to gather statistics to see if this arguments holds in real life.

2011-05-09 Leaving Home - Investigating crime in foreign lands

Mr Khadr 2011 ONCA 358 was born in Canada but moved to Pakistan when he was three.  His dad associated with Osama Bin Laden.  The Americans wanted information from him.  They paid the Pakistan intelligence service half a million dollars to abduct and interrogate him.  Contrary to Pakistani law, those agents held him without charges for 14 months, mistreated him, and got information from him.  For the first three months - contrary to the Vienna Convention - he got no access to Canadian Consular Services, just a CSIS agent.

When Pakistan finished with him, they asked the RCMP to investigate him for his involvement in terrorism.  When the officer tried to interview him, Pakistani officials would not permit him to record the interview, nor would they let him speak to Khadr alone.   They wouldn't let Khadr speak to a lawyer. The officer refused to investigate under these conditions. and refused to take Khadr into his custody.  American agents persuaded Pakistani agents to hold Khadr for another 6 months while they investigated him for terrorism crimes.  They Americans got more information from him.  They asked Canada to agree to release him to the USA.  Canada refused, so Pakistan sent him to Canada.

When he arrived, a Canadian police officer interviewed him properly, according to Canadian rules.  In that interview, Khadr admitted enough to justify prosecuting him for a variety of terrorism offences.

The Americans sought extradition from Canada to the U.S.A..  This requires a judicial hearing, to see whether the Americans have sufficient evidence to justify charges.

The extradition judge said "no".  He refused to consider Khadr's confessions to Pakistani and American officials because they were obtained in an abusive manner which rendered them unreliable.  He would have admitted the Canadian evidence, because of the good conduct of Canadian officials in the case.  But he saw it as an abuse of process to let Americans prosecute the man whose basic human rights they abused so thoroughly.  He observed that Khadr can be prosecuted in Canada instead.  The appeal court agreed.

I found this an interesting decision to read.  There is some technical language, but there is also some high philosophy about the importance of maintaining the rule of law especially when dealing with people who would destroy our legal system.

The judges liked how Canadian officals behaved:

• In Pakistan, the CSIS agent sought consular access for Khadr according to the Vienna Convention.
  
• CSIS and the Department of Foreign Affairs asked for a Pakistani court to deal with the lawfulness of his detention in Pakistan.
  
• The RCMP officer refused to participate in an interview process which would result in inadmissible evidence.  He refused to arrest Khadr because he had no such authority.
  

The basic message for police is that Canadian courts want you to distance yourself from abusive and illegal behaviour.  Treat even the most evil people with as much human decency as the circumstances allow.  When you deal with suspects in foreign lands, they may not enjoy Charter rights, but the courts still want you to treat them with basic fairness.  Operate within the law, and respect international conventions on human rights.

2011-05-08 Officer safety - Search incidental to detention

A confidential source of unknown reliability told police that Mr Plummer, 2011 ONCA 350 wore a bulletproof vest, packed a handgun, and sought revenge upon someone who shot at his brother.  Within the police station a bulletin circulated identifying him as dangerous.

Police officers found Mr Plummer's girlfriend's car illegally parked at a location known for drug dealing.   Nearby, children were returning home from school. The passenger door was open, and Mr Plummer sat in the seat with his feet out on the road.  Mr Plummer's face showed surprise or shock at the presence of a marked police vehicle.  He ducked down or slouched in his seat as if hiding something.

The officers approached him, and upon determining his identity, conducted a pat-down search.  Plummer was, indeed, wearing a bullet-proof vest.

Could they search the car?

Certainly not for the purpose of recovering evidence: you can search for evidence as in incident to arrest, but not detention.

The officer did look into the passenger side of the car, and found what turned out to be Plummer's girlfriend's overnight bag.  Plummer fled.  In or under he bag was Plummer's handgun.

The judges accepted that Mr Plummer abandoned his privacy when he fled his girlfriend's car leaving his gun with her overnight bag.

They also found that this search was lawful for the purposes of protecting police and other people present.  The officer had good reason to fear that he possessed a weapon, and when the officers returned to their vehicle, Mr Plummer could return to his, and grab any weapon hidden there.

The judges emphasized that this case differed from the average case.  Ordinarily, you have no special reason to fear that a detainee has firearms in the car with him which endanger you or people near you, and therefore, ordinarily, you don't have grounds to conduct more than a pat-down search of the person.

But sometimes you meet people you know are particularly dangerous, and likely to pack weapons.  In those cases, your power to search for officer safety may extend further than the person, and into those locations to which the person has access when you turn your back on him and return to your vehicle.

I susect your "officer safety" power to search drug dealers for guns also increases when children or other vulnerable people are nearby.  But it only operates when you hold a credible concern for safety.  And it doesn't justify peering into every nook and cranny in the car.

2011-05-07 PIPEDA or Provincial Legislation?

Italian police busted an international purveyor of child pornography.  They forwarded his customer contacts to law enforcement agencies around the world.  The R.C.M.P.'s National Child Exploitation Coordination Centre sent a PIPEDA request to Uniserve, a B.C. internet provider.  Uniserve told them that this customer, Mr Ballendine, 2011 BCCA 221 received service at a Victoria residence.  That information helped Victoria Police Department get a warrant.  The found child pornography, and charged Mr Ballendine.

Mr Ballendine complained that the R.C.M.P. violated his privacy.  Did PIPEDA even apply to Uniserve?  Did PIPEDA create an expectation of privacy?

The court in this decision largely ducked those questions, because the warrant was good even without the PIPEDA information.

But this raises a valid question for police officers.  To which corporations does PIPEDA apply, so that you can make proper PIPEDA requests?

The answer is a little complicated.  PIPEDA applies nationwide to all corporations, except in those provinces that created their own privacy legislation.  In those provinces, (B.C., Alberta and Quebec) the local privacy legislation applies only to provincial corporations.

That's the bad news.

The good news is that those provinces also created a similar authorities for organizations to release information to local police engaged in investigation.  If you're in one of those provinces, you should read your local legislation, and then amend your standard PIPEDA letter to refer to your local privacy act as well:

B.C.	Personal Information Privacy Act s.18(1)(j)
Alta	Personal Information Protection Act s.20(f), (g), (h)
Que	Protection of personal information in the private sector 18(3)

For example, here in B.C.:

"Pursuant to the provisions of the Federal Personal Information Protection and Electronic Documents Act, s.7(3)(c.1) or the British Columbia Personal Information Protection Act, s.18(1)(j), (whichever applies to you), I request..."

2011-05-07 Warrant drafting - Evidence of Expertise

Police learned from foreign sources that Mr Ballendine, 2011 BCCA 221 bought nearly $1,000 worth of DVDs of child pornography.  When the officer applied for a search warrant, this information was 2 years old.  Were there reasonable grounds to believe that the videos remained in his possession?

In the ITO, the officer gave his opinion that child pornography collections are "cherished and maintained", and so he expected that these DVDs would still be in Ballendine's possession.  But the officer provided no credentials to explain how he knew this.  The court rejected as worthless the opinion he gave because he didn't explain his expertise.

Every time your ITO relies upon an expert opinion, your ITO must contain an explanation the expertise of the person who gives the opinion.  If electrical consumption looks to you like a marijuana grow operation, explain your special knowledge of electrical consumption.  If your multitudes of investigations of child pornography cases leads you to believe that collectors of such material never throw it away, then explain your special knowledge.  If you rely on information a forensic biologist tells you about the durability of DNA, then ask the biologist for his or her credentials, and mention them in the ITO.

2011-05-07 Child pornography - Common sense inferences about collectors

Considering that Mr Ballendine, 2011 BCCA 221 spent nearly $1,000 to buy DVDs of child pornography nearly 2 years previously, was it likely he still had them?

In the absence of expert evidence that child porn collectors don't throw the stuff away, the trial judge inferred that someone who spent money to buy videos would likely want to keep them, just as people who purchase music tend to add the music to their collections.

The Court of Appeal agreed with this logic.

This doesn't mean every time you learn that someone possessed child porngraphy, you can assume that it's still in his possession years later.  But you don't always need expert evidence to prove the obvious.

2011-05-07 Warrant drafting - Is "analysis" of what you seize a "separate search"?

Police got a warrant to search the house of Mr Ballendine, 2011 BCCA 221 for his computer and data storage devices, and to seize them.  They went there and found those things.  They took them to a forensic lab, and searched them for child pornography.  Mr Ballendine complained that the warrant only authorized police to go into the house and seize the computer.  It did not authorize the police to conduct a second search of its contents afterwards.

The court ruled that this warrant "implicitly" authorized the second analysis of the computer, but only because the justice knew that the analysis couldn't be done at the scene of the search.

The defence argument appears to retain some force.  A warrant only authorizes as much interference with privacy as the warrant authorizes.  Warrants issued under s.487 of the Criminal Code authorize entry, search and seizure, but don't really contemplate analysis of what you seize.  That's because it was drafted before the Charter when property rights were all that mattered.

I predict that in the future, courts will say that a warrant must explicitly state how much the search will intrude on privacy.  This will require a change in s.487 and Form 5.

For the time being, if you intend to seize something and then send it to the lab for further analysis, I recommend that you state in the ITO what you plan to do.  This applies particularly to information devices like compters and cell phones.

In a case like this one, you might write as a paragraph in your ITO:

"After I seize the computer system and digital information storage devices mentioned above, I intend to send them to an expert to analyze them for the presence of child pornography, communications relating to the acquisition of child pornography, documents and data tending to identify of the owner and user(s) of the computer system, and the authors of those communications."

2011-05-07 Parties without a common purpose

Mr Hughes, 2011 BCCA 220 and Mr Jozic never met, and never will.

They drove their cars at around 2:00am on Highway 1.  The "filthy weather" caused other drivers to go slowly, but in blinding rain, they both drove very fast.  For several kilometers, Mr Hughes drove in the fast lane, and Mr Jozic matched him in the slow lane. When they approached a slow car in the slow lane, both sped up.  Mr Jozic tried to squeeze his car between Mr Hughes on his left and the slow car on the right.  He lost control, crashed and died, taking three of his four passengers with him.

Was Mr Hughes criminally negligent?  Did he "cause" the deaths of the people in Jozic's car?

Nobody said they were "racing".  Hughes' argued that all he did was drive fast in the fast lane: the crash was all Jozic's fault.

The court disagreed.  By driving at such great speed as they approached the slow-moving car, Hughes "carved down the margin of error" for Jozic to pass.  Therefore, both were parties to the offence, even though they were not acting with any common purpose.  Hughes' actions were a substantial cause of the deaths of the people in Jozic's car, and therefore he was guilty of criminal negligence causing death.  The fact that Jozic was also criminally negligent didn't matter to Hughes' guilt.

One of the most important parts of the evidence in this case was evidence of the reckless driving long before the collision.  When police investigated the case, I'm sure some focussed on the accident scene.  But this crime started several kilometres back.  This investigation succeeded becase it looked beyond the wreckage.  Proof of this offence depended upon eyewitnesses who saw the driving before the crash, and understanding the whole stretch of road where the driving took place.

The scene of the crime often differs from the location of the aftermath.  When investigating, try playing the whole offence through in your head.  Back up to the beginning, and investigate from there.

2011-04-23 Recording Conversation with Suspects

Four hours after a home-invasion robbery, police officers arrested Ms Burke, 2010 ONSC 6530 at her residence.  She declined legal advice.  One officer questioned her about the robbery while another officer, standing where she could not see him, made notes.  The trial judge excluded her confession mostly because the officers could have arranged to record the conversation electronically.

I think this decision is contraversial.  I don't think it represents the law generally across Canada.  It's the bleeding edge of a trend that judges want police officers to record their interactions with suspects.

What I found interesting was this judge's enthusiasm for police officers to wear and use recording devices at all times.  Evidently, this judge does not think there are privacy concerns to such a practice.

Here in B.C., some police cars carry video cameras linked to microphones on the officers' vests.  As a result, I've seen some useful video - although it's time-consuming to watch and expensive to transcribe.  This judge says that many officers in England wear helmet-cams.

At the moment, I think you should warn suspects when you turn on recording devices.   (Duarte, [1990] 1 S.C.R. 30) If this judge is correct, then in the future you won't need to.

2011-04-23 Recognizing Suspects from Crime Videos

Surveillance cameras often capture images of felons as they commit their crime.  What steps should you take when you recognize the perpetrator?

Security video recorded Mr Francis pursuing a man through the Toronto Transit system.  When Mr Francis caught up, the man shot him three times.  Was the man Mr John, 2010 ONSC 6085?

When Cst. Mangiardi first saw a still photo from, he let his supervisors know that he believed it was Mr John.  But the trial judge complained:

"There was no formal interview or statement, and no tape recording, setting out the fact of his recognition of the accused, the basis for it and the degree of his confidence."

It turns out Cst Mangiardi named two people he thought could be the man in the video.

Evidence of a person's recognition of another person from a photograph or video is admissible, but the court wants more than "that's him".  I suggest that you document:

• how the witness came to see video or photo
• how well the witness knows the person in the image
• what it is about the image that the witness recognizes (stance; gait; gestures; clothing; face; voice; accent)
  

2011-04-19 Sexual assault of unconscious victims - proving she never said "yes"

18-year old Miss J.K. was down on her luck.  She stayed for two weeks at a rooming house in Vancouver, run by Mr Kontzamanis, 2011 BCCA 184.  It ended badly.  She fell ill.  She saw Mr Kontzamanis put a powder into a cup of wine.  After that she recalled nothing.  She woke up feeling sexually violated.  His DNA was in and on her body.  He said she consented to sex with him and two other men.

She said he repulsed her.  He was dirty, unbathed, unkempt, unfit and impolite.  She said she would not have consented, even if intoxicated.

The jury believed her.  The court relied upon her evidence that even if she retained no memory of saying "no", evidence of her sexual disinterest could establish whether she consented.

So it's fair enough to ask a complainant whether she or he felt any attraction to the alleged sexual assailant.

2011-04-19 Search and Seizure incidental to Detention and Arrest

A broken side mirror on a car caught a police officer's attention.  She pulled it over, intending only to give the driver a notice to fix the mirror.  Computer checks indicated that a couple of years before the vehicle was involved kidnapping and forcible confinement.  The officer called for backup before talking with the driver, Mr Phengchanh, 2011 BCSC 484.  Once she got his information, she learned of his connection to drugs and gangs.  When the other officer arrived, she asked him to do a pat-down search of Mr Phengchanh, for officer safety.  This revealed nothing.

Again, for officer safety, she searched the front of the car.  She found nothing but a curious box under the driver's seat.  She couldn't open it from the front, so she opened the back door to get another look.  That's when she found heroin.  After arresting Mr Phengchanh, the officers found more drugs and a Beretta pistol and ammunition hidden where the air-bag ought to be.

Was the officer justified in opening the back door to look at the box?  Judge Romilly said "no". During a detention, an officer can search only for officer safety.  What this officer did to search the car looked to him like a search for evidence, not an effort to protect police.  He excluded the evidence.

But before he got there, he thoroughly reviewed the topic of search incidental to arrest and detention.  This is a textbook on the subject.  He draws together the case law from across the country, and tightly summarizes the legal principles.

2011-04-15 Searching computers incidental to arrest - caution

The Supreme Court of Canada has long held that after an arrest, you can search the person and his or her vicinity for evidence of the offence.  Cloutier v. Langlois 1990 SCC; Caslake (1998 SCC).

A trial level decision in B.C. confirmed that this principle applies to smart phones you find in the prisoner's possession.  Giles 2007 BCSC 1147.  (This never meant that you could search the phone of every person you arrest.  You need reason to believe that the phone may contain evidence of the offence for which you arrested.)

Recent high court decisions throw doubt onto this general principle.  In Morelli, 2010 SCC 8, the court emphasized how much personal information electronic devices can now contain.  In Caron, 2011 BCCA 56 at para 60, the court emphasized the privacy in digital cameras.  (Most smart phones now contain cameras.)  In Manley, 2011 ONCA 128, the court said smart phones can contain so much personal information that you might need warrants to search them even if you obtained them incidental to arrest.

While I think Giles remains good law in B.C., lawyers whose opinions I respect recently warned me that they think you should generally get warrants to search these devices even if you obtained them incidental to arrest.  If you're in other provinces, that advice applies even more strongly, because you haven't got Giles to fall back on.

Some obvious exceptions come to mind immediately:

• If you think the cell phone is stolen you should be able to examine its phone number to see who it belongs to.
• If the cell phone is stolen, then the owner can permit you to examine it for evidence.
  
• If you have reason to suspect someone will suffer serious bodily harm or death unless you discover the information in the phone, then exigent circumstances defeat privacy rights.
• If you have reasonable grounds to believe evidence will be lost or destroyed unless you examine the phone, then exigent circumstances may defeat privacy rights.

Other exceptions may occur to you.  But the general rule is that electronic devices like cell phones and computers do enjoy expectations of privacy.

2011-04-15 Use of Force - Reporting What You Did

Cst Dukeshire shot Mr Camaso 2011 BCSC 456 dead.  Camaso had set a fire in an apartment, and radio dispatches informed Dukeshire that Camaso suffered mental health issues.  An ambulance attendant found Camaso first, but Camaso fled.  The paramedic radioed this information and gave chase.  Cst Dukeshire caught up and pursued on foot.  Other officers were close at hand.

When Cst Dukeshire caught up to Mr Camaso, Camaso brandished metal weapons and charged at Dukeshire.  That's when the officer pulled the trigger three times.

Camaso's family sued.

They complained that the police department failed to investigate the incident properly.  The judge agreed.  The officers who witnessed the event did not write proper reports, and may have discussed the events before they wrote anything.  They all signed an identical incident report which was woefully brief.  The judge criticized the completeness of the scene investigation too.

But the judge awarded Camaso's family no money for the negligent investigation.  The failure to make proper reports did not harm the family.

The trial judge found that Cst Dukeshire used excessive force in the situation.  I think that's a contraversial conclusion.  The appeal period has not yet expired.  Don't take that part of the decision as gospel.

But most of the judge's criticisms of the investigation make sense.

When you use violence against others, they will often demand an accounting.  Whether you used a gun, a tazer, pepper spray, or your fist to subdue another person, you should expect someone to challenge the propriety of your actions.

If you fail to write a complete report, it looks like a cover-up.  If you discuss the incident with the other police officers who were present, it looks like a conspiracy to cover up the facts.

If you did inflict injury, you'll likely feel bad about it.  It's a normal human reaction to want to minimize your own responsibility.  Beware: to the extent that your account omits facts, you'll look like a liar.  (Think of the Dziekanski affair.)

If other officers saw it, ask them to write detailed notes, but don't discuss the events with them. If other people saw it, ask an independent investigator to take statements from them.  Arrange for proper documentation of the incident.  Photograph the scene and the injuries (if any).

In the past, when someone assaulted a police officer, senior officers assigned the investigation to the officer who suffered the assault.  I can't think of a worse strategy.  It compels the victim of the offence to gather the statements of all the witnesses.  You'd never ask any other complainant to investigate the crime.  It makes the investigation appear biased, and sets the officer up as a target for accusations that he or she suppressed evidence of his or her own misconduct.

Critics of the police have long complained that police officers shouldn't investigate themselves.  They argued it again in this case.  They want accountability.  In situations like this one it's easy to embarrass yourself.

2011-04-13 "Pleading insanity" - "Not Criminally Responsible by Reason of Mental Disorder" (NCRMD)

Mr Guidolin, 2011 ONCA 264 wanted money for drugs.  He mugged two women when after one used a bank machine.  He got $240.  Bank security video busted him.  He conceded that he did the deed, but relied on a psychiatric report to show that he was "crazy" at the time.  The report said he suffered from:

a schizoaffective psychosis;	(mental illness)
polysubstance abuse; and	(uses various drugs)
an antisocial personality disorder.	(doesn't care about other people)

The trial judge agreed he was NCRMD at the time.  After several years in the hospital, Mr Guidolin changed his mind.  Maybe he wasn't really crazy, just guilty.  He appealed the verdict, and claimed to be guilty, not crazy.

The appeal court agreed:

"s.16 [the mental disorder defence] is not triggered merely because an accused suffers from a mental disorder that is causative of criminal conduct, even if that disorder renders the accused a danger to the public.  The mental disorder can constitute a “defence” under s. 16 only if it has one of two effects.  It must either render the person incapable of appreciating the nature and quality of the act or render the person incapable of knowing that the act was wrong.  In this case, the NCRMD claim was based on the assertion that the appellant’s disorder rendered him incapable of knowing that his criminal conduct was wrong."

The evidence showed that at the time of the offence, Mr Guidolin didn't care how it affected the victims.  That's different from not knowing it was wrong.

Mentally ill people can be guilty of crime, unless their illness prevented them from "appreciating the nature and quality of the act" (ie. they don't know what they're doing) or "incapable of knowing that the act was wrong".

2011-04-13 Expert Evidence to explain Reticent Witnesses

Mr Boswell, 2011 ONCA 283 murdered Mr Reid.  Mr Sharpe saw it.  Reid was his friend. It happened in Toronto's Rexdale community, where the gang lifestyle has instilled a code of silence.  Witnesses don't talk to police for fear of retaliation.  When police first asked Mr Sharpe, he denied any knowledge of what happened.  He explained that Reid's mother urged him to go to the police.  So he gave a K.G.B. statement, moved out of the community, and according to him, would never return for fear of being killed.

To explain Mr Sharpe's initial lies, could the prosecution tender evidence of this code of silence in the community?  A police officer who worked in that area could explain that for a year, in this crime-ridden neighborhood, not a single person told police anything about crimes they witnessed.  The gangs punished with violence any witnesses who talked, so that the gangsters could operate freely.  But this would suggest that Mr Boswell was a member of a gang.  This would improperly attack his character, asking the jury to convict him because of his membership in a gang rather than because of the evidence against him.

The trial judge strictly limited what the police officer could say about gangs.  But he permitted the officer to give evidence about the code of silence.  The appeal court agreed.  Mr Boswell remains convicted.

Some of you may work in communities like Rexdale.  This isn't strictly a big city phenomenon.  I've seen codes of silence in small rural communities.  Evidence of this sort may help explain the behaviour of your key witnesses.  If you have it, let your prosecutor know.

2011-04-10 Completeness of Investigations

When Mr J.A.A., 2011 SCC 17 and his wife broke up, they remained in the same house for a time.  They engaged in sex.  Was it consensual, as he said, or a rape, as she alleged?  A police officer noticed and photographed a cut on his finger which looked like a bite mark.  This matched the story she told.  The defence pointed out that there was no cut on his penis, contrary to the story she told.

The decision itself discusses a legal rule of little importance to police officers - after conviction, defence presented an expert who said the cut on the finger wasn't a bite mark.  Should defence be allowed appeal based on evidence they should have presented at trial?  (In this case, yes: otherwise an innocent man could be convicted.  But not usually should such evidence be permitted at appeal.)

The point for police officers is the value to everyone of a thorough investigation.  These officers photographed the injuries on him and her.  They photographed the scene, so that each story could be compared against the scene.

So long as the investigators did a thorough job of collecting the evidence for and against conviction, it's not their fault the courts didn't come to a clear conclusion on guilt.

2011-04-04 Informer Privilege - It's special, respect it

After arresting Mr X.Y., 2011 ONCA 259, a police officer interviewed him.  During the interview, the suspect asked that the recording equipment be turned off.  The officer left the room, and turned off the primary recording equipment, but left the secondary system running.  Mr X.Y then explained his activities as a police informer.

The officer obtained a transcript of the full interview, and added it to the disclosure package.  He did nothing to investigate  X.Y.'s allegations that he was a confidential source.  He did nothing to mark the information as special.  Crown disclosed it to defence.  At trial, Mr X.Y. applied for a stay of proceedings because the prosecution had violated his privilege.  The trial judge said "no", but the Court of Appeal disagreed.

At first, this decision confused me.  What could be so objectionable about disclosing to the accused what he knew already - that he was an informer?

Not mentioned in the decision is whether Mr X.Y. was co-accused with others.  If he was, then it immediately makes sense.  The same disclosure package would have been disclosed to counsel for the co-accused, and from them to their clients.

Mr X.Y. complained of assaults and threats in jail because he was a rat.

Privilege means we don't reveal the information

Informer privilege is serious business.  When a suspect identifies himself as an informer, you're playing with fire.  Take steps to seal that information up.  Mark it as privileged material when disclosing to Crown.

In X.Y.'s case, the Crown should have noticed the problem too.  The duty of protecting privilege belongs to police and Crown.  Mistakes can happen in either office.  Only if both partners independently take responsibility for protecting privileged material can we have any confidence that we'll succeed in our duty.

Informers often get benefits

If a suspect tries to raise this topic during an investigative interview, beware.  Maybe he's seeking protection.  More probably, he is suggesting a quid pro quo - "if I tell you about these other crimes, then you'll go easy on me for this one".

If you want to get a voluntary statement from the suspect about the offence for which you arrested him, you should stamp out any suggestion of a deal which involves lenience for the current offence.  Immediately mention that you can't make any promises or deals.  Defer discussions about other crimes until after discussing this one.  "I'm interested in what you have to say about these other offences.  I'll talk about that with you later.  But, I can't promise you anything.  I can't make you any special deals.  Do you understand?"

If you decide to turn him into a witness or a source, that's your gamble.  It's often a bad one.  Consult with senior officers first.

Don't pretend to turn off the recording device

Yesterday, I commented about Duarte, [1990] 1 S.C.R. 30.  If you tell a prisoner that you have turned off the recording device, it may be a breach of his s.8 rights to leave it running.  Although the context in that case differs markedly from this one, the language in that case is so broad, that I think it could apply to this situation.

2011-04-03 Arrest - Recording Conversation with the Suspect

Many police officers carry recording devices, and turn them on when arresting suspects, so as to record the whole process for court.  This is a good idea.  Appellate courts across the country agreed with defence counsel's arguments that police interactions with suspects should be recorded, particularly to prove the voluntariness of remarks the suspects make.

Do you have to tell them that you're recording them?

Many years ago, the Supreme Court of Canada said that any time a police officer or agent covertly recorded conversation without judicial authorization, it breached the other person's Charter rights.  Duarte, [1990] 1 S.C.R. 30.  That case involved undercover police wearing bodypacks, - a very different context from an arrest.

When police arrested Mr Wu, 2010 ABCA 337 and others for conspiring to traffick drugs, they recorded their interactions with them.  Police compared those recordings with hours of wiretapped recordings to identify who said what.  Defence complained that police should have warned the suspects that what they said during the arrest would be used for voice comparison.  The court dismissed this suggestion.

"The phenomenon of video recording of statements taken by the police is now widely known throughout the Canadian criminal justice system. ... Indeed, the impetus for police doing so came from justice system participants, notably defence counsel..."

In my view, when arresting suspects you should still say that you're recording them.  Eventually, this quote from Wu will become so commonplace, that you won't need to any more.  But I don't think that time has yet arrived.

2011-04-02 Refusal to Blow into a Screening Device

When a police officer asked Ms Rivera, 2011 ONCA 225 to blow into a screening device, she attempted 21 times to blow.  Her responses to his instructions to blow included remarks like:

"I only had three glasses of wine"

"I only had two glasses of wine"

"I only had one beer."

"I work for you. I work in the office."

"I work for the O.P.P."  [This was a lie.]

"I’ll lose my job, don’t do this to me.  I only had one beer.  I was just taking myself home."

"Why are you doing this to me?  There are criminals out there."

She never gave a suitable sample, and she never complained of any ill health.  She never gave a proper breath sample.

At trial, she explained that a panic attack during the incident caused her shortness of breath.  She also asked the court to exclude all of the remarks noted above, because she didn't get to talk to a lawyer.  The trial judge convicted her.  The first appeal judge excluded the gratuitous remarks, and acquitted her.  The Ontario Court of Appeal agreed.

They noted that she was detained.  S.10 of the Charter says detained people can get legal advice, but she didn't  They agreed with the prosecutor that breath screening falls into a special exception to this rule.  But they felt that all evidence except for the refusal or failure to blow itself should be excluded.

I think the court got this one wrong.  The Charter protects people from police misconduct.  During the period between detention and access to counsel, you're required to "hold off eliciting" evidence during that time.  Any evidence you elicit can be excluded.   But after demanding the breath screen, the officer didn't ask her how much she had to drink or where she worked.  He didn't  elicit these remarks.  He didn't violate the "holding off" rule.  Ms Rivera decided to volunteer these remarks all on her own.

I don't know whether Ontario Crown will appeal this one to the Supreme Court.

What does this means for Ontario officers - and possibly others?

When a suspect fails or refuses a breath screen at the roadside, the trial judge may exclude all of the suspect's remarks except those which form the refusal or failure itself.  If so, you should:

• record the exact words of the refusal
• video-record the process if possible
  
• record your words of explanation of the consequences
• give the suspect lots of chances
• record in detail what the suspect does
  

This ruling raises the question whether - after several refusals - you should give allow the suspect to get legal advice before trying again.  This idea runs contrary to the thinking in R. v. Woods, 2005 SCC 42.  If you dare take this route, then you should give the suspect immediate legal advice by cellular phone, and you should not make a "second demand" (though there's nothing wrong with telling the suspect a second time what the words of the original demand were).  After the suspect gets legal advice (or declines it), you can ask questions about why the suspect is having difficulties.

I don't guarantee this will solve the problem.  We'll see over the next year or two how other courts respond to this decision.

2011-03-28 Search Warrant Drafting - Swearing your Belief - False Information

When drafting an information to obtain a warrant, many officers rely on templates which include paragraphs like these:

"I have personal knowledge of the matters herein described except where stated to be on information and belief, and where so stated, I believe them to be true."

"All matters contained in this information to obtain are true to my knowledge and belief."

The law requires you to disclose "negative information" - all evidence in your possession which suggests that the warrant you seek should not be granted.  If Patricia Perjuror told you that your suspect is innocent, you must disclose this in your ITO, even if you don't believe it.  You can explain in your ITO why you think this information is false.

If your ITO contains information you think is false, then are either of these introductory paragraphs true?  In a class, I suggested leaving it out.  Some police officers asked me to reconsider.

I was wrong.

For telewarrants, s.487.1(3.1) requires you to certify that "all matters contained in the information are true, to [your] knowledge and belief".

To get around this problem, here is some boilerplate which might work:

I also suggested to the right person that the legislation should be changed.

2011-03-24 Searching Computers - Expectations of Privacy

While doing routine maintenance, a computer technician at a school found a nude photo of an underage student on a school laptop.  The laptop belonged to the school, but Mr Cole, 2011 ONCA 218, a teacher at the school had exclusive use of it, and permission to store private information on it.  The school seized the computer, searched it, and copied child pornography from the computer onto separate disks.  They gave the computer and the disks to police.  Police copied the hard drive and searched it without getting a warrant.

Did Mr Cole enjoy any expectation of privacy over his computer as against the school?  Did the police violate his expectations of privacy?

The trial judge excluded the evidence, saying that the police violated s.8 of the Charter.  The summary conviction appeal judge disagreed.  The three judges of the Court of Appeal found:

• Mr Cole did enjoy expectations of privacy over the computer as against the school and the police.
• The school's responsibilities to protect students justified the school's search of the computer.
• The police did not "search" anything when they received the disks, and so their receipt of those disks did not violate s.8.
• The police did violate Mr Cole's reasonable expectations of privacy when they searched the computer without a warrant.
  

The court excluded the evidence of the police search of the computer.

The court said the factors which establised that Cole enjoyed an expectation of privacy over a work laptop were:

"Although this was a work computer owned by the school board and issued for employment purposes with access to the school network, the school board gave the teachers possession of the laptops, explicit permission to use the laptops for personal use and permission to take the computers home on evenings, weekends and summer vacation. The teachers used their computers for personal use, they employed passwords to exclude others from their laptops, and they stored personal information on their hard drives. There was no clear and unambiguous policy to monitor, search or police the teachers’ use of their laptops."

When the officer received the computer from the school, the officer did a sensible thing: he investigated the teacher's expectation of privacy.  The school told him that the teachers could use the computers for personal matters, but they also gave him a policy manual which contained the following:

“all data and messages generated on or handled by Board equipment are considered to be the property of the Rainbow District School Board and not the property of the users of the technology.”

The court found even this did not eliminate the teacher's expectation of privacy as against the school or the police (wow), nor did it establish that the officer acted in good faith.  (The court did not suggest that the officer acted in bad faith either.)

The take-home messages are

• courts are giving personal electronic information devices (like smart-phones, laptops, home computers) lots of s.8 protection.
  
• don't search personal electronic devices unless you have clear lawful authority.
• when someone gives you such a device, and permits you to search it, investigate their authority to search it, and the suspect's expectations of privacy as against you and the person giving you the device.
• err on the side of caution - consider getting a warrant.
  

2011-03-23 General Warrants - Text messages

Text messaging through cell phones combines the immediacy of telephone communication with the convenience of email.  Even crooks like them.

Some telephone companies store the text messages which pass through their systems.  For a short while, they keep the messages on a server, regardless whether the text message has been read by the recipient.

To compel such a telephone company to disclose the messages, what warrant or authorization do police require?

In R. v. Telus Communications Company, 2011 ONSC 1143, police obtained a general warrant and assistance order which required Telus to produce every day, all text messages sent and received by two subscribers:

• for the two weeks before the order was granted; and
• for two weeks after the order was granted.

Telus pointed out that police shouldn't get a general warrant except if no other lawful order will do the job.  They argued that the police really wanted to "intercept" private communication, and therefore required a wiretap authorization.

The judge found that wiretap wasn't required to obtain the messages which Telus stored.  The police didn't seek to "intercept" any communications.

The prosecutor agreed that a general warrant was the wrong tool for the messages which Telus had already stored.  A production order or search warrant would suffice.

The judge agreed that the general warrant and assistance order was the correct way to require production of future data.  He rejected the idea that the police should, each day, obtain a new production order or warrant for the messages which collected that day.

This decision indicates - but doesn't finally decide - how to use general warrants for emails, text messages and voice mails.  It's a trial-level decision.  I expect more litigation in future.

I thank Luc Cyr, a Québec prosecutor, for drawing this decision to my attention.

2011-03-19 Report to a Justice is like a bail hearing - Bring People and Things

When you "seize" something pursuant to a warrant, or otherwise in the execution of duties, you must give it back or keep it, but in any case you must report it to a justice.   Whether it's the marijuana the warrant authorized you to search, or the cell phone you found in the pocket of the trafficker you arrested, s.489.1 requires you to "bring it before a justice" or at least deliver a report to the justice.

Similarly, whenever you seize a person (ie "arrest"), s.496-503 require you to release the prisoner, or bring him or her before a justice as soon as practicable and not more than 24 hours after the arrest.  s.503.

Mr Chung 2011 BCCA 131 kidnapped someone in B.C..  A warrant issued for him in B.C..  Police in Ontario found and arrested him.  They kept him for 33 hours before bringing him before a justice.  Noone could explain why it took so long.

The justice ordered him to remain in custody for Vancouver officers to arrest him and take him to Vancouver.  They arrived, arrested him and put him into a cell with an undercover officer.  In that cell he said enough about the kidnapping to convict him.  Defence sought to exclude that conversation by reason of the "arbitrary detention" which occurred when the police failed to get him to a justice in time.

The argument didn't work.  This time.  The court observed that he was no longer arbitrarily detained after the justice made the detention order.

Don't gamble with the clock.  Get your prisoners before the justice.  And report what you seize.

2011-03-16 Party to Kidnapping

Mr. Vu's, friends kidnapped Mr McMinn, and held him for ransom.  The friends moved the victim to 3 different residences before police resuced Mr McMinn.  Mr. Vu 2011 BCCA 112 acted as a jailer in all three residences.  Was Mr. Vu a "kidnapper", or did he merely commit "unlawful confinement"?

Kidnapping is unlawful confinement combined with moving a person from one place to another without his consent.  Mr Vu didn't move the victim.

However, a way to be a party to an offence is by aiding someone for the purpose of helping them commit it.

The evidence showed that Mr Vu knew what was going on, and he helped guard the victim for the purpose of helping the others.  Therefore, he was party to a kidnapping.

2011-03-14 Party to Criminal Negligence - Starting a Street Race

Teen aged boys wanted to race their cars on a public highway.  They asked M.R., 2011 ONCA 190 to start the race by dropping his jacket.  He agreed.  One of the drivers lost control, crashed and died.  Could M.R. be a party to the criminal negligence which caused his death?

The trial judge said "no", because M.R. didn't help with the driving.

The appeal court disagreed.  M.R. knew it was going to be a street race.  He knew it would be dangerous: the drivers would drive in a marked and substantial departure from the driving of ordinarily prudent drivers.  He helped the drivers get started.  It didn't matter that M.R. didn't want anyone to get hurt: he knew the risks and undertook them.  The court ordered a new trial.

Criminal negligence is a "wanton an reckless disregard" for the lives and safety of others.  A person may be a party to criminal negligence when they help the principal, knowing what kind of dangerous conduct the principal will undertake.

2011-03-03 Murder or Infanticide?

Ms L.B., 2011 ONCA 153 suffered psychiatric problems.  She killed her first baby when he was 6 weeks old.  She killed her third baby when he was 10 weeks old.  She smothered them both.  Experts called it "sudden infant death syndrome" or "sudden unexplained death syndrome."  When she had her fourth baby, she finally sought help and confessed all.  The prosecution charged her with  first degree murder because these killings were planned and deliberate.  The defence called it infanticide because she suffered post-partem depression.

If the Crown proves beyond a reasonable doubt that the mother planned and then killed her child, can the court convict the mother of infanticide instead of first degree murder?  Need the defence prove anything to get there?

The Court of Appeal said "yes" and "no".  Like provocation, Infanticide is a partial defence to a murder.  The Crown must disprove the elements of infanticide (where they might be raised) in order to get a conviction for murder.

When you get a case of a mother who murders her baby within a year of birth, the extra issue to investigate is whether she recovered from the effects of childbirth and post-partem depression before the murder.

2011-02-26 Self-defence - Battered Woman Syndrome

Mr Craig found his wife by posting an ad in a Malaysian newspaper: "western man seeking Asian woman".  She married him, but he abused her.  He made her support the family.  He took her money and frittered it away on unsuccessful ventures.  He drank.  She fell into depression and mental illness.  One terrible night, she suffocated him and stabbed him with a knife.  The Crown charged Mrs Craig 2011 ONCA 142 with murder.  She claimed self defence, on the basis of "battered woman syndrome".

He probably did assault her.  But she provided no evidence that she feared serious injury or death at his hands.  In the absence of such evidence, the self-defence provisions of the Criminal Code could not apply.

The jury found her guilty of manslaughter.

Mrs Craig's story shows how utterly trapped some people can become in destructive relationships.  Mr Craig controlled her partly by threatening to keep her child if she ever attempted to leave him.  She believed him, and feared the consequences for her son.  People like her allege, and then recant spousal violence, much to the frustration of police and prosecutors.

For police, this case carries two main points:

1. When a battered spouse kills her partner, the big question is what harm she feared at the time of the killing.  Knowing the whole history may help answer it.  But that question arises rarely.
2. When a battered spouse complains of violence, she provides an opportunity to prevent a greater assault from occurring in the future.  But she may feel many pressures to sabotage the investigation or prosecution.  Never give up.
   

In 20 years of prosecuting, I met over a thousand victims of spousal violence.  About a third recanted, usually giving new stories which I found unbelievable.  Most of those recanters reappeared with new injuries and new complaints of violence.  The cycle of violence continued.  In my opinion, the only way to save them from this vicious cycle is by telling them in word and deed that we're always available and always ready to help stop the violence - no matter how much they abused our previous efforts.  They need to know that there is a safe way out.  They need to know that speaking the truth about what hurts them helps bring lasting peace.  In my experience, many do learn to speak the truth.  We don't always get convictions or sentences which match the assaults.  But telling truth causes change.

2011-02-21 Post-Offence Conduct - Lies to Police & Fleeing the jurisdiction

Somebody murdered Mr Bouthilier in his small Cape Breton bungalow.  Someone ransacked his place, tracking blood all over the place.  Mr Hawkins, 2011 NSCA 6 told police that when he visited Mr Bouthilier, he was fine.  However, Mr Hawkins' footprints matched the footprints left in Mr Bouthilier's blood.  He later explained that he went back to the bungalow, and found Mr Bouthilier murdered.

Before his arrest, but after he became a suspect in the case, Mr Bouthilier told his probation officer that he planned to move to Halifax.  He told friends he was moving "out west".  He even told police at the airport that he was flying to Halifax.  But he boarded a plane for Vancouver.

What Mr Hawkins did after the murder suggests that he had something to hide.  However, courts view this kind of evidence skeptically:

• Were there other reasons for Mr Hawkins to move out west than guilt?  The victim was popular.  Hawkins might reasonably fear community reprisal, whether or not he was guilty.
• Mr Hawkins may have lied to police about Bouthilier's condition when last Mr Hawkins saw him, but does that necessarily mean that Hawkins did the killing?

On appeal after conviction, defence complained that the jury was permitted to use this evidence without adequate warning of its frailty.  However, the trial judge had cautioned the jury not to leap to conclusions of guilt based upon what Mr Hawkins did after the crime.  The conviction stuck.

If you start from the belief that the suspect is guilty, then this kind of evidence looks damning.  But criminal trials start from the belief that the suspect is innocent.  If there are innocent explanations for suspicous behaviour, the jury must consider them.

For example, suppose a suspect of two different robberies flees from police.  At the trial of the first robbery, it may be fairly argued that he was only fleeing police because of his involvement in the second robbery.  And vice versa.

Of course you should collect and analyze evidence of suspicious behaviour after a crime.  But take care to consider alternate explanations than guilt of the offence you are investigating.

2011-02-18 Search Warrants - Telewarrants - "Peace Officer"

By reason of the peculiar wording of the legislation, only a "peace officer" may apply for a telewarrant under s.487.1 of the Criminal Code.  A "public officer" can not.  In Timberwolf Log Trading Ltd. v. British Columbia, 2011 BCSC 142, this mattered because the applicant for the warrant was a logging inspector who investigated a "stumpage" (taxes on trees logged from Crown land).  He wasn't a peace officer; but his work took him to places where justices of the peace don't go.

A careful examination of the legislation also seems to suggest, that anyone may apply to a justice under s.487 for a warrant, so long as the warrant authorizes a peace officer or public officer to do the searcing.

2011-02-18 Search & Seizure - Searching a Cell Phone incidental to Arrest

A confidential informant told police that Mr Manley, 2011 ONCA 128 was the guy who robbed the music store at gunpoint.  The informant also said that Mr Manley tended to carry and use stolen cell phones.  This seemed credible, considering that there was an outstanding warrant against him for a B&E.  This justified arresting Mr Manley.  Did it justify searching his phone?

When they did arrest him, an officer scrolled through the cell phone to determine who owned it.  Before locating the phone number, the officer saw images of Mr Manley holding a sawed-off shotgun.  The officers got a warrant, and fully searched the phone later.

Relying on a lower court decision called Polius, defence argued that searching a cell phone always requires a search warrant.  The court indicated considerable sympathy for this idea, but decided the case a different way.

Because the officers had a reasonable concern that the phone was stolen, they were entitled to examine it for the purposes of determining who owned it.  But once they found its phone number, they were not entitled to search any further.

The court commented:

"While I would not apply Polius in the particular circumstances of this case, I am far from persuaded that Polius was wrongly decided or that it ought to be overruled. Cell phones and other similar handheld communication devices in common use have the capacity to store vast amounts of highly sensitive personal, private and confidential information – all manner of private voice, text and e-mail communications, detailed personal contact lists, agendas, diaries and personal photographs. An open-ended power to search without a warrant all the stored data in any cell phone found in the possession of any arrested person clearly raises the spectre of a serious and significant invasion of the Charter-protected privacy interests of arrested persons. If the police have reasonable grounds to believe that the search of a cell phone seized upon arrest would yield evidence of the offence, the prudent course is for them to obtain a warrant authorizing the search."

This isn't law, but it indicates the direction that court is leaning: always get a warrant.

I think you always need specific lawful authority to search a cell phone (or Blackberry / iPod / iPad / personal computer).  You don't get that power just because you arrested someone; but if you have reason to suspect that a person's cell phone may contain evidence relevant to the offence for which you just arrested him or her, then you may search the cell phone for that evidence.

2011-02-14 Laying Charges by FAX

A police officer in Morinville, Alberta prepared charges against Mr Lupyrypa, 2011 ABCA 52 for assaulting and obstructing a police officer.  Rather than drive the 30km south to Edmonton, the officer FAXed an information and an explanation of what occurred.  The justice signed the information and issued a summons.

Mr Lupyrypa complained that the procedure did not meet the requirements of s.504 and s.508.1 of the Criminal Code, and therefore the charges were a nullity.  He almost won.

S.508.1 requires you to state in writing that all the matters contained in the information are true to your knowledge and belief.  The officer didn't.  The court said you should.  Make sure your forms contain this essential language.

2011-02-11 Disclosure in Terrorism Cases - Protecting National Security

CSIS warned the RCMP that Mr Ahmad, 2011 SCC 6 and others planned a terrorist attack on Parliament.  Police investigated and arrested 18 people.  Before trial, the prosecution had to disclose relevant information to the defence.  But CSIS collects sensitive information relating to national security and international relations.  Some of this material couldn't be disclosed to defence without causing great harm.

Sections 38 to 38.15 of the Canada Evidence Act requires anyone who may have to disclose such material to notify the Federal Attorney-General.  The A-G may authorize the disclosure, or commence a proceeding in the Federal Court to determine what can be disclosed to whom and on what conditions.

Mr Ahmad's counsel attacked the provisions as unconstitutional.  The trial judge agreed, but the Supreme Court of Canada overturned his decision.  They agreed that s.38 is cumbersome - other countries have more streamlined ways of dealing with these problems - but it isn't unconstitutional.  If, by reason of lack of disclosure, the accused can't get a fair trial, then the charge must be stayed.

Those of you who deal with information relating to national security should read this decision, so that you know how this procedure works and what options are available.  The rest of you just need to know that there's a special procedure to follow if you find yourself facing the prospect of disclosing information pertaining to national defence, national security or international relations.

2011-02-10 Search Incidental to Arrest - Looking for Evidence of the Offence

When Mr Caron, 2011 BCCA 56 drove on a highway near Ashcroft, B.C. at 165km/h, he caught the attention of an officer using radar to catch speeders.  The officer pursued him, and watched him pass dangerously.  Eventually, Mr Caron stopped, and the officer arrested him for dangerous driving.  The officer searched the glovebox for registration documents and found a digital camera.

Could the officer view its contents?

The officer testified that he had, in the past, seen photographs people took of their speedometers when achieving great speeds on highways.  He figured that this camera might show the same thing.  But during his pursuit and arrest, he saw nothing on this occasion to suggest that this driver had taken any pictures.

This officer did scroll through the pictures in the camera, which showed people playing with guns.  This gave him reason to search the rest of the car, where he found loaded semi-automatic pistol and $60,000 cash impregnated with drug residue.

The Court of Appeal said it was an unlawful search of the camera.  The judges overturned Mr Caron's conviction.

This should come as no surprise.  When searching incidental to arrest, you need a "reasonable prospect" of finding evidence of the offence in the place that you look.  This doesn't mean you need to know that the evidence is "probably there" before you're allowed to look.  But it does mean that in each search, you must have observed something from which to infer that evidence related to the offence could be in the place that you search..  If this officer had been able to say why, in this case, he thought there was a good chance of finding a photograph relevant to the dangerous driving, it would have been a good search.  He didn't provide that evidence.  The court found against him.

The court also observed that cameras, like cell phones and computers, tend to contain personal, "core biographical" information.  People whose cameras you seize enjoy an expectation of privacy over their contents.  You need lawful grounds to search such devices.

2011-02-05 "Temporary, drug-induced insanity" - Motive v. Intention

Mr Paul 2011 BCCA 46 drank a lot of booze, and snorted a lot of cocaine.  He took a hand-gun to a party and shot dead several people he knew..  He then attempted suicide.  At trial, he explained that voices in his head told him that he should kill them and himself, so that they would wake up in a happier place.  He explained that he decided to take that advice.

His psychiatrist testified that Mr Paul's objective was a psychotic one, caused by the drugs, and therefore Mr Paul could not be said to "intend" to murder.

Despite this, the jury convicted him of first degree murder.  Mr Paul complained to the Court of Appeal that the trial judge confused the jury about "intention".

The Court of Appeal didn't agree.

Mr Paul's psychosis was by reason of self-induced intoxication.  There is no defence of insanity for such a person.

There's a big difference between motive (the reason why you do something) and intention (whether you wanted the thing to happen, or whether it was an accident).  Mr Paul had a crazy objective, but that was just his "motive".  The question for criminal liability is whether he "intended" to kill his victims.  That, he most certainly did.  Therefore he was properly convicted.

2011-01-26 Confessions - Interviewing a suspect after the Bail Hearing - Weekend Arrests

Paul Simon's hit song "50 Ways to Leave Your Lover" didn't mention murder as one of the recommended methods.  Ms Earhart wanted to leave her lover, Mr Sabine, but she didn't take Mr Simon's advice.  Instead, she asked Mr Ashmore, 2011 BCCA 18, her daughter's boyfriend to help her kill Mr Sabine.  He and a buddy strangled Mr Sabine, and they dumped his body in the Fraser River.

Ms Earhart reported Mr Sabine missing.  Police investigated, and soon Mr Ashmore told police that Ms Earhart confessed to him.  He admitted helping her dispose of the body.   Police arrested Ms Earhart.  Because the various statements didn't add up, police kept investigating.  Mr Earhart met Mr Big, and told him his involvement in the murder.

Police arrested Ashmore on a Friday afternoon, and carefully gave him access to counsel.  On Saturday morning, they conducted a bail hearing, and the justice ordered police to:

"Take the accused into custody and to take the accused and convey him/her safely to a prison in the Province of British Columbia being either a federal institution, a provincial institution or a police lockup and deliver him/her to the keeper thereof." (emphasis added)

After this order, police interviewed Mr Ashmore in police cells.  He confessed, and re-enacted the crime for them.  At trial, defence argued that after a bail hearing, the accused is in the custody of the court, and the police can no longer interview him.  The court disagreed.

There are cases in which police questioning after the bail hearing was improper.  But in those cases the police kept the prisoner in their cells even though the warrant of remand (Form 8) ordered them to deliver the prisoner somewhere else.

Because the usual remand centres in B.C. do not accept new prisoners on weekends, the police were obliged to keep Mr Ashmore in their own cells.  The wording of this warrant permitted police to keep him.  The court found nothing improper with interviewing him after the bail hearing.

Unfortunately, the police also took Mr Ashmore to the scene of the crime for a re-enactment.  By the terms of the warrant, this was unlawful, and constituted a violation of s.9 of the Charter.  The court admitted the evidence anyway, because Mr Ashmore consented to do the re-enactment.  But be warned: after a justice issues a warrant of remand, violating that order constitutes an unlawful detention.

This decision could change the way you pursue interviews with suspects.  Rather than press to complete an interview within the first 24 hours after an arrest, you might ask the justice to remand the prisoner specifically into police custody, so that you can interview after the bail hearing.

I anticipate institutional resistance to this idea, so proceed with caution.

However, there are cases where  efforts to access counsel consume almost all of your 24 hour limit.  If you explain to a justice that the accused frittered away your opportunity to interview, and that Ashmore allows a justice to order the location of the remand, then a justice might be persuaded to give you more time to interview in your cells, whether or not the arrest occurred on a week-end.

Officers in other provinces, beware.  This decision is contraversial, and may not be adopted in your jurisdiction.  Seek advice from your prosecutors before relying on it.

In a subsequent decision, Chung 2011 BCCA 131, the court again rejected the "custody of the court" concept.

2011-01-26 Right to Counsel - New Investigative Technique

After arresting Mr Ashmore, 2011 BCCA 18 for murder, police gave him access to legal advice.  They they played for him a video recording of his admissions to Mr Big.  That got him talking.  He agreed to re-enact the crime for the police, which they recorded.  At police suggestion, he also called his mother and confessed to her his involvement in the murder.  This call was recorded.

Defence relied upon the subsequent decisions of Sinclair, 2010 SCC 35, the defence complained that the police should have re-advised Mr Ashmore of his right to counsel before embarking on these novel or unexpected investigative techniques.

The court found nothing novel or unexpected about:

• disclosing evidence to loosen tongues
• asking for participation in re-enactments
• recording the accused's telephone calls with wiretap authorizations.

Therefore, the officers had no obligation to give Mr Ashmore further access to counsel before using these techniques.

I observe that the investigating officers actually did offer him more access to counsel before the re-enactment, but he turned it down.  This made a favourable impression with the court.  The officers acted in good faith respecting Ashmore's rights.  In a separate Charter issue, the court admitted evidence even though it arose from a breach of s.9.

2011-01-22 Search & Seizure - Expectation of Privacy - Garbage

Ms B.D., 2011 ONCA 51 married her son. She conceived his daughter, but the baby died after birth.

To cover up her incestuous activity, she went down to the local Staples store and forged identification documents for her son.  She threw her rough drafts into the garbage there.  Police seized those documents.  She complained this violated her privacy.  The court found that she had no expectation of privacy in what she discarded in a store frequented by the public.

2011-01-22 Search & Seizure - Expectation of Privacy - DNA of a corpse

Ms B.D., 2011 ONCA 51 married her son. She conceived his daughter, but the baby died after birth.

When the baby died, police asked the Coronor to keep a sample of the baby's blood, pending further investigation into possible incest.  The Coroner did.  The police arranged forensic DNA comparison of that blood with bodily samples taken from Ms B.D. and her son.  At trial, Ms B.D. complained that it violated her privacy to analyze her child's DNA without her consent.

The court found that the expectation of privacy in the child's DNA belonged to the child, not the mother.  And when a person dies, their s.8 expecation of privacy dies with them.

2011-01-22 Privilege - Crown Legal Advice

Ms B.D., 2011 ONCA 51 married her son. She conceived his daughter, but the baby died after birth.

Once police had reasonable grounds to believe incest occurred, they drafted an application for a DNA warrant.  They sought and obtained legal advice from several prosecutors before proceedings with it - indeed the warrant was contraversial.  Defence accused the police of "Crown-shopping", and demanded disclosure of the legal advice which the police received.

The court said:

It cannot be that where the police consult with Crown counsel during an investigation, whatever advice the Crown may give will automatically become a materially relevant fact and admissible at trial.  Further, while it is the function of Crown counsel to provide legal advice when asked, Crown counsel cannot direct the police in their investigation.   Police are not bound by that advice.  In the circumstances of this case, the fact that various Crown counsel may or may not have had differing views on the applicability of s. 487.05 is, as I have said, neither relevant to nor dispositive of the issues at trial.

2011-01-22 DNA warrants - Incest

Ms B.D., 2011 ONCA 51 married her son. She conceived his daughter, but the baby died after birth.

Once the police gathered sufficient grounds to believe that the child was probably the product of incest, police made one application for DNA warrants agains both the mother and the son.  Defence complained that the warrants were unlawful.  The court agreed.

It turns out that s.487.05 wasn't well drafted when it comes to incest investigation.  It allows you to take a DNA sample from a "party to the offence" for comparison against a sample which you have already "found" or "located".  But a single warrant doesn't allow you to take DNA samples from both suspects for the purpose of comparing them with each other.

If you have a bodily substance from a child of an incestuous relationship, you can use a DNA warrant for the purposes of a paternity or maternity test.  Thus the DNA warrants were lawfully obtained against the mother and the son, for the purposes of comparing their DNA against the child.

But these officers used the DNA for a different purpose: they compared the DNA taken from the mother against the DNA taken from the son.  The comparison was suspect against suspect, instead of suspect against victim.

But the court admitted the evidence anyway, because there was a lawful way for the officers to get there, had they known.

If this ever comes up again, you should get the DNA warrant against one of the two suspects first.  Once you have executed the first DNA warrant, get another warrant against the other suspect, which asks for authority to compare the second suspect's DNA against the victim and the first suspect's DNA.

2011-01-19 Completing the Investigation

I've seen an ongoing trend among junior officers doing general duties.  It's a problem that won't get reported in the case law, so I'll raise it while it's on my mind.

Suppose a stranger robs a store, and there were two clerks working at the time.  You interview the first, and she says the robber was Harry Hoodlum.  Would you interview the second clerk?  Of course.  You would always interview all the witnesses to the offence, right?

Okay, change the context.  Suppose you attend a domestic complaint.  She says while she was alone with him, he assaulted her.  Are there any other witnesses to interview?

Many officers seem to think the answer is "no".  They arrest the suspect, and give him access to counsel, and sort out his bail.  In my opinion, you should always attempt to get answers from him too.  He may have the right to silence, but so do the witnesses.  Neither he nor they have any legal obligation to tell you about the offence.  But you have a duty to investigate.  You should try.  Asking for only one side's version of a dispute looks biased and lazy.  If he flatly refuses to discuss the offence, your report should say so.

And there are ways to try.  If you ask him "Now that you spoke with counsel, do you want to give a statement?" his answer will more likely be "No."  Your supervisor will be happy, because this frees you up for the next call.  The prosecutor won't be so pleased.

After a vigorous dispute with a girlfriend, most guys want sympathy. Suppose, after the consultation with counsel, you say instead:

"You've had a pretty rough night.  It's gotta be hard on a guy to have these kinds of problems with a girl.  You know, she told me that you ..."

If he wants, he will tell you his side of the story.  Sometimes, we learn he's innocent.  Sometimes, he tells provable lies.  Sometimes, he admits his guilt.  (Of course, I want all this conversation recorded, so make sure you tell him early that you're recording the conversation.)

Consider a different context.  You attend a single-car accident scene.  A man tells you that he followed the vehicle and saw it "weave all over the place".  He does all the talking while his wife stands beside him nodding her agreement with what he says.  How many statements do you take?

The answer should be obvious: Two.  Separately.  (Don't interview witnesses in earshot of each other.)

Suppose the husband says that the wife saw none of the bad driving because she was asleep.  Is there any point in interviewing her?

This answer isn't always obvious.  But I'd like to know what she observed about the suspect's sobriety, whether she saw him drink alcohol, and what the suspect said to her while her husband called the police.  Some women are often quieter than their menfolk, but observe more carefully.

The principle is simple: a good investigator interviews all the witnesses, including the suspect.  In my experience, this principle is forgotten most often in:

• domestic violence
• impaired driving
• breaches of probation and bail
• arrests where some other officer conducted the investigation and is off-duty or unavailable.
  

2011-01-19 Possession - Proving control

Mr Bi & Ms Deng 2011 BCCA 10 lived upstairs in a house.  A marijuana grow operation filled the basement.  Condensation and fan noise and the smell of marijuana filled the house.  At trial, the landlord's son explained that they rented the upstairs, but some guy named "David" rented the basement.  Did Mr Bi and Ms Dent "possess" the drugs?  Were they "party" to the production?  Defence argued that they might have known about it, but that doesn't establish control.

If that were the only evidence, they would have been acquitted.  But when the police officers executed the search warrant, they observed more carefully.  An ashtray in the basement overflowed with cigarettes of only two brands.  Upstairs, they found cartons of cigarettes of only those two brands.  Upstairs, they found English and Chinese videos.  Downstairs, they found   A computer security system upstairs provided live coverage of the electrical meter.  A hole had been punched in the outside wall, upstairs, to install this system.  Downstairs, they found theft of electricity by means of an electrical by-pass. And there was some marijuana in the fridge.

These additional observations led the judges to conclude that the tenants upstairs participated in the activity of the downstairs tenant.

When investigating possession, proving knowledge isn't enough.  This is just another example how careful observation and documentation (take photographs of the whole scene, not just the contraband) may discover additional evidence.

2011-01-13 Entrapment - Regulatory Offences

If you must stop stores from selling cigarettes to under-age customers, how do you go about it?  In Ontario, the Tobacco Enforcement Office hired a 17-year old to buy cigarettes from convenience stores.  A clerk in a 7-Eleven store named Clothier, 2011 ONCA 27 sold her a pack, and even offered to sell her a second pack for a dollar.  When he got to trial, he complained of entrapment.

The entrapment defence grew up in the world of serious crime.  The courts found that unless you have a reason to suspect that a person is involved in crime, you shouldn't try to tempt them into committing one.  (They call this "random virtue testing".)  And even when you do suspect someone of criminal behaviour, you shouldn't put too much pressure on them to commit the offence.  You can offer an opportunity, but you're not allowed to make them do it.

In this case, nobody had any particular reasons to believe that this chain, this store, or this clerk tended to sell tobacco to minors.  So the defence applies, right?  Courts in Saskatchewan and Alberta said "yes". Myers, 2000 SKQB 226 and Tyzuk, 2009 ABPC 282

But not in Ontario.

The court found that people who engage in highly regulated conduct can expect state enforcement.  (Think of motor vehicle enforcement: a peace officer doesn't need individual suspicion to stop vehicles for seatbelt and safety checks.)  The principles which defined the entrapment defence don't apply in this regulatory context.

If you want to learn about entrapment, don't start on this case.  Go to the foundational cases:  R. v. Mack, [1988] 2 S.C.R. 903; R. v. Barnes, [1991] 1 S.C.R. 449.

If you monitor a highly regulated activity, like firearms sales, fisheries or wildlife enforcement, this case may be more interesting to you.

2011-01-08 Murder - intent - "What were you thinking?"

Should we call it"murder" if the killer never wanted anybody dead?  What if he just set out to steal some marijuana, but wound up shooting someone?

Mr Shand 2011 ONCA 5 and his friends decided to steal marijuana from a local dealer.  Shand packed a handgun.  When things started going badly, he produced it.  Either he pointed it at someone and fired, or he hit someone on the head with it, and it went off.  Regardless how it happened, the victim died from the gunshot.

Of course, if Mr Shand intended to kill the victim, he was guilty of murder.  But what if he didn't intend it, but knew someone would likely get killed during the attack?  Because of s.229(c), the trial judge told the jury they could convict Mr Shand if he knew that his actions would likely kill someone.

Section 229(c) calls it "murder" if someone, while pursuing some other crime, does something he knows "or ought to know" is likely to cause death, and does kill someone.  The Supreme Court of Canada found the "ought to know" part is unconstitutional (Martineau, [1990] 2 S.C.R. 633).  Defence argued that the rest of s.229(c) should be unconstitutional too.  They argued that no one should be called a murderer unless they intended to kill someone.

The court disagreed.  If Mr Shand persisted in committing a serious crime, knowing that someone will likely die, it doesn't make much moral difference whether he specifically wanted someone someone to die or not.  He plainly chose that risk.  In that sense, it's very similar to the definition of murder in s.229(1)(ii), which calls it murder when a person casuses death while intending to cause his victim bodily harm which is likely lethal, without caring whether his victim lives or dies. Mr Shand is as morally guilty as that guy.  Neither specifically intended death; both risked it.

2010 Developments in the Law

2010-12-31 Assaulting a Peace Officer - Spitting

Over the years, I have heard lawyers argue, and even some judges accept, that assaults upon police officers are not serious, because that's the kind of work that the officers took on in the first place.  Some suggest that spitting is not serious, because of the minimal force involved.  The Saskatchewan Court of Appeal disagrees.  When police arrested Ms Charlette, 2010 SKCA 78 she spat twice in an officer's face and once on his clothing, the judges said this:

Spitting on someone is a particularly distasteful and harmful form of assault.   It is almost always accompanied by the veiled or express threat of transmitting a communicable disease.   The possibility of contracting a disease is real, and the fear of developing a disease preys on the victim’s mind for some time to come.  Police officers, whose jobs require them to confront individuals in close quarters, have few resources to counter an assault of spitting.

One may also reasonably infer that by spitting, the person expresses contempt for police and the rule of law generally.  If you treated the suspect with consideration and respect, and received spit in return, then the suspect's actions speak volumes.  But your options are few.

Gone are the days that police were expected to inflict their own "justice" in the cellblock after the arrest.  You can't beat them up or inflict unnecessary pain.

You can submit a report to Crown Counsel.  Some police officers complain to me that their prosecutors show no interest in such assaults.  For those lawyers, you might tactfully include a citation of this case with your report.

2010-12-28 Impaired Driving - Breath Samples & Blood Tests

When a police officer pulled over Mr Sceviour, 2010 NLCA 47, he smelled like he had been drinking.  The officer demanded that he blow into a screening device.  Mr Sceviour made some attempts, but not enough air went in.  The officer thought he was capable of providing proper samples.  He said he couldn't.  He offered to provide blood samples instead, but the officer "refused to demand a blood sample".  An hour after his release from police custody, Mr Sceviour went to a hospital and got a blood sample taken and tested.  It showed he had the equivalent of  9 mg% in his blood.

The trial judge convicted him of refusal because he failed to provide the breath samples.  The Court of Appeal ordered a new trial because the trial judge didn't consider whether Sceviour meant to fail to provide the breath samples.  But that's not why I picked this case to talk about.

What should you do when a driver doesn't blow but offers a blood sample instead?

This comes up often enough to trip up officers, but not so often that it becomes a part of routine training.  The answer is: "It depends."

The first thing is to take the concern seriously, and ask questions about why the suspect can't blow.  Note (or audiorecord) what the suspect says.  If there's a trial, this is what it will be about.

You believe the suspect is faking

If you believe the suspect can blow, but is using the offer as a diversionary tactic, then complete your investigation of the breath testing first.  "I understand that you're offering to provide a blood sample. The law requires me to take breath samples if possible, so I'll deal with that first."

You can accept voluntarily offered blood samples.  But you have no power to demand them, so don't read any demands from your card.  This investigator was correct in her procedure, but used the wrong language to describe it.

You believe the suspect can't blow

If you believe the suspect honestly can not provide a breath sample, then your options depend upon which kind of demand you made:

1. Screening device demand - you can't demand blood samples, but you can demand that the suspect perform physical coordination tests - s.254(2)(a).  You can also accept voluntarily offered blood samples.
   
2. Breath analysis demand - you can demand blood samples because the suspect is incapable of providing breath samples.
   

2010-12-27 Search & Seizure - Privilege & Lawyer's Offices

Be very wary about accessing information lawyers collect from their clients.

Police in Timmins, Ontario obtained a search warrant for the computers in Mr Sloan's office.  They had reason to believe that the computers contained child pornography.  Mr Sloan's practice focussed on criminal defence.  How were the officers to execute their search without violating the privileged material in Mr Sloan's computers?

The answer was to seize the computers, seal them up, and arrange for a third party appointed by the court to search the computers for the offending material.

Who was to store the computers while the exhibits were detained?  The Attorney General and The Law Society, 2010 ONSC 2150 asked the court.

The court said it wouldn't look right if the police, who were adverse in interest to Mr Sloan's criminal clients, possessed all his private computer records.  The court directed that a neutral third party store the material.

That decision isn't actually all that important.  Here's what I think you might find useful and interesting in this decision:

• The protocol which the Crown and the Law Society devised for searching the lawyer's records without violating privilege can be found at paragraph 4 of the decision.
  
• The court lavished high praise on the police for taking great care to protect privilege in lawyers' records.
  

2010-12-27 Search & Seizure - Warrant Drafting - "Full" Disclosure

A lively debate persists in British Columbia whether an officer drafting an information to obtain a search warrant must disclose everything known to the officer relevant to whether the warrant should be granted, or just all negative information.  It started with Ling, 2009 BCCA 70 (which suggests that you must disclose everything), received some support from Morelli, 2010 SCC 8 (para 58), and appears to continue with Vi, 2010 BCCA 496.  Again, the court does not appear to hit the issue directly, which leaves some room for doubt for police officers drafting their applications.

2010-12-27 Possession - Constructive Possession

Three adults, Ms Wu, Mr Wu & Mr Lee, 2010 BCCA 589 lived in a house together.  Their bedrooms were downstairs.  The upper floor contained a marijuana grow operation.  No locks or doors prevented the people downstairs from reaching it.  Circumstances established that each knew of it.  Defence suggested that one could be responsible for the marijuana, and the others just lived there. Were any of them in "possession"?

Possession is knowledge and control.  But what is control?  The court said:

"What the Crown must prove is that an accused had the ability to exercise some power (i.e., some measure of control) over the item in issue.  It is not necessary for the Crown to prove that such power was in fact exercised."

While there was no evidence that any of them tended the plants, the layout established that any could go in a move them.  Therefore, each had sufficient power to be in control of the plants.

"[I]t is not unreasonable for a trier of fact to conclude that someone living in premises in which marihuana plants or other illegal drugs are openly located is in a position to exercise some measure of control over those drugs."

2010-12-27 Lies - the Probative Value of False Information

Through his bonded moving buisness, Mr Suelzle, 2010 BCCA 591 orchestrated the shipment of 3 packages of cocaine from Washington State to British Columbia.  His brother attempted to take them two through the border, but got stopped.  Mr Suelzle then provided false information to the authorities about where they came from and why they were being transported.  He blamed his good friend Kalsi for using him to deliver drugs.

At trial, defence argued that Mr Suelzle was merely an accessory after the fact.  When he learned what his friend Kalsi did, he merely tried to cover up for him.  He claimed he never knew  what the packages contained until after his brother was arrested.

The trial judge found that Suelzle told too many lies before and after the brother's arrest to believe his defence.  The Court of Appeal agreed.

I suspect that proving that the packaging contained false information, and proving that the lies came from Mr Suelzle took considerable investigation.  But the work paid off.

Sometimes it doesn't.  "Post offence conduct" doesn't usually show what the suspect was thinking before the offence.  The suspect may tell lies told after the offence for  reasons other than guilt.  For example, a murder suspect might lie about his whereabouts during the killing because he had a curfew.

2010-12-21 Body Armour in B.C. - The Body Armour Control Act

Starting January 1, 2011, it becomes a provincial offence in British Columbia to possess or sell body armour without a licence or permit.  People in the security industry, such as security guards, are exempt.

You can seize body armour, and seize it without a warrant, if you believe on reasonable grounds that it is possessed without a permit or exemption.

The regulations provide that peace officers can possess body armour while employed as a peace officer.

2010-12-09 Proof Beyond a Reasonable Doubt - How Strong must the Proof Be?

Did Mr Parsons 2010 BCCA 558, a commercial trucker, know about the cocaine in the back of his truck?  He was in financial difficulty.  He drove to California where he picked up a trailer.  He loaded carrots destined for Alberta, but drove instead to B.C..  At the border, when customs officials started asking difficult questions, he fled, leaving his identification and personal papers behind.  There were 61Kg  of cocaine in the truck worth $1.7 million.  They were packed in boxes atop the carrots.  He told the customs officials he was "there" when the trailer was loaded.  The cab contained $6,200 cash in a plastic bag.  The going rate for a cocaine courier is $1,000 per kilogram, so his cab appeared to contain about 10% payment.

Mr Parsons explained that he intended to quit his job, so he would simply deliver the rig to his employer in Surrey, B.C..  (He had once before quit his job suddenly, leaving a loaded trailer by the side of the road.)  The cash was to buy a car.  When the customs officials started asking uncomfortable questions, he feared that someone might have planted something illegal in his truck without his knowledge.  He panicked and fled.

He beat the charge. The trial judge didn't say he was innocent - only that Mr Parsons' evidence raised a doubt.

I do not fault the investigators.  It sounds like they worked hard on this case, digging up circumstantial evidence of motive and knowledge.  I suspect another judge might have come to a different conclusion.

There are no new legal principles in the decision.  It reminds us: the evidence you collect may convince you of the guilt of a suspect, but the proof required in court is very high.  Don't stop investigating just because you're convinced.

In my opinion, an investigation is complete when all reasonably available sources of evidence have been canvassed.  Your budgets and the seriousness of the offence determine what's "reasonable".  But the court won't worry about your budget when deciding guilt.

2010-12-08 Disposing of the bodies of dead children - Obstructing justice

After the tenants of an apartment in Mississagua moved out, the building manager went in to clean it up for the next tenants.  On the balcony, he found a bag containing a dead baby.  He reported this to the police, who issued press releases.  Weeping and crying, Ms Levkovic, 2010 ONCA 830 attended the police station.  She told them that she fell, the baby was born.  She put the baby in the bag, and left the bag on the balcony.  The autopsy could not reveal whether the baby was born alive or dead.

Section 243 makes it an offence to "dispose of the body of a dead child of the dead body of a child, with intent to conceal the fact that its mother has been delivered of it, whether the child died before, during or after birth".

At trial, defence complained that the word "before" should be struck down as unconstitutionally vague.   The trial judge agreed: the legislation doesn't say whether a fetus at 2 months is a "child" within the meaning of this section.  Because the evidence couldn't determine whether the child died before or after birth, the judge acquitted Ms Levkovic.

The appeal court overturned this decision.  The offence was created to protect children.  Hiding their bodies makes it difficult to determine how they died, or who was responsible.  The court relied on an English decision R. v. Berriman from 1854 to determine the gestational age necessary for this offence.  A fetus is a "child" who, if born, has a "chance of life".

For police officers, this means the offence remains on the books.  Note that the complete offence involves more than merely hiding the body of a baby.  You need to collect evidence of how close to full-term the baby was, and why the suspect hid the baby.

2010-12-03 Detention - Reasonable Grounds to Suspect - Police powers and duties after a Detention

Acting on good information from the power company, police believed that people in several residences in the same neighorhood were stealing power.  In unmarked police cars, officers watched the residence while other officers applied for search warrants.

After several hours, Mr Trieu, 2010 BCCA 540 drove out of the garage of one of the suspicious residences.  Officers detained him.  They told him about his right to counsel, and he asked to call a lawyer.  They didn't let him call anyone for 25 minutes.  When they searched, they found a grow operation and documents linking him to it.  They arrested him.  It took a further 20-25 minutes to get him in touch with counsel even though the police station was only 2 blocks away.

Even before arresting him, the officers took his keys and garage door opener, which they used to enter the residence.  They also took his cell phone.

Defence complained that the officers lacked grounds to detain him.  The court disagreed.  Detention - not arrest - was the right choice.  When he first emerged from the garage, there were reasons to suspect that he was implicated in the theft of electricity, but not yet enough reason to believe he was probably responsible.  When executing a residential search warrant, you should arrest only those people you believe committed offences.  But you will often have reason to suspect all other people you find present at the scene.  Those ones, you should detain.

Defence argued that the length of the detention - 25 minutes - converted it into an arrest.  Crown pointed out that the police never handcuffed him until they arrested him.  The court agreed.  Although there is some authority that you can handcuff a detained person without turning a detention into an arrest (Ferris), your decision to handcuff does seem to be a factor judges will use to decide it's an "arrest" even if you called it a "detention".

Defence complained that the police violated his right to counsel.  The court agreed.  While some delay was appropriate to prevent him from calling people who might interfere with the various searches to be conducted, these officers delayed access beyond what was necessary.

Defence complained that the police did not have the authority on a detention to take the cell phone, keys and garage opener.  The court declined, for technical reasons, to decide that point.  I suspect that the court would have agreed.  On detaining a suspect, you may search for weapons which you fear pose you a risk.  But detention isn't arrest.  You may not search for and seize evidence.

2010-12-03 Search & Seizure By Power Companies and other Public Authorities

At 10:30pm, a power company technician checked the electrical meter at the outside of a house belonging to Mr Trieu, 2010 BCCA 540.  He went there so late at night because of power fluctuations in the neighborhood which indicated the risk of an overloaded transformer.  Although he wrote about this concern in a report, when he testified he didn't mention it.  (Maybe the trial prosecutor should have asked.)

The Charter applied to his actions.  To enter on Trieu's land, he relied upon the contractual terms of a Tariff which was set by a provincial regulation.  It permitted him to enter only at "at all reasonable times".  Defence complained that 10:30 at night isn't reasonable, and the technician trespassed.  The court agreed, commenting that the technician had not described any urgency.

Had the technician expressed concerns that power would fail, or that a transformer could be overloaded, then his entry would have been reasonable, and there would have been no Charter issue.

Security and loss-prevention officers of power and communication companies would do well to know their authorities to violate privacy (like entering land or listening to conversations), and be ready to testify about them when called upon to do so.

2010-12-02 Hostile Witnesses & Family of the Suspect

Mr Singh's 2010 ONCA 808 girlfriend turned up strangled and drowned in a creek.  He fled to India 10 days later, but returned to Canada 7 months later.  Police interviewed his family.  One brother said that on the day she disappeared, Singh came home and destroyed her phone.  Another brother gave three statements.  In the first two, the brother told police that Mr Singh denied any involvement, but in the third, given under oath after the police promised to drop charges against him, the brother said Singh confessed to the murder.  Singh's father and younger brother gave statements that Singh confessed.

At trial, they recanted.  They accused the investigators of pressuring them, even threatening and assaulting them, in order to get their statements.  Defence counsel attacked the investigation, suggesting that the officers focussed on Singh, to the exclusion of all other suspects, and suggesting that the officers misconducted themselves.

The defence strategy didn't work this time.

This case doesn't contain any big legal news.  But the story reminds us that getting information from a reluctant witness is only half the battle.  Stories may change at court, and the focus may turn on you.

There are special challenges when gathering information from suspects' family, or other people who hold strong allegiances.  Even if you persuade them to tell what they know, they may later recant, and accuse you of improper persuasion.  Therefore, restrict your means of persuasion to methods you'd feel happy to recount in court, and protect yourself by recording as much as you can about how you dealt with reluctant witnesses.

2010-12-01 Expert Opinions - Assumptions and Completeness of the database

Mr Luu 2010 ONCA 807 and Mr Dang were friends.  When they were alone together, a shot rang out.  Mr Luu summoned aid and rushed Mr Dang to hospital, where he died of a single gunshot wound to his chest.  Who held the gun when it went off?

The Crown figured Mr Luu held the gun, and played with it carelessly, causing it to fire.  This theory would stand up only if the gun was beyond Mr Dang's reach.  Various experts provided opinions:

• A ring of black soot around the entrance wound and a ring of pink discolouration around the wound made the pathologist think that the gun was pressed to the deceased's body when it fired.  (Dang could have shot himself.)
  
• The pathologist's boss was a firearms examiner.  She looked for gunshot residue on the deceased's shirt.  Because she found none, she believed that the gun was more than 1.4m away from the victim when the shot was fired.  (Only Luu could have pulled the trigger.)
  
• Upon hearing his boss's opinion, the pathologist changed his mind, and agreed with her.
• A police officer who specialized in bullet trajectory analysis examined the entrance and exit wounds of the bullet in the body, and the bullet holes in the walls of the house.  From this, he calculated that the victim was crouched down or bending when he was shot.  The angles would have made it very difficult for him to have been holding the gun.  (Dang couldn't have shot himself.)
  

All this evidence fell apart.

• The curious rings didn't jive with the pathologist's new opinion.
• The firearms examiner didn't account for how the shirt was handled at the hospital.  It had been thrown into a plastic garbage bag.  Such bags generate static electricity which can lift gunshot residue off fabric.  (Dang could have held the gun, fired it, and then rough handling removed the gunshot residue from his shirt.)
  
• The police officer assumed that bullets fired through a body travel in a straight line.  He had no evidence nor expertise to establish that assumption.  He couldn't say whether a bullet passing through a bone might not change direction.

The firearms examiner conducted some experiments with gunshot residue, but she did not create experiments which reflected the deceased's shirt and its handling.  For example, she fired a shot from the gun squarely into cotton fabric.  But she didn't know what kind of fabric the shirt was made of, nor whether the gun faced the body squarely or obliquely.  These factors could affect whether gunshot residue would stick to the shirt.

There are many lessons for experts in this case:

• For experts, experiments are useful, but only if they accurately reflect actual conditions.
• Assumptions need to be proved.  The firearms examiner was right to suspect her assumption that gunshot residue sticks to shirts.  She made an effort to prove it, but apparently didn't make her experiments sufficiently reflect the actual conditions.  The officer who conducted the trajectory analysis should have tested or researched his assumption about straight lines.
• Management structures of forensic laboratories can affect credibility and the appearance of bias.  How can an expert confidently maintain an opinion contrary to his or her boss? 
  

For investigators and prosecutor this case reminds us:

• Experts are clever, but their opinions are not the last word.  Their theories may crumble at trial.  Avoid relying exclusively on any single expert's opinion.
  

2010-11-29 Wiretap - Monitoring - Privilege - Respecting the Authorization

Police suspected Mr Wedge trafficked in illegal tobacco.  A wiretap authorization permitted police to record all telephone calls to Mr Wedge's residence, but required police who overheard lawyers' conversations to stop listening when they discovered who was speaking, and seal up the recordings.  A judge would later determine whether the calls were privileged.

Shortly after police arrested Mr Wedge, someone called his resdience and warned his wife that there was something in the house to worry about, and she should give "Romeo" a call to come over and pick it up.  When officers went to secure the residence, they found "Romeo" there, and traces of tobacco on the toilet seat.

When a police officer listened to the beginning of that call, he heard the caller identify himself as Mr Wedge's lawyer, Mr Martin 2010 NBCA 41.  Instead of sealing the recording immediately, the officer played it all the way through.

Defence complained that police effectively bugged a lawyer's office.  But this confuses the location from which a call emanated with the location where it was intercepted.  The court didn't buy this argument.

Defence complained that the police violated his expectation of privacy by listening to a privileged call.

It appears that Mr Martin was not giving legal advice to a client.  He was attempting to obstruct justice by telling someone to destroy evidence.  Such a conversation would not be privileged.

But the authorization required police to seal up the conversation whether or not it was privileged.  By listening to more than the authorization permitted, the officer violated Mr Martin's s.8 rights.

The trial judge excluded the evidence, but the appeal court ordered a new trial.  There were exigent circumstances here: the officer had reason to believe that evidence was going to be destroyed.  It was still a breach of s.8 to listen to conversations which the authorization said should be sealed.  But under the circumstances, it was not so serious as to justify exclusion.

2010-11-29 Reasonable grounds - Suspicious Smells

A police officer pulled over a car for speeding.   Mr Noel, 2010 NBCA 28, the driver, rolled down his window to speak with the officer.  At that time, the officer noticed no unusual smells.  The officer returned to his own vehicle to check Mr Noel's paperwork - his rental agreement appeared to have expired.  When the officer went back to Noel's vehicle, he smelled an odour of raw marijuana.  There was another police officer, and a drug dog present.  Instead of asking either of them to confirm his suspicions, the officer arrested Mr Noel.  The subsequent search discovered 14 kilograms of marijuana packaged in 56 vacuum-sealed plastic bags.

Naturally, defence attacked the officer's grounds:  If he didn't smell marijuana the first time, how could he be sure the second time that the smell came from the car?  Considering the packaging, he probably never smelled marijuana at all.

The trial judge and the Court of Appeal agreed with defence.

I don't think this means that need a second nose to sniff the air every time you smell something illegal (alcohol on a driver's breath, marijuana in car or wafting from a house).  But a second opinion helps greatly if your first impressions are ambiguous.

2010-11-28 Causation - Multiple assailants

The Maybin 2010 BCCA 527 brothers played pool in the Grizzly B'ar Pub.  Mr Brophy interfered, by moving a couple of balls.  The Maybin brothers assaulted him, and knocked him out.  Mr Gains, a bouncer, heard the commotion, and approached asking who started it.  Because another bar patron pointed out Mr Brophy, Mr Gains punched Brophy in the head, and then dragged him out of the bar.  Mr Brophy died from head injuries.  The Crown charged both Maybin brothers and the bouncer, Mr Gains.

Who killed Brophy?  The doctors disagreed whether the first assault, the second assault, or a combination of them caused his death. 

The trial judge acquitted them all.  When considering whether the Maybin brothers "caused" Mr Brophy's death, the medical evidence gave him reason to suspect that Mr Gains inflicted the fatal blow.  Therefore, he couldn't be sure beyond a reasonable doubt of their guilt.  Similarly, when considering whether Mr Gains "caused" Mr Brophy's death, other medical evidence gave him reason to suspect that the Maybin brothers did the fatal damage.

The Crown appealed.

Two of three appeal court judges ordered a new trial with respect to the Maybins.  They said that the trial judge considered the evidence too narrowly.  They said it should have come as no surprise to the Maybins that someone might get involved in their melee, and inflict further injuries on their victim, killing him.  But they agreed that the bouncer couldn't be found guilty of manslaughter.

Usually, when many people act together, and someone dies, each can be held accountable for the result of the actions of the group.  But in this case, the bouncer acted independently.  The two decisions review this curious area of the law, and discuss several peculiar cases of criminal responsibility for results that the actor did not directly "cause".

For police officers, it's always important to try to determine what each participant in a criminal act did and why.  Often, you can't discover every detail.

2010-11-27 Provocation - the "ordinary man"

Mr  Tran, 2010 SCC 58 and his wife broke up.  Over the following months, by stalking her, he figured out who her new lover was.  He snuck into her apartment and found them in bed together.  In a rage, he attacked them with knives, injuring her and intentionally killing her lover.  The trial judge found he was "provoked" by his discovery: although he intentionally killed, this provocation reduced murder to manslaughter.

The Supreme Court disagreed.  Provocation is caused by by a "wrongful act" or "insult" done to the accused.  It applies only to a person who acted "on the sudden".   Finding them in bed together was neither a "wrongful act" done to him, nor an insult.  Nor was he surprised by what he found -- he suspected it all along.  Therefore, he was convicted of second degree murder.

They went on to say that a "ordinary person" standard must reflect current moral standards.  In the past, some people avoided convictions for murder by complaining that the deceased made a homosexual advance towards them, which so insulted the killer that he lost control of himself.  Today, the court explained, a racial slur might create a provocation, but a homosexual advance would generally not.

This case illustrates the importance of investigating the context.  Evidence that the suspect stalked his wife, and that he knew of her new lover, changed the encounter from a surprise encounter to a planned revenge.  He's lucky to avoid a conviction for first degree murder.  When you investigate spousal violence, history and motives matter.

2010-11-24 Observation-Post Privilege

In the drug zone of Vancouver, Cst Fisher found a way to get close to drug transactions without being noticed.  She watched and overheard a drug transaction between Mr Hernandez

2010 BCCA 514 and Ms Pennington.  Police arrested them both.  At trial, defence asked questions about Cst Fisher's location.  Cst Fisher refused to answer some of the questions, for fear that word of her technique would circulate on the street, preventing the capture of other drug dealers.

The law recognizes a public interest privilege in maintaining the secrecy of such police techniques.  But the judges also worry that preventing defence from asking relevant questions may render the trial unfair.  For example, if the defence can't ask how close to the transaction the officer was, how can the defence explore whether the officer accurately heard the conversation?  Therefore, the judges developed a compromise:

• Is there a public interest in concealing the location of the observation post? (In this case yes.)
  
• Does concealing the location of the observation post prevent the accused from fully answering or defending the case?  (In this case, no.)
• If the trial would be unfair, then the location must be revealed, or the Crown must stay the case.
• If the trial can be held without revealing the location of the post, the judge may treat the officer's evidence with some suspicion because it has not been fully tested in cross-examination.

In this case, the officer gave a great deal of information about how close to the transaction she was, without saying exactly where she was.  The appeal court upheld the privilege.  The judges found that the trial was fair even though the accused never found out her location.  Unfortunately, the trial judge made an unrelated error, necessitating a retrial.

2010-11-24 Search & Seizure - Expectation of Privacy - Recording Electrical consumption in a residence - Privacy legislation - 

For various reasons, police suspected that marijuana grew in Mr Gomboc's 2010 SCC 55 residence.  They asked the power company to attach a "digital recording ammeter" ("DRA") to the power line, to record the pattern of power consumption.  The power company attached it to the power pole (not on Gomboc's property), and shared 5 days of data collected.  This showed a cycle of usage consistent with (but not unique to) marijuana production.  Police got a warrant, searched the residence, found marijuana and charged Mr Gomboc.

He complained that the DRA collected private information about him, for which the officers should have obtained a warrant.  The Crown pointed out that by a lawful regulation, Gomboc's contract with the power company permitted the power company to share electrical consumption information with the police.  He didn't enjoy any expectation of privacy, and even if he did, the DRA revealed no "core biographical information".

In a frustrating 4:3:2 split, the judges of the SCC upheld Gomboc's conviction.  What the decision means depends upon how you add up the numbers:

# of judges	Conclusions
4	The information which the DRA recorded told so little about the activity of the people inside the residence that it did not attract constitutional protection.
3	The DRA device revealed so much personal information that the police needed lawful authority to use them; but the regulations which established Mr Gomboc's contract with the power company provided that lawful authority.
2	The DRA device revealed so much personal information that police needed warrants.  The regulations did not authorize the police to make the power company their agent to get the DRA information.

Therefore:

• 5:4 Using DRAs to record residential power consumption violates the reasonable expectations of privacy of the residents.
• 7:2 Privacy legislation (such as PIPEDA) may authorize a power company to share DRA information with police.

For those of you who want DRA information without relying on a warrant, you should locate and read the privacy legislation which applies to your power company.  Unless the legislation specifically authorizes it, you should only ask the power company to share what it knows, but not direct them to take action on your behalf.

For all of us, the majority reminds us that privacy legislation often permits (but does not compel) private and public organizations to share information with police.

The minority warns that this legislation does not authorize you to turn these organizations into your agents.

When you want information from an organization, you can often ask for it.  Whether the organization wants to cooperate is up to them.

2010-11-11 Officer Safety during Arrest - "Is there anything in here which could hurt me?"

- A police officer stopped Mr Nguyen, 2010 ONCA 526, and discovered he was suspended from driving.  Another officer arrested him, and found ecstasy pills in his pockets.  Even though he knew that they were ecstasy, he asked "what are these?"  Nguyen responded "ecstasy pills from last night".  The officer arrested Nguyen for possession of drugs.  He told Nguyen he was going to search the vehicle, and asked if there was anything in the vehicle which would endanger the officer.  Mr Nguyen then volunteered that there was "half a pound of weed" in the trunk.  The officers found the weed, more ecstasy, cocaine, and an unloaded handgun.

The first question was unwise.  It undermined the officer's grounds to arrest the suspect for possession of drugs.  It also elicited incriminatory evidence while the suspect was detained, but before he got access to counsel.  It would have been much wiser to remark: "This looks like ecstasy."  If the suspect things otherwise, he might say so.  But it's not a question.

The trial judge excluded the evidence because the officer elicited evidence before resolving Mr Nguyen's desire for counsel, and access if desired.

The appeal court disagreed with the trial judge about the second question.  You can ask questions for officer safety even before resolving s.10(b) concerns.  If the suspect volunteers inculpatory information it may be admitted at trial.  Based on this ruling, if you arrest someone who says he wants counsel, you can still ask questions for officer safety.  If he volunteers more information than you asked, it may be admissible.

Question	Answer	Admissible?
"What am I going to find when I search the car?  Is there anything in there I need to know about?"	"There's marijuana in the trunk"	No.
"I'm going to search your car.  Is there anything in there that could hurt me?"	"No, but there's marijuana in the trunk."	Yes.

2010-11-11 Consequences of "Cell-Block Justice"

Mr Tran 2010 ONCA 471 participated in a "crew" which conducted gratuitously violent home invasions.  At some point, his lawyer advised him to turn himself in to the police.  When he did, he suffered a broken jaw.  He alleged that the police beat him up in an effort to extract a statement.  The officers said he tripped and fell against a desk.  The medical evidence supported Mr Tran.  The judge believed Mr Tran's complaint over the officers' explanation.  Despite this finding, the Crown continued to rely on the assistance of those officers when organizing the witnesses and presenting the case.  Defence complained that this gave these obviously biased officers the opportunity to influence the witnesses.

On appeal, the court stayed the case against Mr Tran.

When I started prosecuting, some people in the justice system accepted as a fact that a person who assaulted a peace officer received a greater punishment in the cellblock after the arrest.  Times changed.  Various inquiries revealed that mistreatment of prisoners contributed to wrongful convictions, and sometimes wrongful deaths of prisoners.  Attitudes have changed.

If violence in cell-blocks was accepted practice, it isn't any more.  Despite his guilt, Tran beat these serious charges.  Two officers risked losing their careers.

Some crimes offend us acutely.  I sympathize with the officers' feelings.  But when I dwell on my feelings about the offender's crimes, then I lose effectiveness in the court room.  If your prisoner's crimes offend you, then direct your passions toward a perfect investigation.  Kill 'em with kindness.

2010-11-09 Search & Seizure - Credibility of Anonymous Tips

At 9:43pm, Police in Abbotsford received a tip that a specific vehicle would arrive in the next 15 minutes at a church in a rural neighborhood near the American border.  The tipster said the vehicle contained drugs to be smuggled across the border.  The licence plate which the tipster gave was registered to a Vancouver address.  Police went to the church parking lot, which was empty, except for the vehicle the tipster described.  They pulled it over, and the driver, Mr Jir, 2010 BCCA 497 immediately got out.  The officer arrested him, and found 120,000 ecstasy pills in the trunk.

Did he have sufficient grounds to arrest?  All the judges agreed that this was close to the line.  Two of three judges found the arrest was lawful because:

• the arrival of the exact car at the exact location suggested that the tipster had personal knowledge of the reason for the trip;
  
• the general location (rural Abbotsford) bore no other apparent connection to the source of the car (Vancouver);
• the exact place - an empty church parking lot - suggested something unusual was going on.

The third judge thought that the officers didn't have quite enough to justify the arrest, and should have watched the vehicle to see what it would do.  But because it wasn't Mr Jir's car, he felt that Mr Jir didn't enjoy a sufficient expectation of privacy over the contents of the trunk to be able to complain about the search.

It's commonly said that an uncorroborrated anonymous tipster can "never" provide reasonable grounds to arrest or search.  That assertion is debatable.  But these judges agreed that the arrival of the car where the tipster said was partial corroborration of the tip.

2010-11-06 Search & Seizure - Search Warrants - "Hard Entry" & Messy Searches

- After getting a warrant to search Mr Thompson's, 2010 ONSC 2862 residence, police executed it by bursting in without notice and deploying a flash-bang device.  They searched rooms in the residence by dumping the contents of all the drawers onto the floor.  They singed a couch, and left it upside-down in the yard.  They found drugs, but didn't tidy up after themselves.  Mr Thompson complained that the manner of the search violated his rights.

Back in May, the court said:

• When executing a search warrant, you must knock and announce yourselves, unless there are grounds to believe evidence will probably be destroyed or to suspect that announcement would put police officers or others at risk.
• You need not obtain prior judicial approval, when seeking a search warrant, of any plan they might have to execute the warrant without making the common law announcements, but it would be wise to disclose such a plan in the search warrant Information.

The judge found that the officers had just enough grounds to justify the hard entry, but they had no excuse for causing unnecessary mess and damage.  Although he admitted the evidence at trial, he warned officers in future to search more considerately.

2010-11-06 Causing a Disturbance - When someone swears at police -

At closing time in the nightclub district, police officers heard Mr Swinkels, 2010 ONCA 742 swearing loudly from within a large crowd.  They stopped to investigate.  He emerged from the crowd and approached with both middle fingers raised towards the officers, swearing loudly.  The officers arrested him for causing a disturbance.  But had he?

Two judges relied on the principle that police officers who keep the peace are not disturbed by rude behaviour.  Therefore there was no disturbance, and he was acquitted.  The dissenting judge pointed out that his activity excited the crowd, which turned to watch the arrest.  That judge would have convicted him.

Rudeness and swearing, particularly toward police officers, is not "causing a disturbance".  But if it interrupts others in their peaceful affairs, then it is.  Of course, when you deal with a boisterous loudmouth drunk, it's difficult to focus on his effect upon other people present.

I thought this case was interesting because it distinguishes at what point a fellow crosses the line.  If Mr Swinkels wasn't "causing a disturbance" he was mighty close.

2010-10-27 Detention - Charter s.10(a) - Explaining the Reason for Arrest or Detention - How fast is "without delay"?

- Two rival street gangs contended for turf in Winnipeg.  An innocent pedestrian died during a gunfight between them.  When a police officer arrested members of one gang for drug trafficking, a car full of members of the rival gang pulled up.  The gangsters got out.  The officer, sensing trouble, ordered them, at gunpoint, to lie down.  Two did, but Mr Wright, 2010 MBQB 158 kept walking toward the police officer.  The officer threw him down, but Mr Wright struggled and resisted.  In the confusion, the officer lost control of one of the people he was arresting.  When charged with obstruction of a peace officer, Mr Wright complained that the officer wasn't "in the execution of his duty": the officer failed to tell him immediately why he was detained as required by s.10(b).

The court disagreed.  Although s.10(a) of the Charter requires you to tell a detainee "promptly" of the reasons for arrest, you may delay for the purpose of protecting life and limb.  In this case, the officer had reason to fear that Mr Wright might take advantage of the vulnerability of the rival gang members to hurt or kill them.

The court reached a sensible conclusion here - life and safety takes priority to legal rights.  But take care to explain promptly why your suspect can't leave.  If you detain someone but leave him guessing as to why, you could face some fierce questions in court.

A single judge of the Manitoba Court of Appeal found that the trial judge's conclusion was so uncontraversial that he refused leave to appeal.  This means that Mr Wright loses; it also means that we won't get an authoritative opinion from Manitoba's highest court on this issue.

2010-10-22 Freedom of the Press - Confidentiality of Sources

- Like police officers, some reporters rely upon sources who do not want to be identified.  People with a story to tell, and much to lose if people find out who they are.  Like whistleblowers. Again and again, reporters have asked courts to find that the identity of their sources is always privileged.  They tried again in Globe and Mail v. Canada, 2010 SCC 41 and failed.

During the last sovreigny referendum in Quebec, the Federal government doled out money in what has since been called the "sponsorship scandal".  After the Gomery Inquiry identified corruption, the federal government sued to get some of it back. One of the defendants, the Groupe Polygone, wanted to know which civil servant in the federal government leaked the story to the press.

The reporter baulked at answering questions which would identify the source.  Did he have to answer?

The Supreme Court of Canada found that even under Quebec's unique system of justice, there was no blanket protection.  The court can compel a reporter to reveal his or her source; except if the circumstances of the case show that protecting the source is more important than getting the answers.

This matters to you because sometimes, you want reporters to identify their sources, so that you can catch a crook.  However, the court agreed with the reporters that confidentiality of their sources is important to their function as news reporters.  This means that you should try all other sources of information before forcing reporters to reveal their sources.  Before applying for a warrant to search a news outlet, get some advice on drafting and execution.

2010-10-16 Officer Safety

- Late last month, the Alberta Court of Appeal upheld the sentences imposed on Mr Hennessey & Mr Cheeseman 2010 ABCA 274, the guys who assisted Mr Rozko murder four police officers in Mayerthorpe, Alberta.  The facts made me think of safety procedures.  I'm no expert on procedures to protect police officers during searches, but you should be.

Defence counsel may challenge you on your procedures:

"Why did you handcuff my client?"

"You didn't need to put my client into the back of the police car, did you officer?"

You should be ready to explain what risks were possible.  For many procedures, such as handcuffing a detained person, or searching a detained (not arrested) person for weapons, the courts require you to identify some evidence which justified a concern for your safety.  You can't handcuff or detain every person you meet.

Refer to evidence and information you knew at the time and explain why you thought there was a risk to you.  But if defence presses you to admit that your violation of the accused's liberty or privacy was unnecessary, it doesn't hurt to point out that your work requires you to deal with the unexpected:

"My work involves unexpected risks.  The four murdered officers in Mayerthorpe didn't expect an ambush by a man with a hunting rifle.  The lesson I learned from that is to identify risks and minimize them so that I don't get hurt on the job."

To protect yourself from complaints, you should detain or search in a manner which causes the least violation of their rights necessary for your safety.

2010-10-16 DNA Evidence in Old Solved Cases - Search & Seizure of Police Files

- When police busted Mr DeJesus 2010 ONCA 581 for sexual assault back in 1995, they got his DNA.  They kept it after his conviction.  In 2002, they used that DNA to identify him as the perpetrator of a rape-murder.  He complained that police conducting the new investigation violated his privacy by using evidence from the old investigation.  The appeal court dismissed this complaint.  Because of the conviction, Mr DeJesus lost his expectation of privacy over information which the police lawfully collected in the prior investigation.

The conclusion seems obvious.  But can you retrieve DNA or fingerprints from an old investigation which did not result in a conviction?  It think "it depends"... on the how you obtained the DNA or fingerprints (or whatever other evidence is important to you).  For example, if the DNA was obtained by a DNA warrant, s.487.08 prevents you from using it to investigate a different offence.  Evidence obtained by consent from the suspect may be used in a subsequent investigation if the consent made it clear that the evidence might be used for more than the investigation being made at the time.  Borden [1994] 3 S.C.R. 145.

2010-10-16 Undercover Police Officers - Search and Seizure of a Target's Home

- When a suspect invites an undercover police officer into his home, does the officer need a warrant?  A drug broker named Mr. Roy, 2010 BCCA 448 invited a potential customer to his house to arrange for a large drug transaction.  The customer was an undercover police officer.  Mr Roy showed him around a small grow operation and discussed his drug brokering business.  At trial, he complained that the officer had no warrant to search his house.  The court rejected this complaint.  To the extent that Mr Roy invited the officer in and to look around, Mr Roy enjoyed no expectation of privacy.

Undercover officers beware.  This case does not mean if the suspect invites you into his house, you can search it.  You can only look around as much as he permits you.  If you want to look further than the invitation allowed, you need a warrant.

2010-10-15 Religious Freedom in the Court Room - Wearing the Niqab & Hijab

- Ms N.S., 2010 ONCA 670 complained that her uncle and her cousin sexually assaulted her.  She attended the preliminary hearing wearing traditional islamic clothing which completely covered her body and face, preventing unrelated men from seeing her.  Defence applied for an order that she remove this clothing.  She resisted the order on the basis that it violated her constitutionally protected right to religious freedom.  The trial judge told her to remove it.  She appealed.  The Court of Appeal did not decide the question, but referred it back to the trial judge, asking that more evidence be tendered on the question.

Essentially, the court said: let's try to respect the complainant's right to freedom of religion and the accused's right to a fair trial, which may include the right to have the judge or jury assess her credibility by seeing her face.  They suggested some compromises, such as arranging for female counsel to cross-examine her, or using a less complete veil.

I observe that the Hutterian Brethren of Wilson Colony, 2009 SCC 37 objected on religious grounds to having their faces photographed for the purposes of Albertan driver's licences.  The Albertan government insisted, and the highest court agreed with the government.  Although the context differs, I expect that the court won't value religious freedom as highly as fair trial rights.  I predict that Ms N.S. will be permitted to hide her face for the preliminary hearing - where credibility isn't really in issue - but may be ordered to obey some compromise at trial so that the judge or jury can see her facial expressions during cross-examination.

2010-10-09 Possession of Child Pornography

- Mr Panko, 2010 ONCA 660 took his computer in to a repair shop.  He refused to divulge his password when the technicians asked, saying that he had something important on his desktop. When the technicians fixed it, they found child pornography all over the desktop. Mr Panko called repeatedly asking if his computer was fixed.  The Crown's expert said that there were three ways the files could get onto the laptop:

• downloading it knowingly;
• downloading it unknowingly; or
  
• a third party put it there.

The trial judge had a doubt that Panko knew it was there.  The summary conviction appeal judge said that doubt wasn't reasonable: In the absence of evidence that someone had hacked the computer, it was speculation to suggest that someone else put the data on his desktop without him knowing about it.  The Court of Appeal restored Mr Panko's acquittal, saying that the trial judge held a reasonable (albeit "generous") doubt.  If there are lessons to be drawn here, they are:

• proof beyond a reasonable doubt requires really good evidence of the suspect's guilt
• proving possession of illegal data requires more than proving possession of the box which contains it.  You want evidence showing the suspect knew it was there and controlled it in some way.
  
• the defence of "some hacker must have put it there" requires clear expert evidence explaining why the defence applies or not.
  

2010-10-08 Right to Counsel

- The Supreme Court of Canada delivered three important decisions today.  Sinclair, 2010 SCC 35, Willier, 2010 SCC 37 and McCrimmon, 2010 SCC 36.  Defence argued that s.10(b) of the Charter gives detainees the right to have counsel present when police elicit evidence, or at least to the right to demand ongoing consultations with counsel during the police investigation.  Three judges agreed.  One partly agreed.  Five judges stuck with the established understanding of s.10(b), but clarified what "change of jeopardy" means.

In summary:

• On detention, the accused has the right to a reasonable opportunity to get legal advice.
• If the accused wants a specific lawyer, they get a "reasonable" period of time to contact that lawyer, subject to the seriousness of the case, and the urgency of the situation.
• If the accused's lawyer of choice is not available within that reasonable period of time, then the accused must choose to speak with someone who is available.  If he does not choose someone else, then the police can proceed with the investigation.
• Police are not responsible for the quality of the legal advice that the suspect obtains.  If the suspect is satisfied with 3 minutes of legal advice from duty counsel, then you don't have to make him get a second opinion
• Once the accused has obtained a reasonable opportunity to get legal advice, then the accused can not interrupt or frustrate the investigation by demanding more.  (But you can let the suspect get more advice if you are so inclined.)
• A "change in circumstances" generates a right to get more legal advice.
• Beware: "Change in Circumstances" means more than a change in legal jeopardy (ie the injured victim dies).  It also includes a change in investigative tactics.  The right to further legal advice also arises if the suspect didn't understand the s.10(a) information.

Further access to counsel required	Further access to counsel not required
Legal jeopardy changes: victim died new offences being investigated	Investigator explains evidence, and suspect wants to discuss it with counsel
Live line-up or polygraph or other unusual investigative technique	Re-enactment of the offence
After access to counsel, you discover that the suspect didn't understand the offences for which he was arrested or detained.	Suspect demands presence of counsel during interview.

2010-10-06 Motive and Bad Character Evidence

- When a fellow does lots of bad things, you find it easy to believe the allegations people make against him.  When should a court accept such "bad character" evidence?  Mr Johnson, 2010 ONCA 646 liked to drive around while drinking.  Witnesses said that a couple of times while doing this he inflicted violence on girls in his truck.  One of those incidents involved a girl named Katrina.  One day, when Johnson was cruising around drinking with a guy named Shipman, he picked up a Katrina.  She had sex with one or both of the guys.  Then somebody killed her.  Shipman said it was Johnson.  Johnson said it was Shipman.  Should the jury hear evidence about his prior violence to women?

The trouble was that the prior violence did not involve sex.  It appeared to arise from an isolated argument.  It did not show that Johnson harboured any ongoing desire to rape her or hurt her.  But it did make him look like a bad guy.  The jury might dislike him and convict him, without considering the strength of the evidence of his guilt.  The appeal court said that the prior violence evidence should not have been admitted.

When you're testifying during trial, you might know a great deal of information about the accused's past misdeeds.  You should not mention those misdeeds unless you are asked.  The trouble is, many inexperienced officers can't tell the difference between when it's okay to mention the accused's bad past and when it's not.

The difference is simple.  In court, when a lawyer asks you to explain what you did, don't mention the accused's bad past.  For example:

• "Did you arrest the accused?"
• "Was this done at gunpoint?"
  

If they ask why you did it, then you can mention the accused's bad past if that was part of your reasons.  For example:

• "What were your grounds for arresting my client"
• "Why did you arrest him at gunpoint?"
  

2010-09-30 Voluntariness - Detainees at a Search

- In the early morning hours of a cold November, police executed a search warrant at an apartment which contained Mr Brown, 2010 ONCA 622.  For reasons not explained in the court's decision, a tactical team accompanied them, and deployed stun grenades before the officers entered.  Mr Brown and the other occupants emerged from the residence and stood in the cold until they began to shiver.  The officer in charge gave Mr Brown and the others a brief summary of their right to counsel, but did not tell them about the right to silence.  Officers fetched coats from the apartment one by one, and asked the shivering suspects "is this yours?"  Mr Brown rejected all but the last coat, which contained a loaded restricted firearm.

The trial judge figured that the breach of his right to counsel was minor.  He admitted the evidence and convicted Mr Brown.  The Court of Appeal worried that the admission "that's my coat" might not be voluntary.  If he didn't identify his coat, he'd get colder and colder.  Isn't that a classic inducement?

I don't really know what happened in this investigation.  It looks like the officers tried to do the right thing, but fell short.

Executing a search warrant can be exciting, but the excitement can distract you from the basics of detaining suspects:  Once you have got the scene under control, you must provide the suspects properly with their rights, and treat them humanely.  Don't elicit evidence until they have had an opportunity to exercise their rights.

2010-09-25 DNA matches - Close Relatives

- DNA which matched Mr McLeod, 2010 SKCA 43 turned up at the scene of a rape-murder.  The trial judge found that the person who left the DNA committed the murder, and convicted Mr McLeod.  On appeal, defence argued that someone else might have left the DNA.  It was clear that the likelihood of a match between McLeod's DNA and an unrelated individual was infinitesmal.  But what if Mr McLeod had brothers?  Defence mentioned an English case in which the existence of brothers who could have committed the crimes made the possibility that they did them instead of the accused only 1 in 267.

But in the McLeod case, there was no evidence presented of any brother, and so the court upheld the conviction.

Some suspects have suspicious siblings.  If your case relies entirely on DNA, you might want either or both of:

• an alibi, or
• a blood sample

from the sibling.

2010-09-25 Criminal Business Records

- The records of a business help prove what the owners were up to.  I know it's obvious, but it's easy to overlook.  Police in Ontario learned that a Canadian business manufactured credit-card skimming devices for sale to thieves and fraudsters.  (One of the owners was a security expert who provided expertise to police.)  When they raided the business, they seized the electronic business records, which helped show the scale of the operation.  These told heavily against Mr Beauchamp, 2009 CanLII 9477 and his co-accused.

Defence attacked the records, complaining that the Crown had not tendered a witness who could explain how the records were created (ie the accused).  The judge admitted the evidence anyway, because it could be proved to be in the possession of the accused.

When you're investigating a business which profits from crime on a large scale, you want the records of the business.  These days, those records may be digital.  Think about it when drafting your warrant.  When you're investigating, you don't want only the records, but evidence which identifies who is responsible for the records.

2010-09-22 Custodial Interviews - 24 hour deadline

- Police planned to arrest Mr Donnelly 2010 BCSC 1296 for sexual assault when they searched his house for child pornography.  Mr Donnelly suffered a seizure, and needed medical treatment.  They didn't brief the interviewer until the next day.  The interview didn't start his interview until 19.5 hours after the arrest.  They brought Mr Donnelly before a justice of the peace just before the 24-hour limitation elapsed.  The evidence suggested that the officers never intended to give Mr Donnelly a bail hearing until the last minute.  The  judge figured the police planned from the beginning to delay his bail hearing as long as possible.  As a result, he excluded the statement.
After an arrest, sections 496-503 require you to release the suspect without delay, or bring him/her before a justice "without unreasonable delay" (and in any case not less than 24 hours).  This time limit should not prevent you from taking reasonable steps to investigate.  But don't think of it as "24 hours".  Think of it as "without unreasonable delay, and in any case less than 24 hours".

2010-09-21 Statements - Witness or Suspect

- Mr Pek was a big violent guy.  He visited Ms Kipling's 2010 BCSC 1298 place on the night before she moved out.  She was a small 21-year old mother of three, with limited education.  Someone stabbed him in the neck, which killed him.  Around 1:00am, she phoned 911.  When police arrived, it was chaos and she was in a panic.  Police officers gave her clear and sharp directions at the scene.  They told her to stick around so that they could interview her.  Then they took her to the police detachment at 1:30am, and left her in a room until 4:30am.  They interviewed her until 6:25am.  Then they arrested her, and interviewed her again.  In the first statement, she denied any responsibility.  In the second, she said she stabbed him in self-defence.

The court found that police "detained" her by giving her no choice but to come with them to give a witness statement.  Of course, she wasn't given access to counsel.  And the court found her statement was not voluntary.

When asking her to give a witness statement, the interviewer told her that she would get in trouble if she didn't.  She did tell a lie near the beginning.  The officer suggested that he would disregard the lie, but if she told more lies, it would cause the police to suspect her of the murder.  ("Tell us the truth or else.")  The late-night interviewing didn't help.

This case illustrates the difficult and conflicting situations of police and witnesses at the scene of a crime.  When you arrive at a scene of chaos, you must take control by giving clear and direct instructions to all the people present.  To establish order, you must give the people present the idea that they have no choice but to obey.

But what a suspect tells you under those conditions is not voluntary.  Your clear directions might turn out to "detain" a culprit who will later complain about his legal rights.

In my view, the officer's biggest mistake was to give bad legal advice.  Don't tell witnesses "If you don't give a statement, I'll charge you with obstructing a peace officer."  Only in the rarest of circumstances is a witness obliged to answer your questions about an offence.  If they lie, then they are obstructing a police officer.  But if they refuse to say what they saw, they aren't.

I'm sympathetic to the officer.  Who would have thought that this young thing killed the big violent goon?  In this case, commanding eyewitnesses to cooperate turned out to be a bad strategy.  I can imagine that in many other cases, it might be the only way to make progress in the investigation.

I suggest that you read the whole decision.  Don't base all your strategies on this one case, but it may remind you to temper your approaches to the witnesses you pluck from the chaos of crime scenes.

2010-09-21 Search Warrants - Breadth of Search - Officer safety

  - A power company complained to police that the Chuhaniuk's 2010 BCCA 403 rural property consumed more power than their meter measured.  Police figured it was theft, and suspected a marijuana grow operation.  Although the Chuhaniuks had no criminal history, the police did receive a tip a year earlier that they were growing the stuff.  Aerial photos showed several buildings on the property.  Unfortunately, its location prevented surveillance.

An officer applied for a warrant to search the "residence and outbuildings", but the justice granted a warrant to search only the residence.  When the search team attended, officers "cleared" the outbuildings - a shed, a garage and a summer house for the purpose of officer safety.  All of them were locked.  Even from the outside, the shed and the garage smelled of marijuana but the summer house did not.  They found marijuana grow operations in the shed and in a bunker under the garage.  Relying on these discoveries, they applied for a warrant for the other buildings.

Defence complained that the initial search of the outbuildings was unlawful.  The officers had no reason to suspect that the buildings contained anything that posed the officers a risk.

The judges agreed that the police exceeded their authority.  If you have authority to search one building on a property, and nobody answers your knock, you can go to the other buildings and knock for the purpose of communicating with people that might be in them.  But a warrant for the one building doesn't authorize even a perimeter search of the others, let alone an entry & walk-through.

However the judges also agreed with the Crown that police officers can protect yourselves during a search.  They said you can inspect and even enter other buildings for officer safety "to the extent reasonably necessary to protect themselves and others" but you must have "a reasonable basis for believing there is a possibility that [your] safety, or the safety of others, is at risk."  I understand that to mean reasonable grounds to suspect that someone might hurt you.

2010-09-21 Search Warrants - Breadth of Search

- Someone left a gym bag outside an apartment complex in Toronto.  Inside the bag, police found the dead body of a half-naked woman.  Telephone cord bound her legs.  She was obviously murdered.  Packed in the bag were several documents bearing the address of a townhouse.  Police went there, removed everyone from the unit, and interviewed the occupants including Mr Campbell, 2010 ONCA 588.  They learned it was a rooming-house: the residents shared the kitchen and bathroom, but the bedrooms were locked.  It appeared that the girl had roomed there too, and was probably murdered there too.  But whodunnit?  Mr Campbell had convictions for violence to women, but another resident, Mr Imona-Russell faced an outstanding sexual assault.  Police sought a search warrant for the entire unit.  They found evidence that Mr Imona-Russell, murdered the woman.  But they also found prohibited firearms in Mr Campbell's room.  A court had previously prohibited Campbell from possessing firearms.

Defence argued that the search warrant was overbroad: it should have permitted a search only of the common areas and Mr Imona-Russell's room, but not Mr Campbell's room.  Two of the three appeal judges disagreed.  There was enough evidence to make Mr Campbell a suspect:  As a resident, he had opportunity.  He had moved in using black bags like the one in which the woman was found.  His history of violence made him a viable suspect.

But they made one more important point.  Your ITO doesn't need to prove "whodunnit".  It need only establish that evidence relevant to the offence will be found there.

The reasons and the result in this case don't matter as much as the principle.  A justice can only issue a search warrant for the place(s) where you have grounds to believe evidence will be.  The warrant should not violate privacy without good reason.  The dissenting judge asked if 100 people lived in an apartment complex, and the police only have reasonable grounds to believe that evidence of a murder will be found somewhere in the building, should a warrant be granted to search every residence?  All the judges agreed it should not.

I guess that's why the justice in the case of Chuhaniuk 2010 BCCA 403 granted a more limited warrant than the police sought.

PS: The Supreme Court of Canada agreed with the Ontario Court of appeal.

2010-09-17 Police Release Powers

- Mr Rashid 2010 ONCA 591 assaulted his wife.  Police arrested him.  Instead of considering whether they could release him on an undertaking and promise to appear (s.498), they held him for a bail hearing before a justice.  They had a policy that they would never release violent spouses themselves.  Mr Rashid complained that this was an arbitrary detention, and even if he was guilty, the court should stay the case.  The trial judge agreed that the police violated his rights, but gave him 4:1 credit for the time he served in custody, rather than drop the case.

The Ontario Court of Appeal declined to decide the specific case, but commented that you do have an obligation to consider using your power under s.498.  A blanket policy not to use it for some class of cases will violate s.9 of the Charter.

2010-09-11 Murder and Attempted Murder - Different Intentions?

- Murder involves killing someone without a lawful reason, but it ain't murder unless the killer meant to do something awful.  S.229(a) defines it to be murder if the killer:

1. means to cause his death, or
2. means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

That second definition causes lots of trouble.  It isn't part of "attempted murder", because someone who attempts to commit murder must fit into only the first definition.  He must actually want the victim to die.  (See Ancio, [1984] 1 S.C.R. 225)

Mr Sarrazin, 2010 ONCA 577 shot Mr Noel outside a night-club.  Mr Noel suffered very serious injuries, but doctors saved him.  A month later, a blood clot killed him.  The doctors agreed that the blood clot most likely came from the shooting, but could possibly have been caused by cocaine use.  If Mr Noel's cocaine use killed him, then Mr Sarrazin wasn't guilty of murder.  But should he be found guilty of attempted murder?

It was easy to see that his intention, in shooting Mr Noel in the stomach might have been (ii).  But was it (i)?

The appeal resulted in a retrial, for technical reasons unrelated to police work.  I mention the case only to highlight the difference between murder and attempted murder.  The reason why prosecutors rarely get convictions on attempted murder is that (i) is harder to prove that (ii).

If you're applying for a search warrant to gather evidence on what you think is an attempted murder, I suggest that you call it an aggravated assault instead.

2010-09-11 Warrant Drafting - Grounds - Articulation

- A police officer received source information that Mr Dhillon, 2010 ONCA 582 had handguns in his house, and was connected to a theft of a transport-truck load of paint.  Officers watched Dhillon deliver a cube van to other men, who unloaded cans of paint from it.  They saw him hang about trucking yards containing unattended tractor trailers.  They got a warrant, and found handguns, ammunition, and hundreds of thousands of dollars' worth of stolen paint.

The officer who drafted the warrant exaggerated the quality of the confirming evidence.  He said that the officers watching Dhilon saw "a large number" of cans of paint, including "5 gallon" cans.  The surveillance reports did not say how many cans of paint were seen, nor did they refer to 5 gallon cans.  This, combined with other errors led to the exclusion of all the evidence, and acquittal of Mr Dhillon.

In the excitement of the investigation, it's easy to over-estimate the strength of the information you collect.  Excitement is good.  It motivates you to perform your best.  But it can distort your impression of the strength of the evidence.  At court, every word you alleged against the suspect will be scrutinized.  Defence will ask: "Were there 'many' cans of paint, 'some' cans of paint, or just 'more than one'?"

Accuracy matters.  In an ITO, recite the information you actually have.  If you infer more from it, explain why.  For example:

Cst X sent me an email which said, in part:

• On YYYY-MM-DD he watched Mr Dhillon covertly;
• He saw two men spend 15 minutes unloading paint cans from the van Mr Dhillon drove.

Because it took so long to remove the paint cans, I infer that they must have unloaded a large number.

2010-09-10 Warrant Drafting - Target of Search - Computers & Electronic Devices

- When you strip away all the formal language, an Information To Obtain a search warrant says:

Hey, J.P.!  Please, would you let me enter (this place) to search for (these things)?  Because of (this information I obtained), I think that:

• (this crime) occurred;
• (these things) are in (this place), and
• getting them would help me solve the case for (these reasons).

It may be appropriate to add one more point:

• I want to invade the occupants' privacy by (this much).
  

Officers in a drug section received information from the electric company of a theft of electricity at the residence of Mr Vu, 2010 BCSC 1260.  The officers collected good reasons to justify a search of the residence for evidence of the theft, and explained them in an ITO.

On the draft warrant, they added the usual language that they wanted to search for and seize:

"[d]ocumentation identifying ownership and/or occupancy of the property..." 

But the ITO gave no reasons why the officers expected to find such documents in the residence.  Nor did it mention their intention to search any electronic devices they found for such evidence.

When the officers searched the residence, no one was home.  They found electrical theft, a grow-op, a cell phone and its charger, and computers.  The officers searched everything for evidence of who owned the place, including the computers and the cell phone.  One computer connected to a security system, and recorded video of every person who came and went from the property.  (How considerate of Mr Vu to make a record of every visit he made to the property!)  Another computer contained lots of his personal information connecting him to the place.  The cell phone contained his picture, and the officer determined the cell phone number by turning it on.  They took the electronic devices away, and examined them more carefully later.

At trial, the officers said they always searched all the computers and electronic devices in grow operations when the warrant permitted a search for documentation.

Athough they properly applied for and obtained an order detaining the exhibits, it expired before they searched them.

The judge didn't like this search.

When applying for a warrant, if you want to search for a thing in a place, you need to say why you think it will be there.  That applies to documents establishing residency.  If you usually find these documents in grow operations, then say so in your ITO.  If you have specific reasons why, in this case, you think you will find some, then mention them.

The judge didn't like the search of electronic devices.  In Morelli, 2010 SCC 8, the Supreme Court of Canada emphasized the large quantities of private information these things now contain, and the privacy people ought to enjoy in them.  While a search incidental to arrest might have permitted deeper search (see Giles, 2007 BCSC 1147), she didn't think that a warrant to search a house automatically granted police the right to search every electronic device in it.

Reasonable people may differ on this point.  Much depends upon the drafting.  But remember: without the J.P.'s permission, your execution of a search warrant on a residence would be an offence punishable by life imprisonment.  See s.348. If you're going to ask permission to invade someone's privacy, you should be clear how much of their privacy you intend to violate.

Perhaps the officers should have sought permission to search for "[d]ocumentation, whether written or stored on electronic devices, identifying the owner and/or occupants of the property.."  Definitely, they should have explained why they expected to find such documentation there.  Perhaps the ITO should have mentioned their intention to look in such devices.

2010-09-09 Pickton - the array of decisions

- The various decisions in the Pickton case are now available.  Understanding the procedural history helps make some sense of what happened:
The Crown charged Mr Pickton with 26 counts of first-degree murder.
The trial judge severed those counts, so that the jury decided only 6 counts.
The jury convicted him of 6 counts of second-degree murder.

The Crown appealed the severance decision, saying that they could have got convictions on first degree murder.  The defence appealed the convictions, complaining that the trial judge instructed the jury incorrectly. The appeals were heard separately.

The Crown won their appeal: Pickton, 2009 BCCA 300.
The Defence lost their appeal: Pickton, 2009 BCCA 299, and the Supreme Court of Canada affirmed that decision: Pickton, 2010 SCC 32.

Follow this link if you want to read the 41 published trial decisions.  This was a smart judge.  Just because Court of Appeal disagreed with him on one decision doesn't make the rest of his decisions wrong.

2010-09-09 Severance & Similar Fact

- On Mr Pickton,'s, 2009 BCCA 300 farm, police found body parts of 6 missing women, and DNA from 20 other women.  There was no question that the 6 women were dead.  But the bodies of the other 20 were never found.  Crown laid charges of 26 counts of first degree murder against him.  Defence applied for "severance", so that the first jury would decide only 6 counts (the 6 women whose body parts were found), and a later jury would decide the other 20 counts.  The trial judge agreed: he feared that the huge volume of evidence might confuse the jury, and the many counts of murder might prejudice them against Pickton, so that they might not care about any reasonable doubts which arose on the evidence.  The Court of Appeal said this was a mistake.  Why was the trial judge wrong?

Severance is ordered when "the interests of justice" require it.  Typically, this arises when Crown proposes to charge someone with unrelated offences in a single trial.  Imagine that the indictment had charged Mr Pickton with 26 counts of murder and one count of possessing child pornography.  If the last count had nothing to do with the others, addiing it to the charges would be unfair: Jurors might hate him so much for the murders that they might convict him of the pornography matter out of spite.  Or they might be so disgusted by the pornography, that they fail to consider fairly any possible doubts about his guilt of the murders.

But what if the various charges all relate to each other?  In Mr Pickton's case, one fact cried out for explanation: the DNA of all 26 missing women turned up in the same place.  Nobody believes that's just an innocent coincidence.  The improbability of innocent coincidence is what makes similar fact evidence admissible.

The trial judge reasoned this way: If body parts of 6 dead women show up at Mr Pickton's place, then we all know it's no innocent coincidence.  If the jury hears about the DNA of 20 more missing women at the farm, then the jury won't be any more convinced about the coincidence than before.  So we don't need to hear about the 20 women in order to determine Pickton's guilt about the 6.

But what about the other way around?  If 6 missing women died at Pickton's farm, and the DNA of 20 other missing women was found there, doesn't that make you think that the 20 died there too?

There was another woman who survived.  Like all the missing women, she was a sex trade worker from Vancouver's seedy area.  During the time when the other women disappeared, she alleged that Mr Pickton picked her up, took her to his farm, and attacked her.  She escaped and complained immediately to police.  Unfortunately, her character and drug use made her, by herself, an unreliable witness.  Although charges were laid, the Crown had to stay them.

The trial judge excluded her evidence from the murder trial, partly because she wasn't dead and dismembered like the other women.  The Court of Appeal pointed out that this focussed on the wrong aspect of similar fact evidence.  Although the witness had problems, in combination with the other evidence, her complaints ring true.  What are the chances that she would invent her allegations against the very same guy whose farm later contained the DNA of 26 missing sex trade workers?  Admissibility of similar fact evidence depends not upon a simple counting of similarities, but upon an assessment of the improbability of coincidence.

The Court of Appeal found that the trial judge erred in his analysis of this and other similar fact evidence.  The trial could have proceeded differently.

The Crown asked for an unusual order.  Usually, they would ask for a retrial.  But getting Mr Pickton convicted of 26 counts of first degree murder would have been terribly expensive.  If they got those convictions, his sentence would have been the same as the one that the trial judge imposed: Life with parole eligibility at 25 years.  Therefore the court ordered that there would be a retrial only if the defence succeeded in their appeal.

2010-09-07 Reasonable Suspicion - Articulation

- When Mr Payette, 2010 BCCA 392 stopped at a random traffic roadblock on Highway 3, the officers noticed:

1. The nice new car he drove belonged to someone else.
   
2. He was alone.
3. He was unshaven and wearing a dark hoodie.
4. The vehicle, by the debris of water and coffee containers in the vehicle and on the passenger side appeared to be lived in. There were also food wrappers from Tim Horton's to suggest he was hitting drive through establishments.
5. He was pale and his head was shaking.
6. There was a radar detector in the vehicle.

While none of them individually proved anything, together, they suggested to an officer that Mr Payette was delivering drugs.  The legal test to deploy a drug dog is "reasonable grounds to suspect".  Did the officer have a reasonable suspicion?  The trial judge thought he did.  The Court of Appeal disagreed.

While he was speaking to Mr Payette about vehicle safety issues, he asked a dog handler to take a drug-sniffing dog around the car.  He did not detain the driver for drugs.  He testified that he did so because he didn't want to delay Mr Payette without reason.  From this, the court inferred that the officer didn't believe that he had grounds to detain Mr Payette.

The court found it was a close call, but these factors together did not make reasonable grounds to suspect the presence of drugs in the car.

You don't always have to detain someone before deploying a drug dog, but you need the same confidence in your authority to act.  This officer shouldn't have deployed the drug dog until he was confident he could detain the driver based on his suspicion.

I feel some sympathy for the officer.  His "instinct" was right.  And he deployed the drug dog early, so as to reduce the time that he delayed the driver if his suspicion was wrong.

I don't believe in "instinct".  I find most officers make logical inferences from their observations, but lack the language to explain their thinking afterwards.  For example, look at the factors in this case:

This guy appeared to be making a long trip in a hurry (items 1, 3, 4)  under stressful circumstances (item 5), and it appeared that he didn't want police to stop him (items 5, 6).  Long trips tend to be cheaper by plane, unless you have a lot of luggage.  Therefore, there was reason to suspect he had cargo.  Commercial couriers can move cargo cheaper than individuals.  People tend to choose the cheaper route to move property, unless there is something special about the cargo.  Concern about police involvement suggests that what made the cargo special was its illegality.  The most common illegal cargo transported along highways in B.C. is drugs.

The law requires you to justify your use of power.  When asked to explain their thinking, I find junior officers tend to repeat their observations without mentioning inferences at all.  In a court room, this falls flat.

You can prepare for the court room by reviewing your observations, and considering what each one meant to you at the time.

On the stand:

• Don't explain your reasoning until you are asked.
• Spell out your logic.  Look at the paragraph above for an example.
  
• Concede reasonable alternatives.  ("Yes.  Some innocent people appear nervous when dealing with police.  But I didn't consider Mr Payette's nervousness in isolation.")
• A suspicion or belief that someone is guilty can be honestly held at the same time as a suspicion that he or she is innocent.  When explaining reasonable grounds, you can concede that you didn't have proof of wrongdoing.  ("Oh, sure, it was possible that Mr Payette was innocent of any wrongdoing.  But what I saw raised concerns in my mind that he may be delivering drugs.")
  

2010-09-04 Spousal Privilege - Wiretap

- Mr St Denis 2010 ONSC 1225 called his wife.  Unfortunately for him, a police officer was visiting her at the time, and she let the officer listen to their conversation on another extension in the house.  Fortunately for Mr St Denis, s.189(5) renders inadmissible any private privileged communications which were "intercepted".  The trial judge found that what the officer did qualified as "interception" within the meaning of the wiretap provisions.  Therefore, unless she was still willing, at the time of trial, to reveal the conversation, the court would not admit the officer's testmony about it.

2010-09-02 Obstruction of Justice - "Tell the truth or else"

- A woman accused Mr Pare 2010 ONCA 563 of sexually assaulting her.  He told a friend he was innocent, and that he would sue her for slander and take her house.  He asked his friend to talk to her, and he may have told his friend that he would take her on a shopping spree if she changed her story.  The trial judge acquitted him because Mr Pare believed himself to be innocent: there could be no offence in asking someone to give true testimony.

The court of appeal disagreed.  While there's nothing wrong with asking someone to tell the truth in court, there's a great deal wrong with paying someone to give the version of the truth you have picked out for them, even if you believe the version you want the witness to tell.

2010-08-31 Search & Seizure - Finding More than you Expected

- Cst Wells received source information that a certain pig farmer possessed restricted or prohibited firearms.  With the confidence that only inexperience provides, he drafted an ITO asking to search Mr Pickton's 2006 BCSC 1090 property.  During his research into Mr Picton, he discovered that a murder task force considered him a possible suspect in a series of murders.

Cst Wells made some mistakes, which the decision spells out.  But he made no mistake in seeking a briefing from the officers in the other investigation.

When his team searched the property, they found more than guns: property belonging to missing women provided a strong hint that the focus of the investigation had changed.  Fortunately, senior officers from the task force were available to help.

They suspended the search, and obtained new warrants.

They were right to do so.  A warrant permits you to search only for the things named in the warrant.  While executing a search warrant, if you find other evidence of other crimes, you can seize it (s.489).  But you can't go looking for things not named in the warrant.

The new warrants led to evidence implicating Mr Pickton in nearly 50 murders.  If the officers had gone on searching the farm without a new warrant, Mr Pickton might be free today.

What were the officer's mistakes?  In the hope that junior officers should learn from his mistakes rather than repeating them, I list them here.  I hope Cst Wells forgives me.  I have great respect for his abilities, having worked with him since.  I have no doubt he'd avoid making these errors again.

1. For fear of identifying his source, Cst Wells omitted the source's criminal record, which included some old convictions for dishonesty.  The judge agreed with defence that the justice of the peace should have been given this information, in order to assess the source's credibility.  This could be better handled by summarizing it in one paragraph, and providing greater detail on a separate page which could be sealed.
2. For fear of identifying his source, Cst Wells omitted mention of the source's financial motivation.  Because Pickton knew the source as a person with no cash, Wells feared that Pickton would notice if the source suddenly obtained money, and if the ITO mentioned payment, Pickton would identify the source.  Wells figured that omitting this information would do no harm: the source wouldn't be paid unless the search produced evidence.  He figured the source would have a greater reason to be accurate.  The judge agreed with defence that the justice should have been told this information.  A better way to handle this would have been to put the identifying infomation on the separate page which could be sealed.
3. Cst Wells omitted some specific information which the source gave him - a possible exact location of the firearm ("possibly in the laundry room") - because it too would tend to identify the source. Instead, he summarized it as hidden in the residential trailer home.  While the main part of the ITO should have contained the general information, he could have put the very detailed material onto the separate page for sealing.
   

Cst Wells was right to fear identifying his source.  It's just that the techniques he used to get the warrant while preserving informer privilege were clumsy.  There are better ways.

It's not likely, but it's always possible that the next warrant you draft could crack open the next mega-investigation.  Take it from Cst Wells.  When he speaks on the topic, he explains it most eloquently: Draft your ITO carefully, or the cross-examination will hurt.

2010-08-31 Statements - Voluntariness - When to mention the Right to Silence

- When police executed a search warrant for firearms at the farm of Mr Pickton, 2006 BCSC 995, they found human remains.  For a while after that discovery he remained at large.  A police officer visited him to ask him questions - ostensibly about the firearms.  She knew that he would soon be arrested for murder, because she was a member of the task-force working on that file.  But she pretended to be involved only in the firearms investigation.

Although she told him what he said could be used as evidence, she did not tell him about the right to silence.  This left the trial judge in some doubt whether his remarks to her were voluntary, and excluded them.  Some might disagree with the judge's conclusions on this particular point, but we'll never get an authoritative answer. Mr Picton and the Crown appealed several other of the trial judge's rulings, and the result is that he remains convicted for 6 murders.

I don't think that what the officer knew affected the voluntariness of Picton's statement.  But the judge didn't like uniformed officers using tricks to lull the suspect into a false sense of security.

2010-08-30 Statements - Voluntariness - When to mention the right to silence

- Police officers investigating a murder learned of the involvement of a white Chevvy Cavalier with a trunk-mounted luggage rack.  There were 60-70 such vehicles registered in the area.  They developed a list of questions for officers to ask the owners, which did not include a warning about the right to silence  One of the owners was Mr Butorac, 2010 BCSC 1173, who was later charged with the offence.  What he said made him look responsible.  At trial, he objected: "They should have told me about my right to silence."

The trial judge disagreed.  The officers explained the purpose of their questions.  They had no specific reason to suspect him of the offence.  Indeed, because they didn't know if the owner of the car had committed the offence, once of the questions on their list addressed who else used the car.  Although a police warning helps a court to determine if the suspect's answers are voluntary, it isn't required in every conversation.

So when dealing with a person you have not detained, when do you need to give the police warning?  This judge reviewed the opinions of other judges, and put it this way:

"... the caution should be given when [you are] in possession of information that should alert [you] to the 'realistic prospect' that the person may be involved in the commission of a criminal offence ..."

The list of questions was a good idea.  And in the context of so many possible leads, this judge agreed that omitting the right to silence was appropriate.

She also agreed with the officers' decision to record the answers with pen and paper instead of audio, but this may be partly because of the care with which the officer made his notes.  Canvassers beware: you never know when you'll meet the offender.  Take detailed notes.  Include quotes.

2010-08-30 Executing Warrants - Do Occupants need to be offered Access to Counsel?

- When police searched the house of Mr Butorac, 2010 BCSC 1173, they found him wearing the shoes described in the warrant.  Without telling him about his right to counsel, an officer asked him if he had any others to wear.  He said that they were his only pair of shoes.  Considering that forensic testing discovered the blood of the victim on them, this was an important remark.  But was it admissible?

The trial judge found that the officers detained him, and therefore they should have told him about his rights to counsel.  But she also found that the officers were entitled to seize his shoes before they reviewed s.10(b).

When you find people at the scene of a search, either you should let them go or detain them.  If you detain them, you must give them their s.10 rights.  But you do not need to do that if it would compromise the search or anyone's safety.

In this case, the trial judge found that granting Butorac private access to counsel would have taken longer than releasing him.  Although she considered the police conduct a breach of his rights, she also felt that he would have preferred to be released than kept in custody to consult with a lawyer.  This was one of the several reasons she gave for admitting the evidence in spite of the breach.

I liked how the police audio-recorded the conversation they had with Butorac during the search.  It helped the judge understand how the interaction went.  I trust that the officers told him early on that they were being recorded.

2010-08-30 Custodial Interviews - 24 hour deadline

- When police arrested Mr Butorac, 2010 BCSC 1173 for murder, they interviewed him, looking for a confession.  But Mr Butorac knew too much about the criminal justice system to talk, as he explained to an undercover officer in a cell.   The interviewers thought they were making progress in the last few minutes of the 24th hour, and so they kept going just a little longer.  Mr Butorac spent about 25 hours in custody without a bail hearing.  The trial judge found that by about the 23rd hour, Mr Butorac had made it clear he would not talk.  The police just "ran out the clock" in the hope of making him talk, in violation of his rights to silence, and to be free of arbitrary detention.  She did not agree that the importance of stopping a potential serial killer justified violating the s.503 (the 24-hour limitation).

In the result, the trial judge excluded some valuable evidence.  There won't be an appeal on this point: Mr Butorac was convicted anyway.

2010-08-25 DNA Evidence - Dynamics of Transfer

- A couple of weeks before Halloween, someone robbed a convenience store.  He wore a Halloween mask and carried a butcher knife.  Police attended and found two such masks nearby.  One bore the DNA of 4 different people.  The other bore only the DNA of Mr OBrien, 2010 NSCA 61.  Near that mask, police found a broken bit of the cash register which had been stolen, and a butcher knife.  The trial judge convicted him, relying on the DNA.  A majority of the appeal court ordered a new trial.

The problem is that DNA tells us only that a particular person touched the object.  It does not always tell you what the person was doing at the time of the touching.  In this case, the majority worried about the possibility that  Mr O'Brien had handled the mask, leaving his DNA, but someone else used it in the robbery, leaving no DNA.

It's similar to fingerprint evidence.  The presence of a fingerprint doesn't always tell you when and how it got there.

There are two ways to answer this argument.  We can ask our forensic expert "What is the likelihood of another person wearing this mask (or touching this knife, or touching this object) without leaving any DNA?"  Or we can look at the circumstances for an innocent explanation for the presence of the DNA.  If there is no possible innocent explanation, then we know what the DNA means.

For example, finding a suspect's semen in a child's body tells a great deal about what the suspect was doing.  Finding someone's DNA inside a stolen car does not tell us whether the suspect was a thief, a hitch-hiker or a mechanic who fixed the car on some previous occasion.

Therefore, when you find DNA evidence (or a fingerprint) before you lay the charge, stop and ask yourself whether there are any innocent explanations for its presence.

2010-08-19 Testifying - Bad Character of the Accused

- During the trial of Mr OBrien, 2010 NSCA 61, the investigating officer volunteered lots of information about how bad Mr O'Brien was.  When the prosecutor asked what the officer did to invesigate the case, the officer went further to explain why he did it.  Instead of saying that he obtained a warrant for O'Brien's DNA, the officer explained that he suspected Mr O'Brien was the guilty party because O'Brien was a suspect in other offences in the area.  Instead of saying that he executed the warrant on O'Brien, the officer listed several jails in which O'Brien served time for other offences.  In cross-examination, the officer volunteered that O'Brien was an active and known criminal in the area.

The Court of Appeal didn't like that.  At the sentencing stage, the trial judge should be told all about an offender's evil past.  But during the trial stage, no witness should volunteer information about how evil the suspect is unless specifically asked.  Volunteering evidence of the accused's bad character makes the trial look like biased.  The reasoning is unfair:  "Because Johnny did crimes in the past, he probably did this one too."  It's often illogical:  "Because he assaulted his girlfriend / drove drunk, he probably robbed this convenience store too."

Sometimes bad character or similar fact evidence may be admitted in a trial.  But leave that decision to lawyers and the judge.  Don't volunteer information about the accused's evil character until you are asked.

You can tell the difference by the question you are asked.  "What did you do?" means tell us the steps you took.  "Why did you do that?" asks for the information you had at the time.  When answering the first type of question, avoid mentioning the suspect's criminal record, what witnesses said he did, what information you had received about him.  When answering the second type of question, you can tell the judge what you knew.  For example:

What did you do? What happenned next?	I attended at 123 Main Street in response to a dispatch. I spoke with Ms Battered and her neighbor. I arrested Mr Goon.
Why did you arrest Mr Goon? What were your grounds?	The dispatcher said that he had assaulted Ms Battered. Ms Battered told me that he punched her in the head 5 times for burning his breakfast. I knew that Mr Goon had a long history of violence against his girlfriends because I had dealt with him before on similar complaints.

Because the second question is dangerous, prosecutors and defence counsel usually avoid asking it.  Unfortunately, inexperienced police officers often confuse the first question for the second.  This causes trouble like what happened in Mr O'Brien's case.

When counsel asks the second question, you are usually being asked to explain why your use of power (arrest, detention or demand) was justified.  If so, it's usually important to list all the reasons for your beliefs at the time.  Take time to answer completely.  Give the judge all the dirt.

2010-08-19 Sexual Assault - Probative Value of Denial

- Some college relationships don't last.  Mr Bisson, 2010 ONCA 556 and his girlfriend split up before graduating from university.  But in the last days of the school year, they met at her place to say goodbye.  There was some kind of sexual contact between them, which she called rape.  When she told her new boyfriend, he called the police.  But she told them nothing happened.  A few days later, she met with Mr Bisson, and he agreed to pay for counselling for her.  She saw a campus nurse for STD testing.  When she told the nurse she was raped, the nurse called the police.  This time the complainant gave a statement.

Mr Bisson told someone else that he "forced himself" on the complainant and penetrated her vagina with his fingers.  At trial, he claimed the digital penetration was consensual.  She complained of penile penetration.

The trial judge found the confession persuaded him that her complaint was true.  Even though he didn't decide whether the sex was intercourse or groping, he convicted Mr Bisson.

Defence appealed, complaining that the judge

• should have relied on the complainant's initial denial; and
  
• had a doubt whether there was a rape.
  

This case illustrates two common issues.

The appeal court approved of the trial judge's view of the initial denial:  "[S]he said nothing happened, not because it was true, but because she did not want to involve the police.  She wasnt satisfied in her own mind that she wanted to put herself and Justin Bisson through this ordeal, she did not know what to do so she was trying to do nothing."

Victims of sexual offences often feel conflicting emotions about reporting.  Where the offender is a close relative or friend, the complainant knows the complaint will disturb many relationships as well as getting the offender into trouble.  It's a big decision to point the finger and make an accusation.  In this case, someone took the time to figure out why the complainant made the initial denial.  Someone investigated the whole story about how the complaint was made.  Evidently, that work made a difference in this case.

The doubt about rape made no difference to the conviction.  The charge was sexual assault, not rape.  It didn't matter which version of the sexual activity was true, so long as the judge was persuaded that the sexual activity occurred without the complainant's consent.

2010-08-17 Reasonable Grounds - Breath Demands -  Is there a difference between Arrest and Warrant?  

A citizen called the Ottawa Police complaining that Mr Bush, 2010 ONCA 554 was driving like a drunk.  Cst Lucas responded to the call, but before he got there, Mr Bush crashed into a parked car.  The civillian identified the driver, and Cst Lucas "bee-lined" to the driver who said he was okay.  Bush looked dazed and he weaved back and forth as he stood.  He had an odour of liquor on his breath, and red and glassy eyes.  That was enough for Cst Lucas, who demanded that he return to the police station for breath analysis.

It was enough for the trial judge too, but not for the summary conviction appeal judge.  That judge discounted any symptoms which could be attributed to the accident:  Imbalance and the dazed look counted for nothing.  The red eyes could be explained by powder in the air bag.  All that remained was an odour of liquor and an accident.  That judge found the Cst Lucas should have interviewed the witnesses before jumping to conclusions about impairment by alcohol.

Ontario's highest appeal court agreed that you should consider evidence in the suspect's favour, but emphasized that you can form reasonable grounds from the totality of the information you received, including:

• dispatch information
• unexplained single-vehicle accident
• multiple explanations for physical symptoms

For an impaired demand, the court pointed out that you need not be convinced the suspect is a falling-down drunk.  Impairment may be from "slight" to "great".  "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road."

But this court went further to compare the "reasonable grounds" necessary for a warrant as compared to an arrest, affirming a previous decision:

"The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant."

Some officers do jump to a full breath demand without reasonable grounds.  For example, an odour of liquor on the breath can not, by itself, establish "impairment".  You need more.  But you don't need proof beyond a reasonable doubt to make a demand.  S.254 requires you to make your demands "forthwith" after forming your grounds.  An odour of liquor on the breath and an inexplicable single-vehicle accident can be enough.

2010-08-17 Reasonable Grounds - Is there a difference between Arrest and Warrant?

- Police believed that Jonathon Bacon 2010 BCCA 135 was dealing drugs from his house.  But a JP turned down their application for a search warrant saying that the materials fall short of supporting reasonable grounds to believe that the items to be searched for will be at the requested location.

While the lead investigator was preparing a re-draft of his application, officers conducting surveillance reported seeing what appeared to be another drug transaction in progress.  The lead investigator directed them to arrest everyone involved.  They found cash, got a new warrant, and recovered lots of drugs.

At trial, defence argued that the police improperly overruled the JP.  The JP had rejected the warrant application.  By ordering an arrest, the officer was second-guessing the court.  If there weren't grounds to search, then there weren't grounds to arrest. The trial judge agreed that police overstepped their jurisdiction, and excluded all the evidence of Mr Bacon's guilt.

The appeal court disagreed, saying:

"...the refusal [to issue the warrant] could not have disqualified the officers belief in the grounds of arrest.  The officer was not obliged to alter his belief to conform with the JJPs opinion.  The validity of the arrest had to be judged according to the terms set by [the relevant case law]:  the presence of a subjective belief and objectively reasonable grounds."

Essentially, if you actually have reasonable grounds to arrest, you can arrest, even if a JP doesn't agree with you.

But there's a simpler explanation to this case.  Consider the different questions that the police and JP wrestled with:

Justice of the Peace issuing a search warrant	Police officer deciding whether to arrest
Did someone traffick in illegal drugs? Are the drugs - or evidence of the drug trafficking - still in the house?	Did this guy traffick in drugs?

The JP never said that the officers lacked grounds to arrest.  The JP simply wasn't satisfied that the evidence was still in his house.  Those are two very different conclusions.

2010-08-12 Wiretap - One-party Consent authorizations are Constitutional

  - We already know this, but it's nice to know that the Ontario Court of Appeal agrees. The provisions which permit one-party consent wiretaps ("wearing a wire") are constitutional.  Unlike "full" wiretap where neither party knows that the conversation is recorded, where one party consents to the wire, the police do not need to establish "investigational necessity" before obtaining judicial authorization.  R. v. Largie, 2010 ONCA 548

2010-08-12 Spousal Privilege

- Mr Siniscalchi, 2010 BCCA 354 mugged several Asian women near several SkyTrain stations in Vancouver's east side.  Police arrested him, and a judge ordered that he remain detained until his trial.  While incarcerated, he called his wife and discussed some of the charges.  The remand centre recorded their conversations.  Those recordings helped the trial judge convict Mr Siniscalchi.  He appealed, complaining that spousal privilege protected those conversations, and the trial judge should never have received the evidence.

The Court of Appeal disagreed.  Spousal privilege prevents a spouse from being compelled to testify against her/his mate.  In this case, the wife never took the stand.

There is a specific provision in s. 189(6) of the Criminal Code which prevents the admission of spousal communications obtained through the wiretap provisions.  But this recording wasn't obtained that way.

"Privilege" remains a freedom from testimonial compulsion.  Just like when you're testifying, you can't be compelled to name your confidential sources.  Likewise, the Crown couldn't compel Mrs Siniscalchi to testify about what her husband said to her.  But a third party who heard to them talk may be compelled to testify about what they said.

2010-08-12 B.C. Inmate Telephone Calls

- Mr Siniscalchi, 2010 BCCA 354 (see above) also complained about how the police got his recorded conversations.  Relying on a new provincial act, B.C. remand centres record all inmate telephone calls (except calls to lawyers), but they don't listen to their recordings without reason.  The court found that the act created an expectation of privacy for the prisoners, and therefore, the police required a warrant or production order before the prison officials could release the recordings.  In this case, the officers did get a production order, but it was flawed (see below).

This case appears to end the confusion in B.C. about whether police need judicial authority to get inmate telephone calls from remand centres.  The answer is: "yes".  See the separate page I wrote on this topic for more detail.

2010-08-12 Search Warrant Drafting - Confidential Informant

- After Mr Siniscalchi's, 2010 BCCA 354 arrest and detention, he talked with his wife from the remand centre.  As explained above, the remand centre recorded the calls.  A confidential informant told police that Mr Sinischalchi confessed to his brother in a telephone call from jail.  The Information to Obtain asserted only that bare fact, but gave no detail from which the issuing justice could measure the reliability of the source.  Indeed the officer who drafted the information admitted that nobody investigated the reliability of the tip.

You can establish "reasonable grounds" from a confidential informant alone, but you can't do it that way.  Your ITO must provide sufficient detail that the justice can see why the information is trustworthy.

The appeal court found that this ITO should never have been issued.  It also criticized the police officer for applying for the production order without checking his sources.

Epilogue: Despite this, the court upheld Mr Siniscalchi's conviction, however.  The evidence in the recordings was trivial compared to the rest of the case.

2010-08-11 DNA Evidence - Relatives of the Accused

- DNA matches are not done by comparing the entire DNA molecule, but just certain little bits of it.  If DNA identifies an offender, then an expert will testify as to the probability that an unrelated individual left that DNA instead of the offender.  If you aren't related to me, then the odds against your DNA matching mine are astronomical.  But my brother's DNA is much more likely to "match" mine.  If I had a twin brother, it would.

Someone raped a 7-year-old girl.  Police found semen on her clothes which matched Mr Johnson's 2010 ABCA 230 DNA.  At trial, the expert testified that the odds of the DNA of someone unrelated to Mr Johnson also matching that semen were 890 billion to 1.

"That's fine," argued defence counsel.  "But Mr Johnson has male relatives.  One of them might have done it.  The expert failed to calculate the odds of one of them leaving this DNA.  All we know for sure is that it's possible that one of those guys left the DNA.  We don't know the odds."

The jury and the appeal court rejected this argument.  The appeal court noted that there was other evidence which suggested that Mr Johnson, and not someone else, committed the crime.

Despite this result, I think this argument will be made again in future.  If the case relies on DNA, then as a prosecutor, I would like to have

• some shreds of other evidence: was this suspect in the area at the time? motive? general description of assailant?
  
• if there's a twin brother, clear alibi evidence for the twin.
• a list of relatives of the same gender as the suspect. 

2010-08-11 Statements - Capturing Quotes

- After Sarah Cador, 2010 ABCA 232 split up with her boyfriend, Greg, she called him up and asked him to meet her at a bar.  He came.  She asked him to step outside with her, and there, they met her new boyfriend Scott McNaughton, 2010 ABCA 231.  Greg realized at once it was a set-up.  McNaughton and some buddies broke his face, rendering him unconscious.  Greg's sister heard about it, so she called Ms Cador, and demanded an explanation.  Ms Cador said:

it wasnt supposed to be that bad

Quotes can be pretty powerful.  This one remark proved:

• Ms Cador knew in advance that her new boyfriend would attack Greg
• She knew in advance that her new boyfriend would inflict injuries

That made her guilty as a party to aggravated assault.

We prosecutors would prefer to receive audio-recordings of the accused's remarks during offences and after.  Such evidence is damning and makes the case easy to prove.  (Call us lazy.)  But you're not going to get audio in most cases.  In a case like this one, you'd have to arrange a one-party consent wiretap, and make an agency arrangement with Greg's sister.  It's simply impractical in many situations.

But you can interview witnesses carefully.

Avoid paraphrases.  Get quotes.

Whenever a witness tells you "s/he said that...", ask the witness to repeat the words the suspect actually said, as if the witness were the suspect at the time they were said.  Tell the witness you want - if possible - "the exact words the guy/gal said".

For example:

Paraphrase	Quotation
I asked her why my brother was in hospital, and she said that it wasn't supposed to be that bad.	I asked: "Why is my brother in hospital?"  She said: "It wasn't supposed to be that bad."
He threatened to put two bullets in my head.	He said: "I've got a gun, and I'm gonna put two bullets in your head."

2010-08-04 Arrest & Detention - Strip Searches - The Cost of Making Mistakes -

People can sue police for violating their Constitutional rights. Next time you think of doing a "no-case seizure", or trespassing on the land of a suspect's neighbor, remember that criminal trials aren't the only kind of litigation in which you may be called upon to explain your actions.

While Prime Minister Cretien visited Vancouver, police received information that someone would throw a pie at him. Officers saw Mr Ward, 2010 SCC 27 running near a group of protestors.  He looked somewhat like the description the tipster gave. They arrested him, partly strip-searched him, and detained him for about 4.5 hours. They seized his car, and attempted to get a search warrant for it, but when they realized they lacked grounds, they let him go, and gave him a ride to where they had towed his car.

Mr Ward is a lawyer who often acted against the police on behalf of various social protest groups.  He sued Vancouver police for false arrest, false imprisonment and arbitrary detention.

The trial judge found that the police did not act in bad faith, and therefore they need not pay for false arrest or imprisonment. The trial judge did find that they breached his Charter rights, and ordered them to pay $5,000 for the unnecessary strip search and $5,000 for the unjustified detention, and $100 for seizing his car.

The Supreme Court upheld the two $5,000 awards, but overturned the $100 award.   In so doing, the court limited police power to strip search prisoners:

"Mr. Ward did not commit a serious offence, he was not charged with an offence associated with evidence being hidden on the body, no weapons were involved and he was not known to be violent or to carry weapons. Mr. Ward did not pose a risk of harm to himself or others, nor was there any suggestion that any of the officers believed that he did. In these circumstances, a reasonable person would understand that the indignity resulting from the search was disproportionate to any benefit which the search could have provided. In addition, without asking officers to be conversant with the details of court rulings, it is not too much to expect that police would be familiar with the settled law that routine strip searches are inappropriate where the individual is being held for a short time in police cells, is not mingling with the general prison population, and where the police have no legitimate concerns that the individual is concealing weapons that could be used to harm themselves or others"  (at para. 97.)

This would suggest that before you decide whether to strip search a prisoner, you must consider all the circumstances of the suspected offence, his history, whether he will stay in a cell by himself or with others, and how long he will stay. I see a curious contrast between this case and Cornell, which they delivered only a few days later.

I see three major points for police officers in this decision:

1. Breaches of Charter rights can embarrass you even when no charge is laid.  Beware of "no-case seizures".  Avoid trespassing on private property during your investigations, even if you don't think the landowner is a target.
2. If you do breach anyone's Charter rights, you should "mitigate" the harm, by trying to restore the person to the position they were in before the breach.  For example, a prompt apology can mitigate damages.  But it also has significant consequences in a civil suit.  You may want legal advice from your civil counsel.
3. Don't strip-search your prisoners unless:
• you have reason to think they might have weapons or
• they might mingle with other prisoners.

I'm a little troubled by the third point.  Even if the odds are low that the unknown prisoners you arrest have weapons that they are prepared to use against police officers, after enough arrests, some officer somewhere will encounter the one who has a weapon he will use.

Therefore, take care of yourselves.  Organize your cell-block protocols, so that you know which prisoners are "clean" of weapons and which are not.  Handle them accordingly.  And all too often, I've seen cases in which a weapon turned up in the possession of a prisoner who had already been searched.

2010-07-30 Search and Seizure - Executing Warrants - Knock & Announce vs. Hard Entry

- How much evidence do police need in order to justify a "hard entry" when searching a residence?  Calgary police received information that some violent gangsters were operating a dial-a-dope operation.  They watched those gangsters frequently visit Mr Cornell's 2010 SCC 31 residence in a manner that led them to believe that Mr Cornell's residence contained the main supply of drugs.  The officers knew the gangsters were dangerous, but they had no information to believe that the other occupants of the residence were dangerous.  They did expect that someone in the residence would want to dispose of the drugs if given an opportunity.
 
A tactical unit made a "hard" or "dynamic" entry.  They wore balaclavas.  They broke open doors.  They found a family, including a 17-year old girl and a mentally-challenged man, who burst into tears, and had to be comforted.  The also found cocaine.

Defence complained that the police entered the house with unnecessary violence, in violation of the "knock and announce" rule.  Why did the cops use masks?  Couldn't they have gathered more information before frightening the people inside?

The Supreme Court of Canada found the officer's approach in this case to be justified.  "Section 8 of the Charter does not require the police to put their lives or safety on the line if there is even a low risk of weapons being present.”  To depart from the "Knock and announce" rule, you must have " reasonable grounds to be concerned about the possibility of harm to [your]selves or occupants, or about the destruction of evidence."

They said that courts should not " micromanage the police’s choice of equipment".

In B.C., police officers used to enter all marijuana grow operations without knocking and announcing.  The BCCA rejected this policy - they said you need reasons for each hard entry.  The SCC didn't disagree.

Therefore, I suggest:

• Always knock and announce, unless you have reasons to fear injury or loss of evidence.
• Officer safety is very important.  Don't take unnecessary risks.  Ask experienced officers what factors make your proposed search risky.  Omit the announcement where the evidence requires it.
  
• Read both the SCC decision and the BCCA decision.  They represent the arguments on each side of the issue.

2010-07-30 Search and Seizure - Executing Warrants - Copy of the Warrant -

When executing a search warrant on Mr Cornell's 2010 SCC 31 residence, the officers who first entered the residence carried no copy of the warrant with them.  Another officer at the scene had one, and brought it in later, once the house was secured.

The Court found this sufficed.

Lessons:

1. Always bring a copy of the warrant.
2. But only one officer needs to bring it to the scene.
3. Those officers who search the place ought to know what objects the warrant authorizes them to seek.
4. Ideally, the officers ought to know about the offence and the investigation, so that they also know what other objects are relevant to the offence.

2010-07-30 Picton stays in Jail

- Today, the Supreme Court of Canada rejected Mr Picton's 2010 SCC 32 appeal for a new trial.  He will stay convicted for murdering 6 women.  The court's decision turns on tactics by counsel, trial procedure and the correct way to instruct the jury about liability for murder.  The decision covers nothing of interest to police officers.

This was a massive investigation, from which many officers and counsel learned many lessons.  Congratulations to them all.

B.C.'s Criminal Justice Branch already decided not to try him for the other murders if he remains convicted of these six.  Likely, the press and the public will discuss the relative benefits of putting him on trial for the many other murders that the investigators believe he committed.  The family members of those victims want justice.  But there are many destitute people who could benefit from the millions of dollars required to run such a trial.  Spending those millions on Picton won't save any lives: he's serving a life sentence.  Other psychopaths still walk our streets.

2010-07-21 Identification Evidence - Showing the Suspect to Eyewitnesses at the Scene

- Someone wearing a Green Bay Packer's jacket robbed a woman, and fled from the scene, lurching as if intoxicated.  The victim and other witnesses said the robber had dark hair and dark complexion.  Less than 10 minutes later, police found young Mr R. v. L.(W.M), 2010 BCCA 355.  He was intoxicated, and wearing a Green Bay Packer's jacket.  He had dark hair and dark complexion.  One of the witnesses approached the officers who were dealing with the boy, and told the police that she saw the robbery, and this was the robber.  It probably seemed like a slam-dunk case.

The victim couldn't recognize the robber in a photo lineup.  Nobody showed the lineup to the other eyewitnesses.

Some judges would have acquitted.  This trial judge convicted, and the Court of Appeal upheld the conviction.   All the judges agreed: eyewitness identification of strangers is risky and unreliable evidence.  The victim and the eyewitnesses saw the robber for only a few moments.  Under those circumstances, it would be difficult for them to remember his face.

What made this case strong enough for conviction was the circumstantial matches: the suspect matched the robber in:

• clothing
• facial appearance
• location
• intoxication
  

When investigating an offence by a stranger, ask the witnesses early to describe every possible detail.  Height, weight, skin and hair colour, eye colour, clothing, etc.  Document identifying features.  Photograph all of your suspect, not just the face.

Showing your suspect to an eyewitness at the scene is a risky short-cut.  After you've done it, dont bother showing that eyewitness a lineup.  It's not probative.  She will certainly recognize the suspect in the lineup, but will she be remembering the face of the robber or the captive in the police car?  Showing a suspect in a police car to a witness can create a strong impression in the mind of the witness that the suspect is the guilty person.   Even if you do catch the right guy, and the witness accurately identifies him, defence will argue at court that the witness could be wrong, and you caused the witness to be mistaken.

On the other hand, showing a suspect to an eyewitness may quickly clear an innocent person.  It's essential to your investigation to know "Have we got the right guy?"

This case says that showing the suspect to a witness minutes after the offence may produce probative evidence.  In this case, the witness controlled the identification, not the police.  If you are in control, I suggest that you ask the witness for a full description of the felon before letting the witness see the suspect.

If many hours have passed, and you no longer need to know instantly "have we got the right guy?", consider using a photo lineup instead.

2010-07-21 Search Warrant Drafting - Arguing Law in the ITO

- In 1998, courts disagreed whether the Radiocommunication Act prohibited Canadians from decoding encrypted American TV signals.  Mr Lahaie, 2010 ONCA 516 ran a business in Ontario selling equipment which decoded those signals so that Canadians could watch expensive American channels for free.  In Ontario, the highest available authority was a decision of the Federal Court of Appeal (which theoretically applies across Canada) which said that his business was criminal. Therefore, a police officer applied for a warrant to search his business and take all his stock.  The officer's application recited the relevant sections of the Act and said that they "clearly" prohibited what Mr Lehaie was doing.  He did not mention the court decisions from other parts of the country which said the business was legal.  The justice granted the warrant, and police shut down the business.  Later, the Ontario Court of Appeal concluded that it was okay to decrypt these American broadcasts.  The charges were stayed, and Lehaie sued the police for destroying his business.  Next, in a different case, the Supreme Court of Canada decided that the business was illegal.  The police officer was right all along, but Lahaie continued his lawsuit.  He complained that:

1. In the ITO, the officer had an obligation to mention the conflicting court opinions about the lawfulness of Lehaie's business.
2. Considering that the officer knew of the conflicting judicial opinions, he should not have mislead the justice by saying that the Act "clearly" prohibited the business.
3. Because of the legal uncertainty, the police officer had an obligation to find alternative ways to investigate than shutting the business down.

The trial judge agreed, and made the police pay $425,000 to Mr Lahaie for shutting down his illegal business.  The Ontario Court of Appeal rejected all three reasons, and reversed the trial judge's conclusion.

I think you should avoid drafting your ITO in a manner which sounds like you are an expert in the law.  If the officer knew that some courts said the business was lawful, the it was unwise of the officer to say that the Act "clearly" prohibits what Lehaie was doing.  The legal costs of adding that one word to his ITO turned out to be substantial.

On the other hand, the decision makes it clear that you can argue law in your ITO.  Sometimes judges or justices of the peace don't realize that the law supports your application.  Sometimes, you must argue law to get what you need.  Just recently, in order to get a warrant, an officer here in Chilliwack had to explain in an ITO the difference between a "receptacle" and a "place" in s.487 of the Criminal Code.

When you know darn well that the law supports your application, how do you word your ITO to explain the law?  I suggest that you add a dash of humility.  For example:

Riskier	Safer
"s. 9(1)(c) of the Act clearly provides an absolute prohibition against the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding"	"I believe that s. 9(1)(c) prohibits the decoding of encrypted subscription program signals unless they emanate from a lawful distributor in Canada and that distributor authorizes their decoding"
"This court must add a term authorizing the police to enter the residence wearing tophats and Groucho Marx glasses.  R. v. Kaboodle, 1871 SCC 13"	"I understand from R. v. Kaboodle, 1871 SCC 13 that this court should add a term authorizing the police to enter the residence wearing tophats and Groucho Marx glasses."
When the previous justice denied my first application for a search warrant, he misunderstood the difference between searching a "place" (our police locker) for a "thing" (the computer), and searching a "receptacle" (the computer) for "data" (the child pornography).  While it is obvious that I don't need a warrant to search my own locker, it is also obvious that I do need a warrant to violate the suspect's privacy interest in the data in his computer.  R. v. Morelli, 2010 SCC 8	My previous application perhaps did not set out clearly enough the difference between searching a "place" (the police locker) for a "thing" (the computer), and searching a "receptacle" (the computer) for "data" (the child pornography).  I respectfully agree that no warrant would be required to search my own police locker.  But I submit that I do require judicial authority to override the suspect's substantial privacy interest in the data in his computer.  R. v. Morelli, 2010 SCC 8.

The humility reminds everyone that the judge or justice is the expert on the law, not you.

If the legal argument is complicated, then consider getting legal advice before drafting legal argument in your ITO.

2010-07-15 Internet Luring - "How Old Do You Think I Am?"

- An undercover officer impersonated a 13-year-old boy on a sex-themed internet chatroom.  Mr Levigne, 2010 SCC 25 "chatted" with him in highly explicit terms, and arranged to meet him at a local restaurant.  Police arrested Mr Levigne.  At trial, Mr Levigne testified that he thought that he was chatting with an adult, and gave some reasons:

• to enter the chat room, one must create a profile which describes you as over 18;
• moderators on the chat room will screen for and exclude underage participants;
• adults sometimes pretend to be minors;
• etownjessy13 typed fast.

Beyond making these observations, he took no steps to ensure that this was really an adult.  The trial judge acquitted him because he didn't believe he chatted with a boy.

But s.172.1(4) requires a chatter in these circumstances to take reasonable steps to ascertain the age of the person on the other side. The appeal courts convicted him because they found he took none.

Because of the similarity in language between s.172.1(4) and s.150.1(4), this suggests in luring cases and cases of sex with kids under 16, adults must do more than merely observe.  They must take action to determine the age of the child with whom they interact.  This decision may have a broader impact in sex cases generally.

2010-07-12 PTAs and UTAs - How long does the UTA last?

- Police arrested Mr Killaly, 2010 BCPC 138 for assaulting his spouse.  They released him on a promise to appear (PTA) at court on a later date.  They imposed an undertaking which prevented him from speaking to her.  But they didn't swear an information. After the PTA date, Mr Killaly asked a judge to change the terms of his undertaking.  The judge refused.

Because the police swore no information, the undertaking expired on the PTA date.

I receive a surprising number of questions on this topic.  Here are the answers.

If you release a suspect on an undertaking with a PTA:

1.    The suspect must obey the conditions of the undertaking until the case is over.  Some officers think it lasts only until the PTA date.  This is wrong.  If you swear an information before the PTA date, the undertaking lasts until the case ends with a conviction & sentence, acquittal, stay of proceedings or withdrawal of the information.  See form 11.1.  (The accused can apply to court to change the conditions. See s.503(2.2).)

2.    Section 505 of the Criminal Code requires the information to be sworn "as soon as practicable".  If you delay swearing the information until just before the PTA date, then the PTA expires, but the undertaking does not.  Oliveira, 2009 ONCA 219.

3.    If you fail to swear the information before the PTA date, then the undertaking expires.  Nothing will protect the complainant from the suspect.  Killaly, 2010 BCPC 138.

2010-07-11 Right to Counsel - Answering the Lawyer's Questions

- After drinking enough to put his blood-alcohol level over double the legal limit, Mr McLean, 2010 BCCA 341 crashed his car into an oncoming vehicle, killing the driver.  When police demanded breath samples, they asked him if he wanted to speak to a lawyer.  He did, and called a lawyer.  That lawyer asked the police officer to explain the grounds for his breath demand.  The officer refused to explain.  At trial, and on appeal, Mr McLean complained that police violated his right to get legal advice by withholding important information that his lawyer needed in order to determine whether Mr McLean should provide the breath samples.

When the suspect exercises his s.10(b) rights, do police have to answer the lawyer's questions?

The court did not give the black-and-white answer police officers want.  They said that there is no general obligation in every case to answer counsel's questions.  But they left open the possibility that in specific cases, the lawyer might need information from you in order to advise the client.

What do you do when the lawyer wants to ask you questions?  I don't know of any cases which answer this question definitively.  Here are my suggestions, but I can't guarantee that the judges will agree:

1. Write down or audio-record the lawyer's questions and your answers.  If you use a recording device, tell the lawyer.
2. People whose mental abilities are impaired by disability, drugs or alcohol need your help to explain counsel the reasons for the arrest or detention.  For those folks, tell counsel the basics of what you believe the suspect did.  For example: "Mr McClean crashed his car into another vehicle.  It looks like the other driver is dead.  I think he's impaired by alcohol, and I demanded breath samples from him."  Basically, you're repeating the s.10(a) information to the suspect through counsel.
3. People who can talk and think for themselves should instruct counsel without your involvement. Especially for impaired drivers, counsel who ask you to explain the situation risk suggesting that the suspect is too drunk to obtain legal advice, and therefore is too drunk to drive.
4. Counsel may ask about things that the suspect does not know, but you do.  For example, in an impaired driving scenario, if you made your breath demand more than 3 hours after the driving, counsel might want to know when you believed the driving occurred, and when you decided to make your demand.  This is important information which only you know.  If those events occurred more than 3 hours apart, counsel will know it was an illegal demand, which the client can safely refuse.  I suspect courts will say you must answer questions like these.
   

A good practice may become to ask the lawyer: "What do you want to know, and why do you need it from me instead of your client?"  If the lawyer can't answer the second half of that question, it may be unnecessary to answer the lawyer's questions.

I make these suggestions without confidence.  I can confidently predict that we will see further litigation on this issue.

2010-06-26 Search & Seizure - Motor Vehicle - Random Stop

- Mr Vatsis and Mr Nolet 2010 SCC 24 took an empty commercial vehicle east on Highway 1.  At 11:00pm, a police officer in Saskatchewan stopped them to check compliance with the commercial transport regulations.  He found problems:

• the truck licence wasn't pro-rated for Saskatchewan
• the fuel sticker had expired
• the log book was incomplete, and didn't match the bills of lading; but it did show the vehicle usually operated east of Manitoba.

Under Saskatchewan's Highway & Transportation Act, this truck could be prohibited from further travel in Saskatchewan.  For some of the infractions, such as the log book, an officer could search it for evidence.

The officer looked inside the trailer, and something seemed odd.  He began to suspect drug trafficking.  The officer searched inside the cab for documents which would confirm or contradict the log books.  He found a small duffle bag, whose contents crackled like paper when he touched it.  In his experience, truckers often packed papers in odd containers, so he looked inside.  He found $115,000 bundled in small denominations.  His training told him this matched the packaging drug traffickers used.  He arrested Vatsis & Nolet for possessing proceeds of crime, and called for backup.  They found that the inside of the trailer was 3' shorter than the outside.  In a hidden compartment, they found over a $1,000,000 worth of cannabis.

Defence argued that the police officer violated their privacy.  The cab of a commercial truck is the driver's house and bedroom, and should enjoy privacy.  The trial judge excluded the evidence and acquitted Vatsis & Nolet on the basis that the officer continued searching the truck because he was more interested in criminal offences than transport safety.

The Supreme Court of Canada agreed that s.8 protected the cab.  But commercial trucking is a highly regulated industry.  Once the officer found the violations, the cab enjoyed little expectation of privacy.  To the extent that you enforce highway safety regulations, you enjoy significant powers of search, which you can employ even when you suspect that you will find evidence of more interesting but unrelated offences.  Because the officer looked in the duffle bag for evidence relating to the log books, his search was lawful.  But if you pretend to use those powers so that you can get into private places and investigate other things (like trafficking), you violate s.8 or 9.

This raises a tough issue for police investigating conspiracies.  When you're surveilling suspects, can you randomly stop a vehicle and check driver's licence information for the purposes of identifying your suspects?  The court repeated its position from earlier cases:

2010-06-26 Search & Seizure - Reasonable Grounds - Articulation

- When police arrested Mr Nolet 2010 SCC 24 for possession of a truck, defence complained that all he had seen was a large quantity of money in a duffle bag.  This wasn't sufficient to justify a belief that the money was dirty.  Fortunately, the officer explained much more in his testimony:

• near midnight
• an empty transport vehicle
• bearing false documentation
• contained $115,000 bundled in small denominations
• in a fashion which experts had told him was consistent with the drug trade
  

The court accepted that these gave him reasonable grounds.

I'll bet when this officer saw the money, his gut told him it was dirty.  In my experience, those police "instincts" are usually the subconscious assemblings of highly logical inferences.   Some officers fail to take the time afterwards to write down all the things they saw that led them to that "gotcha" conclusion.  When those officers get to court, they can not explain why they knew they found a crook, and they call it "instinct", "hunch", or "gut".  Judges reject those explanations.  You need reasonable grounds to arrest.

This cop did explain the many observations he made which led him to believe that this was dirty money.  I suspect he took some time when writing his report to reflect on the many suspicious indications he observed before he found the money.

Don't wait till court to explain your thinking.  By that time, you will have forgotten half of what you saw, and you won't be able to connect the dots.  After you exercise your powers of arrest or search, think about what you saw, and why you acted.  Then write.

2010-06-26 Search & Seizure - Inventory Search

- After police arrested Mr Nolet 2010 SCC 24 at the roadside for possessing proceeds of crime, they took his truck to a police station.  There, they searched it incidental to arrest.  Even though several hours passed between the arrest and the search, the court had no difficulty finding this search was truly "incidental to arrest".

The next day, however, another police officer searched it again, for the purpose of creating an inventory of its contents, for civil purposes.  She found further evidence.  Without discussing other cases on inventory search, the court observed that she had no lawful authority for this search, and therefore the search violated s.8.  However, the court found that evidence to be admissible under s.24(2).

In the absence of specific authority to conduct an inventory search, any evidence you find when doing one may well be excluded in a criminal trial.

2010-06-26 Reasonable Grounds - Burnt v. Fresh marijuana

- Cst Ryzak watched a drug house in a low-end part of town.  It was condemned. A Chrysler 300 pulled up and stopped.  He thought the car was out of place, so he followed it.  It failed to stop at a stop sign, so he tried to pull it over.  It stopped, but then drove on for another block.  When it did stop, he arrested the driver, Mr Hardenstine 2010 BCSC 899, for causing a police pursuit.  The driver smelled of recently burnt marijuana.  He also arrested the driver for possession of a controlled substance.  A search incidental to this arrest located lots of drugs, and cell phones which received calls from people asking for drugs.

Defence argued that the smell of burnt marijuana establishes only that the suspect did possess marijuana, and does not establish the quantity.  Possession of less than 30g of the stuff is a summary conviction offence.  Police can't arrest for summary conviction offences unless the find the person committing the offence.  Defence said that Cst Ryzak caught his suspect too late to arrest him.

The judge disagreed.  There were other reasons beyond the smell to believe that Hardenstine still possessed marijuana:

• The car was in an area frequented by drug dealers and users;
• The driver's behaviour suggested he had something to hide.

Compare this with the case from yesterday, Harding.  (see below)

2010-06-26 Right to Counsel - s.10(b) - "Reasonable Opportunity" to get Legal Advice

- After arresting Mr Hardenstine 2010 BCSC 899, for possession of drugs, police took him to a police station.  He named a lawyer, and the officers helped him call, without success.  He looked up the numbers of two more lawyers, and called them, but the best he could do was leave a message.  The officer offered Legal Aid, but he declined. Mr Hardenstine said that he was satisfied by the officers' efforts, and he didn't want to call any more lawyers.

The officer didn't read the "Supplemental" (Prosper) warning promising to hold off eliciting evidence until he had a reasonable opportunity to get advice.  Instead, the officer asked him who owned the bag that contained the drugs.  He said he did.

The court found that the officer breached his rights, and excluded the admission.

When a suspect expresses a desire to speak with counsel, and then changes his mind, you should remind him that he is entitled to a reasonable opportunity to get legal advice.  Don't ask questions of the suspect until the suspect exercises that reasonable opportunity, or very clearly declines it.

2010-06-25 Reasonable Grounds - Burnt v. Fresh marijuana

- When Sgt Topham stopped Mr Harding's 2010 ABCA 180 vehicle, he smelled the odour of fresh (not burnt) marijuana in the car.   Having had many years of experience seizing marijuana, he was able to testify convincingly that he knew the difference.  Did he have grounds to arrest?

Sgt Topham thought there were other reasons to believe that Mr Harding was committing an offence:

• it was a rental car, which he knew to be commonly used by drug couriers
• the car came to Alberta from B.C., a "notorious source of drugs"

The court ignored these other factors, dismissing them as mere reasons for suspicion, not reasonable grounds.  That left only the smell.  The court agreed with defence that you can't estimate the quantity of drugs from the smell.  Therefore, the officer no grounds to believe that Mr Harding had more  than 30 grams of the stuff.  Possession of less than 30 grams is a summary conviction offence, for which you may not arrest unless you find the suspect actually committing the offence (s.495).  The officer couldn't see the stuff; could he arrest?

The court said "yes".  Without mentioning the other leading case in this area, the court concluded that you can rely on inferences to conclude that the person "is committing" the offence, even if you don't see the offence being committed.

The officer was right to mention the other factors.  Before another court, they could have been determinative.  In this case, only his experience mattered.

In order to enjoy credibility, like Sgt Topham, do you need a training exercise for junior officers to develop expertise in the difference in smells between fresh and burnt marijuana?

Like a famous president, you'll sniff, but you won't inhale.  Because of our notoriety here in B.C., surely the Pacific Regional Training Centre will offer it soon.  :-)

2010-06-25 Impaired Driving - Screening Device Demand - Reasonable Suspicion

- An officer demanded that Mr Krishnappa, 2010 ABCA 179 blow into a screening device.  At trial, the prosecutor asked him why.  He explained that the driver had admitted to consuming three beer that night.  The officer testified:

Defence complained: We all know that people metabolize alcohol.  If I drank a single beer yesterday, you won't expect the alcohol to remain in me today.  If I drink a beer at 6:00pm, do you think there will be any alcohol left in me at 10:00pm?  Section 254(2) does not give police the power to demand a breath screen when they think the suspect has been drinking, but only if the officer thinks there is still alcohol in the person's body.

The trial judge agreed, and found that the demand was unlawful.

Lots of judges would agree with him.  In this case appeal judge did not.  I've seen plenty of appeals based on this issue.

Before you make your demand, turn your mind to the legal question. The question isn't "Has this guy been drinking?"  The question is "Is there any alcohol left in this guy's body?"  (If you read your screening demand card, you'll find those words there.)

In court, please save the prosecutor the trouble of yet another expensive appeal.  Don't just testify why you thought that the driver might have been drinking.  Tell the judge why you thought there might still be alcohol left in his body at the time you you made the screening device demand.

2010-06-24 Identification - Investigating after Taking the Statement

- A 12-year-old girl went swimming at the indoor pool in her building complex.  There, she met a stranger who invited her to his suite.  When she attended, he complimented her, and kissed her on the lips.  She went home and told her mother, who confronted him.  Police prepared a photo lineup, but her mom didn't identify anyone.  (She suffered memory issues resulting from a stroke.)  Nobody showed the lineup to the girl.  In the courtroom, a year and a half later, the girl identified Mr Wilkinson, 2010 BCCA 316 as the man who kissed her.  Defence complained that this testimony wasn't strong enough.

Defence was right.  Courtroom identifications of strangers are artificial, because it's always obvious who's on trial.  Fortunately, the investigators did much more work to prove identity.  They asked the girl many questions about the stranger.  She told them:

• he pointed out his truck in the parking lot
• he described his employment
• his apartment contained a box like a treasure chest
• his hands bore many distinctive scars
• there was a white mat outside the door of his apartment

The investigators found witnesses who could confirm these details about Mr Wilkinson.  It was good investigation, and that's what proved the case.

Busy general duty investigation teaches you "take statements and close the file".  But in my opinion, takling the statement of the complainant or suspect is not the end of the investigation, but the beginning.  Think about what they say, and follow up on the details which address the issues.  (PS: I love photographs too.)

PS: I subsequently saw Belcourt, 2010 ABCA 176, a spousal assault case, in which the complainant offered many details about the assault which could have been confirmed by examining the scene.  The court pointedly observed that nobody bothered.

2010-06-23 Child Pornography - Possessing and Accessing - Explaining the Forensic Evidence

- Mr R.D.'s 2010 BCCA 313 computer contained pornography.  Some of the girls were young.  In 2003, his daughters found pictures on the computer, and showed them to his wife.  It seems that the images showed girls between 12 and 14, but the wife's testimony was much less precise at trial.  (Witnesses often do that.)  She confronted himseveral times during their relationship about pornography, and he once offered to move out.  In 2004, Mr R.D. did leave the family home.  He returned for two days in September to use the computer.  Forensic analysis showed that on those two days a "QuickClean" file deletion program was used extensively.  Forensic analysis also showed a great many pornographic images had been deleted from the computer, including around 100 images of child pornography, but no one could say when those images were first stored or deleted.  Did he "possess" or "access" child pornography?

The trial judge said he did.  The appeal court acquitted him of both charges, relying in part on some ideas from Morelli 2010 SCC 8, and in part on testimony from the experts in the trial:

• When browsing websites, the user doesn't know what will be downloaded onto his computer until after he clicks the button.  Therefore, he doesn't "knowingly" cause the image to be viewed or transmitted to himself.
• Some websites and pop-ups will automatically download images that don't immediately appear on the screen.  Therefore it is possible to receive a file that you don't know about.
  
• Users don't know that their browsers store images in the cache, therefore they don't "possess" images they viewed using their browser.

Each of these can be answered:

• Fool me once, shame on you.  Fool me twice, shame on me.  But a guy who gets "tricked" into seeing hundreds of child pornography images must like what's going on.
• There is no commercial advantage to downloading images without showing them to the consumer.  (Perhaps someone at a child exploitation unit could investigate and report on what the websites are actually doing, rather than what's merely "possible".)
• The popularity of tools which wipe browser caches suggests that many people do know.  I don't think this broad assumption holds any more.
  

The court did not address an obvious inference:  Mr R.D. must have spent considerable time deleting files from the computer.  He wouldn't have done that if he didn't know the files were there.

There are lessons in this unfortunate decision:

1. When investigating access and possession of child pornography, you want evidence of knowledge to rebut suggestions automatic download.
2. When testifying, you need to go beyond what's merely "possible" to explain what occurs in the real world.  When asked about deleted files, and what date-stamps aren't available, you should also discuss what can be inferred from the overall pattern.
   

2010-06-22 Impaired Driving - Forming and Expressing "The Opinion" - Accident Cases

- Returning from a wake, 17 members of a family walked along the road toward their hotel.  Mr Watson 2010 BCCA 270 drove his car into the crowd, striking two of them.  According to the witnesses, he never braked.  By the time a police officer arrived, chaos reigned.  At least one person had punched Mr Watson.  Fortunately, he did not drive away.  The family members told the officer that Mr Watson was drunk.  The officer noticed a moderate odour of liquor on Mr Watson's breath and his eyes were red and watery. He had a fat lip from where he had been punched earlier. His speech was slurred and his face was red.  The officer decided to read a demand.  He asked Mr Watson to get out of the car; Mr Watson had poor balance, but got into the police vehicle without difficulty.

At some point during his testimony, the officer said that he made his demand "based on what the family members told me".  This is a classic mistake in testifying.  Defence relied upon this to argue that the officer considered no other information than the enraged remarks of upset family members, and therefore his opinion wasn't objectively reasonable.  The court rejected this argument, referring to other parts of the testimony where the officer mentioned his other observations.

When a lawyer asks you for the reasons or grounds for your detention, arrest or demand, take some time to list everything you knew, and any logic you applied to it.

In accident cases, officers on the witness stand often forget to mention the most obvious detail: the unexplained accident.  If  the suspect caused the accident, then you may infer that the suspect drove badly.  If you have evidence of alcohol consumption, then in the absence of other explanations for the accident, you may infer that alcohol impaired the driver's ability to drive.  It's so obvious that at court, many officers forget to say it.  In the mayhem of motor vehicle collisions, some officers never think it.

The court's decision recites some of the investigating officer's testimony.  I noticed he made a point of slipping in one other phrase:  he believed that the driving occurred within the 3 hours before his arrival.  That was smart.  When pulling over impaired drivers, you never need to turn your mind to the question of when the driving occurred - you saw it.  When you arrive an an accident scene involving an impaired driver, you need to establish the time of driving, and who was driving.  Don't rely on the time of the dispatch: ask people, feel the hood of the car, look around.

2010-06-17 Freedom of Information - Disclosure of Police and Government files

Someone murdered Domenic Racco.  Several people pleaded guilty to lesser charges.  Two more faced murder charges.  They were convicted, but the appeal court ordered a new trial.  At the new trial, the judge stayed the charges, saying there were:

"... many instances of abusive conduct by state officials, involving deliberate non‑disclosure, deliberate editing of useful information, negligent breach of the duty to maintain original evidence, improper cross‑examination and jury addresses during the first trial."

The OPP investigated the police officers and prosecutor involved, and issued a short statement to the press that they found no evidence of deliberate police misconduct.  An association of Ontario criminal lawyers applied under the Ontario freedom of information law for access to the documents relating to this decision.  The cabinet minister responsible for deciding whether to release the documents turned the application down, and the Ontario Privacy Commissioner agreed with him.

The criminal lawyers claimed a constitutional right to disclosure: "How can we exercise our constitutional right to freedom of expression under s.2(b), if the government withholds the important information we want to talk about?"  The Supreme Court found that s.2(b) is mostly about expressing - not obtaining - information.  But it does include "a right to access to documents only where access is necessary to permit meaningful discussion on a matter of public importance, subject to privileges and functional constraints."  Ultimately, the court found that Ontario's freedom of information legislation was constitutional, but the Privacy Commissioner should reconsider his decision, remembering that partial disclosure is better than nothing, and give a more detailed explanation of his conclusions.

In a nutshell, when there are good reasons not to disclose government documents (such as privilege), they shouldn't be disclosed; but otherwise, expect openness in everything you do.  Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23.

2010-06-12 Child Pornography - Defence of "legitimate purpose related to art" & "harm to children"

Mixed in with Mr Katigbak's, 2010 ONCA 411 collection of adult pornography were 628 images and 30 video clips of child pornography.  He was a photographer.  He kept the adult porn for "entertainment", but he explained the presence of the other material as research toward the creation of an art exhibit educating the public on the evils of child abuse.  He collected it for 7 years, but had never pushed his project beyond mere musings.  The trial judge figured this was a "legitimate purpose" within the meaning of s.163.1(6), and therefore acquitted him.

The appeal court doubted Mr Katigak's explanation, and cautioned trial judges from accepting such explanations too easily.

But the court decided this case on the "harm to children", finding that every download from the internet harms the child involved once more, even if the consumer never pays any money for it.  Mere consumption fuels demand, and results in more abuse.

The Supreme Court of Canada later overturned this decision.

2010-06-12 Search & Seizure - Flashlights at Night

Mr Grunwald, 2010 BCCA 288 and his friends loaded a pickup truck with $110,000 worth of marijuana bud, packaged in garbage bags.  (There was also $400,000 cash in the cab.)  A canopy with tinted windows covered the truck bed.  At around 11:00pm, Csts Mulrooney and Croft stopped him at a vehicle check stop in Hope, B.C..  Both independently smelled marijuana.  While dealing with licencing and insurance, Cst Mulroney shone a bright flashlight into the tinted windows.  Inside he saw the garbage bags.  One was open enough that he could see a zip-loc bag of weed.  He arrested Grunwald.

Defence argued that shining the flashlight into the truck bed constituted an unreasonable search, because at night the objects were not in "plain view".  The court roundly rejected that notion:

"If a flashlight is used to see what would be visible in daylight hours, such as objects in the back of a pickup truck or the interior of a motor vehicle, the item does not cease to be in plain sight when the sun goes down."

2010-06-12 Search & Seizure - Vehicle Detention & Charter

- When police stopped Mr Grunwald, 2010 BCCA 288 at a traffic stop, and smelled fresh marijuana coming from the vehicle, they looked into the truck for marijuana.  Defence complained that the purpose of the stop changed from vehicle safety to investigation of a drug offence, and therefore, the officer ought to have told Mr Grunwald about rights to counsel.

The court disagreed.  Police may conduct a lawful vehicle stop without reviewing rights to counsel.  The fact that the officers suspect other offences doesn't change that.  If the officers find evidence of other offences in the course of dealing with the motor vehicle issues, then the purpose of the detention changes, and the officers must explain s.10(b) rights.

Beware.  If you stop someone for motor vehicle purposes, but investigate him for something criminal, you convert the detention into one which requires a s.10(b) warning.  Strilec 2010 BCCA 198.

2010-06-06 Confessions - Police Warning

- If you ever wondered where the language of the police warning comes from, look no further than the decision of R. v. K.F., 2010 NSCA 45.  In that case, the trial judge mistakenly found that the police officer failed to tell the suspect that he had a right to silence.  The majority ordered a new trial because  of this obvious error.  The minority judge went further, to discuss where the police warning in Canada came from.

I found the history interesting.  If that sort of thing bores you, then take this little point from it: The law does not require you to give a police warning to a suspect.  If you forget to read it, the court might still accept the subsequent conversation.  But proving voluntariness is much, much, much easier if you do tell the suspect that he has no obligation to answer your questions; and what he says could be used in court as evidence.

2010-06-06 Hearsay - Preserving the Evidence of the Old and Frail

- A 70-year-old man complained that someone broke into his home, took him to an automated teller machine, and made him withdraw cash.  Police found his window screen cut.  Security video showed him making withdrawals from his bank machine in the company of Mr Paul, 2010 MBCA 51.  The old man picked Mr Paul out of a photo lineup, but before trial, he died.  At trial, the Crown relied on the recorded statements the old man gave to the police.  Defence argued that they weren't as reliable as sworn evidence.  The judges disagreed.  There was some evidence to corroborate the old man's testimony.  Mr Paul's conviction stuck.

In my experience, old folks tend to be particularly vulnerable to the trauma of crime.  When your complainant is old or frail:

1. Take a really good statement - preferably on video; and
2. Investigate the details the old victim alleges.

Even if the crime diminishes the victim's mind, your investigation may preserve enough evidence to bring the felon to justice.

2010-06-05 Reliability of an Anonymous Tip - Arrest or Detention

- At 8:00am, Police in Edmonton received a tip that Mr Safi, 2010 ABCA 151, aged 21 would arrive that same day on a Greyhound bus from Vancouver, carrying cocaine and perhaps a handgun.  The officers investigated, and found that a 21-year-old guy by that name was involved in a recent weapons complaint.  He lived in Surrey but was on a recognizance condition not to leave Alberta.  The bus company told them that the bus would arrive at 11:07.  The officers met him as he got off the bus.

Would you arrest or detain?  Would you search him for officer safety?  Would you search him for evidence?

The officers searched him and found drugs and a handgun.  The trial judge found the officers had reasonable grounds to believe that Safi possessed drugs; the appeal judges seemed to agree, but with greater hesitation.  Other courts might disagree: anonymous sources carry little weight.  The call could have been a malicious prank.

These officers had many lawful options which all courts would accept:

1. They had reasonable grounds to believe that Safi breached his recognizance by leaving Alberta.  They could arrest him for that offence.  After an arrest, they would need to search him for weapons, simply for officer safety.
   
2. They had reasonable grounds to suspect that his luggage contained drugs.  They could deploy a drug dog.
3. They had reasonable grounds to suspect he possessed drugs and a firearm.  They could have detained him, and searched him immediately for weapons.

2010-06-05 Value of Interviewing - the "Useless" answer

- Police found Mr Ominayak's, 2010 ABCA 152 palm-print at the scene of a rape.  When police interviewed him, they asked him if he knew how it could have got there.  He said "I don't know".  At trial, the Crown used this evidence against him: he could offer no innocent explanation.  Defence complained this violated his right to silence: he had no obligation to explain the evidence.  The court rejected that argument.  While it's true that the accused has no obligation to answer questions, in this case he did answer the question.  The answer he gave hurt him.

For police, this case highlights the value of interviewing suspects, even if you don't expect them to tell you the whole truth.  Even if they lie to you, the lies can help probe the case.

In my opinion, no investigation is complete until you give the suspect an opportunity to explain his or her version.  An investigation should be objective.  Fairness requires you to attempt to get both sides of the story.  Of course, you can't force a suspect to explain.  But no matter how small the case, you ought to ask.

• "You told me you had two beer, but I don't believe it.  This instrument says you were driving drunk.  How much did you really drink?"
• "Your girlfriend told me you slapped her and called her a "two-timing whore".  Has she been sleeping around on you?"
  

In many general duty police investigations, the investigator's shift ends before anyone catches the suspect.  Later, the arresting officer knows too little about the case to feel comfortable asking any questions.  Nobody asks the suspect anything about the offence.  I suggest that the investigator who wants the suspect arrested could leave indications in the file about what to ask the suspect after arrest.  The officer who arrests should get information from the file, and attempt to interview.

• "Your girlfriend says you shoved her into the closet.  I'd like to hear your side of it."
• "You cashed a stolen cheque, and you told the clerk a lie about where it came from.  What's really going on?"

2010-05-28 Voluntariness of Confessions - Interrogation Tactics -

Mr S.G.T. 2010 SCC 20 married a woman and adopted her daughter.  At age 14, the girl complained that he sexually abused her.  The girl's mother called police, but they didn't call back, and so she dropped the complaint.  The girl complained again at school, and the investigation took off.  The officer who interviewed Mr  S.G.T. made a classic mistake: he insinuated that an apology would make his legal troubles go away.   At the end of the interview, S.G.T. wrote an apology (which the trial judge excluded from evidence).  A few days after the charges were laid, Mr  S.G.T wrote another apology.  This one he sent by email to the girl's mother, who no longer lived with him.  The trial judge used it to convict  S.G.T.  The Appeal Court objected, saying that  S.G.T. wouldn't have written it but for the police officer's trick, and therefore it should have been excluded too.  The Supreme Court of Canada sided with the trial judge.  (For brevity, I omitted several details of Mr  S.G.T.'s interesting and contradictory defences.)

The high court decided there wasn't sufficient connection between the police interview and the email to the mother to render the second confession inadmissible.  Two of seven judges disagreed.  But that's not what's important for police officers.

When police officers try to persuade a suspect to confess, the conversation often drifts into discussions about the legal process.  This is natural.  The suspect wants to know who's going to hear what he tells you.  The police warning answers this, but sometimes suspect wants to know more.  It's perfectly fair to tell him: "I write a report.  I give it to the prosecutor.  The prosecutor makes decisions about the case."

But when deciding whether to confess, the suspect also wants to know "What's in it for me?"  Police officers are tempted to answer this second question while discussing the first: "If you confess, the prosecutor and the judge will be favourably impressed, and will treat you better."

Don't do it.

That's the classic "hope of advantage" which renders a confession inadmissible.

During the interview, Mr S.G.T. expressed fear that he would lose access to his son, the complainant's half-brother.  The officer told a false story about how the officer publically slapped his kid while travelling in the U.S.A..  He said child welfare authorities seized his child.  The officer apologized.  The welfare people realized he was a good guy, and returned the child.

Although the Court of Appeal and the dissenting judges of the Supreme Court of Canada didn't like the lie, the real legal problem with this story was its suggestion that a confession and apology would win legal advantages for Mr S.G.T..

It's okay to talk about spiritual advantages: "Confess, and make things right with God."

It's okay to talk about moral advantages: "You hurt this little girl.  You need to make it right with her.  You should apologize.  By denying what happened, you hurt her a second time.  She told the truth, and you tell the world she's a liar.  How can she ever trust you, or any man again?"

It's okay to talk about social advantages: "You made a mistake.  We all do.  But people respect the guy who can admit his mistakes and move on."  But don't talk about the judge or the prosecutor, the likelihood of charges or the length of sentence.  If the suspect raises those questions, duck them: "Oh, those aren't in my control."

2010-05-14 In-Custody Informer Witnesses

- In a hotel room in Lloydminster, Saskatchewan, Jarita Naistus died of strangulation and beating.  Forensic examination of the scene found a little DNA belonging to Mr Hurley, 2010 SCC 18, but it was so little that the Crown figured that someone cleaned up after the murder to eliminate prints and DNA.  Hurley admitted being in the room to purchase cocaine, but denied killing her.  Police offered a reward for information about the murder.  They approached a prisoner who was facing charges himself, asking for information.  He told them that while he was in prison with Mr Hurley, Hurley admitted killing the woman, but it wasn't until later that the prisoner remembered Hurley saying he cleaned up the murder scene until later.

The trial judge warned the jury to be "extremely cautious" of the prisoner's testimony, but didn't fully explain why.  The appeal court disagreed whether this jury instruction sufficed for a fair trial.  Then new forensic evidence arose, showing more of Hurley's DNA at the scene.  The Supreme Court of Canada granted a new trial.  They said the jury should have been warned more completely of the unreliability of in-custody informer witnesses, and the new evidence might show that there was no clean-up at the scene.

Why are in-custody informers so dangerous?

• They are often highly motivated to gain advantages for themselves, such as reductions of charges, sentence, obtaining parole or paying debts.
  
• They often care little about the harm they might do others.  That's what got them into serious trouble in the first place.
• They are often highly persuasive liars.  Their criminal lifestyles tend to develop their skills in deception.
  

Statistics show that they figure significantly in wrongful convictions.  (In some cases, the real killer claims that someone else confessed to him.)

For these reasons, courts learned to treat these witnesses with great suspicion.  But sometimes these guys actually tell the truth.

If a prisoner offers you information about a serious crime, you must protect the sanctity of hold-back information with great care.  Perhaps an officer who doesn't know anything about the investigation should take the prisoner's statement.  You want incontravertible proof that the informant didn't do the crime nor infer the details he offers from newspaper accounts or other sources available to him.  Don't make any deals for evidence without involving the prosecutors - the more the guy gets for his evidence, the less credible he appears on the witness stand.

2010-05-13 Post-Offence Conduct & Hearsay

- Mr Polimac 2010 ONCA 346 loved his house more than his partner, Ms Pauls.  They bought the house and lived in it for 15 years.  Their relationship deteriorated, particularly when she learned of his mistress, and of his mistress's pregnacy.  He kept telling his partner that he would leave his mistress.  He kept telling his mistress he would marry her.  Just after he promised his mistress that she and the baby would move into the house with him, his partner "fell" off a cliff to her death while hiking with him.  Was it murder?

He said they chose to picnic close to the edge; her friends said Ms Pauls was afraid of heights.

Mr Polimac said that his relationship with his partner improved.  Her friends told police that she complained of assaults, and she slept with a knife by her bed.  Ms Pauls said he shoved her into a fridge and held a knife to her neck.

When police asked, he denied having a mistress.  The mistress told police that he asked her to lie about their relationship.

He told police that after she fell from the cliff, he rushed to her aid, and she screamed for help.  Medical evidence suggested her injuries would have prevented her from speaking.

He forgot to mention to police until late in their investigation that he went hiking alone in the same spot the day before.

Hearsay

What the deceased said to her friends about the relationship was classic hearsay.  Ordinarily, a court will not admit it; but if it's "necessary" and "reliable", the jury may hear what the friends claimed she said.  Because she was dead, hearsay was "necessary", but was it reliable?  One of the friends asked Mr Polimac about the fridge & knife incident.  He explained that he was peeling potatoes.  This limited concession established that the complaint wasn't invented.

Proving the reliability of the deceased's remarks requires more than just the fact that she said them.  Independent corroboration makes a big difference.

Lies

A jury can not convict the accused just because they don't believe his testimony.  The jury is not permitted to convict him only because he lied.  (He explained that he misled police about his mistress to save her from embarrassment.)  But the court explained:

"If significant parts of the statements were found to be deliberately false, the proximity of many of the statements to Ms. Pauls’ death, the detailed and precise narrative set out in the statements, the persons to whom the statements were made, and the fact that the appellant was not under any suspicion when the statements were made, taken together, provide a basis to infer deliberate fabrication to avoid liability."

If your suspect misleads you about a small detail, the court will not be impressed.  But a witness who provides a significant pattern of lies may be giving you evidence of his guilt.  For prosecution purposes, we need to prove that the lies were deliberate, and motivated by a desire to avoid criminal liability.

During a sudden death investigation, you won't know what details matter.  Recording the statements of all witnesses may help discover a killer.

2010-05-11 Assault - What is "Bodily Harm"?

  Mr Moquin, 2010 MBCA 22 met a woman on a telephone chat line.  Within weeks he was living at her house.  He assaulted her several times leaving injuries.  She complained of:

• bruising lasting several weeks
• a sore throat that lasted several days
• a hand injury which prevented her from opening doors for a few days

The trial judge compared these to the effects of a common cold or sore throat, and concluded these were not "bodily harm".  The appeal court disagreed.  "Pain causing discomfort, if it is more than trifling and transient, is sufficient, even if it does not impair a person’s ability to function."  These injuries each sufficed to establish bodily harm.

2010-05-11 Traffic Stops & Dogs Sniffing for Drugs

- What questions can you ask during a traffic stop?  What can you do with the answers?  A Winnipeg police officer saw a rental vehicle bearing Alberta plates.  He had encountered some of these vehicles driven in Manitoba by suspended or unlicenced drivers, so he stopped it to check the driver's licencing and insurance.  He asked questions specific to those concerns, and some more general questions.  The driver, Mr Schrenk, 2010 MBCA 38, gave these answers:

• Q: Licence? A: British Columbia
• Q: Rental contract? A: Rented in Calgary less than 24 hours previously, and was due at Dorval Airport outside Montreal in 24 hours time.
  
• Q: Where do you live? A: B.C., but I flew to Calgary and rented a car to drive to Toronto to visit relatives.  (Dorval is a long way past Toronto.)
  
• Q: Why fly to Calgary and then rent? A: Can't afford the flight to Toronto.  (The officer observed that the rental contract exceeded the price of a plane ticket to Toronto.)
• Q: What do you do for a living? A: "The ministries."

The officer observed two cell phones on the console, a suitcase in the back seat, and a collection of food wrappers and bottles for drinks.  As he returned the driver's licence and rental agreement, the officer noticed Mr Schrenk's hands shook violently.  He couldn't put the licence back into his wallet.  Then the officer talked some more:

Officer	Shrenk
“You’re free to leave, Mr. Schrenk, have a safe trip.”	"Thanks"
“Mr. Schrenk, could I ask you a couple of questions?  You don’t have to answer if you don’t want to.”	“Yeah, sure.” (Eyes averted)
"Is there a big drug problem in British Columbia"	"I wouldn’t know anything about that." (Looks away and sits on his hands.)

The officer suspected that Schrenk was a drug courier.  He detained him and told him (inadequately) about the right to counsel.  Within a few minutes, they deployed a drug dog to sniff the exterior of the vehicle.  It indicated that drugs were in the trunk.  They arrested Schrenk and found lots of drugs.

Defence argued that the officers lacked reasonable grounds to detain the suspect and deploy the drug dog.  The court disagreed.  All they needed was reasonable grounds to suspect the presence of drugs.  The court liked how quickly the police officers deployed the drug dog.  A "detention" ought to be brief.

Defence argued that during a traffic stop, an officer must ask questions addressed only to the very specific issues in a traffic stop.  The court agreed, but said:

Defence complained that the police used the answers to advance a drug investigation.  The court agreed, but found nothing wrong with that.

The only mistake was the officer's failure to give a complete Charter warning.  However, the drugs would have been found anyway.  The court let the evidence in.

This is a good example of how to move from a traffic stop to a drug investigation.  While it isn't necessary in every case to tell the driver he's free to go, you should do so if:

• you do not have grounds yet to detain the driver; and
• you want to change the topic of questioning away from traffic safety issues.
  

2010-05-09 Dealing with Foreign Police

- R.C.M.P. officers contacted police in Antigua, asking for information which could be lawfully disclosed about Mr Mathur's, 2010 ONCA 311 banking.  Antiguan police provided some very helpful records by breaking Antiguan law.  The Crown declined to investigate the Antiguan police improprieties on behalf of defence.  At his trial, Mr Mathur asked the judge to exclude the evidence from his trial, because it was illegally obtained.  The court found that because the police had deliberately sought only lawfully obtained evidence, the evidence could be admitted.

Police forces in other parts of the world operate with varying respect for the rights of their citizens.  Be careful when asking for their cooperation that you do not inspire them to commit illegal acts on your behalf.  The defence made much of the Crown's refusal to investigate the foreign misconduct.  The clean approach of the police won the day.

2010-05-09 Defence of Property & Excessive Force -

Lieutenant‑Colonel Szczerbaniwicz, 2010 SCC 15 and his estranged wife argued over their separation.  She threw onto the floor the diploma he earned for a Master's degree.  He shoved her, and she fell and suffered injuries.  She complained of an assault.  He said he merely defended his property.  The judge convicted him.  The force he used exceeded the force necessary to defend it from damage.

The main point in this case is that the court said that force used to defend property must be objectively reasonable.  The court took particular interest in the fact that the diploma could be replaced.  The force used was excessive.

2010-05-09 Search & Seizure from the Media -

A reporter from the National Post 2010 SCC 16 suspected Prime Minister Jean Chretien of obtaining government benefits for his golf course business.  His investigations led him to a source who asked that his identity never be revealed.  The reporter promised anonymity, and the source provided him with a letter from the Business Development Bank of Canada, which, if genuine, would show the Prime Minister acted in conflict of interest.  The Bank said it was a forgery.  Police asked the National Post for the original letter, but the newspaper refused to deliver it, and refused to say from whom they got it.  Instead, they told the police that the reporter had hidden the letter outside their offices.  The police applied for a warrant, but told the judge that the press had asked to be present at the application.  Without letting the press make submissions, the judge issued a general warrant and an assistance order compelling the newspaper to bring the letter and the envelope to their offices so that the police could sieze them there.  The press complained, but the appeal courts shot them down:

1. Do media lawyers have a right to attend and argue search warrant applications before they are granted?

   Generally, no.  The judge should decide.  But the warrant ought to contain conditions:
   

   • The execution of the warrant must interfere with the operations of the media as little as possible; and
   • The items seized should be sealed so that the media can apply to court to determine the validity of the search warrant.

2. Do Reporters' Confidential Sources Enjoy Privilege?

   Police officers' confidential sources enjoy privilege because of the important role confidential sources play in stopping crime.  The newspaper claimed that their sources play an important role in democracy and keeping the public informed.  The court agreed that confidentiality of reporters' sources is important, and could sometimes enjoy privilege.  But in this case the forgery had the potential to bring down the government.  The public interest required the criminal investigation to proceed.
   

   If you want to search and seize from the news media:
   

   • your warrant requires special conditions
   • you may have to seal up what you seize pending further applications to court
   • you should get lawyers involved early in the process
   • you don't necessarily have to invite the media to argue whether the warrant should be granted in the first place - but it's best to let the judge decide this point.
     

2010-05-07 Search & Seizure incidental to Detention

- police officers took positions around the location of a robbery to see if they could locate the perpetrator, who was described as "Caucasian male of about 30 years of age, five feet eight inches to five feet ten inches in height, 180 pounds to 200 pounds in weight, with brown hair and wearing neutral coloured clothing".  Mr Darling, 2010 BCSC 546 matched this general description.  When a junior officer saw him, he stopped Mr Darling, explaining that he was investigating a robbery, and that Mr Darling met the robber's description.  Darling gave an innocent explanation for his activities, but then said the officer was going to arrest him, and started to cry.

The officer then said he was going to search Darling for evidence.  He didn't mention the right to silence nor the right to counsel.  He found cocaine.

The judge excluded the evidence.  Because the officer only suspected Mr Darling was the robber, the officer could only detain.  On detention, a police officer can not search for evidence.

For officer safety purposes, the officer could have searched for weapons.  But that wasn't what he testified he was doing.  (You can search for evidence after an arrest.  But this officer didn't arrest.)

The judge also disliked the failure to tell Mr Darling his legal rights immediately after the detention.

These principles should be familiar to all police officers.  I mention this case only because I keep seeing the same mistake frequently repeated in police and court reports.  If you read this website, you probably know about this issue.  Perhaps you might discuss it with the junior officers with whom you work, in case they do not.  See this page for more detail.

2010-04-28 Seizing Exhibits - Continuity

- Someone broke into a garage and stole a bicycle.  The homeowner saw him cycle away.  He wore a shirt and jacket.  Soon thereafter, a police officer saw Mr Popham, 2010 ABCA 114 cycling, shirtless, into a building complex.  When the officer first saw him, the officer believed he saw a black bag hanging from his shoulder.  The officer lost sight of him for a short while, then saw him riding the bicycle without a bag over his shoulder.  In the building complex, a civillian heard a shed door open and close, and saw Mr Popham emerge from near it, and then get arrested by police.  In the shed police found property from the B&E.  They also seized Mr Popham's cell phone.  Mr Popham denied the offence.  He was caught riding a different bicycle from the one stolen. He was acquitted.

The big problem in the case was poor exhibit handling:  The officers couldn't say whether Popham's cell phone was found in the bag of stolen property, or in his pocket.  This is not unusual.  I find that junior officers on general duty do sometimes track exhibits poorly.  Continuity of exhibits rarely comes up.

I suggest:

• when possible, photograph exhibits before seizing them;
• always record exactly where you found it, what it was, and to whom you gave it
• separate exhibits (bag & tag)
  

I'm sure your various police forces and detachments have standard procedures and protocols.  Supervisors, you may wish to review them with junior members, and practice on simple files, so that when the complicated file arises, your members know what to do.

2010-04-28 Informer Privilege & Obstruction of Justice

- Relying in part on a confidential informant, police got a warrant to search Mr Quereshi's place.  They found drugs and guns, and charged Mr Quereshi and his friends.  Quereshi hired a lawyer, who hired Mr Barros, 2010 ABCA 116, a private investigator, and ex-cop.  Barros investigated and interrogated Quereshi's associates to determine who the rat was.  After challenging and accusing various people of being the source, he met with the investigating officer.  He told the officer that he had determined who the source was, and that he had not told the lawyer who it was "at this time".  He suggested they meet with the prosecutor "to explain the dilemma I'm in".  The officer got the impression that the purpose of the meeting was to force the prosecution to drop the case against Quereshi's group.  Barros himself explained that he expected that result.

They charged Barros with attempting to obstruct justice, and extortion.  The trial judge acquitted.  She said that although the police are prohibited from violating informer privilege, the defence may seek out the informer's identity as part of full answer and defence.  A majority of the appeal court disagreed, and ordered a new trial.  The investigator's conduct was calculated to subvert a legal protection and prevent the determination of the charges on their merits.  I suspect there will be a further appeal.

If someone comes to you saying "drop the charges or I will reveal the identity of a confidential informant", they may be committing extortion - depending upon the circumstances.  In this case the threat was not clear-cut, but the court was prepared to find there was a threat.

If someone harasses potential sources, trying to identify a confidential informant for the purposes of preventing a trial, they may be obstructing justice.

2010-04-27 How Long to Preserve Evidence

- In 1994, Jennifer (12) and Tiffany (10) complained to their mother that her boyfriend, Mr Sheng, 2010 ONCA 296 sexually abused them, but mom didn't do anything about it.  Jennifer complained to a teacher, who called in a social worker.  In a formal interview, Jennifer said she dreamed the abuse.  She later testified she did this because it was the "easier way out".  The girls' father took them to another interview, conducted by two men.  It was taped.  The girls made some vague allegations, but Mr Sheng denied them.  Police closed the case.

Over 10 years later, Jennifer confronted Mr Sheng, while secretly recording the conversation.  She brought this new evidence to the police, and a prosecution commenced.  Defence demanded the recordings of the past interviews -- but they were lost.  The investigating officer threw the tapes into a drawer where they sat until they were erased.  The trial judge found Sheng guilty, but stayed the case by reason of the lost evidence.

The Court of Appeal ordered a new trial observing: “[t]he police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future.”

Police frequently embark on investigations which quickly lead nowhere.  Most of these files disappear forever.  But the occasional one turns out to be crucial: the last sighting of a murder victim, or the damning proof of a serious crime.

When it comes to evidence and allegations, you can't always distinguish between gold and garbage.  But electronic storage of information takes little space, and can survive many years.  I suggest that you organize even the "junk" information that comes in, and store as much as you can (photographs, digital audio / video statements, etc).  Document your decisions to abandon investigations, so that you can explain later why you discarded what everyone later claims is "crucial evidence".

2010-04-23 Inventory Searches in British Columbia

- Even though Mr Strilec's 2010 BCCA 198 dirt-bike lacked a headlight and a tail light, he drove it around dusk on a busy rural highway.  A police officer stopped him and asked questions.  Mr Strilec responded: no, he had no licence.  No, the bike wasn't insured.  No, the bike didn't belong to him.

The officer (correctly) told him that driving without insurance is an arrestable offence, but he also said he was not going to arrest Strilec, just detain him.  The officer patted him down for weapons, handcuffed him and placed him in the back of the police car from which he could not escape.

Computer searches shows that Strilec had no licence, and further, under s.104.1 of the motor vehicle, any vehicle he drove could be impounded.  He seized the bike, and removed personal effects from it, so that he could give them to Strilec.  That's when he found the cocaine.

Defence complained that the inventory search violated Strilec's expectations of privacy.  The court rejected this, and adopted the Ontario line of cases (Nicholosi & Wint).

"... the authority to impound provided by s. 104.1 of the Motor Vehicle Act carries with it the duty and responsibility to take care of the vehicle and its contents, and to do that the police must be able to conduct an inventory of the vehicle’s contents."

Will Strilec authorize inventory search in all cases of vehicle inventory search?  I hesitate to give a simple answer to B.C. officers.  Impoundment sections in the Motor Vehicle Act differ.  S.104.1 authorizes officers to remove personal property from an impounded vehicle.  S. 105 (prohibited and suspended drivers) permits the driver to remove personal property himself.  I think B.C. officers who impound vehicles under that section should not conduct an inventory search until after the driver gets a chance to remove property.

2010-04-23 Motor Vehicle stops and Right to Counsel anywhere in Canada

- When the officer found the cocaine, he returned to Mr Strilec 2010 BCCA 198 (see above), and told him he was under arrest for trafficking in cocaine.  Mr Strilec immediately responded "Trafficking?  I was just smoking."  The officer then told him about his right to counsel under s.10(b).  Without that evidence, the Crown could not prove Strilec knew about the cocaine in the bike, and he would be acquitted.

Strilec complained that the officer should have told him about his right to counsel earlier, when he was handcuffed and placed into the police car.  The court agreed.

Every time you stop a driver for vehicle safety concerns, it's very clearly a detention.  The court said:

The court held that by handcuffing Strilec and placed him into a police car, the officer extended the "brief detention" into a "de facto arrest".  This triggered the right to counsel.  Because the officer didn't tell him about counsel until after the arrest for trafficking, the officer breached Strilec's rights.  For this reason the court excluded the remark, and acquitted Mr Strilec.

This decision suggests that when you use your power to stop vehicles on the road, the obligation to inform suspects of their s.10(b) rights may trigger when you handcuff them, or lock them into your police car, or otherwise extend the detention from a regular traffic ticket or breath screening.

2010-04-10 Party to an Offence - What Were They Thinking?

- Mr Laboucan told his group of friends that he wanted to find a girl to rape and kill.  He picked the girl at a mall, and persuaded her and her friend to accompany them to a party.  One of Laboucan's friends, Mr Briscoe, 2010 SCC 13, drove the group to and from the crime scene.  He chose a secluded spot, provided and transported weapons, and taking participated briefly by holding the 13-year-old victim and telling her to shut up, and by threatening her friend.  Mr Laboucan and others in the group raped and killed the girl.  Mr Briscoe told the police afterwards that he just thought Laboucan was going to frighten her.  He didn't know exactly what was going to happen, and he didn't want to know.  Even though he "aided" Laboucan, the trial judge acquitted him.  Section 21 says an aider is not a party unless his acts were done "for the purpose of aiding" the principal to commit the offence.

The Alberta Court of Appeal and the Supreme Court of Canada ordered a new trial.  They said Briscoe knew Laboucan intended to harm the girl, and deliberately ignored any further information he received about the nature of the harm.  This is "wilful blindness".  Courts can impute knowledge to those who turn a blind eye to crime.  This differs from mere recklessness.  It's not just that Briscoe gambled that something bad might happen,

"he refrained from obtaining the final confirmation [of what Laboucan was going to do] because he wanted in the event to be able to deny knowledge..."

Sometimes, when you interview a minor player in an offence committed by more than one person, the lesser player will admit knowing some of what the main actor was going to do.  But the minor player will deny that he knew what the major player's ultimate intentions were.  They will say things like "I didn't wanna know [what the main player was going to do]".  This is evidence of wilful blindness, and may convict the minor player.  If you reach this point, spend some time exploring it with the suspect.  Review what he knew (so that it was obvious what was coming next). 

2010-04-05 Search & Seizure - Reasonable Grounds - Tips

- When a tipster tells you that someone is committing a crime, do you need confirmation that the crime is indeed being committed? A tipster gave a police officer 8 credible tips, for which the officer paid money.  The tipster gave the officer another tip, that a dark-haired young female named "Ashley" could be found in downtown Fort McMurray driving a specific car bearing a specific licence plate.  The tipster said Ashey carried a large quantity of cocaine for trafficking.  He found a matching car driven by a dark-haired woman named Amanda Hillgardener, 2010 ABCA 80.  He arrested her for trafficking and found cocaine in her purse.

The trial judge said the officer should have followed the car for a while, and watched for activity that looked like crime.  Because the officer had not confirmed she was actually committing crimes, the arrest and search were unlawful.

The appeal court disagreed.  At law, where a tipster's information is sufficiently compelling, there is no obligation to confirm independently that the tipster's allegation is true.

But folks, don't mess with this.  Even if you know and trust the tipster, take some time to confirm what you can.  In this scenario, before making an arrest, a prudent officer might research the car and information about drug dealers named Ashley.

2010-04-02 Circumstantial Evidence of Possession - What to Look for at the Search

- Police officers suspected that there was a marijuana field growing at at a 62-acre rural property.  They got a warrant, and found they were right.  They arrested Mr Rong 2010 BCCA 165 in the house at the property.  Was he responsible for producing marijuana in the field?

There was evidence connecting 3 other people to the property.  Defence argued that those other guys could equally have been the growers, leaving Mr Rong as an innocent "found-in".

I don't have a copy of the warrant these officers executed.  But look at what they found that linked Mr Rong to the offence:

• garden hoses leading from the house; and new garden hoses in the house
  
• full bottles of fertilizer in the basement & similar empty bottles at the field
• various gardening tools in the living areas of the house
  
• gardening tools in a van; and keys to the van in the house with Rong's wallet

I'll bet these officers asked for permission to search the house and vehicles for gardening tools & equipment, and identification documents.

What would have happened if these officers told the issuing justice that all they wanted to look for was marijuana plants?  They might have been permitted to scan the house, but otherwise, their only permission to search would have been to seize plants in the field.  Mr Roon would never have been convicted.

Drug cops know this well.  In their ITOs, they explain why they think the drugs are there, but the smart ones go on to explain what other evidence they expect to find which would tend to identify the persons responsible for the drugs.

General duty officers don't draft search warrants as frequently, and they investigate a wider variety of offences.  Their natural temptation is to ask for a warrant to search the residence only for the specific exhibit or contraband in question.  Take a page from the drug cops' book.  You're often investigating more than just the contraband, but also who's responsible for it.  What lawful things will you find at the suspect's place which help prove the case?  Explain in your ITO why you think those things will be there, and how they help solve the crime.

(My pet peeve is the search which finds contraband in a bedroom, like a sawed-off shotgun under the bed.  Officers often tell me whose bedroom it is, but give me no evidence that proves who used that bedroom.  The contents of a wallet on a nightstand makes a big difference.  Consider asking for permission to search the other bedrooms for identifying documents and clothes, to establish that your suspect didn't use those bedrooms.)

2010-04-01 Charter Rights Generally - "Good Faith" - s.24(2)

- Tips and surveillance led police officers to believe that the Hoang family used two residences in Surrey to produce crystal meth.  The officers obtained search warrants for both residences; but they found no drugs and no lab.  Then they figured it might be where Mr Wong 2010 BCCA 160 lived, because of his association with the Hoang family and other observations.  The officers feared that Wong might destroy evidence, having heard about the searches of the Hoang properties.  But they didn't have probable grounds to believe that exigent circumstances existed.  Therefore, the officers hastily prepared another warrant application for Wong's place.  They got the warrant, and found drugs and the remnants of a lab.  Of course, you know what happened at trial.  In their haste, the officers made a significant error in the ITO.  Defence pounced on it.

The trial judge found that without the error, the search warrant would not have been granted, and that overall, the officers did not have reasonable grounds for the search.  However, he also found that the officers acted in good faith under difficult circumstances.  He admitted the evidence anyway.  Defence appealed, but the BCCA upheld the conviction.

This case shows a basic principle: Try to respect Charter rights, and the Courts will respect you.

These officers could have searched Wong's place without a warrant.  "It was exigent circumstances, man.  If we didn't go in, he'd have destroyed evidence."  They were smart not to.  They would have lost at trial.  They didn't have probable grounds to believe Wong would destroy evidence, and they didn't actually have sufficient grounds to believe they would find evidence there.

By seeking judicial authority even when doing so was cumbersome, the officers showed a commitment to the rule of law. The judges obviously liked that so much that they admitted the evidence even though they found the warrant should never have been granted.

2010-03-27 Sexual Assault - "Consent" -

Mr J.A., 2010 ONCA 226 had a common-law wife who said that from time to time, they engaged in bondage and erotic asphyxia - he would choke her to unconsciousness during sex.  On this one occasion, she testified that she consented to being choked to unconsciousness.  He did further sexual acts with her while she was unconscious.  She left unsaid whether she consented in advance to these acts while she was unconscious.  The court took this absence of evidence to mean she could have consented to them.  The Crown said whether she consented in advance or not, once she was unconscious, she was in no position to change her mind, and therefore the consent was invalid.

The majority of the court disagreed: A person can consent in advance to sexual acts done to her while unconscious.  However, they noted a distinct absence of evidence as to the risks of this choking behaviour.  With expert evidence, the court might might decided this case differently.

What really happened?  The complainant told the police that none of the sexual acts were consensual.  Police wisely took a video-recorded statement from her.  At trial, she recanted, saying that she lied about consent because she was angry at the accused.  For their own reasons, the prosecutors decided not to rely on the video.  It could be that they were trying to preserve her credibility for "next time".

What can you draw from this?

• The experts say sado-masochistic sexual assault is serious.
  
• Intimate partners may recant at inconvenient times.  It's wise to video-record a complainant if you think she will recant. But beware of asking her to swear an oath if she's likely to lie.  Perjury compounds the problems of a battered woman: no one will believe her when she finally decides to speak the truth.
  
• Consent while unconscious isn't usually consent.  (This was a split decision - judges disagree on this issue.)
  

2010-03-21 Search & Seizure - Search Warrant - Applying a Second Time

- If the justice turns down your warrant application, can you apply for a second opinion?  In Bacon, 2010 BCCA 135, the court says yes:

The JJP’s decision disposed of a discrete application but it did not bind anyone.  The police could have applied again on the same material to a Provincial Court judge who would have been free to make a de novo decision without regard for the JJP’s view of the material:  R. v. Duchcherer, 2006 BCCA 171, 208 C.C.C. (3d) 201 at para. 29.

However, your ITO must clearly state that the previous Justice turned you down, and the reasons why you think the next justice should reconsider.

2010-03-19 Morelli  - a big, contraversial case

- A computer technician visited Mr Morelli's, 2010 SCC 8 house to install an internet connection for Morelli's computer.  The timing came as a surprise to Morelli.  The technician saw a webcam aimed at a child's play area in the computer room. Morelli's computer was on, displaying explicit pornography.  The "favorites" on his browser contained links to adult pornography websites, and two links to child pornography websites. A 3-year-old child was with him. The technician didn't finish his work.  When he returned the next day, the child's play area was cleaned up, the webcam faced the computer user, and the computer hard drive had been reformatted.  The technician worried for the safety of the child.  Four months later, a police officer got a warrant and found an extensive child pornography collection.  The trial judge convicted, the Court of Appeal rejected his appeal, but Mr Morelli won in the Supreme Court of Canada by a margin of 4:3.

This decision is like a textbook of issues for police officers.  As a result, this article is long.

2010-03-19 Child Pornography - "Possession" v. "Accessing" - Morelli, 2010 SCC 8

Section 163.1 defines the offences of "possession" of child pornography and "accessing" child pornography.   The majority decision clearly distinguishes between the two.  Accessing is "just looking"; possession is more.

Possession is "knowledge" and "control".

The links on Morelli's browser were evidence that - at some time - Morelli accessed child pornography.  But he did not control the data files which contained the images.  Therefore, he did not "possess" the images on those websites.  There was a possibility that his browser's cache stored copies of those images on his own computer, where he could control them.  But there was no evidence that he knew those images were still accessible on his computer.  Therefore, the majority said, the police had no evidence that he "possessed" them.

(I respectfully disagree with the court that there was "no evidence" of such knowledge.  When people format their hard drive, they lose all information on it.  People keep information on their computers because its of value or interest to them.  One takes the drastic step of formatting only as a last resort.  Therefore, the officer had reason to infer that Morelli took a drastic step before the technician returned in order to hide his illicit images.  The majority dismissed this inference, saying that Morelli might have merely been embarrassed by showing adult pornography to the technician.)

2010-03-19 Search & Seizure - Warrant Drafting - Picking the Right Offence - Morelli, 2010 SCC 8

- Nobody puts a link into their "favourites" without knowing where it the link goes.  When drafting the ITO for Mr Morelli's computer (see above), the officer alleged that Morelli "possessed" child pornography.  The majority said that the officer had no evidence of possession, but they did have evidence of "accessing" child pornography.

When drafting an ITO, many officers feel a temptation to allege the most serious offence.  Resist this temptation.  When you are investigating an offence, don't over-estimate the strength of your evidence.  Pick the offence that your evidence definitely proves.

In this case, the officer probably suspected Morelli was "making" child pornography.  It's a good thing he didn't allege that offence.  The difference between possessing and accessing is more subtle.  Given the links in the "favourites", it was likely Morelli accessed child pornograph.  But there was no evidence that he downloaded it into his permanent storage.  The officer might have been safer to draft an ITO for accessing child pornography rather than possessing it.

If you get a warrant on the basis of a minor offence, but find evidence of a more serious offence, you can lay the more serious charge.  Even if the warrant alleges only a minor offence.  For example, the mass-murderer Picton was busted by a search warrant for an unregistered firearm.  The warrant got the officer into Picton's residence.  Of course, if an investigation changes direction as a result of something you found in the search, you must get a new warrant.  The body parts in Picton's residence justified a new warrant alleging a more serious crime, and the new warrant permitted the officers to search for more than a gun.

2010-03-19 Search & Seizure - Warrant Drafting - How to Use an Expert - Morelli, 2010 SCC 8

- The officer wanted to search Morelli's computer four months after the technician saw the child pornography links.  Would there be any evidence there?  He got advice from experts who said people who liked child pornography tend to collect and hoard it, so it would likely still be there.

In his ITO, the officer explained the advice, but not their expertise.  If a car mechanic told you the habits of sex offenders, he might be right, but not convincing.  If a psychologist told you the same information, her information would be convincing because of her expertise.  The ITO must explain the qualifications of any expert it relies on.  For example:

"I spoke with Dr Psycho Logist, who told me that she has a doctorate in behavioural psychology.  She said that she researched and studied the behaviours of people who use child pornography."

2010-03-19 Search & Seizure - Warrant Drafting - Is what you want Still There? - Morelli, 2010 SCC 8

  - In every search warrant application, you must satisfy the justice that the thing(s) you want are in the place you want to search.  This ITO said that Morelli formatted his hard drive.  It didn't explain why the officer thought that the computer would still contain evidence of any past offence.

In child pornography investigations, the psychological evidence may answer this question - but you must spell it out clearly.  In other investigations, you need to point out why the stuff's still there.

2010-03-19 Search & Seizure - Reasonable Grounds - Profiling - Morelli, 2010 SCC 8

- The court didn't like the expert opinion that the officer recited: "these type of offenders are habitual and will continue their computer practices with child pornography."  The ITO failed to explain what that "type" was, and what evidence showed that Morelli was that type.  For example:

"Dr Logist told me that people who bookmark child pornography sites tend to collect and store images of child pornography."

2010-03-19 Search & Seizure - Warrant Drafting - Reasonable Grounds - Disclose Everything? - Morelli, 2010 SCC 8

- The majority criticized this officer for omitting some minor details - that he was married, the child was his daughter.  Omitting these details made Morelli seem more suspicious than he was.  In a throw-away line, Fish J., for the majority said: "The informant’s obligation is to present all material facts, favourable or not."  (Para 58).  It is the same idea as was applied in  Ling, 2009 BCCA 70.  I don't think Fish J. really considered the consequences of this remark.

I think this idea is wrong and unworkable.  I agree that you must disclose all information in your possession which suggests that the suspect is innocent, or which suggests that the warrant should not be granted.  Despite Ling and Fish J.'s throw-away line, I do not think you must recite every fact known to police which supports the issuance of the warrant.  If five sober witnesses give statements that the suspect placed the murder weapon in his house, how would the justice be misled if you failed to mention that a sixth witness, who was drunk, gave a similar statement?

There are times that disclosing the fact of an informant identifies the informant.  No amount of editing of the ITO can protect that informant.  I can not believe that the law requires you to draft ITOs in a way which will prevent any prosecution if the search is successful.

Unfortunately, until the court reconsiders this remark, I suspect it will return to haunt us.

2010-03-16 Search & Seizure - Surveillance from the Air -  Binoculars & Zoom Lenses

- A police officer flew in a helicopter over a rural area to look for marijuana grow operations.  He saw suspicious greenhouses on Mr Kwiatkowski's, 2010 BCCA 124.  On several different dates, the pilot flew around the property while the officer took photographs using a zoom lense.  From one angle, he could see - through an open door - what he thought was a marijuana plant.  Because a later search of the property proved he was right, Mr Kwiatkowski complained that this warrantless search violated his rights of privacy.

There are limits to how low a pilot may fly.  In rural areas, the limit is 500 feet, but pilots must fly at least 1,000 feet above populated areas.  This pilot flew more than 1,000 feet over the property.

Many factors lead the court to find this search did not violate any reasonable expectations of privacy.  Major points included:

• The technology of zoom lenses aren't any more advanced than binoculars
• The subject of the search was a greenhouse, not a residence
• The officer saw no more than anyone in a passing plane would see.
• The helicopter did not enter onto the property, nor fly over it.
  

2010-03-16 Search & Seizure - "Knock & Announce" on rural property - Gunpoint Arrests

- When executing the warrant they obtained for Mr Kwiatkowski's, 2010 BCCA 124 greenhouses (see above), police did not immediately announce themselves.  Instead, they set up a "staging area" in trees near the greenhouses.  From this vantage point, they heard noises, and watched Mr Kwiatkowski watering plants in a greenhouse.  They then entered that greenhouse, announced themselves, arrested him at gunpoint, and took him back to the staging area.  An officer took up a position amongst the greenhouses, and arrested another man when he approached, again at gunpoint.

Defence complained that this search violated the knock-and-announce rule.  He said the officers should have attended at the residence (which was a long way off) and announced themselves before attending at the greenhouses.  Or at the very least, when entering onto the rural property, the officers should have shouted to alert people to their presence.

But the "knock an announce" rule applies specifically to homes and dwelling-houses.  The court said:

When searching non-residential buildings, there are still many reasons to announce yourself.  Do not take this one line to mean that should stop announcing yourself when searching them.  But the knock-and-announce rule doesn't seem to apply to open spaces.

With respect to the gunpoint arrests, the Crown argued that threat of force differs from use of force.

2010-03-13 Delay in Complicated Prosecutions

- The Federal Crown charged Mr Ghavami, 2010 BCCA 126 as a minor player in a drug conspiracy.  The Provincial Crown charged many of his co-conspirators with another group of offences.  The Provincial prosecution so occupied his co-accused, that the Federal Crown could not proceed on Ghavami's trial for 3 years.  So for 3 years, Ghavami's bail terms restricted his liberty significantly.  The trial judge stayed the charges against him because the trial took too long.  He found that the Crown caused the delay by choosing to prosecuting him together with his co-accused, knowing that the other accused would be preoccupied.  The Crown should have prosecuted him separately.

The Court of Appeal overturned that decision.  Unless the court finds abuse of process, the court has no business criticizing the Crown's charging decision.

This decision does not affect every-day policing.  However, in big conspiracy cases, it takes some heat off the prosecutor.  The prosecutor is now freer to lay the right charges, without worrying that they might eventually be stayed because they take a long time to prosecute.

2010-03-10 Similar Fact - Probative Value of Old Files

- Mr Jesse 2010 BCCA 108 attended a party where a woman got drunk and passed out.  After the party, everybody left but him and another fellow.  The next morning, others found the woman still passed out, but missing her underpants.  In the night, someone had forced a wine-bottle cork into her vagina.  Who did it?  The prosecution tendered evidence that 12 years earlier, Mr Jesse was convicted of forcing two plastic shopping bags into the vagina of a different unconscious woman.   The trial judge found that this unusual behaviour helped determine he was responsible for the bottle-cork.  Of course he appealed.

He complained that the two acts weren't sufficiently similar, and the time difference between them rendered them less probative.  The appeal judges disagreed.

He complained that using evidence from the previous trial was unfair: transcripts from the previous trial were lost, which made it more difficult to cross-examine those witnesses.  Fortunately, enough records of the previous proceedings were preserved.  The witnesses from the original trial were available, and able to testify and be cross-examined.  The court dismissed this complaint too.

Lessons police officers can draw from this case include:

Similar fact evidence can prove a great deal, particularly if your suspect commits a peculiar crime, or commits his crime in a peculiar way.  When you get a weird offence it's worth researching your suspect's past.

Completeness of the records matters.  In this case, the court registry destroyed court records after 7 years.  That policy since changed.  When deciding what to keep and what to destroy, you know that 99% of your records will never be looked at again.  But that last 1% can make all the difference in serious cases.  You never know which 1% is the good stuff.

The court discussed another rule of law: even though he was convicted 12 years earlier, the Crown had to prove his guilt of the earlier offence all over again.  You never know when an investigation is finally over.

In a decision which addressed technical points of evidence, the Supreme Court upheld the conviction.  Jesse, 2012 SCC 21

2010-03-01 Possession of a Stolen Car

- Felons stole 2 similar cars, raced them dangerously, and crashed.  They fled together, laughing.  A dog track led to 3 young men, one of whom was Mr Smith, 2010 ABCA 46.  Fingerprints of the other two were found in the two cars.  Was Mr Smith guilty?

The trial judge convicted him, but the appeal court entered an acquittal.  No evidence established that Smith stole or drove either car.  No evidence established that he knew either car was stolen, and even if he did find out that a car was stolen, there was no evidence that he had any control over the stolen car.

These cases frustrate investigators and prosecutors.  Guilt seems so obvious, but proof so difficult.  I can't criticize the officers in this case, but here are some ideas I have seen that worked in other cases:

• Is there probative property in the car?  When you arrest, you don't know what belongs to the suspect and what belongs to the owner.  Clothes, receipts or other documents in the car can reveal much, but only after you go through them.  Often, you need the owner's help identifying what belongs to who.
• How do the suspects' heights compare with the position of the driver's seat?
• If there was a crash, do the suspects' injuries reveal their locations in the car?
  
• What do the suspects say?  (These cases are ideal opportunities to practice your interview skills.)

2010-02-27 Eyewitness Identification of Strangers

- Police attended a complaint that shots had been fired.  About 10 minutes after they arrived, a cabbie and a pedestrian who saw the incident pointed out Mr Carroo, 2010 ONCA 143 as the shooter.  The officers arrested him and found gunshot residue on his hands.  So identification isn't a problem, right?

Some things went wrong at trial:

• At trial, an expert testified said if someone is within 50 feet of a person who fires a gun or picks up a recently discharged gun or spent ammunition, residue can be transferred to them.  (Mr Carroo could have been near the shooter without being the shooter.)
  
• In the hallway at the courthouse, one of the witnesses waited to testify.  An officer pointed Mr Carroo out to him, identifying him as the person charged.  When the witness testified that he recognized the accused as the shooter, the court gave it little weight because of what occurred in the hall.
  
• The officers and the eyewitnesses' descriptions of the shooter focussed on some different features than the police officers recorded in their notebooks.

Fortunately, some other things went right:

• An eyewitnesses said that three women accompanied the shooter.  The officers found the accused with three women.
• A different eyewitness said that a woman with the shooter wore white pants.  An officer noted that one of the women with the shooter wore white pants with a red stripe.

The appeal court upheld the conviction because of these extra details.  But a lot of litigation might have been avoided.

Therefore, where the culprit and the eyewitnesses don't know each other:

• get descriptions early.  If you record a description in your notebook, I recommend that you ask the witness to check your notes, and sign off on their accuracy. 
  
• take statements from the eyewitnesses which ask for descriptions of the culprit and his/her associates
  
• take photographs of the suspect's appearance (not just his/her face).
• take photographs of his/her companions if you can.
  
• don't tell an eyewitness who the bad guy is.  Not before or after a photo lineup.  Not in the hallway before testimony.
• If the eyewitness recognizes the suspect outside the court room while waiting to testify, tell the prosecutor before that witness testifies.
  

2010-02-19 Use of Force - Documentation After the Fact

- Mr  Nasogaluak, 2010 SCC 6 led police on a high-speed pursuit.  When trapped in a cul-de-sac, he reversed his truck at a police car.  The officer's evasive maneuvers prevented a collision.  He swerved at another officer's vehicle.  He too made high-speed evasive maneuvres.  He finally stopped, and got part way out of his car.  An officer ordered him at gunpoint to get out with his hands up.  Instead, he got back in.  Another officer grabbed him, but Nasogaluak clung to the vehicle.  An officer punched him in the head twice, tackled him to the ground and got on top of him.  Nasogaluak continued to resist and prevent the officers from handcuffing him.  The officer punched him, breaking his ribs.  While in custody, he complained of being hurt, and having difficulty breathing, but managed to provide breath samples at 190 & 180 mg%.  When asked if he was injured, he said no.  It turned out that the broken ribs punctured and collapsed his lung.  The next day, he required emergency surgery.

The sentencing judge imposed a very low sentence.  He found that the officer's last punch constituted excessive force, which violated his rights under the Charter.  The appeal courts found that other judges might disagree; but they didn't overturn that finding.

Most of this case discusses technical sentencing issues.  It's not important to most police officers.  I don't think you should consider it a leading case on the appropriate use of force.

I do think it points out an important principle about what to do after a tense and violent incident.  Write down out what happened and why.

These officers made no record of the force they used during the arrest.  In their report, they didn't mention the drawn firearm, nor Mr. Nasogaluak’s injuries.  They "provided their colleagues and superiors at the station with little to no information about the incident, and no attempts were made to ensure that Mr. Nasogaluak received medical attention."  The judges didn't like this.  It seems that the trial judge inferred that the officers failed to document it, as an effort to cover it up.  Is it any wonder that the trial judge concluded that the officers went too far?

In my opinion, if you use significant force in your duties, the best way to make your actions seem improper is to behave as if you are embarrassed by what you did.  You give defence so much to use against you.  This is what happens when you get to court:

• Officer, you believed that my client endangered your life?
• You were angry with him?
• When you caught him, you lost your temper?
• You punished my client, didn't you?
• And afterwards, you realized that writing it up would get you into trouble.  So you just covered it up!
  

Many officers I've met learned to control their tempers.  Failing to document their appropriate uses of force can undo so much good work.

2010-02-16 Detention on a Pretext

- A Crimestoppers tipster said that marijuana was growing on Mr Lauriente's 2010 BCCA 72 large rural property.  As part of their investigation into who came and went from that property, police officers stopped him "for speeding".  They didn't give him a ticket, but they secretly photographed him.  They had no reliable evidence that he was speeding.  The court found that the stop was for the purpose of investigating the grow-op, and therefore they called it an arbitrary detention.

I disagree with the judges on this point.  The officers plainly had reason to suspect that the occupants of the vehicle were involved in an offence.  The stop wasn't arbitrary at all.  However, the officers lied about the reason for the stop.  That was a clear breach of s.10(a).

Whether the officers breached s.9 or s.10(a) makes no difference to the result.  The officers made several other mistakes:

• s.8 breach: They trespassed on the property.
• s.8 carelessness: The ITO for the search warrant contained mistakes of sloppiness and inaccuracy.
• s.9 arrest without reasonable grounds: When they found the grow in a distant outbuilding, they arrested everyone at the residence, even Mrs Lauriente.  But they had no reason to believe that Mrs Lauriente was involved.
• s.10(b) eliciting evidence before access to counsel: After Mr Lauriente asked for access to counsel, but before he got to speak with a lawyer, police asked him questions (eg. "Where are your keys?").  His answers led the officers to evidence against him.  The court excluded the evidence.

The court excluded the evidence.

Section 9 of the Charter generally prevents you from stopping a someone without any reason.  If you have reasons to suspect that a person is involved in a crime, then you have reasons to stop him.

Section 10(a) of the Charter requires you to tell people that you stop why you stopped them.  If telling the suspect the reason for the stop will damage the investigation, then don't stop them.

If there are two reasons to stop a suspect, you can enforce just one of them.  If Mr Lauriente were really speeding, then the officers could have investigated that properly.  They wouldn't have to mention the grow operation.  If he wasn't speeding, then the officers had two choices: stop him and tell him they had information that there was a grow operation at his place; or let him go by and watch for some other reason to stop him.

2010-02-10 Exigent Circumstances Search - Protecting Life -

"Sarah" called 911 from Vancouver.  She said that she had received a call from an unknown male who said he had been paid $100 to call her to say he had someone tied up 475km away at 5065 Canim Road, Buffalo Creek. She gave no personal information, such as her last name, a call-back number, or an address. Sarah had told dispatch that she did not know the male, but she gave dispatch the phone number which she said showed on her cell phone display as having come from the unknown male. The prefix was local to Buffalo Creek.  She claimed to be in labour, and did not want the police to call back.  Police attended that address, phoned the number and spoke with an occupant, and got them to come outside.  Ms Brunskill 2010 BCSC 187 and Mr Leahy emerged.  They denied having anyone tied up on the property.  Police searched the residence anyway, on the basis of exigent circumstances.  They found nothing.  They unlocked some outbuildings, and found a marijuana grow operation.

Godoy says you can search to save people from serious bodily harm if you have "reasonable grounds to suspect" that they are in danger.  This judge concluded that the tip was too unreliable, too weird, to base a reasonable suspicion.  The judge excluded the evidence.  The judge said that the officers should have accepted the occupants' word and gone away.

I'm not sure what I would have suggested if I were the commanding officer.  I find that truth is stranger than fiction.  Desperate people do very strange things.  Would the result have been the same if they found evidence of a kidnapping or a murder?  In Pillay (2004) police acted on a similarly tenuous tip, and found evidence of murder which was admitted at trial.  That decision was was upheld on appeal, although with some skepticism 2007 ONCA 207.

2010-02-10 Photo Lineups - Creating a Fair Lineup

- Six sex-trade workers complained of being robbed.  One of the women described her assailant as having distinctively braided hair.  Police showed her a photo-lineup which contained only one person - Mr Powell, 2010 ONCA 105, with hair braided in that fashion.  She picked him.  The trial judge rejected her identification, and the identifications of the other witnesses.  For a variety of reasons, the trial judge acquitted on all the charges.  It must have been a frustrating result for officers involved.  But we can draw a useful lesson from the case.

With photo-lineups, you only get one chance to do it correctly.  You must be fair to the suspect: you need pictures that are sufficiently similar that the suspect doesn't stand out in any significant way.

However, a lineup of identical twins isn't fair to the complainant either.

The prosecutor down the hall from me is finishing a murder case involving a lineup which contains photos of two different men who looked virtually identical.  The eyewitness picked the wrong guy.  As luck would have it, identity isn't the issue in that trial.  It could have been significant.

2010-02-07 Right to Counsel - "Holding Off Eliciting Evidence"

- Mr Volk, 2010 SKCA 3 drove too fast on Highway 1.  Two police officers watched him overtake an emergency vehicle, so they stopped him.  The officers approached the two sides of the vehicle and spoke to the driver and passenger.  Both smelled raw marijuana in the car.  They conferred behind Mr Volk's vehicle, and confirmed with each other what they smelled.  They arrested Mr Volk for transporting a controlled substance, and told him about his right to counsel.  He wanted a lawyer.  Although the officers had a cell phone, they didn't let him use it.

The officers asked him where the marijuana was, and told him that if it was just a small quantity, he would be on his way with just a ticket.  He said "yes, I have a little bit", and he retrieved three baggies containing a total of 21 grams.  Then the officers searched the vehicle and found 14.5 pounds of marijuana and 180 gms of psilocybin.

Defence complained that the officers deliberately breached Mr Volk's s.10(b) right by "eliciting" evidence from him before satisfying his right to counsel.  The court said he was right, but under s.24(2), they admitted the evidence anyway.

Before the decision in Grant last year, this result would have been expected.  The officers were going to find the evidence anyway.  But that decision changed the legal terrain.  Other judges might well come to a different conclusion: the officers deliberately breached his rights, and obtained evidence through that breach.

This decision makes no new law.  It's just another recent example of a mistake I see too often in reported cases, and in my prosecutions.  After you arrest or detain, the prisoner has the right to talk to a lawyer before answering your questions.  Until he speaks to one (or turns down the offer), you can not ask him about the offence.  If he volunteers information, write it down.  It's admissible.  But you can't ask questions.

2010-02-06 Impounding Vehicles

- Three times, Cst Churkoo caught Mr Waugh, 2010 ONCA 100 driving without proper insurance.  On each occasion, Cst Churkoo signalled him to stop.  One time he did.  On the other two occasions, Mr Waugh drove away either after or while being stopped, thereby preventing the officer from impounding the vehicle.  On the last occasion,  Mr Waugh displayed in his rear window a licence plate which was probably obtained on false pretenses.  That time he deliberately locked his car keys inside the car so that the officer could not seize the  licence plate.  Did he obstruct a peace officer in the execution of his duties?

Mr Waugh argued that the Ontario Highway legislation did not grant police any general power to impound vehicles, and therefore driving away didn't obstruct the officer.  There are specific sections, but none applied to his case.

The court found that in Ontario, when an uninsured vehicle causes a hazard by being left on a highway, police have a common-law power to remove it, in order to protect the public.  Not only was he guilty by driving away, but also by preventing Cst Churkoo from investigating the licence plate.

From this case, you might think that Ontario police officers enjoy a general power to impound uninsured vehicles found on public roads.  That would certainly stop rebels like Mr Waugh from driving their uninsured cars again.

For you Ontario offices, I urge restraint.  The court relied on a doctrine which requires you to use the least power possible under the circumstances.  Is the vehicle really a hazard?  Are there alternatives to impounding the vehicle?  For example, in many cases the driver might pay to tow the vehicle to the owner's private property.

For all peace officers, however, this case tends to confirm your general power to prevent public hazards by moving, and sometimes impounding, private property.  Just be careful not to overstep your powers.  I suggest that you choose solutions which least affect the owner's rights.

2010-02-02 "Party" to an Offence - Presence at the Scene - Membership in a Group

- In the dead of night a witness saw two men hanging around the railway tracks behind a bicycle store.  A stolen truck backed in at the front of the store.  Two men got out and approached the store.  Damage to the lock showed they tried to break in, but the store's alarm sounded.  Three men fled around the back to the tracks.  They joined the two men at the back, and the group of 5 ran together until caught by police.  Mr Foster 2009 BCCA 584 was one of them.  He was violating his curfew at the time.  He didn't testify.  The trial judge convicted him as a party to this attempted break-in.  Was he?

The trial judge found that the two guys on the tracks at the back "could" have been look-outs, but he didn't say for sure.  The Court of Appeal ordered a new trial because of a mistake the trial judge made about the evidence.

This kind of scenario arises often, and defences abound.  Defence argued that Foster might have run simply because he didn't want to be caught violating his curfew.  Foster might have been one of the guys on the tracks, and they might have had nothing to do with the break-in.

Mere presence at the scene of a crime does not make a person guilty of a crime.  I can go with my friend to a neighbor's house, and watch him break in and steal.  So long as I neither help nor encourage my friend, nor participate in any way in the offence, I won't get convicted.

When you catch a group of people involved in a crime, it helps to isolate each one's involvement.  Ask the witnesses to describe the clothing and appearance of each participant.  You'll get descriptions like "the big guy" or "the guy with the hat".  Take pictures of more than the suspects' faces.  Photograph their appearance, with all their clothes on.  Determine their relative sizes.

Interview the suspects.  The larger the group, the greater the chances that someone will spill the beans.

Evidence of the relationships between the suspects sometimes helps.  Did Foster associate with the other guys in the past?

2010-01-30 Sexual Assault - What is "Consent"?

  Mr Hutchinson's 2010 NSCA 3 relationship with his girlfriend hit some rocky times.  He wanted her, but she wasn't sure.  She insisted that he wear condoms when they made love, except during her period.  He thought having a baby would bring them closer together, so he secretly punctured all the condoms in the box.  She conceived, but soon dumped him.  When he told her not to use the remaining condoms, and why, she went to the police. She got an abortion, and suffered minor complications.

Did she "consent" to intercourse with him?  Did his trick inflict "serious bodily harm" or a significant risk of it?

The prelim judge said "yes".  The trial judge said "no".  The judges of the Court of Appeal disagreed too: 2:1 for the prosecution.  Both decisions at the appeal level make sense, and explain the intricacies of this area of the law.  I suspect there may be a further appeal.

For sexual assault cases "consent" is defined in two places: s.265 and s.273.1.

The first section is the "consent" relevant to all assaults.  Historically, a guy could obtain a woman's "consent" to sex even by telling lies, or making false promises of marriage, or forgetting to mention that he had VD.  But when AIDS came along, the Supreme Court of Canada said that lying about (or failing to mention) serious communicable diseases was fraud.  (Cuerrier) Consent obtained by fraud is no consent.  Pregnancy isn't a disease, but the two judges considered the associated health risks, and the health risks of abortion to be sufficiently serious.

The second section applies only to sexual assault.  "Consent" is the "voluntary agreement of the complainant to engage in the sexual activity in question".  In this case, the judges disagreed whether "the sexual activity in question" was "intercourse" or "intercourse with a functioning condom".

For you police officers, this finely-tuned debate won't arise often.  If the complainant says a lowly prosecutor seduced her by claiming to be an undercover cop, then he did not sexually assault her.  However, if she says he promised to wear a condom, but didn't, then there may be a charge to lay.

2010-01-30 Investigations in Foreign Lands

- In 2002, American soldiers in Afghanistan arrested 15-year-old Omar Khadr 2010 SCC 3 for throwing a grenade that killed an American soldier in battle.  They transferred him to Guantanamo Bay, where a military tribunal determined that he was an "enemy combatant".  American military prosecutors charged him with war crimes.  Khadr is a Canadian citizen.

In February and September 2003, agents from CSIS and the Foreign Intelligence Division of the Department of Foreign Affairs and International Trade (“DFAIT”) questioned Mr. Khadr on matters connected to the charges pending against him and shared the product of these interviews with U.S. authorities.  In March 2004, knowing that the Americans subjected Khadr to a month of sleep deprivation to soften him up, they tried again, but Khadr refused to answer questions.  He did not have access to a parent nor legal advice.  He asked to return to Canada.

In previous proceedings, the American and Canadian Supreme Courts found that the Guantanamo Bay investigations violated international law.

The court found that Canadian participation in this illegal questioning violated Khadr's s.7 rights.  Khadr asked the court to order the Canadian Government to ask the American government to return him to Canada.  The Supreme Court declined to make a specific order affecting Canada's international relations.  Instead, the court declared that Canada violated his s.7 rights, and left it to the government to sort out the mess.

Most of you won't be involved in international diplomacy.  Some of you might find yourself visiting foreign nations to investigate.  Before interviewing prisoners in foreign lands, you may want to inquire into the treatment of suspects.   You should distance yourself from inhumane treatment of prisoners.  This does not mean that all the protections of the Charter apply, but torture offends Canadian courts, and Canada's international obligations.

2010-01-25 Major Investigations - Arrest Planning

- After a long investigation into organized crime, 1,200 officers of the Toronto Police Service went out one day and arrested Mr Brown, 2009 ONCA 633 and 85 of his closest friends for a wide variety of serious and violent crimes.  Every one of the prisoners enjoyed the right to a bail hearing within 24 hours (see s.503 of the Criminal Code).  But here were too many prisoners to put through the court process.  Many didn't get their bail hearing for weeks.

They demanded release because of the violation of their rights.  The judge agreed that the police should have made arrangements in advance with the courts, so that the huge influx of bail hearings could be accommodated.  He awarded costs against the Crown: $2,000 each for 9 prisoners.  The Crown appealed this award: telling too many people the police plan risked leaks.  The courts had no sympathy.  If the police knew of security problems in the courts, then the police should address them.

I'm sure the police concerns were real.  But I imagine that court services were offended that nobody warned them of the huge influx of bail hearings they would have to handle.  I'm sure there's much more to this story than the judgment reveals.

The lesson major case managers can draw is that the work doesn't end with the big arrest.  It merely kicks off a new phase which involves you and many others.  Make plans with your partners in Crown for bail hearings, disclosure, plea negotiations, trials and even appeals.  Plan for prisoner, witness and exhibit management.

2010-01-24 Drug Dealer's Phones - Taking the Call

- When police officers arrested Ms Williams, 2009 BCCA 284 for trafficking in drugs, her telephone rang several times.  The officers answered it.  The callers asked for her by name, and wanted to buy drugs.  One officer asked the caller to call again later.  He did.  Another caller arranged for a specific drug transaction.

The judges agree that the callers' desire for drug transactions was admissible against Williams as circumstantial evidence that she was a drug trafficker.  (This isn't new law, but it is a strong decision on the point.)

At trial, Ms Williams testified that the police lied.  Several people testified for the defence that they were the ones who called her phone when the police answered, but they did ask for drugs.  The trial judge did not believe them.

If you do take calls on a suspect's phone, you should take careful notes, immediately, of what the callers say, and what number they call from.  You might want to investigate the callers too.

2010-01-23 Impaired - Care or Control

- Poor Mr Larocque, 2010 ONCA 43.  His car got stuck.  Perhaps he was too drunk to drive it (the decision doesn't say).  He had the keys in his pocket, and he repeatedly asked a passer-by for a rope with which to pull his car back onto the road.  Was he in care or control?  The court said yes.  It didn't matter whether he was in the car or not.  If his efforts to get the car back on the road succeeded, then he could be a danger to others.  His appeal failed.  Poor Mr Larocque.

2010-01-23 Similar Fact Evidence - The power of Independent Details

- Two young women worked in different hotels.  Each complained that while they were vacuuming a hotel room, a man who was naked from the waist down, approached her from behind, threw a pillow case over her head.  He jabbed something sharp at her, threw her down, and sexually assaulted her.  The events occurred in July and August of the same year.  The only evidence of identity was DNA on a pen on the floor of one hotel room which matched Mr Carpenter 2010 BCCA 27.  The jury convicted him of both attacks.  Was it fair to blame him for the second, considering there was no direct evidence linking him to the crime?

The Court of Appeal said yes.  If the DNA evidence satisfied the jury that Mr Carpenter did the first one, then they could rely on the striking similarity between the two attacks to find that Mr Carpenter did both.

This case makes no new law.  I mention it because it illustrates the power of similar fact evidence, where there are strong similarities.  It works for identity, but it works for other issues too.  When interviewing complainants, witnesses and suspects, ask for detail.  If you get details, investigate them.

Suppose these two women worked in the same hotel, and discussed their experiences before testifying.  Would the court have reached the same conclusion?  I doubt it.  I recommend that you preserve the independence of witnesses' information.  Take witness statements out of the hearing of other witnesses.  Discourage them from discussing the details with each other.

2010-01-19 Search & Seizure in a Gangster's House - Report to a Justice

- Somebody shot bullets at James Bacon, 2010 BCPC 1, and if he had not been wearing body armour, he might have been killed.  He and his brother were engaged a war with a rival criminal gang, and were prime suspects.   There were shell casings on the street where the shooters were.  But it looked like James shot back.  There were more shell casings of a different calibre where James had been.

Police later found a secret compartment in his vehcle, which contained prohibited or restricted firearms.  This led to charges against both brothers.

Defence complained of an abundance of Charter breaches:

1. After police cleared the residence but before getting a warrant to search the house, another officer entered and poked around looking for evidence. He found body armour.
2. While executing a warrant to search the house for guns, ammo and clothing, an officer snooped through some paperwork, and wrote down an interesting telephone number.  He  poked around inside a computer and several photographs of the strange modifications to Bacon's vehicle.
3. Nobody reported this extra evidence to a justice.  The officer considered it "intelligence" not "evidence".
   
4. Not only did the officers exceed the authority of the warrant in where they looked, but they did not report to a justice the evidence they secured.

The trial judge agreed that there were many breaches, but, luckily for the officers, she found that the guns could be admitted into evidence.  If she convicts these guys, they will likely appeal.  I can't predict what the appeal court will do.  (She did convict.  He did appeal.  The court upheld the conviction: Bacon, 2012 BCCA 323 - HW 2012.08.02)

This is a high-profile case here in B.C..  The ongoing gang war was big news, and the Bacon brothers were in the thick of it.  The officers probably felt substantial pressure to make headway in this investigation.  The temptation to snoop everywhere in that house must have been huge.

But when it comes to privacy, there is no difference between "intelligence" or "evidence".  You need lawful authority to search and seize stuff that doesn't belong to you.  When you do seize private stuff, you have to report it to a justice.  Gangsters may have guns, but they also have lawyers.  Expect the lawyers to scrutinize your actions when you get to court.

2010-01-16 Is Hard Drug Use a Public Scourge, a Health Issue, or a Constitutional Right?

  All three, it seems.  In the "Downtown-East Side" of Vancouver, Canada's most drug-addicted neighborhood, various levels of government set up an experimental harm reduction centre.  Addicts could shoot up in clean surroundings with clean needles.  The purpose was to prevent overdoses, and infection through shared needles, and to counsel them to change their ways.   For a while, the Federal Minister of Health exempted them and the staff who worked there from possession and trafficking charges under the CDSA.  A change of government ended that.  The clinic, PHS Community Services Society, 2010 BCCA 15 and some addicts complained to court that the addicts needed the health care available at this clinic, and that using the drugs was't a choice for them, but a necessity.  The judge agreed, and declared that sections 4(1) and 5(1) of the CDSA (possession and trafficking) have no force or effect (but he suspended the ruling for the time being).

One judge found that possessing drugs in the clinic is illegal once again ("drugs are a public menace").  One judge found that that at the clinic, the provincial jurisdiction over health overrides the CDSA, and the clinic may carry on ("addiction is a health issue").  One judge found that the sections of the CDSA are unconstitutional, and so the clinic may carry on ("addicts who can't quit have a right to safety").  For these different reasons, the clinic may keep its doors open.

I oversimplified the arguments in this summary.  Don't debate this issue around the office without reading more fully.

I would expect further appeal to the Supreme Court of Canada.

2010-01-15 Detention & Search

- Five years ago, someone called police complaining of suspicious vehicles and a person hanging around them for hours.  An officer found Mr Reddy 2010 BCCA 11 in the driver's seat of a vehicle parked just outside a drug dealer's residence.  The car was registered to someone else.  Reddy said he was waiting for a friend for a few minutes, but it was too hot in the basement suite to wait there, so he sat in the car, outside in the (hot) sun.  On request, he identified himself.  The officer remembered that Reddy had been the passenger of a prohibited driver, who carried 6 machetes under the driver's seat.  The computer system said that Reddy's probation order required him not to carry cell phones or pagers.

The officer asked him to step out of the car so that he could search it for cell phones or pagers.  Mr Reddy removed his jacket, and left it in the car.  Then he fled.  The officer found two loaded handguns in the pockets of the jacket.

Defence complained that the detention and search were unjustified.  Two of three judges agreed:  The officer had insufficient grounds to suspect any particular offence had been or was about to be committed.  Therefore the officer could not detain.    When you detain a suspect, you can search for weapons that pose you a risk.  But this officer searched for evidence of an offence.  To that, he needed to be able to arrest.

The court did not say that you need to know the exact offence.  For example, if you suspect there's drug dealing going on, you don't need to know the exact drug.

Hindsight 5 years later

I think the officer had sufficient grounds to suspect Reddy was dealing in drugs: his probation conditions suggested a conviction for dealing.  His association with a guy who armed himself to the teeth suggests a connection to drug dealing.  His proximity to the drug dealer's house suggested dealing.  According to the telephone complaint, Reddy hung around in a hot car for hours, which suggests he was performing a task; and his lies about how long he was there suggested he didn't want to tell the police what that task was.  Therefore there were grounds to suspect drug dealing.  But not grounds to arrest, and therefore no grounds to search for evidence.

The officer did have grounds to suspect weapons, but at trial, the officer didn't mention any such concerns.

This case doesn't say anything new.  But it's an issue that still arises often.  Officers today must be clear on the differences in powers between detention and arrest.

2010-01-14 ASD testing - "Forthwith" or 15 minutes?

- A police officer stopped Mr Smith, 2009 SKCA 139 driving a few blocks from a bar.  Mr Smith said that he drank 4-5 drinks, ending his last drink 5 minutes before he left the bar.  The officer dealt with him for at least 5 minutes before requiring him to blow into an ASD.  The user's manual for that particular ASD stated that the user should try to ensure that 15 minutes had passed from the time of the last drink to minimize the possibility of a falsely high result because of residual alcohol remaining in the mouth of the person giving the sample.

Defence complained that the officer hadn't waited long enough.  The Court of Appeal rejected this position:

• an investigating officer need not question a suspect with respect to when he last drank: Bernshaw
• the mere possibility that a suspect may have drunk alcohol within the 15 minutes preceding the administration of the ASD test, does not preclude an officer from requiring a suspect to take the test and to rely upon the result, where the officer acts bona fide
• there was no evidence how long Mr Smith spent between leaving the bar and getting stopped.

This case raises several issues:

1. How long should you delay in order to get an accurate ASD reading?  Over the course of my career, I have heard that the time frame for mouth alcohol to dissipate is 5, 7, 15 or 20 minutes.  I am not an expert on this topic, so don't take the time frame from me.  Read your manual or talk to a qualified toxicologist.  Don't accept as true what other officers (even senior ones) say.
2. Section 254(2) requires you to administer an ASD test "forthwith".  Don't wait unless you have a reason.  If you that mouth alcohol will affect the result, then wait.  The case law says if you merely suspect there is mouth alcohol, you don't have to wait.
3. This case is on the borderline.  The officer had sufficient reason to believe that there had been recent drinking: Mr Smith said so.  But the officer had reason to believe almost enough time had passed to eliminate mouth alcohol.  The officer could have saved a great deal of litigation by asking "how long ago was your last drink?"
   

2010-01-14 Breath Demands - "Are You Gonna Blow?"

- In my jurisdiction, I keep reading police reports of officers who make breath demands, and then ask immediately if the suspect will comply.  In my view, this is a bad practice:

1. It gives the suspect the idea that s/he has a choice whether to blow or not.  This is false.  It's an offence to refuse.  I think you should avoid prompting your suspects into committing an offence.
2. The suspect has not had an opportunity to get legal advice about whether to blow.  In some cases, the officers ask this question even before suggesting that the suspect has a right to counsel.  Courts see that as unfair, and they exclude evidence of refusals where the accused didn't get legal advice.

In my opinion, the idea of refusing ought to come from the suspect, not you.

If the suspect does refuse, and then gets legal advice, an old B.C. decision says it's up to the suspect to tell you if he changes his mind.  But I suggest that you should ask the suspect after s/he emerges from the phone call: "Are you gonna blow now?"

2010-01-09 DNA Science Questioned

- Scientists tell us that a DNA match means that it's highly likely that the known DNA came from the same person as the DNA you found at the crime scene.  But those scientists rely upon statistics calculated from some early DNA research on hundreds of DNA samples.  In a recently published article, some scientists produced evidence that the statistics may be wrong.  Unrelated matches may occur much more often.  They want access to the hundreds of thousands of DNA profiles in American DNA databanks, to calculate those statistics more accurately.

From a scientific and justice perspective, I think that scientists should have access to the databases, so that the reliability of DNA matches is known accurately.

From a police perspective, this means that defence has a new attack on DNA matches.  Your investigation should not stop after a DNA match.   Investigate all reasonably available sources of evidence about who committed the crime.  Even if this new scientific article turns out to be wrong, this is good police practice, because there are defences to DNA evidence:

• transfer - your suspect's DNA may have transferred from some innocent source to the suspicious location where you found it.  For example: "My DNA was on the murder weapon because I shook hands with the real culprit just before he killed the victim.  I remember it because the culprit was wearing gloves."
  
• innocent explanation - the presence of your suspect's DNA may not necessarily prove the case.  For example: "Sure, my DNA was found in the victim's vagina.  I had sex with her.  After she left my place, she must have been raped and murdered by a stranger who wore a condom."
• continuity & contamination - first responders don't always consider the risks of DNA cross-contamination when handling exhibits.  Can they say that the exhibit from which the DNA was taken was never in contact with exhibits which obviously would carry the suspect's DNA?  Did the suspect's shoes travel to the police station in the same trunk as the knife that inflicted the injuries?  Did the same officer handle both without changing gloves?
  

2010-01-07 Search Warrants - Editing the ITO to Protect Confidential Informants

- Crime-stoppers tips and known tipsters of known and unknown reliability gave police reasons to believe that there were drugs in Mr Blake's, 2010 ONCA 1 house.  Police got a warrant and found them.  To comply with disclosure obligations, Crown had to give defence and the court copies of the ITO.  To comply with the obligation to protect the identities of confidential informants, the copies were edited ("redacted") to block out information which would tend to identify the sources.  The trial judge found that insufficient information remained in the redacted ITO to justify the issuance of a warrant.  The search therefore violated s.8 of the Charter.

But he admitted the evidence anyway under s.24(2).

The Court of Appeal upheld that finding, noting that the police in this case did everything appropriately: they got a warrant because they knew of a crime; but they protected the identities of informants, as was their duty.  The good faith of the police made the difference.

There is an uneasy tension between law enforcement using confidential source information, and the obligation of full disclosure for the purposes of proving that police complied with the law.  This decision could be seen as pushing the balance a little in favour of police.

Don't bank on it.  When preparing ITOs which include confidential source information, try to write them so that after editing / redacting, enough information remains that a justice could be satisfied that what you seek is probably there.

Protecting the identities of your sources remains even more important than convicting the guilty.  This decision merely emphasizes that when you do protect them, you are acting in good faith.

2010-01-06 Right to Counsel - Officer's Duties

- When police took Mr Brown 2009 NBCA 27 to the police station to provide breath samples, they told him about his rights to counsel.  At first he didn't know  whether he wanted to talk to a lawyer, and asked to call his parents.  The officer let him talk to his mom for 20 minutes, after which Mr Brown wanted to talk to a lawyer, but he didn't say who.  The officer called duty counsel.  Mr Brown spoke with duty counsel, then said he was ready to provide his breath samples.  At trial, he complained that the officer breached his right to counsel of choice.  The trial judge agreed, but the Appeal court didn't.

The court explained that you have a duty to provide a "reasonable opportunity to get legal advice".  But if your prisoner wants legal advice, then he or she must pursue it with diligence.  Brown didn't mention to the officer the name of the lawyer that his mom gave.

Your duty varies with the circumstances.  If the prisoner wants a specific lawyer, then giving him a phone book or directory may be an appropriate response ... unless you know that the prisoner is illiterate.   But an illiterate prisoner can't complain about your behaviour if he keeps his disability secret.

The court spoke of sensitivity to the context.  If your prisoner doesn't know the name of a lawyer to call, then a directory of all lawyers in the province doesn't really help him: how can he know who's an appropriate lawyer to call?  The Yellow Pages would be of greater assistance because it advertises lawyers' specialties.

If the prisoner does know the name of a lawyer, and you have trouble finding a phone number, I suggest several steps:

• Ask for the spelling of the lawyer's name.  Write down what the accused says.  (I had a case where the officer mis-spelled the name, and then couldn't find him in the legal directory.  Whose fault was that?)
• Look up the lawyer in whatever directories are available to you.

Nowadays, you find the most current information on the Internet:

• Your province's Law Society may publish all the lawyer's names.  See Links on this site.
• Canada Law List might help.  It does allow searches by specialty (like Criminal Law).
  
• Search Engines like Google or Yahoo
• People finders like Canada 411

Whatever you do to find the lawyer in question, document it.

2010-01-05 Seizing Computer Evidence

- Even if you aren't a computer geek, you sometimes need to seize computers and other electronic devices from suspects or crime scenes.  If you handle them correctly, electronic devices can provide great evidence.  But you can look like an idiot when you do the wrong thing.  The U.S. Department of Justice has just published an updated guide for First Responders, describing some best practices when seizing electronic evidence.  Although it's a bit long-winded, at least it shows you pictures of what you want to seize, and suggests procedures that you should follow. They left out a couple of practical steps which come up often:

Text messages and call history on a cell phone

The prosecutor wants the exact wording of every message, and all the related information, like date, time, nick-names or originating telephone number.  One technique that works well is to photograph the cell phone's screen as you scroll through the messages.  Don't forget to look at outgoing telephone calls and text messages as well as incoming ones.

Emails to a victim's computer

You want more than just the text of the email.  Most email programs display less about the originator of an email than they know.  Ask victims not to delete offending emails; ask them to forward the emails to you, so that you can forward them to an internet expert for analysis.  (PS: And you should forward it as soon as you get it.  I'm told that the lifespan of the useful hidden information in some cases is only weeks.)

2010-01-01 Reasonable Grounds - Working in a Team

- After a team of officers gathers sufficient evidence, one of them will decide to arrest.  At trial, that decision-maker may be challenged to describe all of the information which justified the arrest.  How you communicate and record it matters.  Source information, electrical records and surveillance led police to arrest Mr Budd 2009 BCCA 595 and his buddies for producing "B.C. bud" at three different residences.  At trial, the officer who directed the arrest did not - or could not - describe all of the details provided by the confidential source northe police surveillance.  Defence therefore argued that he didn't have sufficient grounds to order the arrest.  The Court of Appeal found that what the officer did know sufficed to justify the arrest.

The details were collected by other officers.  This officer might have done better on the witness stand if he had recorded the details justifying his arrest as those details were communicated to him.  After dynamic situations, where information came in too fast to record, you might take time to write out your grounds, and where they came from.

2010-01-01 Right to Counsel - Delaying Access to Counsel

- After police arrested Mr Budd 2009 BCCA 595 (see above), they wanted to search all three residences.  But they couldn't search all three residences immediately.  They feared that during the delay, Budd and his buddies might use their access to counsel to orchestrate the disappearance of evidence.  Therefore, they put a "hold" on his access to counsel for the purpose of securing the residences.  But they didn't release that "hold" until 3 hours after the residences were secure.  Although this made no difference in the specific situation of this case, the court remarked that you need clear reasons to suspend this constitutional right.  If you do suspend access to counsel, you must permit access as soon as it becomes possible.

The court did not say how clear the reasons must be, but I think that future decisions may apply the standards used in exigent circumstances searches.  In this decision and a previous one, the court seemed to draw a distinction between risk of harm to police officers and risk of loss of evidence.  For the former, it may be that reasonable grounds to suspect this risk suffices to justify suspending access to counsel.  For loss of evidence, it may be you need grounds to believe that evidence will be lost.

2009 Developments in the Law

2009-12-29 Fingerprint Evidence - Sufficiency & Content

- Someone removed glass from the rear of a building, and leaned the panes up against the building.  Someone entered through the resulting gap, and stole lots of valuable stuff.  A fingerprint examiner found Mr D.D.T.'s, 2009 ONCA 918 fingerprints on the glass.  A judge concluded that sufficed to prove his guilt of the B&E and theft.  The Court of Appeal disagreed.

As usual, the expert could not say when D.D.T. touched the panes of glass.  Unusually, the expert prepared no diagramme of the locations of the prints.  Nor, it seems, did the examiner look at every print on the glass to determine if they all came from D.D.T..  He said there were many, but he matched only 7.

If D.D.T. were the only person whose prints appeared on the glass, then his responsibility for moving the glass would have been easy to find.  If the exact locations of D.D.T.'s prints showed how he handled the glass, the conviction might have stood.

Investigators: a fingerprint match merely tells you that a finger touched a surface once.  You want more evidence, to determine the circumstances in which that fingerprint got there.  Questions you want to ask might include:

• when was this surface last cleaned?
• what kind of weather/moisture/cleaners has this surface been exposed to?
• where on the surface are the prints, and what are their orientation?
• are there other prints on this surface?

Fingerprint examiners: some of you investigate thoroughly, and report all the information you can obtain from the surfaces you examined.  The rest of you can learn from their example: in forensic sciences, taking short-cuts may save time, but can lead to embarrassment.

2009-12-28 Production Orders - Who is an Appropriate Target?  Is a Corporation a "Person"?

  A police officer obtained a production order that Mr Sullivan 2009 BCSC 1769, an employee of Telus, produce documents relevant to an investigation.  Mr Sullivan complained that Telus didn't ordinarily permit him to deal with the records in question.  The judge exempted him from producing the records, and pointed out that a production order can compel a corporation (such as Telus) to produce records.

A production order differs from a search warrant because you must name the person who has possession or control of the documents or data, and that "person" must give you the information you seek.

Not every employee of a corporation will have access to its records.  A well-behaved corporation will comply with production orders, and so you need only name the corporation in your application or order.  (Take care to use the correct corporate name.  Many corporations do business under a name different from the registered corporate name.)

Name a living person instead of a corporation if:

• there isn't a corporation;
• you can't find out the name of the corporation;
• the corporation is falling apart; or
  
• the shareholders won't care if it gets prosecuted.

2009-12-19 First Degree Murder - The defence of Abandonment

- Suppose a group plan a killing, but part way through, one backs out, is that one still guilty of first degree murder?  Ms Bird, 2009 SCC 60 and others planned to kidnap a 13-year old girl, and take her to a remote place, where she would be raped and killed.  They took the victim and her friend there.  Ms Bird struck the victim on the head with a wrench, and helped hold her down for another member of the group to rape her.  Then Ms Bird took the victim's friend away from the scene "because [the friend] was cold and did not need to see this".  The trial judge found Ms Bird had abandoned the plan to kill by walking away from the scene.  Two of three judges in the Court of Appeal agreed with the trial judge, but the Supreme Court of Canada sided with the dissenting judge Costigan 2009 ABCA 45.  Abandonment requires "a change of intention on the part of the accused and, where practical and reasonable, a timely communication of the accused’s intention to abandon the common unlawful purpose".  What Ms Bird said indicated that she expected the killing to occur.  She said nothing to stop it or withdraw from the plan and was therefore guilty of first degree murder.

When interviewing suspects and witnesses, it's important to distinguish between regrets after the fact, and conduct during the offence.  What did the suspect(s) actually do or say during and after the offence?

2009-12-18 Production Orders against the Media

- A police officer shot Mr Yellowback in the hip.  Because she said he charged at her with a weapon in his hand, he was charged with assaulting a police officer.  Mr Yellowback wouldn't give a statement to the police, but he did talk to the press at a press conference organized for the purpose of his first nation to demand a public inquiry into the matter.  A few days before the press conference, a CBC reporter told an RCMP officer that it would occur.  No police officer attended.  Police obtained production orders against several news media including the CBC, which fought the order, and won.  CBC v. Manitoba (A.G.), 2009 MBCA 122.

The ITO gave the false impression that the police first learned of the conference after it occurred.  This fact was not relevant to any of the statutory preconditions for a production order, nor was it relevant to Mr Yellowback's constitutional rights.  It was, however, relevant to the issues involving searching the media.

When determining whether to issue a search warrant or production order, the justice or judge can still refuse the application even if the preconditions for the order are satisfied.  Where the the target is a news media organization, the courts take extra steps to protect the privacy of news gathering.  The ITO should disclose ordinarily disclose "whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted."  This ITO mislead the issuing judge on this point.  The court felt the police should have attended the press conference to investigate, instead of leaving the task to reporters.

The ITO also omitted information the police had from watching broadcasted portions of the press conference that CBC might have recordings of one-on-one interviews, which had not been broadcast.  This was important because it told the justice or judge that information still private to the CBC would be obtained if the order was granted.

The key points for police officers drafting search warrants or production orders against media are found at paragraph 37:

• Address all the statutory requirements for the warrant or order;
• Investigate all alternative sources of information of the kind the news agency has;
  
• Disclose those alternate sources for the information you seek and what you did to investigate them;
• Identify what parts of the information you seek have already been broadcast or published;
• Craft conditions for the execution of the order or warrant, to ensure that "the media organization will not be unduly impeded in the publishing or dissemination of the news" and any residual privacy interests are protected, whether by publication ban or otherwise.

This decision contains technical discussion about the process of challenging production orders.  Although useful to lawyers, it won't help police officers much.  If there's one point to remember, it's this: if you want a search warrant or production order against the media, get advice.

2009-12-18 Interviewing a Suspect - Consent to Record

- There's an odd idea still floating around that you need a suspect's consent before you can record the conversation you have with him or her.  It's wrong, and this week in R. v. Young, 2009 ONCA 891, the court said so:

I would add that you should inform the suspect that you are recording the conversation, especially if you are outside the police station.

I've seen a fair number of videos from cameras attached to police vehicles, particularly in impaired driving cases.  Because of R. v. Duarte, [1990] 1 S.C.R. 30, I think officers using those systems must mention them early in their dealings with suspects, at least until such cameras become commonplace and expected.

2009-12-17 Regulatory Enforcement & Right to Silence

- Mr Rice 2009 BCCA 569, shot a moose out of season and loaded it into a pickup truck.  Because of his aboriginal status, he could hunt in his traditional territory.  But he wasn't in his traditional territory.  As he drove out of the area, a conservation officer stopped him, and asked "who shot the moose?"  He replied "I did."  The trial judge exluded that evidence.  The Wildlife Act compels hunters to answer questions about hunting.  Because the officer believed that Mr Rice probably committed an offence, making Mr Rice answer the question violated his right to silence under s.7 of the Charter.  And the officer detained Rice without telling him about his s.10(b) rights to counsel.  The Court of Appeal disagreed.

People who participate in heavily regulated conduct, such as commercial fishing or earning taxable income can expect audits.  The Wildlife Act required all hunters who shoot moose to report the kill.  Mr Rice could hardly complain that a Conservation Officer asked him a question he was obliged to answer anyway.

The court found that the Wildlife Act's power to audit hunters coming out of hunting areas implicitly limited s.10(b).

This case doesn't help police officers who investigate crime.  You guys can never compel suspects to answer questions.  It does help other peace officers who enforce regulated activities.  If the legislation requires a suspect to report a specific activity, then it appears that you can ask about that activity when you conduct your audits, even if you think an offence has occurred.

2009-12-05 Reasonable Grounds -

Mr Oneba Burke closely resembled his brother Abede Burke 2009 SCC 57.  Cst Akel learned of an outstanding warrant for Oneba's arrest, and encountered him a few days later.  Oneba fled before Cst Akel and others could handcuff him.  A week later, Cst Akel encountered Adebe, but mistook him for Oneba.  Cst Akel arrested Adebe, who protested that he was not Oneba but the officer searched him anyway.  Cst Akel located drugs.  At trial, Adebe complained that the arrest breached his right not to be arbitrarily arrested.  He said Cst Akel should have investigated his identity before searching him.  The trial judge agreed, and excluded the evidence.  The Crown's appeals to the Quebec Court of Appeal and the Supreme Court of Canada failed.

It didn't help that Cst Akel's evidence at prelim and trial differed significantly.

From now on, any time that a suspect gives you an innocent explanation about their identity or their guilt of the offence, defence will argue that you were obliged to investigate the explanation before making any arrest.  However, that is not what the Supreme Court decided.  Because the trial judge found that Cst Akel didn't have reasonable grounds to arrest, they wouldn't overturn the verdict.

In the recent case of Shepherd, 2009 SCC 35, a police officer disbelieved the suspect's explanation for his peculiar driving, and proceeded with arrest and breath demands.  Because there was other evidence for the officer's grounds, the court found his arrest and demand were reasonable.

The majority in Burke said they were deciding it "on the particular circumstances of this case"  That's judicial code for "we might decide the next case differently".  I expect the significance of this case will be exaggerated, but there is a lesson to draw from it:

If a suspect offers you an innocent explanation ("You've arrested the wrong guy." or "This isn't what it seems."), you can avoid looking like a jerk by making some effort to look into what the suspect is saying.  Don't forget s.10 rights, and take careful notes.  If you can prove that he tried to mislead you, that evidence will sink him in court.  If his story checks out, then he will trust cops more in future.

2009-12-03 Seizure & Search - s.489(1)

- As part of an investigation into the murder of Mr Little's, 2009 CanLII 41212 (ON S.C.) wife, police obtained a search warrant for his house.  As they were searching for other things, they noticed his cell phone, with a blood stain on it.  They seized it too.  Later, they searched it.  Did they need a warrant?  This judge said that the seizure was lawful as a "plain view" seizure, or a seizure under s.489(1) of the Criminal Code.  But searching its contents required judicial authority.

Beware.  The courts have not considered deeply the extent of searches permissible under s.489.  But the judge's reasons make sense.  The section only permits "seizure" not "searching".  If you grab a digital storage device which because you think it is evidence, it looks like you're fine.  But if you grab it because you think it contains evidence, you may need a warrant.  Especially if it is likely to contain large quanitities of private information.

2009-12-03 Internet Luring

- In a chat room, 32-year old Mr Legare 2009 SCC 56 pretended he was 17.  A 12-year-old girl told him she was 13.  They engaged in highly sexualized chat.  He said how he'd love to perform oral sex on her.  She gave him her phone number.  When he called, he spoke to her sister, who complained.  The trial judge found he found Mr Legare not guilty because he never discussed meeting the girl for sex.  The Supreme Court disagreed.  "“facilitating” includes helping to bring about and making easier or more probable — for example, by “luring” or “grooming” young persons..."  "Luring" doesn't require proof of a plan to meet with the victim, but it does require proof of a specific intention to make the young person more amenable to the offences in the section.  Sexually explicit language is not an essential element of the offence.  The court ordered a new trial.

In this decision, the court makes it easier and harder to get a conviction for this offence.  While the Crown need not prove the accused planned to meet with the child, the court emphasized a need for proof of what the accused was thinking when he committed the offence.  When you bust the suspect and interview him, you want your interview to push past the excuse to get to the motive: "Oh, sure it was a game and a lark.  But you wanted to see how far the kid would go with it.  You kept going because you wanted to see how interested the kid was in sex.  And by typing "...." you encouraged the kid to go further."

Before Legare, another court figured evidence of sexual gratification would assist.  (Colley 2009 BCCA 289.)  After Legare, I'm not so sure that's accurate.  But it wouldn't hurt to ask the suspect if he got a sexual thrill from the conversation.

2009-12-02 Wiretap - Roles of Affiant & Agent

- Mr Ebanks 2009 ONCA 851 escaped prosecution for attempted murder because the trial judge didn't like the materials filed for the wiretap application.  He thought that the police misled the authorizing judge, and the Agent should have reviewed the entire police file before proceeding with the application.  It was huge file.  The agent couldn't review it in a week.  The Ontario Court of Appeal decided that the application wasn't so bad after all, and Mr Ebanks will face trial again.

After a discussion of the specific facts in the case, the court discussed the roles and duties of affiant and agent. The affiant is responsible for the facts and full disclosure.  The agent is responsible for the legal procedures.  The agent:

"... should not become an investigator and engage in a wholesale review of the file.  This would blur the line between the mutually independent functions of the police and the Crown, each of whom properly maintains a distinct role in the criminal justice system."

The trial judge also demanded that future wiretap applications contain tables of contents, indexes, cross-references, and sworn appendices.  While these can be useful, the Court of Appeal said they are not necessarily required.

2009-12-02 Impaired Driving - Care or Control - Driver's Intentions -

Mr Ruest, 2009 ONCA 841 told his friends he wanted to drive home.  They could see he was too drunk and tried to persuade him not to, but he insisted.  One of the friends called the police.  Using a remote started drvice, Mr Ruest started his vehicle.  His girlfriend sat in the passenger seat.  Police arrived while he was still clearing ice and snow from the vehicle.  He had not yet got in to drive.  The car wouldn't move until he put the key in the ignition. The trial judge said he wasn't in care or control.  The Court of Appeal decided he was.  The fact that he intended to drive established the risk that he would set the vehicle in motion.

Next time you catch a drunk in or around his car, you might investigate what his or her intentions were if you didn't come along.   "How were you going to get home?"

2009-12-02 PIPEDA Requests -  

Drug cops working in an airport in Nova Scotia routinely asked Westjet to let them see the passenger list to see if there was anyone suspicious on it.  Westjet permitted them to see enough information that they had cause to suspect Mr Chehil, 2009 NSCA 111 might be carrying drugs.  The officers brought a drug sniffing dog to sniff his luggage.  Soon enough, the officers found 3.5 kg of cocaine in his luggage.  The trial judge found that the officers violated Chehil's rights under s.8 of the Charter, because PIPEDA created an expectation of privacy.  The Court of Appeal disagreed:  "Mr. Chehil cannot rely upon the limitations in s. 5(1) of the PIPEDA yet ignore the disclosure permitted by s. 7(3)(c.1)(ii)..."

As I read this decision, you breach of s.8 of the Charter only if you ask a person or corporation to reveal information that you know the person or corporation should not reveal.   For example, doctors owe their patients a duty of confidentiality.  Therefore, you shouldn't make a PIPEDA request to a doctor's office for medical records of a suspect (unless it's one of the emergencies set out in the Act).

In my view, this decision resolves much of the confusion arising from Ontario's various conflicting decisions around PIPEDA.  It breathes life back into PIPEDA requests.

2009-11-26 Voluntarines

s - Police suspected that Ms Fitzgerald 2009 BCSC 1599 caused a fatal car accident and then left the scene to escape responsibility.  Their information was that she cleaned the car and arranged for clandestine repair.  They arrested her at 8:00am.  They told her lawyer that she would be brought to a justice as soon as practicable.  Instead, they lodged her in cells till 1:00pm.  Then they interviewed her for 4 hours, during which she asserted her right to silence 147 times.  Eventually, she answered some questions  The judge found that the officers' persistent questioning :

"... took the situation to a point where I am driven to conclude her right to choose whether to remain silent or to speak to the police was rendered meaningless. Time after time, her assertions of her right to remain silent were ignored, simply bulldozed over. The interview continued without any apparent end in sight. A reasonable person in the position of the defendant would be entitled to conclude that the right to remain silent, to choose not to answer the questions of the police, was not going to be respected in that interview. Constable Grimmer’s persistence was so determined, so relentless, that in my view, the detainee’s right to choose was vanquished."

Even the judge found it difficult to say at what point the officers crossed the line between persistent persuasion and oppression.  However, the burden on the Crown to prove voluntariness is "beyond a reasonable doubt".  Therefore, when attempting to persuade someone to speak, taking breaks and changing tactics may be appropriate.  As an interview gets longer and longer, avoid creating the impression that the suspect has no right to choose whether to answer the questions.

2009-11-21 Informer Privilege

- Mr Basi and others 2009 SCC 52 are charged in B.C. with government corruption.  Because a confidential informer provided police with information, Crown refused to disclose information which tended to identify the source.  Defence asked the judge to look into whether the documents were really privileged.  The Crown was prepared to explain to the judge why the information was privileged, but not in the presence of defence counsel.  Defence counsel offered to undertake to keep all privileged information secret from their clients.  The trial judge figured that such a promise would sufficiently protect informer privilege.  The Supreme Court of Canada disagreed.  Under no circumstances (except innocence at stake) should defence counsel learn the identity of an informant.

This means is that your sources continue to remain confidential, unless they witnessed or participated in the crime.  It had become increasingly popular in B.C. for defence counsel to offer to withhold privileged information from their clients, in exchange for accessing it.  The Supreme Court of Canada put a stop to this practice.

The court gave a definition of what is and isn't privileged information:

The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.

2009-11-11 Detention - Dog Sniff - Reasonable Grounds to Suspect

- How sure do you need to be that a specific offence occurred before you can detain a suspect?  On Highway 1, near Moose Jaw, Saskatchewan, police officers saw Mr Yeh's, 2009 SKCA 112 car weave side to side on the road.  They stopped him to see if he was tired or impaired.  There was no smell of booze or drugs in the car, but his hands shook and he stared straight ahead.  Without telling him what they were doing, an officer commenced Standardized Field Sobriety Tests for drug impairment.  Mr Yeh cooperated.  The officer couldn't say Yeh was impaired.  He did form the suspicion that Yeh consumed marijuana within the previous 4 hours.  But the officer's training didn't cover recency of consumption.  The officer then detained Mr Yeh on suspicion that he was transporting narcotics, and deployed a drug-sniffing dog, which indicated drugs.  A later search revealed $9,000 cash, 18 lbs of marijuana and lots of ecstacy.

For technical reasons, seven judges heard this appeal instead of the usual three.  They criticized the officers for failing to tell Mr Yeh the reasons for the detention.  But this case wasn't about s.10(a) of the Charter.

The officer didn't really explain any reasons beyond guesswork why he thought Mr Yeh might be transporting drugs.  If he smoked drugs, to they extent that he smoked them, they were gone.  There were not "reasonable" grounds to suspect him, and therefore not sufficient grounds to detain.

The Supreme Court of Canada made it clear that deploying a drug dog requires "reasonable grounds to suspect" the detainee of a drug offence.

2009-11-11 Search & Seizure - Suspecting an Offence

- So many judges of the Saskatchewan Court of Appeal heard Mr Yeh's appeal (see above) because they wanted to clear up a previous decision called Nguyen, 2008 SKCA 160.  In that case, they said that you can't detain someone unless you had a specific offence in mind.  It's not a problem if you receive a 911 call about a robber wearing a red bandanna: you know there was a robbery, and you have reason to suspect people in the area who wear red bandannas.  But what if you don't know what the offence is, but you have reason to suspect a crime?  For example, when you encounter people who react to uniformed police by hiding or discarding objects. (eg. Nesbeth 2009 ONCA 597)  You don't know what the crime was, but you have reason to suspect that one was committed.

6 judges of the 7 agreed that you can detain in either circumstance.  While this isn't news for B.C. or Ontario cops, it should come as a relief to officers in Saskatchewan.  Likely this idea won't spread to other provinces now.

2009-11-10 Search & Seizure - Reasonable Grounds

- New Brunswick police officers went to a busy parking lot just off Highway 1 to meet with an informant.  While they waited, they saw a Nova Scotian rental vehicle perform heat checks before parking in a spot with a view of the area.  The driver, Mr Tontarelli, 2009 NBCA 52 sat and waited.  A Québec vehicle turned up and parked beside it.  The Nova Scotian driver went to the passenger seat of the Québec vehicle and the drivers shook hands.  After 20 minutes, he emerged carrying a duffel bag, which he stowed in his car, and the two vehicles returned to the highway, each headed to their respective provinces.  The officers concluded this was a drug transaction, and arrested.  The duffel bag contained dope.  The other car contained $16,000.  Naturally, defence argued that the officers didn't have reasonable grounds.  The trial judge and the appeal judges found they did.

I think it's important to link your observations into inferences.  This decision shows no such effort.  It isn't difficult:

1. Because of the way that the first guy moved his car, and kept looking around the parking lot, I drew the inference that he was concerned about who was watching him.
2. Because the two vehicles came from different provinces, but met in the lot, I figured that the meeting had been pre-arranged.
3. Because the vehicles appeared to be returning to their respective provinces, I figured that purpose of the meeting was achieved by the transfer of the duffel bag.
4. Because both vehicles appeared to have travelled a long way, for the purpose only of the exchange, I figured the contents of the duffel bag must have been valuable.
5. Because of the concern about being observed, I figured that the bag contained contraband of some sort.

In this case, the officers also had training and experience in drug investigation.  The officers did speak of their experience with Highway 1 being a thoroughfare for drugs, and rental cars often used to transport them.

2009-11-10 Searching a Vehicle Incidental to Arrest - Tontarelli, 2009 NBCA 52

Defence argued that after arresting Tontarelli, 2009 NBCA 52 for an indictable offence, in the absence of exigent circumstances, police still needed a warrant to search the vehicle.  I'm surprised anyone still thinks that after the Supreme Court of Canada's decision in Caslake.  This decision explains clearly where that idea came from, and why it's wrong.

One of the police officers didn't seem to know whether he "detained" or "arrested" the driver.  Be very clear.  You can't search for evidence of an offence after a "detention".  You can search the suspect and his or her vicinity for evidence of the offence after "arrest".

2009-11-09 Internet Luring - "I thought I was Just Role-Playing with an Adult"

- When an internet chatter says she's under age, the accused is presumed to believe it unless he takes "reasonable steps" to find out how old the victim is. See 172.1(3) and (4).  What are "reasonable steps"?

In two cases, undercover officers impersonated 13-year-old kids on sex-themed internet chatrooms.  Mr Thain, 2009 ONCA 223 and Mr Levigne, 2009 ABCA 359 both testified that they thought that they were chatting with adults, and gave reasons:

Thain

Lavigne

the chat-room was designated as adult-only; his observation before saying anything to mandy13 that she was logged into a pornographic website unlikely to be frequented by a child; when he asked her about her age, she stated that she was 13 but added “lol”,  slang for “laugh out loud”, suggesting a joke; mandy13 used what he regarded as a joke e-mail address mandy13 purported not to have a photo available; mandy13 was familiar with a “blush” command, causing his screen to turn pink, despite claiming to be new to the chat room.

to enter the chat room, one must create a profile which describes you as over 18; moderators on the chat room will screen for and exclude underage participants; adults sometimes pretend to be minors; etownjessy13 typed fast.

Neither man took any steps himself to find out the age of the other chatter beyond making the observations listed above.  The Ontario Court of Appeal thought that Mr Thain had done enough to assure himself.  The Alberta Court of Appeal found that Mr Lavigne didn't.  They said that the accused must take reasonable steps himself to ascertain the age of the other chatter.  I don't think the two decisions can be reconciled.

Regardless which approach prevails, undercover officers involved in these investigations should carefully manage the digital impression they give to the other chatter.

2009-11-06 Malicious Prosecution - Must the Prosecutor Believe the Accused is Guilty?

- Your prosecutors feel relief this week.  Mathew Miazga 2009 SCC 51 prosecuted a difficult child sexual abuse case involving multiple adults.  He got some convictions at trial, and they were upheld on appeal, but the Supreme Court of Canada ordered a retrial.  Eventually, the children recanted.  The defendants sued him for malicious prosecution.  The trial judge said that it was so obvious that the prosecution had no case that the prosecutor must not have believed that the accused were guilty; he had to pay for the harm he did to them by the prosecution.  The Supreme Court of Canada pointed out that several courts found that the accused were guilty.  The case couldn't have been so terribly weak.  And besides, there is no requirement that a public prosecutor personally believe in the guilt of the accused.  The prosecutor must assess the strength of the evidence, and prosecute only for the purpose of bringing people to justice.  There was no evidence Miazga had any malicious purpose in prosecuting the accused.

Most of this decision doesn't matter much to cops.  It does emphasize that the decision to prosecute belongs to the Crown, and that courts should not second-guess this decision except in the clearest of circumstances.

2009-11-05 Impaired Driving - Breath Samples given "directly into" Approved Instruments

- Mr Mulroney, 2009 ONCA 766 got busted for driving over .08.  There must have been something wrong with the certificate, because the qualified technician had to testify.  He forgot to say that the suspect blew "directly into" the approved instrument, as required by s.258.  At trial and at two appeals, defence argued that the court must acquit.  The Court of Appeal agreed that there must be evidence that the samples were given "directly into" the instrument.  But in this case, the evidence (just) sufficed.

Usually, the certificates of the qualified technicians cover this point.  Most officers don't have to worry about this point.  But if there's something wrong with the certificate, then this evidence must be given in live testimony:  "The suspect blew directly into the instrument."

2009-11-05 Circumstantial Evidence - Testing Keys

- Armed with a search warrant, police officers searched an apartment for drugs.  It was a hive of drug trafficking activity.  While they were there, someone came to the door.  Nobody could say whether the door was locked.  An officer posted inside at the door heard the jingle of keys, and the door opened.  Mr Munif 2009 BCCA 451 came in, and was promptly arrested.  He had keys in his hand, and bundles of cash and a couple of cell phones in his pockets.  He had a few drugs packaged in street-level quantities.  Was he part of the trafficking operation, or was he just a customer?  Nobody tested the keys in the door.  After his conviction, he appealed, saying that the evidence linking him to the trafficking operation wasn't strong enough.  In this case, the court upheld the conviction, but it was a near thing.

When you're investigating illicit property (stolen car, drug house, etc), and you arrest a felon with keys, consider testing the keys to see if they fit the locks.

2009-10-24 Service of Documents - Notice of Intention

- In the last few days before Mr Yonis's 2009 ABCA 336 drug trial someone realized that the certificates of analysis had not been served on defence.  Police officers went to his lawyer's office and gave the certificates to the secretary.  They told her that the certificate would be tendered "next Thursday".

Like many sections of the Criminal Code, s.51 of the CDSA requires the prosecution to give defence a copy of any certificate or report in the case along with notice of the prosecution's intention to use the document at the hearing.  In this case, the trial judge found and the appeal court agreed:  although the certificates were adequately served on the lawyer, the notice of intention to rely on them were not.  The judges blamed the lawyers:

But you know that the lawyers will download the work onto you.  If they ask you to serve a certificate, you might ask if there's a notice of intention to go along with it.

2009-10-24 Impaired - Fail to Provide - Blood Demand instead

- Police received a complaint of an impaired driver.  They found Mr Caruth, 2009 ABCA 342 driving a car and wearing clothes which matched the description given.  He successfully blew into a screening device, which registered a "fail", but when he returned to the police station, he didn't blow hard enough into the instrument to get a proper analysis.  When asked why, he said "asthma".  The officer didn't test the instrument to see whether it would accept air.  Instead, relying on his own personal experience with asthma, the officer took Mr Caruth at his word, and made a blood demand instead.  He gave Mr Caruth access to counsel, and then took him to hospital to take blood.  (No prizes for guessing whether his blood-alcohol level exceeded .08mg%.)

Defence complained that the officer should have tested the instrument immediately to determine whether it would accept a breath sample.  I agree.  I can't count the number of cases I've seen recently where the accused attempts and fails to provide a breath sample into a screening device or breath analysis instrument, and the officer concludes the investigation.  Those officers will all face cross-examination: "How do you know the instrument or the mouthpiece wasn't blocked?"  It's a simple matter to keep the mouthpiece and blow some air through the instrument with a new one.

However, the court did not need to decide the case based on this complaint.  For the judges, the issue was whether taking a blood sample was justified.  Did the officer have reasonable grounds to believe that the accused was incapable of providing a breath sample?  Defence said the officer should have got a medical opinion before making the blood demand.

The judges observed that you don't need proof beyond a reasonable doubt to make a blood demand.  It was appropriate for the officer - who suffered asthma himself - to believe that asthma prevented Mr Caruth from blowing.  When someone complains of an inability to blow by reason of a health condition, it's appropriate to ask a few questions to satisfy yourself about the issue.  If you think there is substance to the complaint, you may be able to make a blood demand in place of a breath demand ... even if the suspect successfully provided one breath sample previously.

2009-10-21 Detaining Suspicious Motorists

- When you suspect a motorist of involvement in a crime, when can you use highway safety legislation (it has different names in different provinces: M.V.A.; H.T.A.; T.S.A.) to pull over the vehicle?  In Dhuna, 2009 ABCA 103, an officer in an unmarked car followed a vehicle.  It braked and turned every time a marked police vehicle came near it.  This officer worked in a car-theft squad.  He checked its plates, but nobody had reported this vehicle stolen.  Suspecting car theft anyway, he detained the driver to see if the car was properly registered.  Mr Dhuna responded by tossing away a bag of cocaine.  After arresting him, the officer found drugs and weapons in the car.  At trial, Mr Dhuna complained that the police used traffic safety legislation to investigate car theft - which has nothing to do with safety on the road.

The Court of Appeal found that car registration was as enforceable under their T.S.A. as driver sobriety - the officer didn't need "reasonable grounds to suspect" in order to check a driver's registration.  The fact that the officer was also interested in car theft didn't affect the lawfulness of the stop.  (This is similar to the Kaddoura, 2009 BCCA 113 case I wrote about in March.)

Does this mean that you can stop any vehicle on the road, any time you want?  No.  The court also agreed with an older case, Houben, 2006 SKCA 129.  In that case an officer stopped a pickup truck in a quiet neighborhood in the middle of the night.  He was curious about property crime, but had no reasonable grounds to suspect this driver (who turned out to be drunk).  Because the officer was not concerned about traffic safety, that detention was arbitrary.

You can stop a car if you're actually investigating highway safety, or if you have reasonable grounds to suspect that the driver is involved in some kind of criminal activity.

Remember, if you do stop a vehicle (or anyone else), you must explain the reason for your stop (s.10(a) of the Charter).  If you're stopping a driver to determine if he's safe on the road, or registered and insured, say so.  But if you're stopping a driver because you think he might be preparing his next B&E, don't pretend it's a traffic stop.  If you have both sets of concerns, it seems okay to use one as the reason for the stop.

2009-10-17 Criminal Agents - Who can Trust a Crook?

- Police in Manitoba busted Mr Grant, 2009 MBCA 9, a full-patch member of the Hell's Angels.  They had help: an established criminal acted as their agent in various large drug transactions with Mr Grant.  In order to prevent any suggestion that the agent strayed into entrapment or other unlawful conduct, the officers told him very clearly not to communicate with Mr Grant except under police supervision and wiretap.  What a surprise!  The agent did get together with Mr Grant several times during the operation, allowing defence to suggest that the agent avoided police recording in order to suppress evidence favourable to the defence.

The case discusses the legal procedures around defence complaints of non-disclosure.  Those aren't of interest to you, except that the prosecution won.

What protected the police in this case was careful and clear documentation of the agent's instructions from the police.  When a criminal works with you, the terms of your agreements must be particularly clear.  "Understandings" will be misunderstood.  "Oral contracts" and "gentlemen's agreements" won't hold.

2009-10-15 Identity - Association Evidence & Fingerprint Evidence

- Fingerprints at the scene proves identity only if other evidence establishes the context.  Several men, including Mr Nalasco, invaded a home in Hamilton.  They demanded money and drugs from the occupants who were drinking and smoking marijuana. The victims cooperated at first, then resisted.  One victim grabbed an axe and struck one of the men.  Mr Nalasco shot a gun, hurting a couple of the victims.  The attackers fled.  A victim watched one of them leap-frog over a car.  He said he saw the guy place his hand on the car to get over it.  A fingerprint on the car came from Mr Samuels, 2009 ONCA 719.  Was Mr Samuels one of the attackers?  Or did his fingerprint just happen to be there from some accidental touching at some other time?

A police officer testified that 3 years earlier, he found Mr Samuels associating with Mr Nalasco.  This was admissible evidence to help show that the presence of the fingerprint was more than just an unlucky coincidence.  (Isn't it amazing how many "hitchhikers" you find riding in stolen cars?  Evidence of prior association undermines this classic claim.)

The appeal court didn't care much for the association evidence, but liked the careful examination of the scene where the fingerprint was found.

A sharp-eyed officer had noticed a footprint in the mud approaching the car on the path taken by the attacker, and a fresh muddy dent on the car in a location consistent with the leap-frog motion described by the witness.  Someone had the bright idea of asking the car's the owner about the damage: they learned it wasn't there the night before.

In my opinion, both sorts of evidence were worth collecting.  Fingerprints can be explained away.  "I could have touched that car when it was driving around town."  Protecting, examining and investigating the scene of a print often provides more information than the print itself.  And it's more difficult to believe that the suspect's fingerprints innocently appeared where his buddy and friends committed a crime.

2009-10-13 Impaired Driving - Notice to Seek Greater Punishment

- In May of last year, the section numbers for impaired driving and over .08 changed from s.253(a) & (b) to s.253(1)(a) & (b).  I just encountered this odd decision which asserts that a Notice to Seek Greater Punishment which recites the old section numbers is ineffective.  Although I respectfully differ with the judge's reasoning, I do agree that your forms should be corrected and updated.

2009-10-13 Right to Counsel - Repeating Yourself When You Get Home

- When an officer pulled over Ms Devries 2009 ONCA 477, he figured she was too drunk to drive.  He demanded her breath and read her rights, and asked her if she wanted to speak to a lawyer.  She said no.  When he got her back to the police station, he didn't ask her a second time whether she wanted to speak to a lawyer, but proceeded with the breath tests.  She argued that, at the roadside, the officer should have explained that access to counsel would occur at the police station.  The court rejected that idea, and upheld her conviction.

The judges did agree that even if the suspect rejects the roadside offer of legal advice it's a good idea to ask a second time when you arrive at the police station.

2009-10-12 Right to Counsel & "Bad" Legal Advice

- What should you do if the suspect comes out of the phone room saying that the lawyer told him to do something really strange?

Mr Beers 2009 NBQB 149 (not published - email me if you need a copy) crashed his car, killing a 14-year old pedestrian.  Police believed he was drunk, and made a breath demand.  After he spoke with Legal Aid, he told the officer that the lawyer advised him to refuse.  (It is, of course, a crime to refuse, and it is a crime to counsel another person to commit an offence.)

An officer advised him that the offences of impaired causing death and refusal were similar. The officer told Mr Beers and the lawyer that he thought the lawyer committed a criminal offence and would be investigated.  Mr Beers talked to the lawyer again, and decided to blow.  At trial, he complained that the officer violated his right to counsel.  The trial judge agreed.

The officer was correct that counselling a refusal is counselling the commission of an offence.  Back then, lawyers who advised their clients used to do so very carefully: "If you refuse you could get five years.  If you blow, you could get life."  The client might interpret this as a recommendation to refuse to blow.  But if you read those sentences again, you will see that it isn't.  The judge wasn't prepared to find that the lawyer did commit an offence.

The officer was wrong when he said refusal and impaired causing death were similar.  At the time the offences carried very different penalties.

(By the way, the penalties are now the same for impaired, over .08 and refusal:
The officer was wrong then, but would now be right.)

Because of the death of an innocent youth, tempers ran high.  The officer's behaviour intimidated Mr Beers and the lawyer, effectively changing the legal advice.  That's where the problem lay.

So what should you do when the lawyer appears to give the suspect bad legal advice?  Consider the principles involved:

Do	Don't
Promptly provide access to legal advice. Treat suspect fairly. Warn suspect against committing offences.	Give legal advice. Inquire into the legal advice given.  (It's privileged.) Undermine the solicitor-client relationship.  (Telling the suspect that the lawyer gave bad advice is a no-no.)

When you think the suspect got bad legal advice, I think the strongest you can say is something like this:
When someone refuses, you can say:

2009-10-02 Confessions - "Off the Record" conversations

- When police arrested Mr Narwal 2009 BCCA 410 for kidnapping and extortion, Cst McLaughlin arranged to record the interview on video.  But Narwal told the officer that he wouldn't speak about the victim on the record.  He pointed at the camera.  Cst McLaughlin agreed to go "off the record".  Mr Narwal explained that the victim killed some drug couriers and kept the dope.   Narwal and his buddies were just trying to get their money back.  He was trying to divert the investigation toward a murder, and away from the kidnapping.  Crown tendered this conversation at Narwal's trial.  Defence objected that it wasn't recorded, and police tricked Mr Narwal.

The court agreed unanimously that if you have a good reason not to record a conversation with the suspect, then the absence of a recording does not prevent the court from hearing the conversation as recorded by the officer.

The majority found that there was no trick.  It was the accused's idea in the first place.  One judge disagreed.  This means Mr Narwal can get another opinion from the Supreme Court of Canada.

For you folks:

1. Always try to record conversation with the suspect on audio or video.  Courts demand a recording, or a good reason why you didn't.
   
2. If you do get unrecorded conversation about the offence, make very detailed notes immediately.  Cst McLaughlin spent a long time recording everything he could remember about this conversation.  The work paid off.
3. Don't offer "off the record" discussions.  Avoid them.  But if the suspect offers it, you can do it.
   

2009-10-01 New Criminal Code Offences

- Cops, Guns & Organized Crime - New criminal code offences came into force today.  It looks good on the surface, but carries some hidden gotchas.  Here are some highlights of Bill C-14:

Section 270.01 defines offences of assaulting a peace officer with a weapon, or causing bodily harm.  Section 270.02 defines aggravated assault of a peace officer.  This might seem good, because serious assaults on peace officers deserve more serious treatment in the Code.  Until now, if someone assaulted a peace officer using a weapon or causing harm, it took two charges to cover all the legal elements.  Now it takes only one.  Before October 1, 2009, we could get two convictions for someone who hurts a cop or attacks one with a weapon.  Now we get one.  The penalties remain essentially the same.

When sentencing offenders who assaulted peace officers, judges must now give denunciation and deterrence prime consideration.  s.718.02.  This indicates Parliament wants these offenders sentenced more harshly than before.

Section 244.2 now defines an offence of recklessly shooting a firearm in the direction of people, or where they might get hurt.  There are minimum penalties for the use of restricted or prohibited firearms.  This means that gangsters who engage in shootouts in public places get serious jail time, even if they hit no one.  It also means that police officers who fire their service pistols recklessly may go to jail for a minimum of 5 years.  Have you considered the benefits of taking a refresher course of firearms training?

Peace bonds for gangsters can now be 2 years long!

Murders committed for organized crime become first degree murder, even if they were not planned and deliberate.

2009-09-29 - Right to Counsel - Reasonable Opportunity

- When Cst Penny demanded breath samples from Mr MacDonald Brown v. R., 2009 NBCA 27, Cst Penny also told him about his right to counsel.  Mr MacDonald-Brown asked to call his parents.  Cst Penny let him talk with his parents for 20 minutes.  After that Cst Penny asked again whether he wanted to speak with a lawyer.  He did, but he didn't name any lawyer, and Cst Penny didn't ask for a name.  Cst Penny called duty counsel.  At trial, Mr MacDonald-Brown complained that he didn't get to speak to the lawyer of his choice - Mr Cooper.

In this case, the Court of Appeal rejected this complaint.  If Mr MacDonald-Brown wanted a specific lawyer, he should have said so.  But the court decided this way because Cst Penny created an "atmosphere of cooperation" with Mr MacDonald-Brown.  It is simpler and may avoid much litigation if you put the question squarely to the suspect:


If the suspect doesn't know the name of any criminal lawyer, you can suggest duty counsel.  But the suspect may wish to check the Yellow Pages, or call a friend.  These are reasonable steps, and you should facilitate them as much as available resources allow.  Create that "atmosphere of cooperation" which justified Cst Penny's actions.  (The call to a friend to get the name of a lawyer is not a privileged conversation.  It does not require privacy.)

A "reasonable opportunity" to get legal advice may require more than one conversation with a lawyer.  This week, my office reviewed a report which described how a suspect spoke with Legal Aid for 4 minutes, but complained that that the lawyer wasn't interested in his situation.  He wanted to speak to another lawyer, but the police officer wouldn't allow it.   I don't think a judge would be impressed.

While we're on the topic, have you checked whether the legal directories available to your suspects are up-to-date?

2009-09-27 - Expectations of Privacy in the "Office Computer"

- Mr Cole, 2009 CanLII 20699 (ON S.C.), a high-school teacher, received a laptop for the purposes of teaching.  Somehow, nude photos of a student of the school found their way onto his hard drive.  School technicians found the offending material, and the school seized the computer back from him, and gave it to the police to examine.  Mr Cole complained that he enjoyed an expectation of privacy over the contents of the computer.  The trial judge agreed, but the appeal judge did not.  The school's ownership and acceptable use policies clearly set out that they could examine his data.  He did not enjoy an expectation of privacy over the laptop computer.

When a business complains that contraband arrived on an employee's computer, you should ask what policies govern the employee's computer.  Does the company have the right to look inside the computer?  If they do, then they have the authority to ask you to look too.

2009-09-21 - Arresting for Summary Conviction Offences - "Finds Committing" - Marijuana Smoke (and mirrors)

- Police officers on patrol noticed the occupants of a vehicle react strongly to police presence.  The car pulled off the road into a parking lot.  The officers followed, making computer queries as they did.  The vehicle was related to bail breaches and Marijuana trafficking.  An officer approached the car, and smelled fresh marijuana smoke.   He arrested the occupants for possession of marijuana, but found only cocaine, in the possession of Mr S.T.P., 2009 NSCA 86.  Mr S.T.P. complained of unlawful arrest.

The offence of possession of small quantities of marijuana is a summary conviction offence, for which an officer may only arrest if the officer "finds" him "committing" the offence.  This officer may have had reasonable grounds to believe that S.T.P. still had marijuana in his possession, but didn't actually see it.  In Janvier, 2007 SKCA 147, that court said you must actually observe the offence before you can arrest.  But this court found that you may draw reasonable inferences from your observations to conclude that the person "is committing" an offence.

No police officers can arrest based on the smell of marijuana smoke alone.  But the smell, combined with other observations may lead an officer to believe reasonably that a suspect still possesses some marijuana.  In Nova Scotia, that officer can arrest the suspect.  In Saskatchewan, that officer can not.  For the rest of us, the answer is less clear.  If you find yourself in that situation, you certainly have reasonable grounds to detain a person for investigation.  You just can't search for evidence of the offence.

2009-09-20 - Search & Seizure - Expectations of Privacy in a Residence

- Having formed reasonable grounds to suspect that there was a marijuana grow operation and Mr Gomboc's, 2009 ABCA 276 residence, police attached a Digital Recording Ammeter (DRA) to his power line.  This gave them enough evidence to get a warrant.  2 judges of the Alberta Court of Appeal found they violated his expectations of privacy.  1 didn't.   Maybe the Supreme Court of Canada will hear this one.  (Yes, the appeal is underway. - HW 2009-12-20)

2009-09-14 - Detention - Search for Officer Safety

- A plainclothes police officer, saw an adult and a teen in a Green Cavalier, associating with drug users.  A similar car had been used in a fraud a month earlier.  The officer called for backup, and after they arrived, approached the driver's side on foot.  He showed his badge, called out police, but had to ask 3 times for the driver to roll down his window.  With his right hand, the driver, Mr Crocker, 2009 BCCA 388 tucked a folder or envelope under his seat; his left hand clutched something tight.  When the driver finally rolled down the window, the officer demanded that he open his left hand.  In it was drugs.  The officer seized the drugs, but Crocker took off.  When police finally caught him, they found a counterfeit cash and identification mill.

Was the original demand "open your hand" an reasonable search incidental to detention?

At court Johnson explained that he suspected that Crocker could have had a weapon in his hand, and therefore his demand was a search for officer safety.  Defence complained that:

• Johnson had no specific reason to expect violence from Crocker - the only offence he knew about was a fraud.
  
• Johnson could describe no specific weapon that thought might be in Crocker's hand
• Crocker showed no hostility
  

The trial judge agreed, and dismissed all charges.  The appeal court disagreed.  In a strong, clear, unanimous ruling, the court identified the risks you officers face every day while doing your duty to investigate crime.  When detaining an unknown suspect, you don't need to wait for risks to become overt before checking them out.  Courts should be reluctant to second-guess you when you have safety concerns.  Crown will recite this decision for years to come.

I must add my usual caution: Please don't use officer safety as an excuse to search for evidence.  If you do, you will lose credibility for yourself, and judges like the trial judge will second-guess even the honest efforts of other police officers to protect themselves from risk.

2009-09-14 Exigent Circumstances Search - Clearing a Scene to Preserve Evidence

- When the police finally caught up to Mr Crocker, 2009 BCCA 388 (see details above), it was in the apartment building where he and his daughter shared a suite.  They arrested him in the underground parking area as he was getting into the green Cavalier.  He possessed lots of drugs, $25,790 of counterfeit money, fake id and profiling information.  The officers figured there would be more evidence in the suite.  Fearing that the daughter would destroy the evidence before the officers could get a search warrant, the officers entered it and cleared the scene, removing the daughter.

Defence complained that this warrantless search was unreasonable: although the officers knew that the daughter was in the suite, they had no reason to believe that she knew anything about Crocker's arrest.  The trial judge and the Court of Appeal agreed.  You need reasonable grounds to believe that evidence will be lost or destroyed in order to enter a residence without a warrant.

Please note: you don't need "reasonable grounds to believe" to enter to protect a person from death or serious injury.  In those cases, you need only reasonable grounds to suspect the harm.

2009-09-14 Dumb Charter Breaches after Arrest

- The officers who arrested Mr Crocker, 2009 BCCA 388 (see details above) made two dumb mistakes.  They elicited information from him about the offence before respecting his right to counsel (s.10), and they performed an unnecessary strip search, contrary to policy, when they lodged him in cells (s.8).  These breaches added fuel to defence counsel's fire.  Defence asked the judge to exclude all the evidence found because the police didn't respect Mr Crocker's rights.

In the reports I read, I see these mistakes too often.  Immediately after arrest, do not ask the suspect about the offence.


Not only will the answer you get be excluded from evidence, but it may lead the judge (like the trial judge in Crocker) to exclude a bunch of other evidence too.

Deal with s.10 first.  Then you should (always) ask the suspect for his or her version.

Because the Court of Appeal disagreed with the trial judge about some of the breaches, the result of the appeal favoured the prosecution.  But the appeal might not have been necessary if the officers had followed the basic rules about rights to counsel and whether to strip search.

2009-08-29 Alibi - Reluctant Witnesses -

A girl named Carise introduced several strangers to 14-year-old boy named Marlon. The strangers wanted drugs. Marlon took them to his marijuana dealer Mr Hannaford while Carise stayed behind at his house. The strangers attacked Marlon and robbed Mr Hannaford. When police investigated, Marlon picked Mr Wright, 2009 ONCA 62 out of a photo lineup. But Carise wouldn't talk.

Two years after the robbery, and a few days into the trial, defence gave “alibi notice”: Now Carise said that Wright came with her to Marlon's house, but stayed with her and talked while the others went to Hannaford's place.

Because the defence kept their alibi secret for two years, the judge told the jury that they could draw an “adverse inference”: Wright could have concocted it with Carise.  The jury figured Carise was a liar.  They convicted.  The Court of Appeal ordered a new trial. The rule that defence must reveal an alibi violates the accused's right to silence. Therefore, it should be construed narrowly.

The common law requires defence reveal an alibi because alibi requires the police to investigate matters entirely divorced from the offence. In this case, the police always knew that Carise was involved. Alibi notice didn't turn the police toward a new avenue of investigation, and so the defence never had to give it.  No adverse inference should be drawn from the failure to give alibi notice.

For police officers, this case demonstrates how a reluctant witness may turn out to be a hostile witness.  Documenting exactly how the reluctant witness refused to assist helps Crown cross-examine later.  Quote in your notes the exact expletives used against you.   In court, Crown can use those quotes can demonstrate the energy with which the witness refused to reveal the truth when you first asked.

2009-08-27 Expert Evidence - The Teardrop Tattoo

- Mr Abbey, 2009 ONCA 624 belonged to a Toronto street-gang called the "Malvern Crew".  They hated the "Galloway Boys".   A guy named Tevin, a member of the Galloway Boys robbed Mr Abbey.  Someone who looked like Tevin got shot dead.  Did Mr Abbey pull the trigger?  Several months after the killing, Mr Abbey got a teardrop tattoo on his cheek.  Crown proffered a sociologist named Dr Totten who studied street gangs.  He said that in that culture, Mr Abbey's tattoo meant:

1. he killed someone;
2. someone close to him died; or
3. he spent a long time in jail.

Because the Crown could eliminate 2 & 3, that meant the teardrop tattoo was a confession to the murder.  Several ex-members of the Malvern Crew agreed with Dr Totten's testimony.  But the trial judge excluded all this evidence, and Abbey was acquitted.

The Court of appeal ordered a new trial.  The trial judge's first mistake was to require a sociologist to testify like a scientist, with error rates and scientific method.  Some areas of expertise can not be measured that way.  The second was to exclude the evidence of the gang members about the meanings of tattoos in their culture.

This is a big decision for lawyers because of an increasing debate about scientific method and expert evidence.  For police officers, it means that your practical experience may qualify you as an expert, even if your methods are not strictly scientific.  And unless the Supreme Court of Canada accepts a further appeal and changes the law some more, tattoos can talk.

2009-08-23 Privilege - Secondary VIN Numbers on Vehicles -

The location and methods of examining secondary VIN numbers remains privileged.  Smith, 2009 ABPC 88.

2009-08-16 Spousal Privilege -

Spousal privilege (still) does not extend to common-law partners. Martin, 2009 SKCA 37.

2009-08-11 Privilege

- After a fatal industrial accident at  a nuclear power plant operated by Bruce Power Inc., 2009 ONCA 573,  a government regulatory body investigated whether the company violated any labour standards, and the company investigated for the purpose of defending itself from charges.  The company produced a report, which it clearly identified as privileged.  The government investigator obtained a copy of the report.  Charges were laid, and the Crown proposed to use the report in the prosecution.  Because of the violation of the defendants' privilege, the court stayed the case.

The information in this case was privileged in two different ways:

• Solicitor-client privilege - where a client explains facts to a lawyer for the purpose of getting legal advice, and the lawyer's advice in response.
• Litigation privilege - where a person gathers information in preparation for litigation
  

If you obtain information over which a suspect or witness enjoys privilege, you should sequester the information, and seek legal advice.  Don't share the information with other investigators until you get the green light from a lawyer.

2009-08-07 Search Incidental to Arrest - Cell Phones & Electronic Devices

- There is now doubt whether police officers can search cell phones incidental to arrest.

Sgt Burke had good reason to believe that Mr Polius, a drug dealer, directed an underling to commit murder.  Sgt Burke directed another officer to arrest him for "counselling the commission of an indictable offence", but did not explain any details of the offence.  The arresting officers seized Polius' cell phone and looked briefly at its contents.  Later, an officer who did know about the offence examined the cell phone thoroughly.

The trial judge said that the arresting officers should not have looked at the contents of the cell phone.  I agree.  Because those officers knew nothing about the offence for which they arrested Mr Polius, they had no reason to believe that examining the contents of the cell phone would reveal evidence of the offence.  A search incidental to arrest is lawful only if you're looking for weapons, or if you have some reason to believe that there will be evidence of the offence in the place that you examine.

But the trial judge went much further.  He said that the investigating officers should have obtained a warrant to examine the cell phone.  He said that a cell phone contains so much personal information that it's like a locked briefcase.  He said that if you find a locked briefcase in the possession of a person you arrest, you can not search it incidental to arrest.  You need a warrant, and you should not seize any information which is not plainly relevant when you examine the thing.

In B.C., this is not the law.  Giles, 2007 BCSC 1147.

The trial judge was concerned about the quantity and quality of private information that electronic devices can contain.  I think that concern has merit.  However, I do not think that his decision canvassed all the authority available.  A strip-search and an anal cavity search may be performed without a warrant (Golden, 2001 SCC 83).  The "locked briefcase" analogy fails in light of Smellie (1994) 95 C.C.C. (3d) 9 (B.C.C.A.).

Unfortunately, Ontario officers must operate under legal confusion until this issue is fully addressed.  Despite what he found was a Charter breach, trial judge admitted the cell phone evidence under s.24(2).  The Crown won't be able to appeal this decision.

Ontario police officers should get advice from their prosecutors.  When deciding whether to search a cell phone for evidence, incidental to arrest, the question to ask yourselves is: "Do I want this case to be the test case?"  If not, get a warrant.

B.C. officers are sitting pretty.  But the rest of you now know there may be legal confusion on this topic.

The Polius decision is not available for free on the internet yet.  I'll try to persuade CANLII to upload it.

2009-07-18 Detention - At What Point does a Conversation turn into a Detention? 

Several officers saw Mr Grant, 2009 SCC 32 walking down the street near a school troubled by crime.  He looked suspicious.  A uniformed member got out of his police car, and stood on the sidewalk in front of Mr Grant in order to speak with him.  Mr Grant, naturally, stopped.  The officer asked "What's going on?", and asked Grant for his name and address.  Grant produced a provincial health card.  Because he kept fidgeting with his jacket, the officer asked him to keep his hands in front of him.  Two plain-clothes officers attended.  They flashed their badges, and stood behind the first officer for officer safety, but also blocking the sidewalk.  The first officer had a short conversation:

Q. Have you ever been arrested before?
A. I got into some trouble about three years ago.
Q. Do you have anything on you that you shouldn’t?
A. No. (Pause.) Well, I got a small bag of weed.
Q. Where is it?
A. It’s in my pocket.
Q. Is that it?
A. (Male puts his head down.) Yeah. Well, no.
Q. Do you have other drugs on you?
A. No, I just have the weed, that’s it.
Q. Well, what is it that you have?
A. I have a firearm.

They found a loaded revolver.  But were his answers given before or after "detaining" him?  Should the officers have given him the right to counsel?

A detention is more than just making a person stop for a moment.  The court re-affirmed its previous view that a person is detained where he or she “submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”.  The "reasonably" part is important.  It depends upon all the circumstances.  "[P]olice must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions."

The court found that the police actions here were a detention, and Mr Grant should have been given his s.10(b) rights.  However, they admitted the evidence, by reason of a new analysis of s.24(2) of the Charter.  More on that later.

The other case on detention is Suberu, 2009 SCC 33:

Constable Roughley responded to a call about a male person attempting to use a stolen credit card at the Cobourg LCBO.  There were two male suspects in the store.  When Constable Roughley entered the store he saw another officer at a cash register talking to a store employee and a male.  Mr. Suberu walked past Constable Roughley saying:

"He did this, not me, so I guess I can go.”

Constable Roughley followed Mr. Suberu outside.  While Mr. Suberu was getting into the driver’s seat of a minivan, Cst Roughley said:

“Wait a minute. I need to talk to you before you go anywhere”

While Suberu sat in the van, Roughley asked a few questions:

Q.  Who’s the guy inside you were with?
A.  A friend.
Q.  What is your friend’s name?
A.  Willy. Q.  Where are you from?
A.  Toronto.
Q.  How did you come to be in Cobourg today?
A.  Willy asked me to drive him.
Q.  From Toronto to Cobourg?
A.  Yes.
Q.  Who’s van is this?
A.  My girlfriend’s.
Q.  Who is your girlfriend?
A.  Yvonne.

It turned out that those answers linked Mr Suberu to a bunch of crimes from Toronto to Cobourg.  Were they admissible?  Or did the officer "detain" Suberu before asking them?  Should he have given s.10(b) rights before asking the questions?

The court found that "a reasonable person in [these] circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention."  They expected that officers encountering dynamic situations will ask questions to "orient" themselves.  That's not detention.  They were impressed that Cst Roughley did nothing to interfere with Suberu's movement.  And Suberu himself didn't testify that he felt detained.

Once the detention is triggered, you must give rights to counsel without delay.

These cases suggest when you encounter a generally suspicious person, to avoid "detaining" them, you should talk and act in a way the conveys to the person the brief and voluntary nature of the conversation you intend to have:

Less likely to detain	More likely to detain
"May I speak with you?"	"I need to ask you some questions."
"Could you wait a minute?  I want to ask you some questions about what's going on."	"You're going to have to wait while I ask you a few questions."
Walk with suspect in the direction he's going.	Block suspect's path
One officer close to suspect	Many officers near or around suspect

2009-07-18 Excluding Evidence After a Breach

In Grant (earlier), the court found that the officers detained the suspect.  But they admitted the evidence anyway.  That's because at the time, the legal definition of detention was fuzzy, and the officers were trying their best to respect the suspect's rights and do their duty.  The analysis arises in s.24(2) of the Charter.  Section 24 is the prosecutor's problem, not yours.  I have always said: "If you try to respect Charter rights, then my argument under s.24 is likely to succeed; but if you don't try, then I don't stand a chance."   Grant makes this point even stronger.

No longer is the seriousness of the case a significant factor in the analysis.  (Emphasizing this is the new decision Harrison, 2009 SCC 34.)  You folks in drug sections should be pleased to hear that inadvertent and minor breaches of the Charter should no longer lead to exclusion of evidence.  You folks in homicide units, beware!  Section 24(2) is no longer your friend.  Fishing trips lead to trouble.

The court emphasized the importance of distancing itself from habitual Charter violations.  You folks in drug sections who regularly conduct "no-case seizures", beware!  If, someday, you encounter something important - like a dead body in a trunk - defence can use evidence of your past misconduct to exclude the key evidence you encounter this time.

The court also rejected a rule of automatic exclusion of any kind of evidence, especially after technical breaches.  For prosecution of impaired drivers, this case is a big boost to the Crown.

2009-07-18 Reasonable Grounds

A police officer saw Mr Shepherd, 2009 SCC 35 drive through a stop sign without stopping, and speed.  The officer turned on his emergency equipment, but Shepherd accellerated and changed lanes several times.  After 3 km, he stopped.  He showed symptoms of alcohol consumption.  He told the officer that he didn't stop because he thought the police car was an ambulance.   The officer figured Shepherd was impaired, and read a demand.  The trial judge said that Shepherd's explanation was just as likely as impairment: after all, the accused demonstrated control over his vehicle throughout.  Therefore the officer didn't have reasonable grounds.  The Supremes disagreed.  While you ought to consider all the information available to you, reasonable grounds is not the same as proof.

I say, if you believe that probably the guy is guilty, and as a whole, your observations and your information support this belief, then you have reasonable grounds.  You can disbelieve people.  Like the guy that smells like a brewery who denies drinking.  You can draw inferences.  He doesn't want you to know he has been drinking because he knows he's had too much.

This decision applies to all "reasonable grounds" situations, including warrants, wiretap, arrest, and even swearing informations.  It does not change the law.  Because the issue keeps arising, it's nice to have a recent restatement.

2009-07-13 Articulating a Detention

Just after midnight, young Mr N.O, 2009 ABCA 75 stopped his car outside an apartment building.  He entered the building through the first of a double set of doors.  Another male, who had been sitting on the stairs inside the second door, reached his hand through that door to the youth’s hand. They exchanged something from hand to hand without pausing to speak, then parted.  The man inside disappeared inside.  The youth returned to his car, where a watching police officer detained him for a drug transaction.  Mr N.O. possessed 14 individually wrapped packages of crack cocaine.  Was the detention arbitrary?  The Court of Appeal didn't like how the officer testified.

What the officer said	What the court didn't like	How to do better
The incident occurred at 0022 hrs	"Since not all law-abiding citizens are home before midnight, it is difficult to see how the time of night could form part of the necessary constellation of circumstances objectively justifying detention."	If, in your experience, certain kids of crime becomes more prevalent late at night, then you could say so.  If you find drug addicts tend to stay up late, and use, you should say so.
Apartment blocks "in this area" had been plagued with drug transactions.  Citizen complaints and his own experience led to arrests in lobbies of apartments.	"The officer’s evidence about the location and type of building where such events occurred was too vague to contribute to reasonable grounds to detain. He did not specify the size of the “area” or the types or numbers of apartment blocks in it. With such specificity, there may be other facts when a detention could be justified."	Specify the area.  Say whether such transactions or arrests occurred in this building.  Describe the other buildings, and why you expected similar behaviour in this lobby.
In the officer's experience, hand-to-hand exchanges are typical of drug transactions.	"But in many innocent circumstances one person may hand a small object (such as a key or an earring) to another. ... a quick innocent exchange of, say, a key, might have been preceded by an earlier telephone conversation; a jilted boyfriend might hand over an apartment key or a ring to his former partner without conversation."	Expand on experience of how drug transactions usually involve brief exchanges involving a minimum of conversation (if this is your experience).

I think the investigating officer had reasonable grounds to detain.  While a jilted boyfriend might drop off the key or a ring after midnight, I think he'd prefer to do it at a more convenient time of day.  I think the Court of Appeal wanted to ensure that police officers don't harass people just for living in bad neighborhoods.  And the court wants you to spend some time explaining in detail why the things you saw justified your suspicion.

2009-07-10 Holdback Evidence

Mr Gibson fired Mr Anderson, 2009 ABCA 67 and refused to pay him.  Gibson thought Anderson ripped him off.  A few weeks later, someone murdered Gibson.  Was it Anderson?  A "Mr Big" operation obtained a confession, but at trial Anderson said that he only repeated what he thought the undercover officers wanted to hear.   The prosecution pointed out that the confession to the undercover police officers contained details that only the killer, and a few people involved in the investigation could know.  Anderson testified that the undercover officers told him those details.  Fortunately, one officer tracked the holdback, and could testify that nobody told the undercover officers about the hold-back.

When you're involved in an interesting case, it's all too tempting to boast about the quality of the evidence you have obtained so far.  Talking, even to the wrong police officer, could sink the case.  If you know you have hold-back evidence, treat it like gold.  Track who learns of it, and remind all members on the team to hold it back, even from other officers.

2009-07-10 Right to Counsel - "Are you Satisfied with the Advice?" - When police arrested Mr

Anderson, 2009 ABCA 67 (see above), they gave him access to counsel.  He talked to Legal Aid.  When he emerged, the police officer asked him if he received legal advice.  Mr Anderson said that he did, but gave equivocal answers as to whether he was satisfied with his legald advice.  The officer pressed the question:

He later gave a statement which hurt his case.  He complained that his access to counsel was not sufficient.  The court relied upon the remarks he made in the statement which showed that he fully understood his right to silence.

When the suspect emerges from the phone room, I prefer the question "Have you had a reasonable opportunity to get legal advice?"  However, other people whose opinions I respect like the "satisfied" question.  Obviously, it seemed to work in this case.  The questions to determine when the suspect emerges from getting legal advice are:

• was it legal advice?
• was it a lawyer?
  
• did he get a reasonable opportunity to get the advice he needs

2009-07-10 Identification - Recognition, Resemblance and Tainting

- Someone shot Kevin McLeish six times at point-blank range.  He survived, but barely.  He said he knew his assailant, Dane Brown, 2009 ONCA 563.  But he lied about who else was there.  He explained in court that in his neighborhood, people don't like to deal with the police.  He said he lied to protect the others from police involvement.  He picked Brown out of a photo lineup.  A woman saw the shooting.  When police asked, she described the shooter, and said he resembled a particular rap star.  The court received in evidence a picture of the rap star in question.  At court she said she recognized Brown because previously he tried to pick her up.  But she saw his picture in the newspaper in the early stages of the investigation.

Defence said the evidence of the victim and the woman could not prove identity beyond a reasonable doubt.

• Eyewitness identification of strangers is notoriously unreliable.
• The victim was a liar.
• The woman's identification was tainted by the
  
•  of suggestion.  Because she saw the picture of the accused in the paper, naming him as the shooter, she now believed him to be guilty.

The court disagreed.

• Both the victim and the woman recognized the accused from previous meetings.  This differs from identifying an unknown person.
• The victim's lie was understandable under the circumstances
• Police got the woman's statement before the newspaper published the picture.
• Brown really did look like the rap star - his resemblance to the shooter was probative.
  

Defence and Crown made good points.  Here are the big ones:

• When determining the strength of identification evidence, recognition of acquaintances is much stronger than recognition of strangers
• Recognition differs from resemblance.  Both help prove identification, but there's a big difference between "that's him" and "that looks like him".
• You can taint an identification witness by showing a single photograph of the suspect.  Where identity is or might be in issue, get full descriptions early.  (For admissibility reasons, I would add: show your notes to the witness and ask him or her to check them for accuracy.)
  

2009-07-10 Fraud - Proving Responsibility

- Mr Drakes & Mr Brewster 2009 ONCA 560 (affirming the trial decision) operated part of a sophisticated Nigerian fraud scam.  Drakes & Brewster led their victims to believe they would assist in the corrupt transfer of Nigerian Government funds into private hands.  For their participation, the victims were led to believe that they would be paid a huge commission.  But first, Drakes and Brewster asked for, and obtained, another $20,000 or $50,000 to pay "transaction fees".  Police were already investigating these two when a pipe burst in the apartment where they did their business.  The building manager went in, saw the fraudulent business, and told the police.  The building manager went in a second time, partly to check on the repairs, partly out of curiousity, but not because the police asked them.  He gave the police more information.

Did the police obtain information from the building manager in violation of the accused's s.8 rights?  No.  The police never asked the building managers to go looking for evidence.  Therefore, the building managers weren't agents of the state, and so the Charter does not apply to their activity.

When dealing with a complicated fraud involving many deceptions, it is sometimes easier to prove the little frauds than the grand scheme.  In this case, Defence argued that the Crown couldn't prove whether or not there were any Nigerian Government funds available for transfer.  Maybe the money actually existed.  Maybe the correspondence from Drakes and Brewster was true, but their efforts to move the money failed.  But the prosecutors anticipated this argument and were ready with a response.  The evidence showed that whether or not there was any Nigerian money, Drakes and Brewster never intended any of it to reach the victims, despite their promises.  And that was the fraud.  The judge agreed.

Police executed a search warrant on Drakes & Brewster's apartment.  They found file folders on each victim, documenting the steps taken with each to persuade them to send money.  Once the Crown proved that Drakes and Brewster possessed these documents, the judge inferred that Drakes and Brewster knew what the documents contained.  (While this works for papers and the contents of wallets, I fear that it may not work for shared computers unless other evidence shows the suspect's exclusive use of the computer.)

2009-07-03 Co-Conspirator's Remarks - Undercover Officers

- Several times, Mr Maguire 2009 BCSC 864 sold cocaine to undercover police officers.  He worked entirely through Mr de Sousa, a lackey.  de Sousa told the officers about his business relationship with Maguire.  The officers sought an ever closer relationship with Maguire, but they never met him nor spoke to him. After a transaction, the officers watched de Sousa hand over the cash to Mr Maguire, and he and Mr Maguire hugged.  de Sousa never testified.  Could the Crown rely on what de Sousa told the officers to prove Mr Maguire's guilt?  In this case, yes.  Where co-conspirators make statements in furtherance of a conspiracy, those statements may be admissible against other conspirators.  This judge found there was a conspiracy, and used de Sousa's (hearsay) identification of Maguire to convict Maguire of trafficking.

This means that sometimes, if you can get the underling talking about the next guy up in the food chain, you can bust his boss.  Even if you never meet the boss.

The tricky parts are obtaining independent evidence that the boss was a member of the conspiracy or common enterprise, and explaining to the court why the underling isn't going to take the witness stand.

2009-07-03 Impaired Driving - Breath Demands

- Back in December, I mentioned a decision which suggested that you should read a breath demand first before addressing s.10(a), 10(b) or the right to silence.  I was doubtful of it then.  Thankfully, another decision given around the same time but published this week seems to reject that idea.  Sullivan, 2008 BCSC 1865.

So we're back to business as usual: once you form the opinion that a driver is impaired or over .08, you must make a breath demand "as soon as practicable".  You can attend to necessary matters first, such as securing the safety of the person stopped, of the vehicle, of the road, the police officers, and providing the subject of an impaired investigation their rights.

However, some matters are less urgent, especially if other officers can attend to them, for example: taking statements from witnesses or waiting for a tow-truck to move the suspect's vehicle.  In one case, the judge found that the officer spent too long making notes before reading the demand.

The bottom line is this: once you've formed the opinion (or suspicion) necessary for reading a breath demand, make the demand promptly, without unncessary delay.

2009-07-03 Character Evidence - Prior Bad Acts

- Mr Cudjoe's 2009 ONCA 543 wife formed an intimate relationship with another woman.  They lived as a menage à trois for a short time.  When his wife announced that she would leave him, he stabbed her to death.  Should the jury be told about his 2 prior assaults on his wife?  The defence complained it would prejudice the jury against him.  The court agreed with the prosecutor: It showed animus - angry feelings - toward his wife, and it showed the imperfect state of their relationship.  The jury should know.

In ordinary spousal assaults, prior assaults can probe similar things.  It's worth investigating the assault and the relationship.

2009-07-02 Criminal Organizations -

A certain motorcycle club has repeatedly challenged the constitutionality of the definitions in the criminal organization legislation.  In R. v. Lindsay, 2009 ONCA 532, they were again unsuccessful.

2009-06-25 Youthful Drunk Drivers

- Back in May, I wrote about young Mr R.T.B.2009 BCSC 581, a young driver who admitted drinking.  The court said that the police officer could not use the admission as a reason to read a screening device demand because the officer didn't comply with s.146 of the the Youth Criminal Justice Act.

An Ontario superior court judge disagrees.  P.D., 2009 CanLII 18220 (ON S.C.).  So if you're in Ontario, go ahead and ask the youthful driver some questions, and what the driver says voluntarily will be admissible to prove your grounds for making a screening device demand.  If you're in B.C., don't rely on what the driver says.  And if you're in another province, I can't tell you what your judges will say.

2009-06-25 Joint Statements and Collusion

  - When Mr M.B.'s 2009 ONCA 524 lawyer prepared for trial, he asked M.B. to get statements from the two friends he was with at the time of the offence.  First, M.B.'s two friends gave M.B. their statements to deliver to the lawyer.  Later the three together drafted a statement of what they said occurred.  At trial, Crown Counsel discovered this unorthodox procedure, and argued that their evidence was the result of collusion.  On appeal, the Court said that allowing witnesses to prepare statements together was one of the ways that the defence lawyer was incompetent.

Many police officers still take statements from witnesses while other witnesses are in the room.  Some officers ask witnesses to prepare their own statements.  The witnesses, not knowing any better, prepare a joint statement of their combined memories.  This sets up an appearance of collusion between the witnesses from the very beginning, allowing defence counsel to make the same argument.

To avoid the appearance of collusion, always take statements individually, out of the hearing of other witnesses.  Ask witnesses to avoid discussion of the details of the offence until after the trial.

2009-06-25 Picton Pig Farm Murders

- The BC Court of Appeal's decision upholding Picton's 2009 BCCA 299 murders focusses largely on tactical considerations for lawyers.  There is some discussion about what acts make a person a party to the offence.  I mention it here only because of the publicity it received.  It does give some idea of the evidence which the investigators collected.

2009-06-20 Expert Evidence - DNA Transfer

- A seven-year-old girl complained that Mr Manjra, 2009 ONCA 485 licked her vagina.  Although a nurse swabbed her genitals only hours later, none of his DNA was detected.  Did the absence of DNA  prove his innocence? The appeal court said that ordinary people don't know much about DNA transfer.  Because no expert testified that s/he would expect to find his DNA on the swab, the absence of DNA on the swab did not prove anything.  He was convicted.

Actually, the experts don't know much about DNA transfer either.  The science of DNA transfer is still very young - much younger than DNA matching.   In a murder case, the absence of such expertise led to an acquittal (Did the accused's DNA accumulate under the deceased's fingernails because she scratched him during the attack, or because she ruffled his hair earlier in the night?).   Here in Chilliwack, a colleague of mine took pains recently to present some expert evidence on the transfer of DNA to the handle of a handgun, which led to a conviction.

For police officers, this means that in some DNA cases, you may want to consider whether there is an innocent explanation for the transfer of your suspect's DNA to the location where it was found.  If so, you may need an expert opinion whether such a transfer is likely or possible.  This expertise differs from saying it's a match, and may require a different expert.

2009-06-20 Equivocal Confessions and the Right to Silence

- When police told Mr G.L. 2009 ONCA 501 that "someone" had made a sexual assault allegation against him, he admitted that he had done something very serious involving the complainant, but he never said what.  The trial judge inferred from the gaps that he meant something sexual.  The appeal court said that this logic violated his right to silence.

I found this case an unusual and troubling one.  The trial judge accepted none of the complainant's version of events.  That left the statement alone to prove the case.  Because the statement was so vague, the Court of Appeal overturned the conviction.  (In the same week, the court upheld a conviction in another sexual assault case where the accused made ambiguous admissions.  Manjra, 2009 ONCA 485)

The investigating officer used an intelligent tactic: he provided only vague descriptions of the allegations against the suspect, to see whether the suspect would provide details which matched the complaint.  In the case of F.J.U., this tactic succeeded spectacularly.  It backfired this time.  Although the suspect was in a confessing frame of mind, the discussion remained so vague that he never specifically admitted any sexual acts.

In hindsight, perhaps the officer should have used more frank language to inquire about sexual acts.  Rather than merely discussing "touching", he might have said "So when you say 'touching', you mean her vagina?"

2009-06-19 Inventory Searches & Search Incidental to Arrest

- Police officers arrested Ms Majedi 2009 BCCA 276 for breaching her recognizance.  They decided to impound her car because it was illegally parked.  Could they search her purse?  They had no reason to believe it contained evidence of the offence.  Even if it did contain weapons, those weapons posed no risk because the officers weren't going to release her.  They knew who she was.  They didn't need evidence of identity.  The officers gave two reasons for the search:

1. for accountability, they wanted to make an inventory of its contents; and
2. for safety of the correctional staff who would receive her and her purse, they wanted to make sure that there was nothing dangerous in the purse.

Ontario permits inventory searches of motor vehicles which are being impounded under certain provisions of the Highway Traffic Act (Nicholosi, Wint), but B.C. courts don't yet accept this proposition.  However, the court found that the search incidental to arrest was appropriate to ensure safety of the officers and the people to whom the officers will entrust the prisoner and her effects.  Because the purse would go with the prisoner, the officers could search it for hazardous items.

The court didn't determine whether inventory searches are okay in B.C. (but hinted that they might).

Search incidental to arrest is less contentious than inventory search.  Whether you're in B.C. or Ontario, I suggest that you exercise your powers of search incidental to arrest before you conduct inventory searches.  When you search private locations, like cars or purses or pockets, know the various reasons why you are doing it:

1. evidence of the offence,
2. evidence of identity of the prisoner,
3. weapons or other hazardous items that pose a risk to police or others who deal with the prisoner or her effects
4. inventory for accountability

2009-06-12 Taking Statements and Avoiding Collusion

- In sleepy Victoria, B.C., Warren Glowatski murdered Reena Virk by drowning her in a waterway that passes through the city.  Did Kelly Ellard, 2009 SCC 27 help him?  A key witness testified that she saw Ellard cross the bridge with Glowatski to where the murder took place.  In cross-examination, defence highlighted two facts: the witness never told police this important fact, but she did discuss the events with many other people, which could have caused her to remember things differently at trial.  The decision discusses whether Crown's efforts to repair the damage was proper (they weren't), what the trial judge should have done, and whether the errors mattered (they didn't).  The decision contains few words of wisdom for police.  For police officers, the take-home messages should be familiar:

1. Try to get complete and detailed statements early;
2. Discourage witnesses from discussing the details of their observations with each other.
   

2009-06-10 Credit for Pre-Sentence Custody

- The media made much noise recently about credit for time served in custody before sentencing.  Mr Mizen 2009 BCCA 253 appealed his sentence, complaining that the judge credited him with too much of his time served.  The BC Court of Appeal issued practice directions to B.C. judges.  Meanwhile, back in Ottawa, the House of Commons passed Bill C-25, the "Truth in Sentencing Act", to limit credit for time served to 1:1 in most cases, and 1.5 to 1 in special cases.  Judges would now be obliged to explain their calculations.  This act is not yet law.  Senate gets a crack at it, and even if they pass it, it needs Royal Assent.  Don't hold your breath.

2009-06-05 Right to Silence - The Importance of Interviewing

- Maintenance people fixing Mr  Rohde's 2009 ONCA 463 apartment found a sawed-off shotgun stored under his bed.  Mr Rhode lived alone.  Police arrested him.  A year later, at trial, Mr Rohde gave the usual excuses: It wasn't his gun.  He didn't know it was there.  Some guy he kinda knows must have put it there.  But he doesn't know where the guy is now, nor how to find him.  The trial judge didn't believe his excuses because he never told the authorities between arrest and trial.  She convicted him.  The Appeal Court ordered a new trial.  They said this was using the accused's right to silence against him.  This isn't a new proposition.  The Supreme Court of Canada ruled similarly on a 2005 case.

This illustrates the importance of really trying to get an explanation from a suspect.

2009-06-04 Theft - The Responsibilities of a Gardener

- Mr Dao 2009 BCCA 239 did the gardening at a grow operation.  Was he responsible for the theft of electricity that powered the operation?  The court said: "even if he knew about the hydro by-pass, merely tending to the plants that were being supported by stolen electricity does not make him a thief of the power."  Theft requires more than knowledge.

2009-05-22 Statements - Right to Counsel of Choice

- Mr Connelly 2009 ONCA 416 robbed a taxi driver of his vehicle.  Several months later, police contacted him by phone and asked him to turn himself in.  After consulting counsel, he did.  When the police arrested him, he asked to speak with a specific lawyer, but she wasn't immediately available.  (Does that sound familiar?)  The investigating officer offered access to other lawyers or Legal Aid, but Connelly only wanted to speak to the one lawyer.

He started asking the officer about what would happen if he confessed.  The officer made unfortunate remarks about how kindly the prosecutor and judge would look upon an early confession.  (Luckily, those did not affect the voluntariness of the later confession.)

The conversation moved to what did happen, and Connelly confessed, without having spoken to counsel after detention.

In this case, the court admitted the conversation, because Connelly made it clear in his conversation that he wanted to discuss the offence.  He didn't want to exercise his right to counsel.

I think this decision is close to the line.  The investigating officer fell into several traps.

• There was no urgency to pressing ahead with the conversation.  Instead of resolving the right to counsel issue clearly, the officer discussed the offence.
• The officer suggested that confessing would benefit the accused in court.  While this may sometimes be true, it is an "inducement" which offers the hope of legal advantage to the accused in return for information about the offence.  It usually renders the confession inadmissible.
  

What saved him was the tape recording, which showed:

• The officer clearly explained that the accused could speak to his lawyer, any other lawyer, or legal aid, and that the officer would wait for this to occur.
• The officer made real efforts to locate the lawyer, without success.
  
• The accused wanted to talk to the officer rather than his lawyer.

Therefore:

• record your conversations with the suspect about access to counsel
• make sure your suspect understands that you will give him a reasonable opportunity to reach counsel
• make real efforts to contact counsel of choice, and offer to help the suspect find alternatives
• never suggest that confessing will benefit the accused in the prosecution or at sentencing
  

2009-05-16 Statements - Interviewing the Suspect After the Bail Hearing

- In December, I mentioned Ansari 2008 BCSC 1492, in which a judge found that after a bail hearing, police must relinquish control of the suspect to a provincial jail, and they must give him further access to counsel if he demands it.  I thought other judges might disagree with this decision.  Now, one has.  This decision isn't on the internet yet.  Email me if you want a copy.

Police arrested Mr J.A. 2009 BCSC ??? on a Friday evening for murder.  At a bail hearing on Saturday morning, a Justice of the Peace remanded him in custody.  On Saturday afternoon, police interviewed him.  Defence complained that after the bail hearing, Mr A enjoyed the protection of the courts, and enjoyed wide rights to the presence of counsel during his interview, and the power to terminate any police interview.

This judge respectfully disagreed with the judge in Ansari: Where provincial jails were unavailable for the suspect over the weekend, there was nothing improper with police interviews in police lockup after the bail hearing.  The fact of the bail hearing did not change the relationship between police and suspect.  But there were some differences between the two cases.  In Ansari's case, police missed the 24-hour deadline; in J.A.'s case, they dealt with bail long before the crucial interview.  Ansari wanted a lawyer for his bail hearing but police prevented his lawyer from assisting; J.A. didn't want a lawyer.

For B.C. police, what this means is:

• be careful to bring your suspect before a justice within the 24-hour limit;
• you need to give the suspect access to counsel for the purposes of the bail hearing;
  
• but after a remand order, it appears that you can continue your interview, at least until a provincial jail is ready to receive the suspect.
  

2008-12-13 Statements - Interviewing the Suspect After the Bail Hearing

- After police arrested Mr Ansari for murder, they gave him access to counsel, and then spoke with him at length several times.  He repeatedly asked to speak again with counsel, but the police deflected this request.  When the 24-hour limit approached, the officers arranged for a bail hearing by telephone.  After the bail hearing, they continued to question him.  The trial judge found that after the bail hearing, the accused was no longer a prisoner of the police, but the court's prisoner.  The police should have delivered him "forthwith" to a prison.  Police should have granted him access to a lawyer before the bail hearing, and the police lacked the power to prevent him from having further access to counsel after the bail hearing.  The judge found that all this rendered the accused's statements after the bail hearing involuntary.

For those of you who engage the suspect in long discussions, s.503(1)(a) requires you to bring the suspect before a justice "without unreasonable delay", and within 24-hours if a justice is available.  Before the 24-hour deadline, delay may be justified if you are engaged in ongoing investigation.  (Storrey)   After arrest, the accused requires a "reasonable opportunity to get legal advice".  Sometimes that can't happen until the next day.  The accused may require sleep or medical treatment.  Only then can you begin to interview.  What can you do to continue the interview if you run up to the 24-hour limit?

According to this judge: nothing.  You must conduct a bail hearing (where the accused can speak with counse), and then deliver the accused to a prison.  This is a trial level decision - other courts may disagree.  Do any of you have alternative strategies to suggest?

2009-05-16 Castoff DNA - The Gum Test

- The Alberta Court of Appeal explicitly approved of the classic "gum test" to obtain cast-off DNA.  The fact that an undercover officer held out a paper "dixie cup" for Mr Delaa, 2009 ABCA 179 to dispose of his used gum did not constitute state compulsion.  This is comforting reading for undercover police officers.

2009-05-16 DNA Canvass

- George Osmond 2009 BCSC 550 and Kayla John lived in a small rural community.  He murdered her, leaving her partly nude body in the woods.  Before they had any DNA analysis from the body, investigating officers asked local young men who were known to party at night to provide DNA samples.  Lots did, including Mr Osmond.  His DNA matched.  The defence complained that the police should not have violated the privacy of so many people.  The court found that the officers in this case did not cast the net too wide -- they asked for DNA from only the sorts of people who might have been involved.

From an operational perspective, when asking volunteers for DNA comparison, it costs less to ask the likely suspects first.  From a legal perspective, it's appropriate to violate the privacy of fewer people than more.

Defence also complained that Mr Osmond did not give informed consent.  In my view, the form they used with him goes far beyond what should be required for consent.  The court found it sufficed.

2009-05-06 Search of a Crime Scene

- Robbers violently attacked Mr Tomlinson 2009 BCCA 196 in his home.  Police caught the attackers.  One of them confessed, explaining that they went to steal the drugs that Mr Tomlinson dealt from his house.  While some officers spoke with Tomlinson at the hospital, and later at the detachment, other officers went to his house to examine it.  Defence complained this was an unreasonable search.  The court refused to decide whether police officers have a common-law authority to examine a crime scene.  However, it did find a breach of s.8:  One officer at the scene saw evidence of a grow operation.  He suspected that the grow would be behind a locked door downstairs.  He had no reason to believe that this place had anything to do with the home invasion, but he went in to search for drugs.  This search violated Mr Tomlinson's s.8 rights because it had nothing to do with the home invasion.  (Fortunately, the robber's confession provided sufficient independent grounds for a search warrant, and the court found that the evidence should be admitted.)

I know of no case law that says police can search a private residence without warrant just because a crime occurred there.  Fortunately, there are specific authorities by which police officers can lawfully enter crime scenes: exigent circumstances to protect life or preserve evidence; consent; warrant.  Before searching a private crime scene, consider what authority you have:

In death cases, the coroner has authority to search for causes of death, and may delegate authority to you.

This is an important issue.  If any of you can think of other authorities that permit you to search a crime scene, please let me know.

2009-05-06 Detention - Questioning a Suspicious Witness

- When police interviewed Tomlinson 2009 BCCA 196 (see previous summary), they treated him at first as a witness, even though they suspected him of dealing drugs from his house.  He cooperated with the police and gave a statement.  After that statement, the officers detained him and gave him his rights.  Defence complained that the witness statement was inadmissible because the police had "detained" him without giving him his rights.  The court disagreed.  There was no evidence that the police made any demand or direction, restrained him, or caused him to believe that he was restrained or compelled to talk with police.

Beware.  If you cause a suspicious "witness" to feel he is compelled to answer questions, then you may trigger a detention.  R. v. Groat 2006 BCCA 26.

2009-05-05 Impaired Driving - Questioning a Youth

- Young Mr R.T.B. 2009 BCSC 581 drove an unlicenced ATV on the streets of a small town.  A police officer pulled up, noticed an odour of liquor and asked the kid if had been drinking.  The youth replied "a few".  This answer led the officer to make a screening device demand.  At trial, the defence complained that the police had not complied with s.146 of the Y.C.J.A., and therefore the youth's answer was inadmissible.  The trial judge and the summary conviction judges agreed.  The answer was excluded, which undermined the officer's grounds for the demands, and the breath analysis was excluded too.

There are obvious legal flaws about other points in this decision, particularly in the discussion of the officer's subjective grounds.  However, the main point about s.146 is well-reasoned, and relied on a similar decision in Ontario:  R. v. D.(P.), 2008 ONCJ 23.  For the time being in B.C. and Ontario, and likely elsewhere, it appears that no statements from youths at roadside can be admitted at trial without the full s.146 rights -- not even to explain why you made a breath demand.

You can still talk to a youth you have pulled over.  But you should form your grounds for demands based on other considerations than what the kid says in answer to your questions.  You still have some investigative methods available:

• an odour of liquor on the breath is good reason to suspect that there is alcohol in the body - you can make a screening device demand
• voluntary sobriety tests at roadside remain admissible
• statements of passengers - even youths - remain admissible
• volunteered remarks of the driver are admissible
• observations of indicia of alcohol intoxication are always admissible and important

2009-05-04 Border Integrity

- A couple of years ago, a provincial court judge made headlines by criticizing customs inspectors.  In 2007, one summary conviction appeal judge overturned her decision.   Last week, in the case involving 60kgs of cocaine in Mr Sekhon's 2009 BCCA 187 truck, three Court of Appeal judges found that customs inspectors understood their powers under the Customs Act better than she did.  The judges said:

2009-05-03 Public Safety and Charter Rights

- Mr Styles, 2009 ABCA 98 threatened his brother with a pen-gun.  When the pen-gun failed to fire, Styles left, and the brother called 911.  Police officers found Mr Styles nearby, but the pen-gun was missing.  It was 4:30pm, and there were two schools nearby.  Police feared that children might find the gun and use it.  Even though Mr Styles said he wanted to speak to counsel, and refused to discuss the offence, the officers pressed him to tell them where the gun was.  Their appeals worked: he too feared for the children.  He showed them where he put it.  Considering that the gun was obtained by a breach of his rights, was it to be admitted?

The trial judge and the Court of Appeal said yes: where there is imminent risk to public safety, there are situations where you can over-ride Charter rights.  In this case, police attempted to find the gun by other means: but neither officers nor the police dog found it.  The area to search was too large for the available officers to cover.

If you're going to breach a right like this, you must be very clear why.  Do it only if the risk to public safety exceeds the importance of the prosecution, because at trial, the judge may well exclude the evidence you obtain.

2009-05-03 Search and Seizure - Executing Warrants - Hard Entry

- How much evidence do police need in order to justify a "hard entry" when searching a residence?  In R. v. Cornell, 2009 ABCA 147,  officers obtained a CDSA warrant to search a residence.  They knew that drug-dealing members of a gang frequently visited the residence, but they had no information that the occupants were armed or dangerous.  They did expect that someone in the residence would want to dispose of the drugs if given an opportunity.
 
A tactical unit made a "hard" or "dynamic" entry.  They wore balaclavas.  They broke open doors.  They found a family, including a 17-year old girl and a mentally-challenged man, who burst into tears, and had to be comforted.  The also found cocaine.
 
The judges divided on the question how much evidence of risk to police, or risk of loss of evidence justified a hard entry.  The majority sided with the police in this case.  The majority makes a good argument for police safety.  The dissenting judge suggested alternatives that might have resulted in a less frightening search.  Two of three judges agreed that there was no need for the balaclavas - the officers knew of nothing that justified using them.
 
Although police officers will find the reasoning of the majority very compelling, be warned that courts of other provinces - particularly B.C. - have been less sympathetic to police safety concerns.

2009-04-23 Search Incidental to Arrest - Searching for evidence "Relevant" to the offence

- When two police officers responded to a stabbing complaint, they found a crowd of people.  Mr Chubak's 2009 ABCA 8 car pulled up.  They saw Chubak pulling a can of bear spray out of its container.  The officers arrested him and his passenger for possession of a prohibited weapon.  Chubak was carrying a knife and a wallet containing a thousand dollars.  They searched the car for further weapons.  They found ringing cell phones, and a container too small to contain a weapon.  The officer looked in it anyway, and found crack cocaine.  They continued searching the car for weapons and drugs, and found a stash of drugs behind the stereo, which was loose.

Considering that the arrest was for weapons, could the officers search for drugs?  Two judges found that they could because the investigating officer explained that he thought that the motive for possessing the weapons was drug trafficking.   The search was not just for weapons, but evidence relevant to the weapons.  Drugs would therefore be relevant to the offence for which the officers arrested Chubak and his passenger.

The third judge found that looking in the small container could not have been related to the search for weapons, and therefore was not a search incidental to arrest.

I agree with both decisions.  When the officer looked into the small container, he didn't think it contained weapons.  He probably didn't think "if this contains drugs, then it will explain why these guys have weapons".  But once they figured out they were dealing with drug traffickers who carry weapons to protect themselves, drugs became relevant to the offence for which they were arrested.  That gave them a reason to search for drugs too.

2009-04-22 Separating Spouses - Breaking and Stealing family property

- Mr and Mrs Linardatos 2005 ONCJ 56 had a terrible argument.  He went outside and slashed the tires of the van he had bought for her.  She called the police.  Did he commit an offence, or was he just making modifications to his own property?  Section 429(3) establishes that a partial owner of property still commits mischief by destroying it against the wishes of the other owner.  Similarly, section 328 says it's still theft when a partial owner of property steals it from another partial owner.  So when battling spouses separate, if she says he stole the toaster, do you lay charges?   In most circumstances, criminal charges are an inappropriate tool for supervising the division of family assets.  On the other hand, where one spouse deprives the other of everything they own, or maliciously destroys property they share, you may have a criminal case.

My thanks to D/C Philip Butler, who tells me that in January 2009, Mr Linardatos lost his summary conviction appeal.

2009-04-19 Interviewing - Politeness or Oppression

- Police arrested 60-year old Mr Felker 2009 BCSC 408 for an historical murder.  They did a first-rate job of getting him access to counsel (see the decision).  When they tried to get him to talk about the offence, more than 40 times he repeated his choice to remain silent or asked to speak to counsel again or both.  They interviewed him from 8:00pm to 2:00am before he finally talked.  Although the police were polite and always confirmed his right to silence when he mentioned it, but they kept on trying.  The court found their conduct may have given their suspect the impression that the interview wouldn't end until he broke his silence.  This was sufficiently oppressive that it raised a reasonable doubt about the voluntariness of he confession.

I hesitate to criticize these officers for their zealous efforts - I suspect that they were going to lose access to the suspect after that night.  The point to remember is: when the interview goes late into the night, and the suspect gets genuinely tired, the trial judge will fear that the confession came only because the suspect feared that the interview would never end unless he talked.

2009-04-18 Civil Forfeiture of Proceeds of Crime

- Many provinces passed legislation making it lawful to seize and keep property which was obtained by crime - even if there is insufficient evidence to convict anyone.  So long as the  evidence establishes that it was probably the proceeds of crime, then the state keeps it.  Mr Chatterjee 2009 SCC 19 had $29,000 and marijuana grow equipment in his car when police searched it.  Police couldn't charge him with any offence, but they relied on Ontario's Organized Crime and Other Unlawful Activities Act they kept the money and the equipment.  He complained that the Ontario legislation was unlawful: only Ottawa could make a law about crime.  The Supreme Court of Canada disagreed.  This law was about property rights and preventing crime, not punishing crime after it happens.  Property rights and preventing crime are provincial responsibilities.

What police officers need to know about this legislation is that it's proved on a "balance of probabilities" which is generally much easier than the criminal standard of "beyond a reasonable doubt".  Nobody goes to jail, but the drug dealer loses his Hummer.  Now that we know it's constitutional, I expect the provinces will be ever more interested in taking money from crooks.

2009-04-14 Right to Counsel of Choice - Late Night Calls

- So imagine it's midnight, and in a few minutes, you will be arrested for a crime committed while you were on duty.  There will be an internal investigation, and possibly a public inquiry.  What steps would you take to get counsel?  In a routine late-night impaired investigation, police told Mr Swift 2009 BCSC 455 of the three local lawyers who took late night calls.  He picked the one name he recognized, but he couldn't dial the number because the phone had no dial-out function.  A guard called for him, but when an answering machine came on, the guard left no message.  Mr Swift settled for advice from Legal Aid.  At trial, he complained that he was not given a reasonable opportunity to contact counsel of choice.  The trial judge rejected his claim, but the appeal court agreed with Swift.

A reasonable person would have left a message for the first lawyer.  That lawyer's name was on the list of night-time lawyers.  Perhaps his answering machine answered because he was giving advice to someone else at the time.  He might have been available, but nobody took any steps to find out.

Here's an idea: It's your suspect's right to exercise - let him decide how to go about it.  When your suspect is vague about counsel, or you're having trouble contacting the lawyer of his choice, tell him what resources you have (phone books, yellow pages, internet), and ask him "What would you like me to do?"  Record the question, and the suspect's answers.  Be helpful.  Not only will you respect his rights, but you may also develop rapport.

I have a couple more suggestions:

• If someone calls back, you should answer the phone, and ask who's calling.  Make sure it really is a lawyer.
• After your suspect speaks with counsel, ask "Have you had a reasonable opportunity to get legal advice?"

My thanks to Cst Blount for pointing this decision out to me.

2009-04-10 Search & Seizure - Abandonment & Garbage

- In the privacy of his home, Mr Patrick 2009 SCC 17 assembled an ecstasy lab.  As he worked, he threw the packaging and waste products in a garbage bag.  He took the bag out to his garbage bin, which remained on his property, right by the alley where garbage collectors could pick it up.  Police picked it up instead, and found enough evidence to support a warrant.  After they busted him, he complained that they violated his expectation of privacy.  The court sided with the cops on this one, but not for the reasons you might first imagine.

People can still have a reasonable expectation of privacy in their garbage.  Your garbage bag can reveal a great deal of private information about you: condoms may speak of your sex life, pill bottles may reveal your health, and magazines proclaim your interests.  It's what people do with their garbage that decides whether it remains protected by s.8.

Even though this garbage remained on Mr Patrick's property,

2009-04-02 Reasonable Grounds to Arrest - Pipeline

- In early March, Mr Nguyen, 2008 SKCA 160 rented a car at the Calgary airport at 1:00am, to drive to Toronto in just two days.  A police officer in Saskatchewan pulled them over around noon that day for driving too fast for the snowy conditions.  The inside of the vehicle smelled strongly of cologne.  The driver was unusually nervous.  The driver had an Ontario driver's licence.  The renter had a B.C. licence.  The officer saw the rental agreement, and figured the travel plans made no financial sense.  The driver didn't know how long he'd stay in Toronto, but he would fly home.  The driver claimed he knew the renter from playing basketball with him in high school.  But their licences said their birthdates occurred 5 years apart.  The officer detained them to investigate drug trafficking.  He told them their rights to counsel.  He separated them, and asked them more about their trip.  Their stories didn't match.  The officer arrested them, searched their car, and seized 19lbs of marijuana.  The trial judge said he didn't have reasonable grounds to arrest.  Two of three judges in the Court of Appeal agreed.  The Crown filed an appeal, but abandoned it.

In my opinion, if there was a problem in this prosecution, it wasn't what the officer thought or did, but how it was presented in the court room.

None of the officer's grounds, by themselves, established that there were drugs in the car.  Bottles of cologne do sometimes get spilled accidentally in cars.  People sometimes drive across the country at great speed for reasons that don't make financial sense.  Sometimes people say things that don't seem consistent.  But how often do all of these things innocently coincide?

The court needs evidence about this.  Sometimes officers forget to mention factors that seem obvious to them.  Prosecutors forget to ask.  When justifying a detention or arrest based on circumstantial clues, you should explain:

1. how rare or unusual each individual observation is,
2. what intelligence and experience you relied on,
3. what logic you applied.

Then you can put them together.  Using this case as an example:

(Please note, I invented some of the experience and intelligence for the purposes of this example.  I am not a drug nor a traffic cop.  Don't cite me as a source for any of this.  Rely on your own sources and experience.)

2009-04-01 Who's the April Fool? - Dial-a-Dope Investigations

- To address their significant drug problem with dial-a-dopers, Vancouver Police Department regularly collected phone numbers of dial-a-dopers from all available sources.  They would call all the numbers until someone agreed to sell drugs.  Then they'd meet, buy and bust whoever showed up.  After being busted, Mr Swan 2009 BCCA 142 complained that this was entrapment.  The Court of Appeal agreed with him.  The court didn't mind the operation in general.  What bothered the judges was the choice of phone numbers to call.  Because there was no effort to distinguish good tips from bad, the officers were engaged in "random virtue testing".

To satisfy these judges, what you need to do is assess the quality of the tip before you make the call.  Was this a purely anonymous tip, or did the tipster speak personally with a police officer?  If known, is this tipster reliable?  Even if it was a purely anonymous tip, is there any special reason to trust it?  Have other tipsters given the same number?  The judges emphasized that all you need is reasonable grounds to suspect.  You don't need to meet the standard for a search warrant.

I would think that next time this operation (or one like it) proceeds, the coordinating officer should document the number and qualty of tips received on each phone number.  Put the most speculative numbers at the bottom of the list.  The disclosure package should include some explanation why this number was targetted.  However, I don't prosecute drug cases, so you drug cops out there should discuss this decision with your Crowns.

2009-03-28 s.10(b) and the Detention Trigger

- Mrs Chalmers had an affair.  Mrs Chalmers went riding her horse.  Her body was found dead in a ditch, and her horse ran loose in a nearby field.  Everyone thought it was a riding accident.  15 years later, a police officer looked at the photos of the scene and realized it wasn't.  A polygraph interview elicited a confession from Mr Chalmers 2009 ONCA 268, and a jury convicted him of murder.  Defence attacked the confession.

Chalmers attended the polygraph session voluntarily.  The interviewer fully explained Mr Chalmers' rights before he confessed.  After Chalmers failed the polygraph, the officer reminded him of the rights to counsel.  Half an hour later, Chalmers admitted guilt.

Somewhere in that time frame, Mr Chalmers' jeopardy changed because he became detained.  Did this require another full Charter and Warning?  In this case the court said no.  Where the Charter warnings precede the detention, "the close factual connection relating the warning to the detention is all that is required to satisfy s. 10(b)".

This technique is not for beginners.  Beginner cops should always explain s.10 rights whenever detaining or arresting someone.  And whenever the investigation changes course, Charter them again again.  For example if you're investigating one B&E, but your prisoner starts telling you about others, then tell him you're now investigating those others, and recite his rights to counsel again.

Experienced interrogators should read this decision carefully.  It's an excellent example of "doing it right the first time".

2009-03-23 Expectation of Privacy in Air Traveller's Luggage

- Mr Crisby, 2008 NLTD 185 brought drugs into Newfoundland.  An informer told the police he was coming.  They deployed a drug dog to sniff the luggage when it arrived in the airport, and it indicated drugs.  Defence complained that this was an unreasonable search.  Crown argued that after 9/11, air travellers have no expectation of privacy in their luggage.  The trial judge concluded that air travellers have a reasonable expectation of privacy over their luggage, except for searches by airline safety personnel for airline safety purposes.

I note that the officers had reasonable grounds to suspect Mr Crisby.  They were therefore justified in deploying the drug dog.  They seized the luggage immediately, and arrested Crisby later.  They obtained a warrant for the luggage.  I suspect that their warrant application was flawed, leading to this litigation.  The officers could have waited for him to pick up the luggage, and then arrested him, and searched the luggage incidental to arrest.  That would have saved them the trouble of seeking a warrant, and resulted in a conviction.

2009-03-22 Traffic Stops in Drug Investigations - Identifying the Suspects

- After an undercover officer purchased drugs from a dial-a-doper, his cover team asked a regular member to stop the vehicle and identify the occupants, but did not give any reason for the stop.  The traffic member figured it was a drug investigation.  He saw a broken tail-light, and pulled the vehicle over.  He drew this to the attention of the driver, Mr Kaddoura, 2009 BCCA 113, and obtained his identification information (his usual practice), as well as that of the passengers (a deviation from his usual practice).  The officer testified that he probably wouldn't have pulled the vehicle over if there were no motor vehicle violation.  The trial judge found that this traffic stop was for the purpose of assisting a drug investigation, and was therefore arbitrary, and excluded the identification evidence.  The Court of Appeal disagreed:  "...where a police officer has a lawful and reasonable basis to stop a motor vehicle, the presence of additional reasons to effect a stop does not transform it into an arbitrary detention."

This decision does not help drug teams pull over vehicles that obey traffic rules.  Regular members who receive such requests from drug teams should either:

• ask the drug team for the reason for the pull-over, and tell the suspects of that reason; or
• wait for a traffic violation, and pull the suspects over for that violation.

I am keenly aware of the difficulties this poses to officers investigating crime networks.  I don't yet have a solution.

2009-03-21 Search Incidental to Arrest

- When officers responded to call of a stabbing, they noticed Mr Chubak 2009 ABCA 8 drive up to the gathered crowd and stop.  When the officers approached, he pulled something from the back seat.  When an officer looked into the car, he saw Chubak removing a can of bear spray from its case.  The officers arrested him or possession of a prohibited weapon, and his passenger for possession of a weapon for a dangerous purpose.  His wallet contained over $1,000.  They searched the car, and found a collapsible baton and an knife ... and ringing cell phones.  At this point the officers started searching for drugs, which they found behind the car stereo, which was loose.

Could they search for drugs incidental to an arrest for weapons?  It was a close call.

Two judges said yes, because a search incidental to arrest is a search for evidence relevant to the offence.  Drugs are relevant to the weapon offence: they explain a motive for possessing the weapon.

One judge said no.  The search for drugs was a search for evidence of a separate offence, and therefore not incidental to arrest.

I think all three judges are right.  The one judge was right because a search for evidence must really be for evidence relevant to the offence for which you arrested.  I suspect that these officers got a little excited when they realized they caught dial-a-dopers, and started searching for drugs because they knew the drugs would be there.

But the two judges are also right.  Had the officers stopped to think for a moment, they would have realized that drugs would be relevant evidence to show motive for possessing the bear spray.  They could have continued their search for drugs, because they were still seeking further evidence relevant to the offence for which they arrested.

An arrest of a person in a car is not a licence to search the car for anything.  But it does give you the power to search the car for evidence relevant to the offence.  "Relevance" is quite broad.

2009-03-21 Search Warrant Drafting

- When applying for several different warrants at the same time, one Information To Obtain suffices for all of them.  You don't have write/copy it many times, so long as the one document justifies each warrant or order sought.  R. v. Todorov, 2008 ONCA 849.

2009-03-20 Search and Seizure - Protecting the Guilty

- As part of a larger conspiracy, Mr Knight 2008 NLCA 67 transported drugs in a spare tire.  Police sought and obtained a general warrant permitting them to seize the tire, but make it look like a common theft.  The police didn't tell the issuing judge was how much this would endanger Knight's life when the people he was working for accused him of stealing their product.  At trial, the judge excluded the evidence because of this non-disclosure.  The Court of Appeal found that enough information was in the warrant to allow the issuing judge to figure out the risks himself, and allowed the appeal.  All sides agreed that police have an obligation to protect their suspects from retaliation arising from covert police conduct.  When applying for a warrant for covert activity which might result in harm to your suspect, it appears that you ought to disclose to the issuing judge your risk assessment.

2009-03-14 Exhibit Handling

- Undercover officers impersonated a 13-year-old girl on a child-sex themed internet chatroom.  After sexually explicit chat with “her” over several months, Mr Thain, 2009 ONCA 223 asked to call her up.  In a telephone call, a female police officer impersonated a 13-year old girl, and agreed to meet him for sex.  When he turned up at the appointed spot, police arrested him.  At trial, claimed that he always believed that he was corresponding with an adult male, in a role-playing game.  The trial judge convicted, but the court of appeal ordered a new trial for technical reasons unrelated to the quality of the investigation.

The decision describes a sophisticated investigation: the police wisely arranged to record the telephone conversation, which must have required wiretap authorization.  Unfortunately, they lost the recording.  The officers wisely kept transcripts of the chats.  But unfortunately, they lost some of those too.  These losses made the case more difficult to prosecute.  The decision doesn’t say why the exhibits were lost.  I’m in no position to criticize the investigators (I’m not the best organized person myself).  It’s just a reminder to us all of the importance of a basic principle of police work: seize, secure and track exhibits, even if you generated them yourself.

2009-03-14 Internet Luring

- The defence in Thain, 2009 ONCA 223 shows a weakness in undercover investigations into internet luring.  The claim “I didn’t think the other person was a child” can raise a doubt.  These officers had a photograph, and a young-sounding female voice at the ready.  In spite of this, the accused was able to identify a number of indicators that his correspondent wasn't young at all.  Webcams are becoming ever more pervasive, which will make this kind of investigation ever more difficult.

2009-03-13 Police Release on an Undertaking - Enforceability of the Conditions

- If you release a suspect on a promise to appear (PTA) with an undertaking, s.505 of the Criminal Code requires you to lay charges "as soon as practicable".  If you don't, then the PTA becomes unenforceable -- the accused doesn't have to come to court nor provide fingerprints.  In R. v. Taylor, 2005 BCSC 125, the court found that swearing an information 3 months after the offence was too long.  Legal researchers might want to look up R. v. Naylor (1978), 42 C.C.C. (2d) 12 (Ont. C.A.) which is so old it isn't on the internet.

But what about the undertaking?  If you take more than a week to swear the charge, can an abusive spouse move back in with the victim?

A police officer arrested Mr Oliveira, 2009 ONCA 219 for refusal and resist arrest.  The officer released him on a promise to appear with an undertaking not to drink.  The information wasn't sworn for a month, which wasn't "as soon as practicable".  Mr Oliveira appeared in court.  A couple of weeks later, he breached the undertaking by drinking (and assaulting a peace officer).  The court found that the undertaking was still good, even if the promise to appear wasn't.

That's a relief.  The PTA + undertaking release still protects the complainant up to the time the information is sworn.  (But if you don't swear the information by the return date, then I don't think the victim gets any more protection.)

I've long been troubled by s.505.  From the cases of wrongful conviction, we have learned that tunnel vision can cause terrible injustice.  The time after an arrest should be for sober second thought about the overall strength of the case, not a headlong rush to the J.P. to set the wheels of justice turning.  The wrongful conviction cases involve large injustices.  Promises to appear involve smaller cases.  But injustice should be avoided, whether large or small.

Section 505 poses a particular problem here in B.C., where policy requires Crown Counsel to review police investigations before charges are laid.  In my opinion, the words "as soon as practicable" should be abolished.

2009-03-11 Reasonable Grounds to Believe - When do you have them?

- Cst Foley, a smoker, attended the scene of a single vehicle accident. Mr Stamnes, 2008 BCSC 909, the driver, was okay.  A tow truck pulled the vehicle out of the bushes where it crashed, and Cst Foley examined the vehicle for mechanical defects which might have caused the accident.  From outside the vehicle, he saw a half-consumed hand-rolled cigarette,  sitting with a package of cigarettes in the front ashtray.  Although there was no smell of marijuana, nor any evidence that the driver was impaired by a drug, Cst Foley formed the belief that the hand-rolled cigarette was a marihuana cigarette from:

• the diameter of the cigarette,
• the contour of the paper,
• the brown discolouration on the paper, which he described as being three times more than tobacco discolouration on a tobacco cigarette
• the hand-made cigarette sat in stark contrast beside a package of manufactured cigarettes
• his experience as a smoker of manufactured and hand-rolled tobacco cigarettes, that he never finds the two together
  
• his experience as a police officer seizing marijuana cigarettes

He went into the vehicle and seized it.  He then sniffed it, and found it smelled of marijuana.  He then arrested Mr Stamnes for possession of marijuana,  When he searched the car incidental to arrest, and found lots of cocaine.

Defence argued that because Cst Foley sniffed the cigarette, therefore he must have been unsure whether it was marijuana before he seized it.  If he wasn't sure it was marijuana then he had no authority to seize it using the "plain view doctrine".  Following high authority, the judge observed that the officer didn't have to be certain it was marijuana.  It would suffice if the officer believed it was probably marijuana, and there was evidence to support that belief.  There was nothing wrong with confirming that belief after seizing it.

Notice how the sensible step of confirming your beliefs can turn into a trap.  Defence will suggest that you weren't sure.  Whether it's drugs or a drunk in a car, or suspected stolen property at a trafficker's house, it's important to document and explain the earliest observations and inferences that lead you to believe that something (or someone) you see should be seized (or arrested).  Notice the long list of reasons the officer had before he seized the cigarette.  On the witness stand, it's okay to concede "I wasn't certain", so long as you can (and do) say "I was pretty sure, based on ....".

2009-03-07 Confidential Informants - Messier than it seems

- A known tipster told police that he had just seen Mr Zidarov, 2008 NLCA 65 parked in his car down by the mall selling marijuana.  Sure enough, when they went to investigate, Mr Zidarov had $1,650, three cell phones and lots of marijuana.  Defence demanded to know the identity of the informer.  The judge refused to order it disclosed.  Mr Zidarov testified that he got a ride to the mall from Mr Fleck, who owed him $2,000.  He was just waiting for Mr Fleck to return.  Defence then called Mr Fleck to testify.  Fleck denied being with Mr Zidarov that day.  The defence lawyer then asked if Fleck called the police.  The judge stopped the question: the identity of the informer is not to be disclosed unless innocence is at stake.

The Court of Appeal disagreed.  If Fleck really were responsible for the drugs, then Zidarov's innocence was at stake, and that's the only exception to informer privilege.  It would be up to the trial judge at a new trial to solve this one.

I'm troubled.  Suppose only 2 people knew about Zidarov that day.  By describing one of them as the real culprit, Zidarov could discover the true identity of the informer, through either confirmation or denial that Fleck was the informer.

2009-03-07 Detention - Dial-a-Doper's consent to search

- A tipster called police to report a drug deal involving a car matching Mr Tomasevich, 2008 BCSC 1690.  A police officer located the car speeding, so he pulled it over.  He told Mr Tomasevich that he was stopped for speeding, but also there was a report that he was possibly selling drugs.  The officer was more interested in the drugs than the speeding, but he investigated the speeding first.  Because Tomasevich's driving record was good, he issued no ticket.  Each step here was perfect.  Now the trouble begins.

The officer believed that he told Mr Tomasevich he was free to go, because that was his usual practice.  But the other officer present didn't hear that part.  The judge found that the suspect was still detained, and therefore the officer should have given him his s.10(b) rights.  The officer asked whether Tomasevich would consent to a search of the car, and produced a consent form.  He consented, but by this time all was lost.  The quantities of drugs, money and cell phones were all found to be inadmissible.

I guess the lesson to be learned here is that this judge wanted clarity.  If you're gonna rely on a consent search after detention, the detention must clearly end.  You might think the suspect is free to leave, but will the evidence clearly show that the suspect knew it?

2009-03-04 Automatism - "Sleep-Raping"

- In some lectures, I mentioned the defence of automatism in the context of sexual assault.  It usually raises a laugh, because it seems so contrary to common experience.  How could a sleeping man rape someone?  However, Mr Luedecke, 2008 ONCA 716 persuaded a court that's probably what he did.  The facts and the medical evidence at the beginning of the decision are of interest to you.  The latter part of the decision discusses the law of mental disorder - which will interest few police officers.

Important evidence in the case was his similar behaviour with previous girlfriends.  While this begged the question whether his repetition with a stranger was deliberate or involuntary, it does demonstrate the importance of investigating similar fact evidence.

2009-02-25 Discovering Evidence - Context is Key

- A cleaning lady found photographs lodged in an air vent of a house she was cleaning.  They depicted a naked 4-year old girl with closeups of the genitals.  Police investigated, and the owner of the house, Mr Grant, 2009 BCCA 72 admitted they were his.  But he argued that they weren't child pornography.  The Crown had to prove that the photographs have as their “dominant characteristic” a “sexual purpose”.  They could just be photos of a naked kid being "cute" and "playing freely".  The court rejected this because the photographs were obviously hidden.  The owner was ashamed of them, and that must be because of their sexual purpose.

Where you find an exhibit is sometimes as important as the exhibit itself.  I like having photographs of the exhibit in the location where it was found.  And I like photographs taken from further back, to show the location in context.

2009-02-20 Joint Possession - Husband and Wife -

Mrs Mihalkov, 2009 ONCA 154 lived in an apartment registered to her husband.  Her husband set up an extensive counterfeiting operation which he operated with help from others.  She knew about it and continued to live there.  Was she in possession of any of it?  The judges disagreed what inferences could be drawn from her failure to alert the authorities, but they agreed that her knowledge was not enough to convict her.  Unless she consented to keeping this stuff in her place, unless she had some control over what went on in her own house, she could not be convicted.  The judges agreed that people who live together are not automatically responsible for each others' goods.   To convict a wife for her husband's contraband, you need evidence that she knew about it, had some control over what went on in her house, and consented to the stuff remaining there.

2009-02-20 Search Warrants - Full & Frank Disclosure

- This one came as a surprise to me.  It says I am wrong about an imporant point in drafting search warrant applications.  Police received source information that Mr Ling, 2009 BCCA 70 was growing dope.  Months later, an off-duty police officer was playing golf one day, when he noticed marijuana plants growing by the golf course, near Mr Ling's house.  Police drafted a search warrant, but omitted the source information.  The trial judge found nothing flowed from this because omitting information which tends to support the warrant merely makes the application weaker.  The Court of Appeal disagreed: in the ITO, police must set out all relevant information in their possession, no matter whether it supports or undermines the granting of the warrant.

I find this ruling troubling for several reasons.  To comply with this ruling in complex investigations, ITOs will become unnecessarily longwinded.

In some cases, merely mentioning the existence of an informant will necessarily identify the informant.  In such cases, no matter how compelling the independent evidence is, the ITO - even edited - can never be disclosed to the defence.  Therefore, such cases can never be prosecuted.

I would hope this ruling is appealed.  Unfortunately, there were other errors in the ITO which will make appeal problematic.

2009-02-19 PIPEDA - Investigative Tool or Dead End?

When police investigated Mr Ward, 2008 ONCJ 355 for possession of child pornography, they needed his internet subscription information from Bell Canada.  Bell Canada had a clear privacy policy of disclosing such information to law enforcement.  Police wrote a request explaining their investigation, and specifically limiting their request to the kind of information that they needed.  The information led to the evidence they were looking for.  The court found this request was within the "lawful authority" of the police in their investigation.  There was nothing wrong with the request, nor the disclosure that came from it.  "Lawful authority" does not require a search warrant.

Drug cops working in an airport in Nova Scotia routinely asked Westjet to let them see the passenger list to see if there was anyone suspicious on it.  Westjet's privacy policy was much more restrictive than Bell's.  A passenger list entry gave reason to suspect Mr Chehil, 2008 NSSC 357 might be carrying drugs, so the officers brought a drug sniffing dog to sniff his luggage.  Soon enough, the officers found 3.5 kg of cocaine in his luggage.  The court found that the police activity was a fishing expedition.  The passenger lists contained far too much private information.  The police request did not fall within Westjet's disclosure policy, and therefore there was a violation of s.8.  Mr Chehil escaped conviction.

The keys to PIPEADA requests are two-fold:

• Your requests must specifically identify what you're looking for and why, so as to limit the amount of unnecessary private information that you might get from a private corporation.
• The law requires the corporation to declare target's expectation of privacy in a privacy policy.  Get the corporation's privacy policy, and see whether your request fits into it.
  

Had the officers in Chehil's case made a written request to Westjet limiting the information they sought, they might have been okay: "We are investigating drug couriers in airports.  We want to know the names of passengers who bought one-way tickets for cash just before the flight left because these are indicators that they may be carrying drugs."

When this privacy legislation first came in, I suspect that corporate lawyers advised their clients to lock down customer privacy for fear of lawsuit.  I know you folks encoutered ever greater difficulties getting information after this legislation came into effect.  Recent waves of gangland violence should cause corporate executives to reconsider their privacy policies with respect to the kind of disclosure they will give to police.  I think the public mood is swinging against "gangsta" behaviour.

Surely corporations can be persuaded that there's money to be made in declaring themselves to be "good corporate citizens" in taking a stand against drug crime.  I suggest that police chiefs should now ask public corporations to change their privacy policies away from Westjet's and towards Bell's.

Thank you Cst Horvath for bringing the Chehil case to my attention.

2009-02-15 Possession or Attempt?

- Police, armed with a search warrant, searched a package at a courier's office.  It contained a computer, but inside the computer they found drugs.  The officers removed all the drugs, and gave it to the courier to deliver.  Mr Bonasin 2008 NLCA 40 signed for it, and the officers arrested him.  Did he "possess" any drugs?  Possession is knowledge of the item, and control over it.  Two judges of the court said yes, by his contract with the dealer who sent it, Mr Bonasin had "control" over the drugs even when they were in transit.  The third judge said Bonasin had no control until the package arrived, at which point there were no drugs.  The third judge would have convicted him of attempted possession.  All the judges commented on the practice in other jurisdictions to leave a little product in the package.  I can't say what judges would do in another jurisdiction.

Should you leave a little product in the package?  Are you prepared to take a risk that your efforts to control the delivery will fail?  Does the difference in conviction matter?  The third judge said he would have sentenced Mr Bonasin the same for the attempt as the possession.  Your mileage may vary.

2009-02-14 The High Standard demanded of Peace Officers

- Four female prisoners started the undoing of Officer Byrne 2008 ONCA 134.  As he drove them from the remand centre to court, these young women made a racket in the back of the van.  He told them to "shut up".  When they continued, he drove the van from side to side, knocking them off their seats.  They suffered minor injuries.  They objected; he called it "resisting".  He pushed them down some stairs, banged one head on a doorway, and choked another.  He colluded with his partner, a trainee, to falsify the report about the incident.  The judge convicted him of assault.  Anyone else with a clean record and letters of recommendation like his would get a discharge.  But he got 90 days.

It may not seem particularly fair that peace officers get sentenced harder than a regular citizen.  After all, you peace officers endure stresses that other folks don't feel.  It's because peace officers are entrusted with powers that other folks don't have.  Abusing those powers is a "breach of trust".

When you're feeling those stresses, remember poor Officer Byrne.  Your prisoner may richly deserve punishment, or your suspect's guilt may be perfectly obvious.  But "cell-block justice" or "white lies" to convict him will hurt you worse than him.  Your integrity matters more than convicting or punishing any of our customers.

2009-02-07 Right to Counsel - Cellphone Calls Immediately after Arrest

- Tipsters told the police that a group connected to the Hell's Angels had moved into town, and were running a well-organized and well-armed dial-a-dope operation.  When the police called the number Mr Montgomery, 2009 BCCA 41 and three others turned up in a car.  They arrested his group.  He asked to call his lawyer immediately, by cell phone at roadside.  They didn't let him call until they returned to the police station, because they could not control who he would phone.  Defence complained of this delay in access to counsel, but the court found - in this case - the officers had reason to fear abuse of the right, and so the delay was proper.

The investigation went further.  After they arrested Mr Montgomery, they had grounds to search his residence.  They got a warrant, and while they were searching it, someone called the residence to warn the occupants of police raids.  The caller - not knowing he was speaking to a police officer - tipped them off about another residence.  After the officers collected drugs and guns at the first residence, they got another warrant and searched the second one, finding more drugs and a handgun.

In this case, the officer said he had a "policy" never to let his prisoners use a cell phone to call counsel from the scene of the crime.  The court has disapproved of such a policy in the past.  There may be times when such a call is appropriate: a simple impaired driving case, or a domestic assault.  But if you have a reason to fear that the call may be abused, then you can delay access until you have things under control.

2009-02-03 "Policy" of Handcuffing Detainees

- When a police officer detained Mr Paterson 2009 BCSC 99 for impaired driving, the officer handcuffed him before taking him to the police detachment, as was the officer's "invariable practice".  Defence complained that the officer had no reason to fear Mr Paterson, and that the handcuffs - which chafed him - were therefore placed arbitrarily on him.  The trial judge agreed, but the next judge up expressed great reservations about that decision.  He agreed with defence that your power to use handcuffs depends upon an exercise of judgment in every case.  On the other hand "it may be asking a great deal of a single officer to expect him to sort out, on the basis of one brief encounter, who is likely to pose a danger if not physically restrained, and who is not".  The superior court judge overturned the trial judge's acquittal and remitted the matter back for a new trial.

You police officers, by the nature of your work, constantly run the risk of meeting an innocent-looking psychopath.  You don't know who's safe and who isn't.  This is the reason for so many "officer safety" procedures.  If someone challenges you in court why in this particular case you followed officer safety procedures, you shouldn't just say "I always do, for officer safety".  I'm a big fan of invariable practice, so that you can remember what you did in every investigation.  But when it comes to police powers, you need to explain a little more why in this case what you did was appropriate.  For example:

"In my experience, alcohol causes many people to suffer mood swings.  Cooperative drunks suddenly turn aggressive, especially when things aren't going their way.  If so I must use force to control the situation.  I didn't know Mr Paterson well enough to know that he would be safe.  It wasn't worth the risk to him or me to leave his hands free."

2009-01-31 When to Arrest for "Breach of the Peace" or "Causing a Disturbance"

- Although this case was decided 2 years ago, it was published only this week.  Police noticed a group of drinkers in a parking lot outside a motel in a relatively empty light-industrial area.  They were "hooting and hollering" which caught an officer's attention.  Some wore Hell's Angel's vests.  Drinking in public violates s.40 of B.C.'s Liquor Control and Licencing Act, so she approached them and told them to dump the beer or go inside.  Other officers attended as backup.  The partiers disagreed with the police.  The officers told them to comply or they would be arrested for causing a disturbance.  The partiers took exception, and one took a fighting stance.  They loudly told the officers to leave, but one of them, Mr Henry, 2007 BCSC 1990 told a partier to "shut the fuck up or he would kick his ass."  Unfortunately, Mr Henry then said similar words to a police officer.  That officer arrested him for "causing a disturbance".  He resisted and the fight was on.

The judge found that there was no public disturbance.  The partiers weren't bothering anyone else in the area.  The arrest was unlawful, and the officer wasn't acting in the execution of his duty.

The judge convicted another partier, Mr Bergstrom of assaulting a different officer who was just trying to prevent violence.

The judge went on to observe that police can arrest people for anticipated breaches of the peace.  If you think someone's just about to breach the peace, for example, by assaulting someone, you can intervene.   But the judge commented that you should use this power sparingly.

Arrest for "causing a disturbance" only if:

• someone has complained about your suspect "fighting, screaming, shouting, swearing, singing, using insulting or obscene language, being drunk or impeding or molesting other persons" (s.175), and you can see he's still carrying on , or
• you can see that other people in the area are bothered by his conduct.
  

Arrest for "breach of the peace" only if:

• there's no other offence your suspect has committed, and
• you expect non-trivial harm if you don't.
  

After arrest for "breach of the peace", I suggest that you add more to the standard s.10(a) explanation:  "I'm arresting you for breach of the peace - I'm concerned that you're going to assault someone (or break something or other concern) if I don't."

2009-01-22 Unsavoury Witnesses

- In two murder cases from opposite ends of the country, members of the criminal underworld emerged as key prosecution witnesses.  Khela & Sahota 2009 SCC 4 and Smith & James 2009 SCC 5 were convicted of murder based on the evidence of gang members and gang members' girlfriends.  In each case, the trial judge warned the jury to treat the evidence of such witnesses with caution.  Defence complained that the warning wasn't strong enough to convey how dangerous it is to rely on the evidence of such unsavoury people.  The court dismissed the appeals, but confirmed the defence concern: the jury must be careful, but may convict if there are reasons in the evidence that establish that the witnesses are trustworthy.

For police this means that when one or more criminals finger another criminal, you don't have enough evidence to prove the case, until you can find evidence which clearly shows why this evidence can be trusted.

2009-01-19 Disclosure - Police Disciplinary Records

- Cst Hackett busted Larry McNeil 2009 SCC 3 for drugs, and the trial judge convicted him.  McNeil's conviction relied entirely upon Cst Hackett's credibility.  Then other police officers busted Cst Hackett for drugs.  He was disciplined and charged.  He pleaded guilty.  McNeil sought to overturn his conviction by obtaining disclosure of the particulars of Hackett's charge and disciplinary proceedings.  The court's decision guides lawyers through the procedures required to do this.  If defence allege that a dirty cop was involved in the investigation, Crown is obliged to inquire, and report to defence if they are stone-walled.  But defence don't have an automatic right to every disciplinary record that exists about you -- only the ones relevant to their case.

Where a police officer is an important witness in a case, and there are criminal or disciplinary charges or convictions against him for something relevant, then police need to disclose this to Crown for ultimate disclosure to defence.

As usual, police and Crown are held to a higher standard.  McNeil beat the charges; Hackett remained convicted.  You don't want the felons you catch reading about your foibles.  Please be good.

2009-01-10 Telewarrants in B.C. - "Impracticable to appear personally"

- In Port Alberni, the court registry staff told a police officer that there are never any Justices of the Peace available to hear search warrant applications.  For that reason the officers stopped calling the registry before applying for warrants by telewarrant to the Justice Centre in Burnaby.  Naturally, when they busted Mr Young's 2008 BCCA 513 grow operation, defence complained the the police should have checked with the local court registry for the availability of a justice before applying for a telewarrant.  The trial judge agreed with defence, but the Court of Appeal sided with the police.  If you know there's no local JP available, then you don't need to make the call.

If you work in a small community where there's no JP available to hear search warrant  applications, then you might ask the Registry to write you a letter which says what the availability of justices is.  Keep the letter on file, and diarize an annual check with the Registry to confirm that it remains accurate.  You might want to attach a copy of that letter or refer to it in every telewarrant application.

2009-01-09 Interviewing the Suspect - Rights to counsel & to Silence

- When police arrested Mr McCrimmon, 2008 BCCA 487, he wanted to call a specific lawyer.  The officers coundn't raise the lawyer at his office number, so they Put McCrimmon in touch with Legal Aid.  When asked, he said he was satisfied with having spoken to a legal aid lawyer and understood the advice he had received.  An officer then interviewed him for 3½ hours, during which McCrimmon said he wanted to:

1. talk to his lawyer;
2. remain silent;
3. return to his cell.

Despite this, the officer courteously and respectfully persisted in the interview.  The officer elicited admissions from McCrimmon which helped convict him of a series of planned violent sexual assault on prostitutes and destitute women.  The court of appeal upheld the conviction.

We can learn from what these officers did right.

If your suspect wants legal advice, make sure he gets legal advice and that he's done getting legal advice.  But don't ask about the advice.   There are many questions you can ask to resolve this.  The one I like is: "Are you satisfied with the opportunity you had to get legal advice?"

An intense grilling looks bad in court.  Judges like to see suspects treated with respect.  And building a good rapport often works.

You decide when the interview ends.  While he enjoys the right to remain silent during the interview, he can not keep calling his lawyer as a way to interfere with the interview.  (But beware - this last issue is before the Supreme Court of Canada. They might change the rules in the next few months.)

2009-01-09 Search and Seizure - Expectation of Privacy

- If you find evidence against a suspect by searching a place where he has no expectation of privacy, then he has no "standing" to complain about violations of privacy.  You don't need a warrant to search a public park.  Police found a grow operation in Mr Vi's 2008 BCCA 481 house.  Because he didn't live there, the trial judge said he had no expectation of privacy in it, and couldn't complain about deficiencies in the warrant.  The court of appeal found it inconsistent to say at one stage of the trial that Mr Vi had insufficient control over the contents of the house to have an expecation of privacy over it, and at another stage of the trial that Mr Vi had such knowledge and control over those same contents that he was guilty of possessing them.

I can't help but agree.  Suppose you purchased a summer cabin, where you left intimate photographs of yourself and your lover in a box under the bed.  Even though you don't live there you would expect the pictures to remain private.

Occupancy is not the only factor to determine expectations of privacy in a residence or building.  A list of factors which the Supreme Court of Canada suggested in Edwards is:

1. presence at the time of the search;
   
2. possession or control of the property or place searched;
   
3. ownership of the property or place;
   
4. historical use of the property or item;
   
5. the ability to regulate access;
   
6. the existence of a subjective expectation of privacy; and
   
7. the objective reasonableness of the expectation.

2008 Developments in the Law

2008-12-29 Conspiracy, Counselling and Attempt -  What's the difference?

- Undercover police approached Mr Radojcic posing as drug dealers looking to set up a money-laundering operation.  Mr Radojcic introduced them to a lawyer, Mr Root, 2008 ONCA 869, who met with them several times to discuss how to move their large cocaine profits to another country.  Mr Root came up with several plans, and told them "his people" were prepared to receive millions of dollars of illegal money in Canada, and transfer it to the USA.  However, the officers and Mr Root never agreed on the lawyers' fees.

The trial judge acquitted Mr Root of conspiracy because he never agreed with the police as to the lawyer's fees.  The Court of Appeal ordered a new trial: Root had agreed with his partners to possess and launder the money, on condition that he could persuade the officers to pay 25% to the lawyers.  A contingent agreement can still be an agreement.

The trial judge acquitted Mr Root of conspiring with Radojcic because Radocjic wasn't going to do any of the laundering.  Again, the Court of Appeal interfered: a conspiracy doesn't require that each conspirator perform all the illegal acts.  Conspiracy is agreeing to commit a crime, not committing the crime itself.

The trial judge acquitted Mr Root of conspiring because the evidence didn't prove that Radocjic also conspired with Root's partners.  This was also wrong.  If A is charged with conspiring with B, C, and D but the evidence shows only that he conspired with D, A may still be found guilty.

The trial judge acquitted Mr Root of counselling because the police made the first approach, and because Root had to get the approval of his partners to go ahead with the scheme.  But neither of these are relevant.  Counselling is "deliberate encouragement" or "active inducement" to another person to commit a crime.  It doesn't matter if the target came up with the idea first.  The offence is complete even if the target never comits the crime.

The trial judge also acquitted Mr Root of attempting to possess or launder money.  An attempt is the taking of steps beyond mere preparation, with the intention of committing a crime.  The acts beyond preparation do not themselves have to be illegal, and to be guilty, the steps do not need to include the last step before the crime.  But in this case, Root had done everything necessary except receive the money.

If your suspect talked about committing a crime, this decision helps you determine which - if any - of these "inchoate" offences have been committed.

2008-12-13 Statements - Interviewing the Suspect After the Bail Hearing

- After police arrested Mr Ansari for murder, they gave him access to counsel, and then spoke with him at length several times.  He repeatedly asked to speak again with counsel, but the police deflected this request.  When the 24-hour limit approached, the officers arranged for a bail hearing by telephone.  After the bail hearing, they continued to question him.  The trial judge found that after the bail hearing, the accused was no longer a prisoner of the police, but the court's prisoner.  The police should have delivered him "forthwith" to a prison.  Police should have granted him access to a lawyer before the bail hearing, and the police lacked the power to prevent him from having further access to counsel after the bail hearing.  The judge found that all this rendered the accused's statements after the bail hearing involuntary.

For those of you who engage the suspect in long discussions, s.503(1)(a) requires you to bring the suspect before a justice "without unreasonable delay", and within 24-hours if a justice is available.  Before the 24-hour deadline, delay may be justified if you are engaged in ongoing investigation.  (Storrey)   After arrest, the accused requires a "reasonable opportunity to get legal advice".  Sometimes that can't happen until the next day.  The accused may require sleep or medical treatment.  Only then can you begin to interview.  What can you do to continue the interview if you run up to the 24-hour limit?

According to this judge: nothing.  You must conduct a bail hearing (where the accused can speak with counse), and then deliver the accused to a prison.  This is a trial level decision - other courts may disagree.  Do any of you have alternative strategies to suggest?

2008-12-12 Marijuana Compassion Clubs

- Mr Krieger, 2008 ABCA 394 produced marijuana for a "Compassion Club" - which provided marijuana for medical purposes for those people who could not obtain it pursuant to the Medical Marijuana Access Regulations.  In his defence, he tendered evidence that in Alberta, doctors aren't keen on prescribing marijuana for medical purposes, and people who need it can't get it.  For those interested in science around therapeutic use of marijuana, the trial judge's decision contains an interesting summary.  The trial judge found concluded that the Regulations provide sufficient access to those who actually need it.  The Alberta Court of Appeal agreed: unlicenced Compassion Clubs remain illegal.

2008-12-06 Consent search - Third Party 

- Someone claiming to be a member of a strata council asked police to investigate marijuana found in a dumpster. It appeared that someone was growing weed somewhere in the complex. The officer asked the complainant - who asked that his identity not be revealed - for permission to walk on the roof, to smell the exhaust vents of the various units. The complainant agreed. This led to Mr DiPalma's (2008 BCCA 342) suite, arrest and charges. Because the complainant was a confidential source, the Crown could not prove whether the complainant actually had the authority to take the police onto the roof area. But the officer acted in good faith, reasonably relying upon the complainant's assertions that s/he had authority, and so the court admitted the evidence anyway.

Last year, I wrote about the trial judge's decision in this case.  Now, the Court of Appeal agreed.  I think the take-home message is:  When you're asking one person for permission to search another person's place, you should ask what authority this person has to let you in.

2008-12-03 Breath Deamand "As Soon As Practicable"

- Upon finding an impaired driver, many officers like to arrest and secure the suspect in a police car before pulling out a card from which to read the formal demand.  If that's your practice, it's time to change it a little.  Section 254(3) requires that once you form the opinion that a driver's "ability to operate a motor vehicle is impaired by alcohol" (or the driver's over .08), you must make your demand "forthwith or as soon as practicable". An officer formed the opinion that Mr Walmsley, 2008 BCSC 1625 drove while impaired.  She arrested, handcuffed, searched, warned and cautioned him before reading the demand.  It all took 7 minutes.  The lawyers agreed that the arrest was unnecessary.  The court said she should have made the demand earlier.

I have long resisted the idea that either the detention or the demand should go first.  I thought it was all part of the same transaction.  This decision suggests I'm wrong.  (I don't know if an appeal is contemplated.)

I think in many cases you would be foolhardy to read cards to suspects before securing them.  In this case, all would have turned out fine if the officer started the detention with an informal breath demand, followed later by a formal demand read from a card.

2008-12-01 Cleaning Up After Cst Ryan

- Cst Ryan worked in the drug squad; he was also a drug dealer.  He fabricated evidence for the purposes of obtaining search warrants; his competition in the drug trade must have suffered.  He should have known it wouldn't last.  Someone ratted him out, and independent investigators busted him doing a drug transaction.  He went to jail for four years.  But what to do about the people he busted?  Police investigated Ryan's investigations, and identified 12 drug offenders 2008 NSCA 86 whose investigations were based on Ryan's perjury.  Despite their guilt, their convictions were reversed and the proceedings stayed.

Two themes arise.  The obvious one is that one dirty cop can do a great deal of damage.  But that's obvious.  And I don't think dirty cops are interested in this website.  The other principle is deeper: In our justice system, the ends do not justify the means.  Guilty as these drug offenders were, the warrants that led to their convictions were tainted by Cst Ryan's perjury, and therefore the convictions must be overturned.

If Johnny Rotten tells you that he broke into a house to steal jewellery, and found a meth lab, you can use his information in a search warrant.  Depending on your policies, you might even pay him for the information.  But Johnny may ask you for other suspected labs and grows for him to break into and check out.  Tempting as it may seem, you can not counsel the commission of an offence.  You would be party to his crimes, and liable to prosecution.  Your honour isn't worth sacrificing to bust a crook.

2008-11-29 Guns in a Car

- When checking drivers for alcohol, police found Mr Richards driving a rented car.  Because Mr Richards had a weapons prohibition, the officers asked him if he had weapons.  He had a flick-knife, and the police arrested him.  Incidental to that arrest, they searched the car, and to do that, they asked the only passenger in the back, Mr Marryshow, 2003 CanLII 13555 (ON S.C.) to get out.  The seat where he had been sitting was "obviously propped up".  Under it lay a loaded semi-automatic handgun.  The group had been on the way to a bar where gun and knife fights were common.  Who possessed it? Was the search lawful?

When investigating guns in a car, assume that everyone will say they didn't know they were there, and that somebody else must have put them there, perhaps at some other time.  That's what Marryshow said at trial.  I'm sure if Richards were asked he would have said the same.  What proved that Maryshow was his curious choice to sit on a seat that didn't lie straight.   At trial, the investigating officer had to describe and draw for the court what he saw.  No doubt at the time, the officers felt compelled to secure the scene.  Doubtless they immediately removed the gun from its location.   For the purposes of court, it would be nice to have a photo, even if you have to put the gun back later.  For this case, ideal testimony would have come from someone who sat on the seat with the gun under it, to see if it were possible not to notice.

Was the search lawful?  The court of appeal said yes.  It was a search incidental to Richards' arrest.  Marryshow had the bad luck to get caught in the process.

2008-11-29 Obeying Illegal Orders

- When Yugoslavia blew up into warring factions, Mr Ribic, 2008 ONCA 790, a Canadian Serb, joined the Serbian army.  After a peace agreement, and United Nations resolutions to create "safe areas" in the war zone, a UN peace-keeping force, with NATO military support moved in to keep the peace.  Unarmed military observers kept watch over difficult areas.  In violation of the peace agreement and the UN resolutions, the Serbian army continued attacking.  NATO commenced air-strikes on Serbian ammunition bunkers.  Mr Ribic and other Serbian soldiers took the unarmed observers hostage (including a Canadian).  He shackled them to the Serbian ammunition bunkers, and threatened on international media to kill them if the NATO air strikes continued.  At the same time, other Serbian soldiers took similar actions against UN personnel in the area.  Ribic was tried in Canada for the kidnapping.

At trial, defence asked the jury to acquit Mr Ribic because he was just following orders.  But blind obedience to authority is not a defence.  As the court explained, this defence won't fly if the orders are "manifestly" illegal - ie. a reasonable person in the situation would know that the orders were illegal, but it will fly if the accused had no moral choice but to obey.  For example, if your superior officer directs you to beat up your prisoner and dump him in an Albertan snowbank in January, you can be convicted of assault or manslaughter.  But if your superior officer points a gun at you and threatens to shoot you unless you obey, you may have a defence.

2008-11-25 Bail hearings - Training video

- I told many police officers about a video I was working on to help explain bail hearings. It's now done. The Pacific Regional Training Centre's Multimedia Services turned the scripts JJP Gerry Hayes and I wrote into something dramatic, fun and educational. It demonstrates how police officers in B.C. should conduct bail hearings by telephone with a justice of the peace. Practices may differ in other provinces, but the legal fundamentals should remain the same. If you want a copy, send your request to prtc_multimedia_requests@rcmp-grc.gc.ca.

2008-11-25 "Possession" of Marijuana

- On a summer evening, Cst Venselaar drove his police cruiser near a pub in Port Coquitlam.  He smelled freshly smoked marijuana coming from a red mustang.  He followed it, but still the smell persisted.  He pulled it over because he was concerned that the driver might be under the influence of marijuana.  He noticed what looked like a joint behind the ear of the front passenger, so he asked if there was any marijuana in the car.  The passenger offered him the joint.  Cst Venselaar arrested the passenger and the driver, Mr Webster, 2008 BCCA 458 for possession of marijuana.  On a search of the vehicle, he found lots of drugs.  Naturally, Webster complained that his rights were violated.  He relied on the Janvier case, which says that for summary conviction offences, you can't arrest unless you actually find the suspect committing the offence.

Because the officer could see the joint, the officer could arrest the passenger.  But could he arrest the driver?  Possession is knowledge and control.  The court agreed that the officer could reasonably infer that the driver knew about the passenger's marijuana (because of its proximity and smell), and because Webster was driving his own car, he had control over the passenger.  See also s.4(3)(b) of the Code.

Notice also how Cst Venselaar stopped the car for traffic safety concerns.  A guy on drugs driving a car is more dangerous to the public than the same guy on a park bench.  This makes the detention easier to justify.  Good work, Cst Venselaar!

2008-11-22 Search Warrant - Single Untested Confidential Informant

- A first-time informant told a police officer he knew that he saw a large quantity of marijuana within the last 3 days in Mr Caissey's, 2008 SCC 65 apartment.  The informant described the interior of the apartment and Caissey's car.  The informant named Caissey's room-mate, and alleged that Caissey had been dealing for the last year.  The officer confirmed confirmed from independent sources only that Caissey lived there with the room-mate, and drove a matching car.

The ITO falsely asserted: "every piece of information [the informant] has provided has been verified as true and accurate".  Defence complained about this unfortunate wording, and argued that no warrant should be granted based only on an untested informant unless police find evidence which specifically confirms the crime alleged.  The court disagreed with him.

From the court, we learn that you when drafting an ITO don't need independent evidence of the crime if you have evidence which shows why the informant can be trusted.  In this case, the personal relationship between the officer and the informant, combined with corroboration of a few details just squeaked it by. 

From the case, we are warned again: Beware of boilerplate.  The false phrase about "verified and true" was just standard wording the officer got from some other warrant.  You don't want the embarrassment of telling the judge that your ITO contains a falsehood.  If possible, before you swear your ITO, get someone who's not afraid of challenging you to read what you've written, asking "Is this true?"  Your proof-reader should use a checklist to make sure you've covered all the necessary points.

2008-11-21 Emergency Wiretap - Who Decides

- Gang shootings of innocent people on the streets of Toronto put great pressure on the police to act.   Police suspected Mr Riley (2008 Ont. S.C.J.) of several shootings and one murder and feared he might kill again.  Surveillance established that he was breaching a lengthy Conditional Sentence Order.  He could be arrested at any time, but arresting him might reveal their investigation.  Because tensions between his gang and another gang persisted, a senior officer decided to authorize emergency wiretap, without applying to a judge.

Although s.184.4 authorizes police to wiretap without applying to a judge, the officer who decided it:

• didn't know all the facts
• couldn't say at trial what facts he did or didn't know when he authorized the interception
  
• didn't know that this section is for preventing serious harm or death, not gathering evidence
• didn't use the alternative of arresting Riley, which would have prevented the risk of another killing.
• didn't immediately start a parallel s.188 emergency wiretap application, nor an ordinary wiretap application.
• didn't monitor the interceptions that he authorized, leading to more interception that was justified in the circumstances.
  

The big lesson here is for managers.  Deciding whether to authorize an emergency wiretap requires a high level of authority, because of the liability issues involved.  However, emergency wiretap is highly technical.  Most managers won't have sufficient expertise in wiretap to take the legal steps required.  Someone familiar with the facts and law must take responsibility for the legal decision to implement one, and to supervise it while it runs.

2008-11-16 Executing Warrants - Arresting the Occupants of the House

- When police executed the Whittaker, 2008 BCCA 174 warrant (see below), they arrested all the people they found at the house.  Whittaker was outside the garage.  The trouble is, mere presence at the scene of a crime doesn't always establish guilt.  A person outside the garage could have been an innocent visitor.  Although the warrant established reasonable grounds to believe that Whittaker was responsible for the drugs, none of the officers who executed the warrant knew what Mr Whittaker looked like.  Therefore Whittaker's arrest wasn't lawful.  To make matters worse, the officers didn't give their prisoners access to counsel for 2½ hours.  Lucky for them, the court found that these breaches of Mr Whittaker's rights weren't part of a general pattern, and admitted the evidence anyway.

The court commented that the officers could have:

• examined photographs of Mr Whittaker and his wife before going to the scene
• detained instead of arresting the people present; or
• got identification before arresting.
  

This means you can arrest the gardener in the grow room, or the resident who sleeps in the bedroom that smells of marijuana.  If all you have is a meth lab out in the woodshed, you can't arrest the folks in the living room unless you have reason to believe they're involved.  But you can detain them.

In any case, you want to deal with access to counsel promptly after arrest or detention.

2008-11-16 Warrant Drafting - How Many Offences to Allege

- Police had good evidence to believe that Mr Whittaker, 2008 BCCA 174 was up to his armpits in drug transactions and money-laundering.  They also suspected him of growing marijuana, but didn't specify sufficient grounds in their ITO to justify a warrant to search for evidence of that offence.  It's a good thing they alleged several offences.  The court found that the grow warrant was bad; but because the trafficking and proceeds of crime warrants were good, all the evidence the officers found when executing the warrants - including the grow operation - was admissible.  While it's not necessary to allege in an ITO every offence you know about in order to justify a search warrant, it's worth alleging those offences you know you have evidence for.

2008-11-03 Photo Lineups or Single Photo?

- Police officers often confirm the identity of a suspect by looking at a photograph after dealing with the suspect.  But the courts prefer stranger identification to be done by photo lineup.  When does a single photograph suffice?  Some guidance may be found in USA v. Khuk 2008 BCCA 425.  A police witness identified Mr. Khuk from a single photograph.  Defence said this kind of identification is too weak to justify an extradition.  The court distinguished between stranger identification, and identification by someone familiar with the suspect.  The risk of misidentifying someone you know is much lower than mistaking a stranger for another.

For example, suppose a police officer catches a 3 second glimpse of the culprit driving away from a robbery, and an hour later you arrest a suspect in a similar car.  You have an identification problem.  Is the guy in the car 60 minutes later the same guy as the culprit?  If the first officer recognized the culprit from prior dealings, then a lineup probably isn't required, but his recognition should be documented before he learns the identity of the prisoner.  If the first officer didn't recognize the culprit after that first glimpse, then maybe you should prepare a photo lineup.

Beware of using a single photo to identify the suspect.  Last year, I wrote about Mr Hill 2007 SCC 41, who sued police for using this kind of short-cut with eyewitnesses.  Err on the side of caution: use lineups.

2008-10-30 Equipment Failure - Recording Devices

- I like technology.  But I have long wondered why manufacturers install critical incident detector chips in our everyday equipment.  As you know, most common technology generally works until it's needed.  Then these secret microchips detect tension in the air, and cause devices to fail whenever it's most important to succeed.

After a huge investigation of a kidnapping and extortion, police arrested the gang responsible.  After obtaining wiretap authorization, they bugged a cell, and put an undercover officer in with Mr Ly (R. v. Tse et al., 2008 BCSC 1421).  Mr Ly talked.  The bug worked; but the recording equipment didn't.  This was a major factor leading to the exclusion of his admissions.

Things can go wrong all too easily.  Murphy's Law can't be defeated, but you can hold it at bay.  Check the batteries and memory card in your camera.  Use two separate recording devices for your interview.  Promptly copy your digital data to more than one place.  Do a sound check.

2008-10-29 Possession - Loaded Sawed-Off Shotgun under the Driver's Seat -

A firearm under the front seat of a car is plainly in the control of the driver.  But its presence there doesn't necessarily establish that the driver knew about it.  After police caught Mr Ali, 2008 ONCA 741, defence pointed out:

• a driver in the car wouldn't see it
• Ali possessed no ammunition, nor anything else that would link him to the firearm
• another person could have put the gun there, and Ali wouldn't know
  

Fortunately, the police went further than just seizing the gun.  They collected evidence that showed:

• it was visible from the window, and the rear seat
• the gun was located under the driver’s seat of the car in a position that would give the driver the most ready access to the stock of the firearm;
• the appellant was the only person who drove the car on the day and evening prior to, and the day of, his arrest and the finding of the gun;
• the household routine was that the appellant was the primary, if not the exclusive driver of the car

From this the court could infer that nobody else would hide it there, for fear of discovery.

This was good police work.  It ain't enough to find the gun in the suspect's car.  To hold him responsible, we need to prove that he knew it was there.

2008-10-28 Safety Concerns in Grow Ops - Electrical & Criminal Risks

- Here in B.C., the wiring of grow operations is done so recklessly that they create public safety risks.  B.C. reinforced some electrical safety legislation to permit the detection and inspection of properties which might contain risky wiring.  But the electrical inspectors don't want to enter buildings that are probable grow-operations without police officers to protect them.  The City of Surrey set up a team electrical experts and police officers which investigated and inspected risky premises.  The police would enter first to clear the building, and the inspectors followed.  Mr Arkinstall 2008 BCSC 1419 granted permission to the inspectors to enter, but refused to permit police in.  Instead of inspecting, they shut off his power.  He sued, and the B.C. Civil Liberties Association helped him.

The judge found that the legislation lawfully permitted information sharing, and inspection of residences without a warrant.  But he didn't like the warrantless police search because it introduced criminal law into what was otherwise a regulatory matter.  He suggested that entry into such residences might be authorized by a warrant under s.275 of B.C's Community Charter, or new legislation.

For those of you in B.C., this generally supports Surrey's approach, but may now require some simple warrant drafting.  For those of you outside B.C., this might give you some ideas on how to reduce public safety risks of grow operations in cities and towns.

2008-10-24 Search Warrants - "Dwelling House" or "Premises"?

- Police got a warrant to search the "premises" at Mr Le's 2008 MBQB 115 address.  They wanted to search the house and outbuildings for clothing worn during a murder, and the handgun used in the killing.  When then got there, an officer noticed  that someone recently moved a rock onto a flowerbed.  The officer lifted the rock and found the gun.  Was the garden around the house part of the "premises"?  This trial judge said yes.

While it's essential to identify when you intend to search a dwelling house, it may be wise to include a broader phrase when you want to search all of the property at a specific address.  If you know what you're looking for is at an address, but you don't know which building, you might seek authority to search "the property, dwelling-house(s) and premises at...".  Make sure your ITO spells out grounds for this broad search.

2008-10-24 Witness Protection - Privilege and Disclosure -

Two sisters swore that Mr Le, 2008 MBQB 96 had nothing to do with the murder of Mr Munoz.  A couple of months later, they swore he that did it, but they wanted protection from retaliation.  They entered Manitoba's witness protection programme for a while.  As the trial approached, defence sought disclosure of the benefits they got from making their allegations, as well as details of their handling in the programme.  The prosecution resisted, for fear that releasing any little details would compromise the safety of witnesses in the programme, and the officers running it.

The judge ordered disclosure of everything that might conceivably affect the credibility of the witnesses, but nothing that might reveal the workings of the programme.  Distinguishing between the two was made easier by the clear separation of the programme from the investigation: the officers running the programme conducted their own risk assessments, and shared little with the investigating officers.

2008-10-24 DNR Warrants - Cell Phone Location

- In paragraph 94 of its decision in R. v. Cody, 2008 QCCA 825, the court asserted that you can use DNR warrants to get cell phone location information.  (The court overturned the conviction on other grounds.)

2008-10-24 Warrant Drafting - Credibility of Confidential Informants

- A criminal told a police officer that Mr Jihad Khan 2008 ONCA 496 bought a handgun, ammunition and a bullet-proof vest to protect himself because he had been the victim of two home invasions involving firearms.  The officer got a warrant and sure enough, she found the gun, the ammo, and lots of drugs for sale.  At trial, defence attacked the drafting of the warrant.  The trial judge found that the officer's drafting breached s.8 because:

1. She didn't set out the informant's criminal record
2. She confirmed that Mr Khan complained to police about one invasion of his home, but omitted the significant difference: Khan wasn't the victim - it was two of his acquaintances who were assaulted.
3. She failed to check the informant's history (if any) with "Covert Operations", who tracked the reliability of informants.

The judge admitted the evidence anyway.

Although the officer had failed to meet the standard of full and frank disclosure of the evidence, the officer did try.  She told the justice:

1. The informant lived a life of crime.
2. The informant gave the information while in custody on new charges, in hope of more lenient treatment.

Furthermore:

3. The informant had no convictions for dishonesty.
4. She had asked around her office with officers who knew the informant, to determine whether he had lied to them in the past.

The court found that this case was too close to the line to justify excluding evidence.  The officer's positive efforts made the difference.

When drafting an ITO based on the evidence of a known confidential informant, not only should you explain the evidence which supports your allegation, but you must also tell the justice all the evidence in your possession which undercuts the informant's credibility.  This includes discrepancies in corroboration.

2008-10-20 - Arresting for Possession - The "Bare Smell" of Burnt Marijuana emanating from a Car

- Police pulled over Mr Hood, 2008 BCPC 217 because they reasonably suspected that he was involved in a marijuana grow operation.  An officer smelled burnt marijuana and so the officer immediately arrested him because he thought there might be more.  But the officer didn't see Mr Hood possessing marijuana, and the officer didn't have reasonable grounds to believe that more than 30g were involved, and therefore this was strictly a summary conviction offence.  The officer couldn't arrest.  Four bags of marijuana clones were excluded from evidence.

But the trial judge took us forward another step.  He suggested several investigative options that were open to the police officer at the time:

•         Determining whether there are reasonable grounds to suspect that the driver has a drug in his body, including asking the driver whether he has recently consumed drugs.

•         If so, requiring the driver to do physical co-ordination tests pursuant to s. 254(2)(a) of the Criminal Code. (This is a recent amendment to the Code and was not in force on the date when this case arose.)

•         In any event, if there are reasonable grounds to believe that the driver’s ability to drive is impaired by a drug, arresting the driver.

•         Making observations of the driver and of any furtive movements or suspicious actions.  Making observations of what can be plainly seen in the vehicle.

•         Doing a ‘pat down’ search of the driver for weapons if the officer believes it is necessary to ensure his own safety."

2008-10-15 - Search Warrants - What to Look for In a Residence

- When police searched a residence in Lantzville, not only did they find Mr Wight, 2008 BCCA 198 and a marijuana grow operation, but they also seized documents in Mr Wight's name.  One of them showed he lived at a different address.

The defence argued - quite correctly - that mere presence at a marijuana grow operation does not establish possession.  Maybe Mr Wight was merely a casual visitor there, who had no control over the contraband.

The trial judge convicted, and the Court of Appeal upheld it: "...the time of day, the location where he was found in the basement, and the documents in his name lead convincingly to the conclusion that he was more than a casual transient..."

This isn't really new law.  It emphasizes several basic points for drafting and executing search warrants:

• "Found-ins" aren't necessarily guilty.
• You need more evidence than their mere presence with the contraband or weapon or other thing you find.
• When drafting your application, if the evidence supports a reasonable expectation that you will find anything (documents, garbage, bodily samples etc) which will identify who's responsible for the crime, then your warrant should name those extra things, and the ITO should explain your logic.

2008-10-14 - Getting from Suspicion to Belief without Getting Hurt

- An officer in New Westminster brought my attention to the sad story of Mr Harada, 2008 BCSC 1346.  Watch how each piece of information justified the officers' next step:

Observation / information	Step
Mr Harada drove slowly and uncertainly through a bad part of town.	The police officers who saw him suspected that he might be lost or under the influence, so they stopped him.
His confused reactions and the sealed bottle of beer in the car increased their suspicions that he had consumed alcohol.	The officers got him out of the vehicle, read a screening device demand, and made computer inquiries.
The computer suggested that Harada was  violent and recently possessed weapons.	They did a pat-down search for officer safety.
The officer felt something long and hard in Harada's pocket.  The officer thought it might be a knife.	The officer stopped Harada from touching it, and removed it.
It was a spring-loaded knife, defined by s.84 to be a prohibited weapon.	The officers arrested Harada for possessing a prohibited weapon.
On the ground, just where Mr Harada had been standing, the officer observed a baggie of drugs.	The officers arrested Harada for possessing drugs for the purpose of trafficking.*
Incident to the arrest for drugs (but not the knife), the officers searched the car.	They found lots more drugs, and two cell phones which kept ringing: customers placing orders for drugs.

 
* The written decision does not explain how the officers came to the belief that this fellow possessed the drugs for the purpose of trafficking.  In light of Janvier, 2007 SKCA 147, you can not arrest for the strictly summary conviction offence of possession of marijuana unless you find your suspect committing it.  But maybe the baggie contained something not listed in Schedule VIII of the CDSA.

The judge approved of each step.  This decision breaks no new ground, but does illustrate some solid police work.

2008-10-14 - Right to Counsel - Reasonable Opportunity

- When DNA linked Mr Badgerow, 2008 ONCA 605 to an old unsolved murder, police officers arrested him, and asked him if he wanted legal advice.  He named a lawyer. The officers looked up the number and called, but the lawyer didn't answer.  They left a message at the lawyer's number, and Badgerow did speak with one of his lawyer's partners for less than 2 minutes.  Badgerow explained to the officer that he asked the partner to get his lawyer to call.  Then the officer asked the wrong question:


Badgerow said "yes", but he asked to make another phone call.  The officer pressed on with the interview instead of giving him more access.  The appeal court said this breached his right to counsel, and ordered a new trial.

The legal question is whether the detainee has had a "reasonable opportunity" to consult with counsel.  Some officers ask whether their prisoner is "satisfied" with their access to counsel.   This has proved effective in some cases.  I suggest that the best question is the legal one:


If the accused says "yes", then at trial, the judge will have a difficult time disagreeing with him.

2008-10-09 - Confessions - Interviewing Tactics

- Police interviewed Mr S.G.T., 2008 SKCA 119 about the sexual allegations his daughter made against him.  The investigating officer downplayed the seriousness of the offence, and suggested that if he took responsibility and apologized, the prosecutor might not lay a charge.  Mr T. confessed.  After the prosecution layed charges, Mr T. sent an email apology to the victim's mother.  Because the officer linked confession to a benefit for the suspect in the criminal proceedings, the trial judge (properly) excluded the confession.  But the judge admitted the apology into evidence.  After the conviction, the Court of Appeal ordered a retrial, on the basis that the officer's inducements tainted even the apology.

When seeking a statement from a suspect, it is perfectly proper to urge him to apologize to the victim - for the benefit of the victim and the relationship between him and the victim.  But don't suggest that an apology looks good to the court or the Crown.  If you suggest a link between his confession and benefits in the criminal justice system, then the confession will not be admitted at trial.

2008-10-09 - Impaired - Breath Tech - "Directly Into"

- An officer took and analyzed breath samples taken from Mr Mulroney, 2008 CanLII 46132 (ON S.C.).  For some reason, the certificate was not used at trial.  When testifying, the breath technician did not tell the court that Mr Mulroney provided the samples "directly into" the instrument.  Mulroney was acquitted.  If you don't recite those "formulaic words", then you must say words that mean the same thing, or else the necessary statutory presumptions will not operate, and all your hard work will go for naught.

2008-10-08 Wiretap - Voice Recognition

- Some experts say that voice recognition evidence is unreliable.  Listening to an intercepted telephone conversation only gives you the voice of the offender.  The prosecution wants evidence to show who spoke the words.  Talking with a suspect gives you an opportunity to compare voices.  But beware: defence may present expert evidence that your "recognition" of the voice isn't sufficiently reliable to admit into evidence.  That argument was accepted in the English decision of R. v. Flynn, [2008] EWCA Crim 970.

In Quidley, 2008 ONCA 501, the only witness to recognize the accused's voice in intercepted telephone conversations was a co-conspirator who had made a plea-bargain with the Crown.  Naturally, defence argued that the witness was motivated to blame Quidley for everything.  (Defence could also have argued that the witness might also have made a mistaken identification.)  The thin identification evidence and an error by the judge led to a retrial.

If voice recognition is all you have, perhaps you want a "known" recording of your suspect, and an independent expert's voice comparison of it with the wiretap.

2008-10-07 Impaired - Screening Device - "Forthwith"

- An officer operating an impaired driving "checkstop" left his screening device 1.5 blocks away at a bus which also contained breath analysis equipment.  When Mr Megahy, 2008 ABCA 207 turned up, the officer soon suspected that he had alcohol in his body.  The officer walked Megahy to the bus to get the screening device before reading the screening device demand.  This didn't respect the s.254(2) requirement of making your demand "forthwith" after forming grounds.  This doesn't mean you must make a demand at the first whiff of alcohol.  The court conceded that you have a little time to observe and investigate before making the demand.  But you don't have time to waste, like walking a block-and-a-half before telling the suspect what's going on.  Perhaps the officer should have given an informal demand at the scene, and then read the formal one at the bus.

2008-10-06 Detention - Telling Why - s.10(a)

- Police received a complaint of a "possible impaired driver".  An officer pulled over the vehicle in question and started investigating Ms Ryan, 2008 BCSC 938 without explaining to the driver why.  Within 9 minutes, the officer found grounds to make a breath demand, but the court excluded the evidence.   The explanation for the detention wasn't given "promptly" after the detention.

Although the s.10(b) right to counsel may be suspended during the earliest stages of an impaired investigation, the s.10(a) right remains.  You should explain the reason for the stop at the earliest opportunity (without compromising your safety).  The court commented that if the officer had merely asked "have you been drinking this evening?", the reason for the stop might have been made clear.

2008-10-06 Search Warrants - Is a Subpoena an Alternative?

- Would you think a nurse would notice if her husband broke the bones of her 5-month old child?  Police thought that nurse Incognito-Juachon, 2008 CanLII 36164 (ON S.C.) must have known what her husband did to her little girl; but she did nothing to protect the child.  She was charged with failing to provide the necessaries of life (s.215).  To prove she must have known about the injuries, the prosecution wanted to prove she was a nurse.  They sent a subpoena duces tecum to the manager of human resources, requiring the manager to bring employment records proving the accused was a nurse.  Defence complained that this was an "end-run" around the search warrant process.  The judge agreed.

With great respect to the judge - who was a leading law professor before his appointment - I'm not so sure that the existence of a search warrant power should eviscerate this kind of subpoena power.  But I'm not a judge.  You to take care when using this alternative to a search warrant or production order.

If you are going to do it, I suggest that you create a record to show that the judge or justice who issues the subpoena had good reason to order the witness to bring records.  Prepare an affidavit which explains why you think that the witness has the documents required.  Write a covering letter which asks the justice or judge to determine whether the documents ought to be produced.  You might refer to Incognito-Juachon, and write "With great respect to Judge Trotter, I believe that your power to order a subpoena duces tecum was not curtailed by the enactment of s.487; but I do ask you to consider whether in this case the documents should be produced despite the accused's rights under s.8 of the Charter."

2008-10-04 Detention - Interviewing a Possible Suspect

- Early in the investigation of a suspicious death, police learned that Mr Pomeroy, 2008 ONCA 521 drank with the deceased in the evening before her death.  They also knew that his probation order prohibited him from drinking.  They invited Mr Pomeroy down to the police station to give a witness statement.  The interviewing officer planned to arrest him after the interview for the breach of probation.  The officer didn't advise him of his rights.  Mr Pomeroy voluntarily attended, and made remarks which helped get him convicted of murder.  After the interview, the officer arrested him for breach of proabation.  Defence complained that Pomeroy was detained from the beginning of the interview because the police planned to arrest him at the end of it.

The court found that the police did not detain Mr Pomeroy until the end of the interview.  They were impressed by the fact that the police interviewed Mr Pomeroy only for information about the victim, not his offence of breaching probation.

While the conclusion seems obvious, at law it wasn't so clear.  Some judges and counsel accept the idea that a person might be detained if the police officer intended to arrest the person after the interview.

Although this decision supports the tactic of interviewing suspects on a voluntary basis without Chartering them, be wary of using it.  If you have reasonable grounds to believe that your suspect is guilty, and you attempt a "voluntary & un-Chartered" interview with the intention of arresting at the end of it, you can still expect an argument at trial based on a line of Ontario decisions: R. v. Moran (1987) 36 C.C.C. (3d) 225 (Ont C.A.); R.v. Johns (1998) 123 CCC (3d) 190 (Ont C.A.).

2008-10-03 Crime Spree - Evidence of Cessation on Arrest

- Every so often, a crime spree stops when police arrest a suspect.  Doesn't this help prove that they arrested the right person?  In Islington, England, over a 3-day period, 7 women complained that they were robbed by a masked man bearing a knife.  British police arrested Mr Wilson [2008] EWCA Crim 1754, when they found him in the area, masked.  He was carrying a knife.  His residence contained property from some of the robberies.  After his arrest, there were no more similar robberies in the area.  The court admitted a police officer's evidence that she searched the computer for more similar complaints after the arrest, and found none.

This is the first time I've seen such evidence accepted by a common-law court.  It's an English decision, and therefore not binding in Canada.  However, the logic makes sense.  If your crime spree (arson, robbery, rape) ends after the arrest, you might consider documenting this for your prosecutor.  Because it's contraversial evidence, you may have to include a copy of this decision before anyone takes the evidence seriously.

2008-10-03 Right to Counsel of Choice - Locating Counsel - How Hard Should you Try?

- Mr Mainse 2008 BCSC 1309 drank too much alcohol and drove.  A police officer stopped him, demanded breath samples, and asked if he wanted to call a lawyer.  Mr Mainse named a specific lawyer, but he didn't know the phone number.  (It was in the phone book, but nobody looked.)  He asked the police to call his grandparents' number, so that he could get the phone number from them.  The officer put him in a room with a phone with no dial.  She dialled the grandparents' number for him, but nobody answered.  She suggested Legal Aid, but they didn't answer the officer's call.  She suggested he talk to a local lawyer and Mr Mainse acquiesced.  She had spent 6 minutes dealing with access to counsel.

The court found that the officer breached Mr Mainse's right to counsel of choice because she made insufficient efforts to locate the right phone number.  The evidence was excluded, and Mainse escaped conviction.

Because your prisoner is in your control, he can't exercise his right to counsel without your help.  I think reasonable sources you can consult are:

• Phone book - white and yellow pages
• Legal directory - make sure you have a reasonably current one on hand
  
• Friends and relatives that the prisoner says know who the lawyer is and how to contact him/her.

• In most provinces, the Law Society publishes a legal directory on the internet.  See this link for a list.  If you can't find the lawyer's number there, you're not likely to find it anywhere.

2008-09-29 Wrongful Conviction

- The Report on David Milgaard is in.  I found it well written and worth reading.  Mr Milgaard spent 23 years in jail for a rape-murder he didn't commit.  His supporters and the press alleged misconduct by police, prosecutors and defence counsel.  The inquiry commissioner disagreed with most of these allegations, but identified some police procedures which could be improved.

• Always seek the truth from a witness; don't pressure a witness to say the "right" thing.  The commission found insufficient evidence to prove that this occurred, but a gap in the investigative record suggested it.
• Audio or video-record your discussions with important witnesses.  Three key witnesses changed their stories, particuarly after a polygraph interview.  Nobody recorded the interview - typewritten summaries were created later.  This created the gap in the police records.  Milgaard's supporters called it a conspiracy and cover-up.  You don't need this kind of hassle decades after your investigation.  Record the conversation, and store the recording on file.
• Handle forensic exhibits so as to prevent cross-contamination.
• Don't skimp on reliable forensic techniques, like DNA testing where it is available.
  
• Investigate alternate suspects, even if your prime suspect has already been convicted.  The commissioner recommended that complaints after the conviction should be referred to the prosecution service for their direction on further investigation.
  
• Share information with other investigative agencies.

These findings are not new: previous inquiries and judicial decisions already identified their importance.  Police who continue to apply discredited investigative procedures risk censure.

Some other recommendations include:

• Before disposing of exhibits, formally ask the accused if he has any continuing interest in them.
• Keep investigative records or electronic copies of them for a long time after the investigation.
  

2008-09-18 Disclosure - Complainant's Criminal Record

- Ms Poulton told police that a man she knew - Mr Bowering, 2008 BCCA 347 - broke into her place and tried to rape her.  Defence asked for her criminal record, but the disclosure package said she had none.  Defence cross-examined her about criminal convictions: she denied having any.  After Mr Bowering was convicted for the B&E, she was charged with shoplifting.  That police report revealed that she had prior convictions under a different name.  The Crown disclosed this to defence.  The defence appealed, and the Court granted a new trial, suggesting to the Crown that it might not bother prosecuting Mr Bowering a second time.

Where the credibility of a witness is seriously at issue, many defence counsel will ask the witness if s/he has criminal convictions.  If the witness answers the question honestly, generally no harm is done.  If they lie, no end of trouble emerges, as this case shows.  As a prosecutor, I don't want the criminal record of every witness in every case.  Such excessive disclosure may discourage witnesses from assisting investigators.  But if a key witness has credibility issues, I like to review the criminal record with him or her before trial, so that there's no temptation to lie about the past when the defence lawyer asks.

2008-09-11 Youth Statements - Change the Form Again - New Principles

- Police arrested 15-year-old L.T.H. 2008 SCC 49 after a police chase.  In a videotaped statement, he admitted driving dangerously and causing bodily harm, but the court found that the interviewing police officer did not do enough to comply with s.146 of the YCJA.

The officer told the youth about his Charter rights, and reviewed a form which explained his rights under the YCJA.  The youth said he understood, and signed the waivers.  The majority said this was not enough.  At trial, the youth's mother testified that the teen could not have understood the form by reason of his learning disorder.  The majority said:

It appears that you must now inquire into the youth's understanding.  "What do you understand [this right] to mean?"  You must correct misunderstandings before any waiver becomes valid.

In addition, the court decided that we must pass the s.146 test beyond a reasonable doubt before a statement can be admitted.  As the minority pointed out, this is a significant departure from previous decisions.  This suggests that failing to videotape the conversation about the youth's rights will usually result in exclusion of any confession.  Mechanically reading the youth rights form will also likely result in exclusion of any confession.

2008-08-20 Right to Counsel - Detained for One Offence, but Suspected of Another

- A task force formed to investigate a series of brutal rapes.  A tipster suggested Mr Simon, 2008 ONCA 578 might be responsible.  Officers of the task force watched him steal a van, so they advised regular officers, who arrested him for the theft, and interviewed him about it.

The task force members then asked him to provide a DNA sample to clear him of his involvement in the rapes.  But they forgot to review with him his s.10(a) and (b) rights with respect to the rape.  The DNA matched.

The court found that there was a breach of s.10(b).  What saved the officers in this case was a well-drafted consent form, which included:

Because the consent form raised the right to counsel again, and because the officers offered him access to counsel again, the court found that their breach of s.10(b) was too minor to affect the admissibility of the DNA samples.

You might want to review what you wrote in your "voluntary consent" forms, to cover right to counsel.

2008-08-20 Agent of the State - What to Say to an Extortion Victim

- Years ago, police caught Mr Royz, 2008 ONCA 584 and Ms X committing fraud.  Ms X confessed all, and in exchange for her testimony against Mr X, her charges were dropped.  Mr Royz went to jail, but Ms X carried on with her life.  Her family and her employer never learned of her criminal activity.  Mr Royz wanted payback.  He wrote a book describing Ms X's involvement, and threatened to distribute it to all the people that mattered to her unless she paid him lots of money.  Expecting that he would call her back, she went to the police.

Suppose you want recordings of the conversations, what should you say to her?  If you direct her to record her conversations with him, she becomes your agent - an agent of the state.  According to Duarte, [1990] 1 S.C.R. 30, you must obtain judicial pre-authorization before such a recording becomes admissible.  On the other hand, if she acts on her own initiative, she can covertly record conversations between herself and any third party, without offending the law.  s.184(2)(a).

In a passing reference to the issue, the court in this case found that the officer had merely suggested to her that she might want to make such recordings in her own interest.  The court found this did not make her a state agent.

The difference to emphasize is between cooperation with your initiative to collect evidence and recording on her own intiative.  You might want to record this conversation with the complainant, so that you can later prove that you did not make her your agent.

2008-08-20 Detention - Defining Detention

- At the invitation of the manager of a notorious apartment complex, uniformed police attended one evening to try to prevent the incessant drugs and violence.  When they encountered Mr Nesbeth, 2008 ONCA 579, he swore and fled.  The officers told him to stop.  Instead, he blocked their pursuit with a shopping cart, and discarded the backpack he was carrying.  The trial judge said that the police didn't at first have any reason to stop him, and so the detention and search of the backpack were unconstitutional.  The court of appeal disagreed.  They noted that the detention didn't occur until the police caught him - by which time they had ample reason to suspect his involvement in criminal activity.  The fact that Mr Nesbeth abandoned his backpack eliminated his expectation of privacy in it.  A detention occurs after:

• a physical restraint of the individual; or
• a police direction or demand to an individual; the individual's voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and the individual’s reasonable belief that there is no choice but to comply.

2008-08-20 Stranger Identification & Lineups

- Almost 20 years ago, someone broke into a residence and assaulted a teenage girl, threatening her.  Fortunately, her mother interrupted the attack.  She later picked Mr Hanemaayer, 2008 ONCA 580 out of a photo lineup as the culprit.  The mother testified convincingly at the preliminary hearing.  Although the offence could well have netted him 6 years of jail, Crown offered him 2 years on a plea.  He was innocent, but he thought his case was hopeless, and so he pleaded guilty  The true culprit was Paul Bernardo, who lived 2 blocks away from the victim.  This month, Hanemaayer's conviction was overturned.

What went wrong in the identification?

1. The officer showed the photos all at once instead of sequentially.  Most police no longer use that procedure because psychologists have shown it's flawed.  If you're still using the old method, get with the times.
   
2. The officer told the eyewitness that she picked the "right" suspect.  This made her more confident when she testified in court.  Because of the temptation to comfort witnesses, some officers still do this.  Please don't.
3. Mr Hanemaayer's photograph looked different: it was blurred; the others were well-focussed.  This can happen to you, especially when your suspect has had no prior police attention.  You only get one chance to create a fair lineup.  Make sure the suspect's photo looks similar to the others.
   
4. The officer who conducted the lineup knew which person was the suspect.  The court worried that he could have drawn the witness's attention to Mr Hanemaayer deliberately or by mistake.  Some officers in small towns don't many staff.  If you can't find an officer unfamiliar with the case, then the officer who conducts the lineup needs to guard carefully against drawing the witness's attention to any particular photo even accidentally.
   
5. The procedure wasn't video-recorded.  The investigating officer couldn't be faulted.  In those days, nobody did.  Nowadays, it's essential, particularly for those officers who conduct the lineup while knowing who the suspect might be.
   

2008-08-07 Detention - Explaining Why

- After receiving a dispatch about a possible impaired driver, an officer pulled over Ms Ryan's 2008 BCSC 938 vehicle.  The officer didn't tell her why he had stopped her.  He asked her to step out of the car, and engaged her in conversation.  It wasn't until 9 minutes after he pulled her over that he told her he was investigating her for impaired driving. The appeal court overturned the conviction because the officer breached her s.10(a) right to be told why she was stopped.

Don't take this decision as the final word in these cases.  If the context makes it clear why a person is detained, then there's no requirement to recite a formal explanation.  If you don't yet know what's going on, then you can't explain in detail why a person's detained.
On the other hand, if you know why you're stopping someone, and you have no exigent circumstances, s.10(a) says you should tell them right away.

2008-08-07 Sexual Assault

- A common misconception about "sexual assault" involves the accused's motives.  Sexual gratification isn't an element of this offence.  Mr Nicolaou, 2008 BCCA 300, a drug dealer, suspected that the complainant stole some of his drugs.  He directed another woman to search her vagina for drugs.  Nicolaou appealed his conviction, saying that his purpose wasn't sexual; he just wanted to recover his property.  The appeal court upheld the conviction.  It wasn't just the part of the body involved, but the humiliatingly public search that made this a violation of the complainant's sexual integrity.

Not only does this case assist officers who investigate complaints of sexual assault, but it also warns officers who conduct cavity searches of suspects.   If you search your suspect in a private and respectfully, then it's a "search incidental to arrest".  But if you violate the suspect's sexual integrity, then it's a "sexual assault".

2008-08-07 Investigating Identity - Photographing the Suspect

- An eyewitnes to a commercial B&E saw the felon wearing a toque, driving away in the owner's van.  He called police, who soon found Mr Vankoughnett, 2008 BCCA 261 in the back of the van.  In the front seat they found the stolen cash register.  The police who found Mr Vankoughnett said he was wearing a toque, but they took no picture of it, nor did they note it in his effects when booking him into cells.  There were no break-in tools in the van.

The police showed the eyewitness no lineup, nor did they show him their prisoner.  At trial, Mr Vankoughnett denied the offence.  He explained that he was drunk, and climbed into a nearby van to sleep.  He denied wearing a toque.  He argued that someone else must have committed the crime, but abandoned the van.

The prosecution managed to get a conviction which survived appeal.  However, in hindsight, one can see how much easier this case would have been if the investigators had taken photos of the suspect as he appeared at the time of arrest.  I'm not just talking about the face.  In many cases, photographing the suspect's body - dressed as he was at the time you encountered him - can make a big difference.

Note that in B.C. at least, it appears clear that you can photograph a suspect on detention as well as arrest.  Multani 2002 BCSC 68 & Dilling 1993 BCCA.  Dang, 2007 BCPC 430.  See also Acosta-Medina 2002 BCCA 33.

2008-07-03 Motor Vehicle Accident Investigations in B.C.

- In B.C., peace officers investigating car accidents found themselves obliged to read complicated warnings to drivers, just to investigate simple matters.  (Powers; White)  Effective July 1, 2008, s.68 of the Motor Vehicle Act was amended to remove the obligation of drivers involved in serious accidents to report to police. (Search for "Accident Reports" in this link)  (They still have to report to ICBC.)  This should make a considerable difference.  At the scene of an accident, you can't compel the driver to explain what happened, but on the other hand, if you just ask what happened, and the driver answers, then the evidence will likely be admissible.  (If you tell them they must answer, we will have a voluntariness problem.)

2008-06-21 Hearsay & KGB statements

- Ms Pawliw watched a robbery, but refused to give a statement when police asked.  After the felon assaulted the victim a second time, she and another gave statements identifying Mr Devine 2008 SCC 36.  At trial, she claimed she had described him based on rumour, but the detailed description in her statement convinced the judge otherwise.  The Crown relied on her statement, not her recantation at trial.  The judge admitted the statement.  The investigating officer took some intelligent steps to ensure the admissibility of the statement:

• the officer followed the KGB procedure
• the statement was videotaped and recorded.
• before Ms. Pawliw gave her statement, a police officer explained the seriousness of making the statement, the possible consequences of giving a false statement,
• The officer asked her to swear to the truth of the information she gave

Note that this exception to the hearsay rule only admits what the witness knows from personal observation.  If Mr Pawliw had really heard that Devine did the robbery from someone else, her statement would be inadmissible, no matter how carefully the officer took her statement.

2008-06-13 Search & Seizure - Consent Search of a Computer

- Mr Pommer 2008 BCSC 423 and his wife were on bad terms.  She and her daughter slept in the master bedroom, and he slept elsewhere.  The daughter discovered a hidden video camera set up and recording in the master bedroom.  The wife kicked him out of the house.  He took his laptop, but left the family computer behind.  Pommer and his wife signed a separation agreement which said that the property remaining at the house was family property, to be divided later.  The wife asked a police officer to examine the family computer to see if Mr Pommer used it to distribute pictures of the daughter on the internet.  The officer, who dabbled in forensic computer analysis in his spare time, took it home and undeleted some files.  He found child pornography on Mr Pommer's password protected account.  Defence complained that he should have got a warrant.  The judge disagreed.  The evidence was admissible because the wife consented to the search.

I think that password protection is a factor that counts for an expectation of privacy, but possession, control, and lawful ownership of a computer counts for more.

2008-06-13 Charter s.10 - "Detention" at the Early Stages of an Investigation

- Mr Azzam, 2008 ONCA 467 and his girlfriend reported that his step-mother was missing.  Police found her body, with 30 stab wounds, in her car in a parking lot.  A witness had seen someone of Azzam's general description leaving the vehicle in question, celebrating.  Police were suspicious, but felt they did not have grounds to arrest Azzam.  They put surveillance on him.  They invited him and his girlfriend in to the police station for questioning.  The girlfriend told police that Azzam had been at home with her and a friend at the time of the murder.  Separately, Azzam started telling the same story.  But then he told them he had been with his step-mother in the parking lot -- but she was fine when he left her.  Only then did the officers arrest him and tell him his rights under s.10 of the Charter.  Defence complained that police should have told Azzam his rights from the beginning.

The court found that no rights were violated.  Detention triggers s.10.  Up to the point when the officers arrested him, they were prepared to allow him to leave.  They said and did nothing to compel him to attend the police station, nor to stay.  Indeed, they had discussed beforehand whether to detain or arrest, and agreed that they would not detain or arrest unless new information came up in the interview.

This case doesn't make any new law.  It just illustrates the value of being clear when you are and aren't detaining people.  I would just add that documentation made at the time sure helps me later in court.  Tape recorders and videotapes are terrific.

2008-06-12 Drafting - Paraphrasing and Avoiding Ambiguity

- During the drug investigation of Lee, Tau and others, 2008 BCCA 240, a police officer wrote this paragraph in a wiretap affidavit.  Can you tell who "he" and "him" refer to?


Because of the ambiguity, the court ignored this paragraph.  Fortunately, it didn't destroy the entire case, but ambiguity can.  When describing a conversation, quotes work better: Waldock said "Quotes always helped me in the past".  Inserting explanations in parentheses may also assist.  eg. Waldock said that explanatory notes always helped him [Waldock] in the past.

2008-06-05 Right to Counsel - Fixing a Breach with a "Fresh Start" -

When police first interviewed Mr Whittwer 2008 SCC 33 for sexual offences against young children, he was in custody for another offence. Mr Wittwer gave an incriminating story but the investigator had forgotten to explain his rights to counsel. The statement was inadmissible. Unaware of that statement, a second officer interviewed Mr Whittwer, telling him that the first officer had asked him to do so. Although Mr Whittwer now had counsel, he gave another statement.

The officers feared this wasn't a sufficient "fresh start" initial Charter breach. Many months later, a third officer interviewed him, pretending to have no knowledge of the earlier statements. His purpose was to obtain a statement independent of the others.  Whittwer talked again.

The trial judge and the appeal court found that the third officer sufficiently separated the last statement from the others that the prior breaches of s.10(b) did not affect the statement's admissiblilty.  The Supreme Court of Canada unanimously disagreed.  They noted that the third officer did not tell Whittwer that the previous statements were inadmissible.  It was only when the officer finally acknowledged that he did know what Whittwer said previously that Whittwer gave him a statement.  They ordered a new trial, without the statement.

So how do you make a "fresh start"? Factors the court will consider include:

• A new officer, who gives a proper
• s.10 Charter advice,
• primary warning,
• secondary warning, and
• access to counsel (if desired).
• The passage of time helps.
• Feigning ignorance about earlier statements may also help.
• Telling the suspect that the previous statements are/may be inadmissible may also help.
  

But it's easier to do the investigation correctly from the beginning. If your suspect is detained, and you're investigating a new allegation, you should give him his rights.

2008-06-05 Impaired Driving - "consumed" or "contained"?

- When testifying, a police officer told the court that he smelled liquor on Ms Church's 2008 BCSC 686 breath and formed the suspicion that she had "consumed alcohol".  The trial judge found this did not suffice for making a screening device demand because s.254(2) requires that you suspect that there is alcohol "in the person's body".

The judge on appeal overturned this extremely literal interpretation.  However, it does highlight the importance of knowing and using the words of the legislation which empowers you.  Impaired driving cases are particularly vulnerable to this kind of literalism, and on many issues, it works for the defendant.

Here are some examples.  I've seen decisions on each phrase in which failure to convey the required meaning resulted in aqcuittal.  It doesn't mean you have to recite these phrases mechanically in court, but you can't use the power of the statute unless you can testify that these preconditions were true.

Did you:		Section
"find" a person who was "operating" or "had care and control" of a "motor vehicle"	RSD	254(2)
"suspect" that the person had "alcohol in the person's body"	RSD	254(2)
screen the person's breath with an "approved screening device". (see this list for the correct names of the approved screening devices)	RSD	254(1)
"believe" (or "form the opinion") that the person committed: - "within the preceding three hours" - "an offence under s.253": "ability to operate a motor vehicle" was "impaired by alcohol" or "the concentration of alcohol in the person’s blood" exceeded "eighty milligrams of alcohol in one hundred millilitres of blood")	BTA	254(3)
"believe" (or "form the opinion") that by reason of a "physical condition of the person", the "person may be incapable of providing a sample of his breath" or " it would be impracticable to obtain a sample of the person’s breath"	Blood	254(3)
observe the suspect to provide breath samples "directly into" the approved device	BTA	258(1)(c)(iii)

2008-06-03 Impaired Driving - "Blow in My Face"

- A police officer stopped Mr Weintz 2008 BCCA 33 because of a complaint about his driving.  His car smelled of booze, but the passenger claimed to be drunk, and that any smell of liquor came from him alone.  The officer asked the driver to get out of the car and blow in the officer's face.  He smelled enough liquor to make a screening device demand, which led to Weintz's conviction.  Last year, I told you that the B.C. Supreme Court disapproved of this way of determining whether a detained driver had alcohol in his body.  Now the B.C.C.A. says this investigative technique is okay in B.C. for the purposes of establishing grounds for a demand.  It remains contentious in Ontario. (Agapito, 2007 ONCJ 193)

2008-06-03 Voice Identification of a Prisoner - "Talk to me, but not about the offence..."

- From telephone intercepts, police knew that "Keith" was a drug trafficker.  But they didn't know who "Keith" was.  While Keith Meyers 2008 NLCA 13 was in custody for an unrelated offence, an officer visited him in cells to see if he recognized the voice.  The officer never told him why he was there.  The court found that the s.7 right to silence did not protect identity as may be determined by the sound of a person's voice.  Nor did s.10 apply here because the officer was not questioning the suspect about the offence.

Beware.  Other courts have taken a more protective view of voice identification.  If you take it in violation of s.10, or play tricks on detained people to get them to talk, voice identification may be excluded.  (Lepage 2008 BCCA 132).

2008-06-02 Arrest at the Threshold - Can you Reach In?

- Witnesses watched when Mr Desrochers crashed his motorcycle.  They tried to help him, but he was drunk, and drove away.  They directed police to his house.  An officer attended and knocked on the door.  Desrochers' wife answered, swinging the door open into the house.  The officer stepped past the threshold, but stood on that part of the floor over which the door had swept.  Mrs Desrochers held on to the door as she spoke with him.  Mr Desrochers eventually came to the door, and as a result of the officer's conversation with him, the officer arrested him.  The trial judge found that the officer entered the house on the implied invitation of the wife, and that the arrest therefore did not offend s.8.  The trial judge quoted another judge's take on the police authority to knock and investigate:

Where the sole purpose of the police officer is to ask questions of the homeowner, nothing can be gathered by the government, in the sense of unwitting disclosure by the occupant, until he or she chooses to speak. The police intent of facilitating communication, even investigative questioning, does not exceed the bounds of the implied right to approach and knock and is, accordingly, not trespassory or in breach of s. 8 of the Charter.

The appeal court agreed 2008 ONCA 255.   This goes further than the Hope, 2007 NSCA 103 case I mentioned earlier this year.

2008-06-02 Trafficking - Holding the Phone

- When police called a dial-a-doper, a car six minutes later, and the dealer in it sold drugs to an undercover officer.  Mr Jama, 2008 MBCA 73 was a passenger in the car who took no active part in the drug transaction, but in his pocket was a cell phone.  The cell phone's number differed from the number which the police had dialled, but when they dialled the number again, Mr Jama's phone rang.

Was he a party to the drug transaction?  The court upheld the conviction on the strength of expert police testimony that in all his 20 years of drug investigations, he never found a passenger in a dial-a-doper car who wasn't part of the drug operation.

I think this is as far as you can push the law of party to an offence.  I suspect that the facts in this case might not lead to a conviction in other jurisdictions.

2008-05-27 Youth Statements - The "Waiver" Form

- Police arrested young Mr R. v. E.A.D.M., 2007 MBCA 158 for breaching his recognizance.  At the police station, before obtaining an inculpatory statement, they went through a form called "Young Person Waiver Form".  His lawyer complained that the police should have given him access to counsel before getting waivers.  The argument worked in his previous robbery case.  It didn't work this time.  The court pointed out that the form isn't just a waiver.  It explains the rights the youth has before eliciting waivers.

Young Mr M. was convicted of the breach of recognizance, but he beat the robbery charge.  The difference between the two cases is the approaches taken.  One officer set about getting a waiver, but the other officer explained rights.  Both got statements.  Only one statement stuck.

I suggest that these forms should not be called "Young Person Waiver Form", but something like "Young Person's Rights".  This may help the officer do them correctly, and will make a more favourable impression on the court.

I observe that a debate rages as to whether to use these forms at all.  Some expert interviewers prefer to explain the youth rights in a natural conversation with the youth.  This helps develop rapport.  Mechanically reciting the form doesn't.  Unfortunately, prosecutors observe that even experienced interviewers frequently miss one or another of the many requirements of s.146 of the Youth Criminal Justice Act.  If you dispense with the form, use a checklist or a copy of the section in your interview.  Don't proceed with your interview unless you have covered every item.

2008-05-26 Right to Counsel and Violent Prisoners

- Police arrested Mr Smith 2008 ONCA 127 for dangerous driving, but they believed he was involved in a home invasion which occurred minutes earlier involving firearms.  They told him he was under arrest for the driving, but they didn't mention the home invasion.  They didn't find the firearms in his car.  He demanded to talk to his lawyer, but he behaved so belligerently that the officers declined to let him use the phone.  They explained to the judge that they feared for their safety in the police station, and besides, he might call someone to arrange for the disposal of the missing firearms.

Before he got access to counsel, police overheard him discussing the home invasion with another prisoner.

The judge didn't believe that the officers couldn't control a prisoner in their custody, and didn't see how a call to a lawyer would result in the hiding or destruction of evidence.  Therefore, the judge found that the officers breached Smith's rights, but admitted the conversation anyway.

The court of appeal excluded the conversation, and ordered a new trial.  A factor that may have tipped the balance was the s.10(a) breach.

Once you're at your police station, you need very strong reasons to prevent your prisoners from

1. knowing why they're detained, or
2. contacting counsel.

If your prisoner is so violent that you expect harm or damage to your property, then document clearly why.  I suggest video recordings, and verbatim quotes.

Some officers have told me that giving access to counsel calms some of the violent ones down.  I have no doubt that you folks can also tell me about prisoners who got worse after talking to counsel.  It's a judgment call -- just be aware of how the courts will see it.

2008-05-24 "Constructive" Possession - Who's In Charge?

- After Mr Bremner  2007 NSCA 114 went to jail, he continued to direct others in his drug trafficking business.  One of his employees, Jackson, was a police informer, and ultimately, a police agent.  Bremner told Jackson to gather a package of drugs for delivery into the prison.  Jackson's police handlers instructed him to do it, under their supervision.  Jackson complied, and gave them to the mule for delivery, but police arrested everyone before the drugs reached Bremner.  Was Bremner in possession of the drugs?  The court said:

But Bremner never spoke to Jackson after Jackson actually bought the drugs.

The judge said that Bremner had such control over Jackson that he could rely on Jackson doing what he was told.  Therefore, the judge inferred that Bremner knew that what he asked was being done, even if he gave no further directions in the matter.  (I think this issue could more easily be solved by looking at party liability: s.21 or s.22 - abetting or counselling the commision of an offence.)

Defence also argued that the police were in control of the drugs, and therefore Bremner wasn't.  The judges found he was in "joint" (excuse the pun) possession with the police.

Therefore, a crook can be in possession of a thing he never touches, so long as he has knowledge and control.

2008-05-23 Leaving Canada - Constitutional Rights in Oppressive Places

- Omar Khadr 2008 SCC 26 was born in Canada, but when he was 15, American soldiers arrested him in Afghanistan.  They say he was throwing grenades at them.  He spent the last 6 years in Guantanamo Bay, Cuba, charged with murder and terrorism.  Canadian officials went there and interviewed him and shared some of what they learned with American officials.  The US Supreme Court has since found that the conditions there violate U.S. law and International Conventions.

To help Mr Khadr defend himself against the charges, his lawyers asked Canada to disclose what he said to the Canadians, and what they told the Americans.  Canada said "no" because he's not charged in Canada, and the Canadian officials were merely following the law of a foreign jurisdiction.  The Supreme Court of Canada said "yes".  Ordinarily, Canadian officials in foreign jurisdictions are not bound by the Charter, but when they participate in activities which violate Canada's treaty obligations, then the Charter does apply.  This merely repeats what the court said last year in Hape.

What worries me is that the court determined after the fact whether Charter rights apply.  But you folks need to know before you go in what rules to follow.  How do you determine whether the country you're going to complies with Canada's international treaty obligations?  Here are some ideas:

• Get legal advice from the Department of Justice
• Call Amnesty International to determine what criticisms they have of the jurisdiction in question
• Get legal advice in the jurisdiction in question: do the procedures there comply with international law?

2008-05-22 Sealing Orders - Blankets or Bikinis?

- Ontario police officers investigating the 2006 murder of 8 men obtained search warrants for 3 homes and a car in Winnipeg.  They also got a blanket sealing order.  Apparently, the search was successful: they laid charges against a group of people.  The press (R. v. CBC, 2008 ONCA 397) -- ever curious -- applied for an order unsealing the warrants and the supporting materials.  Defence and Crown opposed, but the judge permitted some materials to be released.  One of the defendants appealed.  The court of appeal criticized the general use of blanket sealing orders and blanket publication bans.  It said that instead, police should be limiting the sealing orders and publication bans to cover only those little details which cause embarrassment.  As much as possible of your beautiful investigation should be exposed to the public eye.

Realistically, when you're in hot pursuit of leads to a crime, you don't have much time to sort out:

• publishable materials,
• unpublishable materials which can be released to the press,
• materials which can be released to defence counsel on undertakings,
• materials which can be released to accused personally,
• holdback materials,
• privileged materials.

Unsurprisingly, most police seek blanket sealing orders.  I suggest a compromise with the courts: apply for an interim sealing order with an order bringing the matter back before the issuing justice / judge to review the sealing order and publication bans on a specific date.  That gives you some lead time to work out what can be released, what can be published, and what can be disclosed and what must be sealed.

2008-05-21 Police Experts Beware

- A forensic pathologist in Ontario testified in hundreds of infant death cases.  But some of the prosecutions based on his evidence were completely unjustified.  This lead to a public inquiry into pediatric forensic pathology in that province, lead by Judge Goudge.  This inquiry raises questions about scientific method in forensic evidence generally.  Why do you care?  Because this focus will inspire smart lawyers to undercut any police expert relies on experience instead of scientific method and repeatable experimentation.  If you're an expert, how do you prepare?  Study the criticisms of forensic science.

1. Are the limits of your expertise clear?
2. Can you operate without the "assumption of discernable uniqueness"?
3. Are your results repeatable?
4. What are your error rates?
5. Does your method involve any risk of confirmation bias?  If so, can you change to avoid it?
6. Do you have reporting standards?

A natural response will be to take refuge in the familiar: "we've always done it this way".  That's a trap.  A better response is to apply scientific method to your discipline.

2008-05-17 Youth Sentencing

- In R. v. D.B., 2008 SCC 25, the Supreme Court of Canada, in a 5:4 split, found that a reverse onus provision of the Youth Criminal Justice Act is unconstitutional.  A youth who committed a most serious offences (murder, manslaughter etc), must be sentenced as an adult, unless he can prove that a youth sentence would suffice.   Those who find the YCJA too lenient already may take solace in knowing that a bill to toughen the YCJA is already before Parliament.  It seems to me that this decision increases the likelihood that the politicians will increase the maximum sentences available under the YCJA.

2008-05-15 Search & Seizure - Riding Another Official's Coat-tails

- I wrote last week that when relying on another official's powers to enter or search, you should be very clear who's in charge and why you're there.  Here's another decision.  A social worker called for police back-up when she entered Mr Renshaw's, 2008 ONCA 379 residence.  Police found a grow-op.  Too bad the social worker didn't have sufficient lawful authority to enter.  Fortunately, the officers acted in good faith, merely assisting the social worker, and the social worker really did have reason to believe that there was a child in need.  The court admitted the evidence despite the unlawful entry.

2008-05-15 Testifying - When to Express Your Opinions

- After Mr Kong went gambling with his good buddy Mr Van 2008 ONCA 383, someone stabbed him, nearly killing him.  At first police suspected an Asian gang was collecting debt, but Mr Kong identified Mr Van as the killer.  The investigators abandoned the gang theory and focussed on Mr Van.  At trial, defence suggested that the investigation was incomplete, and that the police had not sufficiently investigated the gang theory.  To answer this theory, near the end of the trial, the lead investigator told the jury that "a lot of information" came in from the other investigators which established that Van was the attacker.  The officer told the jury "...in my opinion [Van] is the one responsible for this act."

The court of appeal quashed the conviction.  The officer had given the jury the impression that there was other evidence which established the accused's guilt which had not been presented to them.  But a jury must decide the case only on the evidence presented in court.  While the officer's beliefs during the investigation would have explained why the officer abandoned the "Asian gang" theory, the officer's belief at trial in the guilt of the accused gave the jury no further evidence of guilt, but could have persuaded them to convict just because they trusted the officer.

In court sometimes you must give your opinion about the guilt of a suspect, and sometimes you must not.  Generally, your opinion and hearsay evidence supporting it are:

1. appropriate when the court wants to know whether you had grounds to arrest, demand, detain or search, but
2. inappropriate when the court (particularly the jury) is trying to determine guilt or innocence.

Therefore, listen carefully to the question.  If a lawyer asks you what you did, don't explain why.  Stick to what you yourself did and observed, and avoid hearsay - what witnesses or other officers told you.

But if they ask you "why", give full reasons including your observations, hearsay from others and what inferences you drew.

2008-05-09 Restitution: Aiding the Victim or Abuse of Process?

- Mr Wolf, 2008 ONCA 352 defrauded some people.  An overzealous prosecutor told him that unless he was prepared to pay lots more restitution, he would go to jail.  Defence complained of abuse of process.  Although it's understandable that prosecutors and police want victims compensated, it's an abuse of process to use prosecution or threats of prosecution as a debt-collection system.  Prosecution is for control of crime, not collection of money.  In this case, the court found insufficient evidence to establish abuse of process.  The prosecutor's words were merely "ill-advised".

But be careful not to threaten or initiate prosecution just to collect money owed to the victim.  You could find yourself at the wrong end of an abuse of process allegation.

2008-05-08 Right to Counsel - Cross-examination by Counsel During the Investigation

- When police arrested Mr McLean, 2008 BCSC 553 for impaired driving causing bodily harm, he asked to speak to counsel. After he did, his lawyer demanded that the investigator answer counsel's questions about the grounds for the breath demand. The officer refused.   At trial, the lawyer complained that he could not advise his client without first questioning the officer.  The judge dismissed his complaint.

I can't say that you should never tell counsel what's going on.  In R. v. Fitzsimmons (2006), 216 C.C.C. (3d) 141 (Ont. C.A.), the court hinted that you might have to explain to the lawyer information that the lawyer can't get from the client.  Perhaps this might apply when you have an intellectually challenged prisoner who doesn't understand what's happening.  In the usual situation, however, you don't have to answer counsel's questions about your investigation.

2008-05-08 Search & Seizure - Riding Another Official's Coat-tails

- A by-law inspector went to inspect a commercial premise where the business licence had expired.  An occupant, Mr Kostecki, 2008 BCSC 551, didn't seem to want to let him in.  Something about him worried the inspector.  The inspector and asked a constable to stand by to keep the peace.  Local by-laws authorized the inspector (but not the police officer) to enter without a warrant.  Once the constable arrived, the inspector entered.  The constable stood inside the door.  The inspector found a large transport trailer but it was too dark to see inside it.  He asked to borrow the officer's flashlight.  Instead of lending the flashlight, the police officer shone it into the trailer himself, and found a grow-op.  The judge found that the officer's entry into the premise was lawful because he was merely assisting the by-law inspector to exercise his powers.  But the judge found that when the officer shone his flashlight into the trailer, he wasn't just assisting, but searching.  Without authority.  In violation of s.8 of the Charter.  (The judge let the evidence in anyway under s.24(2).)

This judge drew a very technical distinction between being present to assist and searching.  That's not what's important in this case.

What's important is knowing your role and powers when you enter a private place.  When you assist another official who has authority to enter or search a private place, be very clear who is in charge of the entry or search.  In this case, if the officer had merely asked the by-law inspector "I won't let go of my flashlight, but I'll shine it where you tell me", then the search would have been the inspector's not the constable's.  Things might have been simpler if they had discussed their roles before they went in.

2008-05-08 Detention - s.10(a) - Explaining Your Reasons

- Police received an incomplete description of a vehicle being driven as if by a drunk.  Later, an officer found a similar vehicle, and pulled it over.  Mr Herter, 2007 ABQB 756 was driving.  His passenger was drunk, and the car smelled boozy.  The officer did not tell the driver why he stopped the car, but asked the driver to step out.  The driver stumbled and his breath smelled of liquor.  This led the officer to make a breath demand.  Defence complained that the police obtained the evidence in violation of s.10(a).  This judge didn't find a Charter breach, but noted that other judges would.

There are no specific magic words required, but when you detain someone, the circumstances, or your words, or both, must convey to the suspect the reason for the detention.  This applies to speeders, drug growers and murderers alike.

I raise this simple point again because I'm seeing a rise in s.10(a) litigation. 

2008-05-05 Consent Search - "Voluntary" consent

- Someone murdered a 58-year-old woman at her farm, leaving seminal fluid on her body.  Police took voluntary blood samples from people in the area, including the father of Mr Karas 2007 ABCA 362.  That sample indicated that a relative was the killer.  Police sought a DNA sample from Mr Karas.  He baulked.  They told him that he was not a suspect at that time (false), and that the police would be a "thorn in his side" until they got a sample of his DNA.  Fortunately, they also went through a form which made it clear that Karas could lawfully refuse to give a sample.  He gave a sample.  It matched.  The jury convicted him, and the court of appeal upheld the conviction.

What troubled me about the case is that the trial judge required the Crown to prove beyond a reasonable doubt that the sample was given voluntarily.  In the past, the standard for a consent DNA sample has been only proof on a balance of probabilities.  The appeal court said nothing about the trial judge's choice of standard, but agreed that the voluntariness analysis should match the voluntariness analysis in the taking of statements. (Detailed paper here.).  I am heartend to find that the Ontario Court of Appeal rejected this high standard of proof in R. v. Colson, 2008 ONCA 21.

The form that the officer used saved the day.  When seeking a voluntary DNA sample, I strongly recommend that you use a written form.  A good example may be found in the case of Nicholas (2004 Ont CA).  I recommend that you record the process of obtaining consent on audio or video.

2008-05-05 Encrypted Data - Obligations of Disclosure

- Is the Crown is obliged to disclose encrypted data to defence if the Crown can't decrypt it?  Police seized data from Mr Beauchamp, 2008 CanLII 27481 (ON S.C.) pursuant to a search warrant.  Some was encrypted, but their software broke the code.  Some was encrypted too well to decrypt.  Defence demanded copies of the encrypted data, but wouldn't say what it was, nor what the password was.  The Crown refused.  The judge agreed with Crown's decision.  The Crown didn't fully "possess" the data because they didn't know what it was; not knowing what it was, the Crown couldn't limit disclosure to prevent misuse of the data; and not all the defendants would know the password, so some could have an unfair advantage over others.  Canadian courts take their first tentative steps into the difficult world of data encryption.

2008-05-06 Inventory Search

- If you impound a car pursuant to the Motor Vehicle Act, you may be accountable for the property in it.  Therefore, for civil purposes, you might want to inventory its contents: Is there anything dangerous or valuable in the car?  This is often referred to as an "inventory search", and some police forces have policies encouraging them.

During an inventory search, if you encounter evidence of an offence, like drugs for example, you should seize them.  According to R. v. Sinclair, 2007 BCPC 0101, the evidence will be admissible.  In Ontario, this has been the law for over 10 years.  This is the first decision in B.C. I've seen which applies this idea, and it's the lowest court on the ladder.

Always be very clear, when doing an inventory search, why you're doing it.  Don't do an inventory search because you think it will advance a criminal investigation.  In those circumstances, judges generally exclude the evidence.

2008-05-03 Experts & Bad Science

- The Crown presented a very strong case that Mr Reeve, 2008 ONCA 340 committed a first degree murder.  One small part of the evidence was the opinion of a toxicologist that the victim drank alcohol no more than 20 minutes before his death.  It turns out that the toxicologist was wrong, and now the entire trial - which was long and complicated - must be done again, 9 years after the death.

Investigators and prosecutors often push their experts to see how much information science can provide about the case.  Experts like to be helpful.  Unfortunately, this can tempt experts to stray outside their expertise.  Therefore, regardless of the field, experts should stick to reliable science, and be aware of the limits of their knowledge.  The rest of us should ask, but not pressure, the expert for any other information that the expert can provide.

Experts: beware of thinking too much of your expertise.  I've seen several examples recently of accident reconstruction experts who concluded that no further information could be obtained from the accident scene than what they found.  None of them considered the possibility that engineers may have forensic skills that they did not.

2008-05-01 Possession - Who Had the Keys?

- Mr Hehn 2008 BCCA 170 rented a storage locker for seven months.  Someone put $1.5 million worth of cocaine into it.  While police watched, a Mr Lilford went to Mr Hehn's house, and then the two of them went together in Lilford's truck to the storage locker.  Lilford moved two boxes of cocaine from the locker to his truck.  Lilford secured the locker.  When police arrested them, they found only Mr Hehn had keys to the locker.  When police searched the locker, they found more cocaine, and Hehn's personal possessions.  Did Hehn know about the drugs in the locker?  At trial Hehn testified that he gave copies of the keys to the locker to various people, including Mr Lilford.  He swore he knew nothing about drugs in the locker.  During the arrest, police found no keys for the locker on Mr Lilford.

The trial judge acquitted Hehn.  The appeal court upheld him.  The judge wasn't sure that the police searched Mr Lilford and the area around him sufficiently to be certain Lilford had no keys.  The judge wasn't sure that a high level trafficker wouldn't risk his investment in the storage locker of an innocent dupe.  The trial judge wasn't sure that Hehn lied about his knowledge.

Often, the hard part of proving possession of drugs or stolen property is proving what the possessor knows about it.  When several people could have put it there, "I didn't know" is an easy assertion to make and hard one to disprove.  If it's in a locker, you want to know how many keys to account for, and where they are.

2008-05-01 Possession - Proceeds of Crime - Who Knew?

- By way of further example, consider Mr Nguyen, 2008 ONCA 335, who drove a truck containing marijuana grow equipment, and $192,000 hidden in packages.  The trial judge found that the money was proceeds of crime and that Nguyen knew the money was in the truck.  But the judge didn't specifically find that Mr Nguyen knew that the money was proceeds of crime.  The Court of Appeal overturned the conviction and sent the matter back for retrial to see whether the Crown could prove what Nguyen knew.

2008-04-30 The Smell of Marijuana

- The B.C. Court of Appeal says that no expertise is required to recognize the smell of marijuana.  In an ITO to search Mr Whitaker's 2008 BCCA 174 house, an officer recounted that he received reports from clerks in a money exchange that money from Whitaker's house smelled of marijuana:

"Given the prevalence of marihuana in our society it was open to both the justice of the peace and the trial judge to accept that the person(s) who prepared those reports could identify its odour.  Marihuana is but one of many substances whose odour is recognizable by a large segment of the population.  The fact that marihuana is illegal does not mean that its odour should be treated any differently than the numerous other smells to which people are regularly exposed.  A person does not have to use marihuana to be able to identify its distinctive odour:  R. v. Cornell, 2001 BCPC 265 at paras. 16, 17."

This is quite a departure from the usual practice, which requires you to establish how accurately a person can recognize the smell.  When testifying why you believed a smell was marijuana, I suggest that you continue to recount how often forensic analysis confirmed what your nose told you about substances you suspected were marijuana.

This court's opinion may be unique to B.C., where public use of marijuana might be a teeny bit more common than in other provinces.

2008-04-30 Search Warrants - Arresting the "Found-Ins" & Searching the Cars

- When police went to Mr Whitaker's 2008 BCCA 174 house to execute a search warrant, they arrested everyone they found on the property and searched the vehicles they found there.  Unfortunately, the information in the ITO did not tell them who was involved in the trafficking and production they believed was occurring on the property, and the warrant authorized the search of buildings, but not vehicles.  The arrest was unlawful -- the officers should have detained.  The search of the vehicles was also unlawful.  (However, the trial judge found that the officers acted in good faith, and admitted the evidence.)

When drafting your warrant, consider whether it should authorize the search of vehicles on the property.

When attending to execute the warrant, get all officers involveed to consider what information you have about the guilt of the people you find at the property.  Depending on how much you know, you may be justified in arresting, detaining, or merely releasing the people you find.

2008-04-26 Age of Consent - Bill C-2

- This is the last weekend that most adults can have sex with 14-year olds.  On May 1, 2008, the age of consent rises to 16, except for married people or people who got pregnant or had a baby together before the deadline.  However, 14- and 15- year olds can consent to sex with people up to 5 years older than themselves.

2008-04-25 Search and Seizure - Police Dog Sniffs

- The Supreme Court of Canada ruled this morning on the constitutionality of using a police dog to sniff out drugs without a warrant.  It seems that you need reasonable suspicion before deploying a police dog, and that suspicion must be based on objective grounds.  Unfortunately, the judges disagreed with each other on many points.

Mr Kang‑Brown, 2008 SCC 18 took a bus from Vancouver to Calgary.  When he arrived a plain-clothes police officer approached him and spoke with him.  The officer noticed some very minor indications that Kang-Brown might be transporting drugs.  The officer asked to look inside his bag.  Kang-Brown refused.  The officer brought a drug dog, which indicated the presence of drugs.  The officer arrested him and found lots of drugs.

Four judges felt that the law required the officer to have reasonable and probable grounds to believe drugs were present before a drug-dog search could be conducted.  (Of course, if the officer had such grounds, he would not need the assistance of the dog.)  They thought that if police want to use police dogs in order to determine where to search, Parliament must write new laws permitting it.  Naturally, those four judges thought this search was unlawful.

Four judges thought that the law required the officer to have "reasonable suspicion" before deploying a drug-dog, and that no new legislation is required.  These judges disagreed between themselves whether the officer's observations in this case amounted to reasonable suspicion.

One judge felt that no particular grounds were required before a drug-dog could be deployed in a public place as long as there was a general suspicion that drugs may be found.  I guess he tipped the balance in favour "reasonable suspicion".

Young Mr A.M. 2008 SCC 19 left his backpack in the gym at his school.  He attended a school that considered itself to be a "zero-tolerance" school for drugs.  The principal invited the police to bring drug-dogs through the school any time.  The police accepted this standing invitation from time to time.  One day, the police showed up, and the principal announced that all students were to stay in their classrooms for the next 90 minutes while the police searched the school.  The police found drugs in A.M.'s backpack.

The principal had no power to authorize such a search.

The judges divided along the same lines as Kang-Brown.  Four thought that the police needed legislation or R&P grounds to conduct this search.

Two thought that a search was overbroad because it subjected too many people to a dog-sniff without reason to suspect any of them.  Those judges again emphasized the difference between drugs and weapons -- the latter being a serious risk to public safetly.

Three judges found that the students' expectation of privacy, after a well-publicized zero-tolerance policy, was so low that s.8 did not protect them from drug-dog sniffs at school.

From this case, it appears from 6 judges that you can't search a school with a drug dog without some specific reason, but a different 5 judges seem to say that reasonable suspicion (or something less) suffices, and you don't need R&P grounds.

What's a reasonable suspicion?  It's difficult to say, considering that the judges of the Supreme Court of Canada who discussed it, disagreed.  It's clearly more than a hunch.  It must be based upon your observations and experience.  It must be a group of observations which suggest criminal activity, but it is less than R&P grounds.

How good is a drug dog's indication?  No better than the individual dog.  Some judges worried that some drug dogs are better than others.  Each dog handler should keep statistics.  The dog handler should communicate to the other officers what this particular dog's reliability is.

The judges took care to distinguish drugs from guns and explosives.  It is likely that they would permit searches for dangerous weapons on lower grounds than searches for drugs.

2008-04-24 Compelled Evidence - Civil Audit or Criminal Investigation?

-  Everyone enjoys the "right to silence" - the right not to be compelled to incriminate oneself.  However, everyone has to pay taxes, and the taxman has powers to compel disclosure of your financial affairs.  Mr Tiffin 2008 ONCA 306 complained that the auditor who dug into his financial affairs used those powers for a criminal investigation, in violation of his rights.  The trial judge agreed, and excluded the evidence.  The judges of the appeal court disagreed with each other about where the dividing line between a civil and criminal investigation lies.  In R. v. Jarvis, 2002 SCC 73, the Supreme Court of Canada said the line is crossed when an auditor uses his powers for the predominant purpose of collecting evidence to incriminate the suspect.  In this case, the majority found that the auditor did not cross the line, but the dissenting judge identified factors which auditors could use to help them identify the line.  I expect to write a separate page on this issue in the next few weeks.

2008-04-19 Conspiracy - Charging the Helpers

- Mr Trieu 2008 ABCA 143 sold telephones.  To members of a drug conspiracy.  He knew this helped them traffick illegal drugs.  Was he a party to the conspiracy?  The court said no.  The crime of conspiracy is agreeing to do a criminal act.  Mr Trieu didn't agree with the conspirators to commit criminal acts, nor did he encourage them or help them to agree.  He only helped them achieve their goal: trafficking.  But he wasn't charged as a party to trafficking, and so he was acquitted.

2008-04-16 Disclosure - Police Notes

- Shortly before trial, Mr Abrey's, 2007 SKQB 213 lawyer noticed that the copies of police notes that he received were illegible.  He asked Crown for a typed version of the notes.  Crown refused.  On the trial day, the officer discovered four more pages of notes he forgot to give the Crown.  The judge ordered Crown to produce a legible copy of the notes.  The judge adjourned the trial, and ordered the Crown to pay the defence lawyer's $5,000 bill for his work that day.  Not only do police have to disclose all relevant notes (subject to privilege), but they should be in a legible form.

2008-04-15 Criminal Record Checks - Disclosing or Destroying Police Records

- Police received allegations that Mr Tadros 2007 CanLII 41902 (ON S.C.) sexually abused children.  8 charges were laid, but it must have been a weak case.  When Mr Tadros agreed to enter into a peace bond, the prosecutor withdrew the charges.  After the peace bond expired, Mr Tadros applied for various jobs for which a criminal record check would be required.  All the employers turned him down.  He figured that the police must have disclosed information about the 8 charges, and asked the court to order the police to destroy all records in their possession about the 8 complaints, so that future employers would never find out about them.

The court reviewed privacy legislation which applied to the police service (Ontario's Municipal Freedom of Information and Protection of Privacy Act) and determined that the police had the right to keep the information, but not disclose it.  The court declined to make a destruction order, but did order the police never to disclose it to prospective employers.  The court also ordered the police service to pay the legal costs of the application.

I find this result troubling.  All too often, you collect enough evidence to believe that someone probably committed an offence, but not enough to prove it beyond a reasonable doubt.  When dealing with child abuse, is it right for you to withhold all that information from an employer who might put the suspect in charge of children?

Privacy Acts differ across the country.  Do these acts balance privacy rights and safety correctly?  Most agencies already have Freedom of Information officers.  This decision shows that they need to know what they're doing and why.

2008-04-13 Over .08 - Breath Tests - Testimony of Technician

- At Mr Willier's 2007 ABPC 246 trial for driving while over .08, the technician testified that he "conducted two breath tests".  He did not say that Mr Willier provided two breath samples "directly into" the approved instrument.  Unfortunately, because s.258(1)(c)(iii) requires this language, the judge acquitted.  This argument was popular 10-15 years ago, but fell into disuse once technicians learned to recite those magic words.  I'm afraid it's back.  Whenever you testify about the testing of breath samples, always mention that the samples were given "directly into" the instrument. (Except, of course, when the samples weren't properly given.)

2008-04-12 S.10(b) - Right to Counsel - "Counsel of Choice"

- On a Saturday afternoon, police arrested Mr Willier, 2008 ABCA 126 for murder.  They wisely recorded their conversations with him about counsel.  At first Willier thought he couldn't speak to a lawyer without first applying for legal aid, but the police explained that he could get immediate free legal advice.  He declined at first, but when they asked him again around midnight, he spoke to a Legal Aid lawyer for 3 minutes.

At 7:50am on Sunday morning, he first mentioned his desire to speak to a specific lawyer.  They called, but got an answering machine.  The police offered Legal Aid again, and Willier accepted.  He spoke for another minute with Legal Aid.  After that, police pressed on with an interview, but told the suspect that he could stop and call another lawyer if he wanted.  The officer said:

“ . . . you have the right to retain and instruct a lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish . . .”

Willier did not ask for counsel of choice again.  He confessed.

The trial judge found:

1. the police should have waited longer, so that Willier could speak with the lawyer he named.
2. the police should have told Willier that he had a right to speak to counsel of choice. 
   
3. the advice Willier got was inadequate.

The appeal court confirmed that a prisoner has a right to a reasonable opportunity to contact counsel.  If there's an obligation to tell the accused about the right to counsel of choice, these officers had fulfilled it.  Because Willier spoke with Legal Aid and made no further request for counsel of choice, the police were entitled to assume he was content with the advice he received.

The judges of this court felt that the evidence was insufficient to establish that a mere 4 minutes of legal advice was inadequate.  They disagreed with the BCCA's contraversial decision on this issue in Osmond, 2007 BCCA 470.

Lessons from this case include:

• Record your discussions with the prisoner about access to counsel;
• Use the quote mentioned above or language like it;
• Unless there is urgency in your investigation, give the prisoner plenty of time and help in reaching counsel of choice  (time of day matters);
• Offer (but don't compel) access to Legal Aid as an alternative.

This decision does not answer "how long is a reasonable opportunty to contact counsel?"  Beware.  One of the three judges felt that the police should have waited much longer for Willier to contact the lawyer of his choice.  Because there was no urgency, she said that the officers on Sunday morning should have waited until Monday morning for the lawyer to return to his office.  Because of your duties under s.503(1), this opinion may be contraversial.

2008-04-11 Internet Luring - Is "grooming" enough for "Luring"? - Does "luring" require an intent to meet?

  32-year old Mr Legare (2008 ABCA 138) pretended he was 17.  He engaged in explicit sexual conversations with a 12-year-old on internet chat and on the telephone.  He spoke of how he'd love to have oral sex with her.  Althought the trial judge found Mr Legare's behaviour deplorable, he found it wasn't illegal because Legare, never discussed meeting the girl.  The Court of Appeal disagreed.  Mr Legare's conversations appeared to be intended to sexualize the girl in order to prepare her for sexual offences.  It would, of course, be an offence under s.152 for him to persuade her to  masturbate - for which a meeting was not an essential element.  His grooming her could have "facilitated" the commission of that offence.  The court ordered a new trial.  The "luring" offence doesn't necessarily require an intention to meet with the victim.

2008-04-08 Detention - Passengers in a Car

- Mr Bradley, 2007 NSSC 327 was a passenger in a car.  Police stopped the car because it looked overloaded.  The investigating officer spoke with the driver, but Mr Bradley demanded to know why the vehicle was being stopped.  The officer smelled booze.  He asked Bradley for his name.  Bradley refused to give it, saying he'd done nothing wrong.  The officer asked why he'd refuse to give his name if he'd done nothing wrong.  Bradley gave it reluctantly, and the officer soon learned that Bradley breached an abstention clause.  At trial, Bradley complained that he was detained, but the officer didn't give him his rights.

Was he detained? Did the detention trigger s.10(b) rights?

The judge found this wasn't the kind of detention which triggers s.10(b).  He relied on several factors:

• the traffic stop was for a traffic safety matter -- it wasn't a pretext for some other investigation
• Bradley's belligerence raised real officer safety concerns
• the traffic stop was going to be brief

The court admitted that the law is uncertain when a detention triggers s.10.  The court reviewed Harris 2007 ONCA 574, in which forceful demands made during a traffic stop triggered s.8.  We will continue to be plagued by the question: "Which detentions trigger s.10?".

2008-03-30 - Wiretap - Voice Identification at Arrest - s.10(b)

- After a lengthy investigation involving wiretap, police arrested Mr Lepage 2008 BCCA 132 for conspiring to traffic drugs. One of the officers who arrested him had listened to the intercepts which established the conspiracy. Was Lepage the same man whose voice the officer heard?

The officer conversed with Lepage before Lepage talked to his lawyer. The officer recognized Lepage's voice as the voice of the conspirator he heard on the wire. Was this identification admissible, considering that the officer elicited evidence before the accused got access to counsel?

The court found that it was, but only because the police used no tricks in order to get the suspect to speak. They pointed out that in other cases cases, where police set up tricks to get the suspect to speak in the presence of the person who heard the wire, courts have excluded voice identification evidence obtained before s.10(b) rights are resolved. For those of you conducting wiretap investigations, take care to set up a real opportunity for voice recognition after the arrest; and don't play any tricks until after Charter rights are addressed.

2008-03-29 Conspiracy & Criminal Organizations

- After an extensive investigation involving wiretap, police busted two guys with lots of cocaine.  Was Mr Giles, 2008 BCSC 367, an admitted Hell's Angel, involved?  It was plain that after the police seized the goods, the two culprits conferred with him, and he expressed concern, and gave assistance.  There was substantial evidence that he was involved in criminal acts with at least one of the two guys.  But this didn't convince the judge that Giles was involved before the bust.

The Crown also presented evidence that Hell's Angels tend to expand their territory to sell drugs in particular ways, and presented intercepts of Giles advocating a matching strategy at a clubhouse meeting.  This failed to establish that he was specifically involved in these drugs.

The press reported with consternation that Mr Giles was acquitted of criminal organization charges.  That was merely because the criminal organization charges depended upon proof of his involvement in the initial charge.  However, that charge also relied upon evidence of direction or control over the drug offence, for which the judge also found insufficient evidence.

2008-03-29 Search of Computers Incidental To arrest

- Police arrested an associate of Mr Giles 2007 BCSC 1147 for trafficking large quantities of cocaine.  They found a Blackberry wireless device on his person, and submitted to technicians for a search because they had reason to believe it contained information relevant to the offence.  Defence complained that the police needed a warrant to search the device because it had not been searched at the time of arrest.  The judge rejected all of these arguments.  A search of a computer incidental to arrest may take weeks or months, but it is still incidental to arrest if it done reasonably promptly, for the purpose of finding evidence related to the offence for which the suspect was arrested.  (I wrote previously about this decision, before it was published.)

2008-03-29 Searching Emails - Wiretap or Search Warrant

- In the same case, defence argued that the police ought to have obtained wiretap authority because they obtained email that the suspect may not yet have read.  They said police were intercepting private communication.  The judge found that searching the device for emails that had already arrived there would not require wiretap authority.  Search incidental to arrest sufficed.  If you're going to search using a warrant, a regular search warrant will suffice in an analogous situation.  (Of course, if you're going to catch emails before they reach their destination, wiretap may apply.)

2008-03-29 Production Orders - Asking Too Much

- Telus 2008 SCC 12 didn't want to bear the cost of responding to the many production orders it receives.  They wanted police officers to pay for data produced.  The Supreme Court of Canada told Telus, the banks, and all the other businesses on whom you serve production orders that complying with the orders is just the cost of doing business.  They can't charge you money.  However, there is an exception.  If the production order imposes an unreasonable burden on the company or person it is addressed to, then the court may exempt the target from compiance.  If you make a really big demand for data, you may have to pay.

2008-03-26 Eyewitness Identification - Confidence Isn't Accuracy

- When Mr Phillipose went to a Mac's store late at night he met several strangers.  One introduced himself as "Mogi".  He said he lived in a specific housing complex nearby.  The conversation started cordially, but soon deteriorated.  The men attacked Mr Phillipose, robbed him, and assaulted his friend.  Police showed Mr Phillipose some lineups and some mug shots.  He thought a Mr Guled looked like "Mogi".  He also thought Mr Nur looked like Mogi.  Mr Phillipose investigated on his own.  He went to the housing complex and asked people if they knew "Mogi".  One said he did, and called Mohamud Goran, 2008 ONCA 195 on a cell phone.  Goran agreed to meet Phillipose, and they did, a few minutes later.  Phillipose said that Goran was Mogi (Mo. G.).  He may have confirmed that belief from learning Goran's name by seeing it in a school yearbook.   Was this identification reliable?

The trial judge convicted Goran, but didn't analyze the weaknesses in the identification.  The appeal court ordered a new trial.  The victim expected to see his attacker when he met Mr Goran at the housing complex.  He could honestly and earnestly have made a mistake.

Eyewitness identification of strangers is tricky to investigate, because some witnesses are confident without being accurate.  If possible, get independent confirmation of such an identification.  This decision is a good read, because it identifies some of the problems that so often arise in these investigations.

2008-03-24 Detention - s.10(a) - Explaining Your Reasons

- Police were executing a search warrant on a grow operation when a van pulled into the driveway.  An officer wearing police insignia stepped toward the van, and it started to back out.  The officer said "Police.  Stop.".  The driver, Mr. Nguyen, 2008 ONCA 49, stopped.  The police officer asked "Do you live here?"  The driver said "Umm, yeah, yes."  The defence complained that the officer failed to explain the reason for the stop before obtaining these incriminating remarks, and the court agreed, and excluded the evidence.  The officer could have said "Police.  Stop.  We're searching this house for narcotics."

This will encourage a trend I've already noticed: defence will complain that you did not sufficiently explain the reason why you detained a person.

This decision is problematic, and will likely generate lots of litigation.  The court conceded that when you stop a suspicious person, and you don't know what he's up to, you can hardly explain why he's detained.  Other times, the suspect will know perfectly well why he was detained, and giving an explanation is redundant.

But the court did not address situations which require secrecy.  I can think immediately of a case in which the police lied about the reason for a detention, and the court had no problem admitting the evidence thereby obtained.  Acosta-Medina, 2002 BCCA 33.

Therefore, if you can explain why you detained someone, then you should.  It need not be a complex or precise explanation, but it should provide enough detail that the suspect can decide wether or not to cooperate.  The principle applies equally to speeding tickets as it does to murder investigations.

2008-03-12 Child Witnesses & Pure Versions - Videotape

- Kelvin Purdy 2008 BCCA 95 murdered his ex-wife early in the morning as she walked to the bus stop to go to work.  Police found at the bloody scene a sheath for a knife, but no knife.  They suspected Mr Purdy.  In preparation for an interview with him, they asked his 9-year-old daughter to give a videotaped plea to him for an explanation why he killed her mother.  Later, the police showed a picture of the sheath to the girl, and she recognized it as having been in her father's possession, and she spoke of seeing bloodstains in his car.  Defence challenged the admissibility of her evidence:  Did the first interview cause the child to believe in her father's guilt?  Did she thereafter imagine or invent evidence to support this belief?  Was showing her a single knife sheath a fair way to inquire about this exhibit?

Because the interviews were videotaped, the judge felt safe to let the jury decide these questions, rather than remove the evidence from them entirely.  However, these points are valid.  You should avoid prejudicing a potential witness against a suspect for fear of affecting the reliability of their evidence.  With a suggestible witness such as a child, it would be better to get their recollections early in the proceedings.

I have some sympathy for the investigators in this case.  They arrested Mr Purdy fairly shortly after the murder.  Their opportunity to interview him was brief, so they had little time to consider what effect their first videotape would have on the 9-year-old girl.

2008-03-12 Tunnel vision

- In the same case of Mr Purdy 2008 BCCA 95 (described above), the defence alleged that the police had jumped to conclusions, about his guilt without considering alternate suspects.  A few weeks earlier, the victim's new boyfriend complained to police that Purdy had slashed tires and screens at his place.   Defence argued that the police failed to consider the motives, opportunity, and violent character of her new boyfriend.  The argument failed in this case, but be aware that defence are always ready to make it.  Therefore, investigate the alternate suspects as well as the main target.  It may not have the same thrill as catching the main target, but the diligence pays off later at trial.

2008-03-11 Right to Counsel - Ignoring Counsel's Demands

- After police arrested Mr Postnikoff 2007 BCSC 1156 for murder, he spoke personally with a lawyer.  The lawyer wrote a letter to the police which asserted that Mr Postnikoff had not yet received sufficient legal advice, and demanded that the police refrain from interviewing him until the police gave counsel disclosure of the case.  The police proceeded with an interview.  Mr Postnikoff told the police that his lawyer told him not to say anything, but ultimately, he voluntarily told them details about the incident.  Could the police ignore the lawyer's letter?  This judge found that they could:  The "letter was not legally effective in estopping the police from pursuing their efforts to question Mr Postnikoff".  This does not mean you can ignore every complaint made by defence counsel.  The detainee is entitled to a reasonable opportunity to get legal advice.  But the detainee can't use that right to prevent you from investigating.

2008-03-06 Right to Counsel - Interviewing the Suspect after they get a Lawyer

- Nine days after arresting her, police went to interview Ms Weeseekase, 2007 SKCA 115 at the remand centre where she was detained.  She had appeared twice at court, and she was represented by Legal Aid.  The officer had told her a day in advance that she was coming, and she said she wanted to speak to her lawyer first.  The officer tried to help her contact her lawyer before the interview, but it didn't work out.  When the officer interviewed her, he told her again about her rights to counsel.  She said she'd talk to her lawyer later; she then confessed.

The trial judge excluded the confession, saying that the police were obliged to hold off eliciting evidence until suspect had obtained legal advice.  The Court of Appeal said that once a person has retained counsel, one may assume that they have obtained the necessary legal advice; you don't have to hold off eliciting evidence while they make another telephone call.

It's an interesting ruling, but I would urge some caution.  A person can retain a lawyer without getting any advice.  In my opinion, before you can take a statement from a detained suspect, the key question is whether they have had a reasonable opportunity to get legal advice about the matter.

2008-03-06 Using Civil Lawsuits to learn more about Crime

- Wouldn't it be nice to compel your suspect to answer questions?  That's what happens in civil lawsuits.  When one person sues another, each side can compel the other to answer questions and produce documents relevant to the issue.  But the parties are bound by an "implied undertaking" not to reveal each others' secrets outside the litigation.  In Juman v. Doucette, 2008 SCC 8, the Doucettes sued Ms Juman, a daycare worker, for inflicting serious injuries on their baby.  The police suspected criminal negligence or assault.  So did the baby's parents.  Juman had to answer the Doucettes' questions during discoveries, but Juman didn't want the police to get the transcripts.  She settled out of court, but asked the court to prevent her answers in the private litigation from falling into the hands of the police.

The court agreed with her.  They said that the police can get the transcripts by:

1. a warrant;
2. a subpoena duces tecum;
3. a party to the civil proceedings (or the Attorney General) may apply to a judge to vary the implied undertaking; or
   
4. a party may disclose a transcript to police to prevent immediate and serious danger.

The court explained that civil litigation only works if the parties can compel each other to answer questions; but in criminal prosecution, the suspect doesn't have to answer.  Police can't use the civil process to undermine the criminal suspect's right to silence.  The court left open the large question of how we can use any transcripts you do obtain by warrant or subpoena.

2008-03-05 Eyewitness Identification - Showing a choice of one

- American investigators believed that Mr Walker 2008 BCCA 55 committed murder in Washington State.  They sought extradition, and told the judge about an eyewitness who saw the killer and the killing, and recognized Walker from a photo "montage" and a single photo.  But the Americans they didn't tell whether the witness saw the single photo first, or the montage.  The court let Walker go free.  The problem with showing an eyewitness the photograph of a single suspect is the power of suggestion: you can cause the suspect to believe that the person in the single photo is the offender.  Thereafter, the witness will recognize the suspect in any lineup, whether or not the suspect was actually the culprit.  This isn't a problem for culprits who are well-known to the witness, but can be fatal in cases where witness has never seen the culprit before the offence.

2008-03-04 General Warrants - Information "will" be or "could be" obtained

- Police obtained general warrants to enter Mr Ford's 2008 BCCA 94 property to examine it for a large marijuana grow operation.  Section 487.01 permits a court to grant a general warrant if the judge is satisfied that information concerning the offence "will be obtained". Unfortunately, the officer wrote in the form of general warrant that the judge was satisfied that information "could be obtained".  Relying on other words in the warrant, the Court of Appeal found that the issuing judge really meant "will be", but commented that police officers drafting judicial orders should follow the language of the legislation as much as possible.

2008-03-04 Search Warrants for News Media - Special Considerations

- A reporter from the National Post 2008 ONCA 139 suspected Prime Minister Jean Chretien of obtaining government benefits for his golf course business.  His investigations led him to a source who asked that his identity never be revealed.  The reporter promised anonymity, and the source provided him with a letter from the Busines Development Bank of Canada, which, if genuine, would put the Prime Minister in conflict of interest.  The Bank said it was a forgery.  Police asked the National Post for the original letter, but the newspaper refused to deliver it, and refused to say from whom they got it.  Instead, they told the police that the reporter had hidden the letter outside their offices.  The police applied for and obtained a general warrant and an assistance order compelling the newspaper to bring the letter and the envelope to their offices so that the police could sieze them there.

In legal proceedings the newspaper asked the court four questions.  The court answered them as follows:

1. Should the police invite news media lawyers to attend and argue search warrant applications before they are granted?



Generally, no.  But the warrant ought to contain conditions:


• The execution of the warrant must interfere with the operations of the media as little as possible; and
• The media may request that the items seized be sealed pending an application to determine the validity of the search warrant


2. Can an Assistance Order be essentially a Production Order?

Without mentioning production orders, the court found that general warrant combined with an assistance order could operate to require a person with control over a physical object to go and get the object from where ever it is hidden.


At the time of the warrant application, production orders didn't exist.  The new legislation may complicate this simple decision.




3. Do Reporters' Confidential Sources Enjoy Privilege?

Police officers' confidential sources enjoy privilege because of the important role confidential sources play in stopping crime.  The newspaper claimed that their sources play an important role in democracy and keeping the public informed.  The court agreed that confidentiality of reporters' sources is important, and could sometimes enjoy privilege.  But in this case the forgery had the potential to bring down the government.  The public interest required the criminal investigation to proceed.

If you want to search and seize from the news media:

• your warrant requires special conditions
• you may have to seal up what you seize pending further applications to court
• you should get lawyers involved early in the process
• you don't necessarily have to invite them to argue whether the warrant should be granted in the first place
  

2008-03-01 Arrest at the Threshold - Can you Reach In?

- Cst. Hope, 2007 NSCA 103 had reasonable grounds to believe that Ms Silver committed an offence.  He went to her residence at spoke with her at her doorway.  She denied involvement.  While her hand rested on the doorjamb, he touched her sleeve and told her she was under arrest.  She pulled away, and the officer followed her into the house to effect the arrest.  He was charged with assault: he had no Feeney warrant when he entered the house.  The trial judge acquitted, the first appeal judge disagreed, but the highest court in Nova Scotia agreed with the trial judge.  Because the officer's hand did not cross the plane of the doorway, and because the officer touched her saying words of arrest, the arrest was lawful.  When she pulled away back into the house, the officer was entitled to enter in hot pursuit.  Apparently, if you want to arrest at the doorway, you must wait until some part of the suspect leans out.  You must touch it and say words of arrest.  And then if the suspect tries to escape, then you can pursue into the residence.

2008-03-01 Search and Seizure - Pushing the Envelope

- A police officer saw a car driving at night without tail-lights.  Mr Dreyer's 2008 BCCA 89 sister drove; he was the passenger.  On the floor behind the driver's seat the officer saw a large bottle of beer, open.  Claiming to rely on his powers under the provincial Liquor Control and Licencing Act, he searched the car for more liquor, and found flaps of cocaine.  The court didn't believe he was looking for alcohol: he checked behind the sun visors, and examined bits of paper in a crumpled paper bag.  Unsurprisingly, the court excluded the evidence, and Mr Dreyer, who apparently admitted making drug deliveries with his sister, was acquitted.  The court's message is clear: you can't use search powers beyond what they authorize.

2008-03-01 Firearms - Using them on the Job

- Two police officers used their firearms while on the job.  One got a medal, and the other went to jail.  Neither officer planned or expected to be where he wound up.  I have no legal tips for you here -- just a suggestion to take firearms training seriously and handle weapons carefully.

2008-02-26 Wiretap - Exigent Circumstances - Constitutionality

- Six accused persons 2006 BCSC 212 currently face trial on kidnapping.  In the early stages of the investigation, police set up wiretap without first applying to a judge.  At the trial, the court found that s.184.4, which permits you to do this, is unconstitutional; but only because it omits reporting and notification obligations that the other sections include.  If you rely on this section before Parliament fixes the legislation, then in the interim I suggest:

1. When you do go before a judge, ask the judge to impose conditions on you to notify any person who whose conversations were intercepted during the emergency application;
2. Report your emergency wiretap as you would a regular one;
3. Get a wiretap agent involved in the investigation at the earliest possible stage.
   

2008-02-26 Interrogation and Recording - "Promise me you'll turn it off"

- Before police interrogated Mr Poncelet 2008 BCSC 164, they told him that he should assume that at all times in the police station he should assume that he would be recorded.  During his interrogation, Mr Poncelet asked the investigating officer if he could speak with the father of the complainant.  He asked that the recording equipment be turned off.  The officer promised to turn it off, but left it on deliberately, so that the conversation would be recorded.  The trial judge found that the warnings before the interrogation should have put the accused on notice that his conversation with the father was not private.  Another judge might not be so generous.  One should remember that s.184 of the Code makes it an offence to record a private conversation.  On the other hand, the Ontario Court of Appeal has frequently asserted the importance of recording the whole of the conversation with a suspect.

2008-02-23 Confessions & Access to Counsel - Waldock's Prediction was Wrong

- Contrary to my predictions, the Supreme Court of Canada refused to hear the Crown's appeal of Osmond 2007 BCCA 470.  They gave no reason why they weren't interested.  Now that Osmond is here to stay, we need to know how to deal with it.

Mr Osmond murdered a 13-year old girl.  He was 21.  When the police arrested him, he expressed greater interest in learning what the police knew than in talking with a lawyer.  He mentioned the name of a lawyer he knew.  The police made no effort to locate or contact that lawyer.  Instead, they put Osmond in touch with Legal Aid.  The legal aid lawyer gave him 2 minutes of advice - to keep silent even in cells.  The Court of Appeal found

1. the lawyer breached his right by failing to explain to him how to exercise his right to silence, and
2. the police breached his right by not doing enough to help him reach a lawyer of his choice.

There's nothing you can do about the quality of advice given by counsel.  Don't ask the suspect what the lawyer said (it's privileged).  I understand that the standard operating policy for duty counsel is changing to answer the court's concerns.

Therefore:

• When a suspect mentions interest in a specific lawyer, make some effort to contact that lawyer (unless the suspect asks you not to).
  
• If you control dialing the number, then give the accused control over choosing which number to dial.  Provide a legal directory and local phone book from which the suspect can choose a lawyer.
  
• Give suspects charged with serious offences plenty of time to get advice.  If the conversation with counsel was short, you might ask the suspect: "That was pretty short.  Do you need more time to get legal advice?"  You might even ask: "Do you want a second opinion?"
  

2008-02-22 Dangerous Driving - "What Were You Thinking?"

- On a sunny day Mr Beatty 2008 SCC 5 drove his truck normally down a good highway.  Without warning, he veered suddenly into the oncoming lane, and killed three people.  He was charged with dangerous driving.  He had no memory of what happened or why. The trial judge acquitted him.  Although the driving was objectively dangerous, the Crown offered no evidence that Mr Beatty meant to do anything dangerous.  The Court of Appeal said the trial judge was wrong: the Crown didn't have to prove what was on Mr Beatty's mind before the collision.  The Supreme Court of Canada restored the trial judge's decision.  For the Crown to prove guilt, the Crown must prove a guilty state of mind: a reasonable person would think that what the suspect decided to do was dangerous.  Therefore, when you investigate any offence, and now particularly dangerous driving, you must always investigate what the suspect was thinking and doing before the criminal act.

2008-02-20 Disclosure Obligations in Large Investigations

- After a lengthy investigation, Mr Topol, 2008 ONCA 113, an executive of an entertainment company, beat fraud charges involving over a million dollars, because it took too long to get to trial.  Part of the problem was the slow pace of disclosure.  On appeal the court asserted that in lengthy investigations, Crown and police should use the time before charges are laid to solve disclosure issues.  Managers of large investigations, beware!  If you don't manage the evidence you collect, you can catch the crook on the street, but lose the case in the court room.

2008-02-17 Impaired Driving - Screening Device at an Accident Scene

- Ms Neumajer, 2007 CanLII 8003 aff'd 2008 ONCA 104 crashed her car.  Police arrived, investigated, and made a screening device demand 30 minutes later.  Was it a lawful demand?  The Ontario Court of Appeal said that the legislation can be interpreted to allow a demand even this long after driving, in these circumstances.  I suggest that you rely on this decision only for accident cases -- I suspect that we'll see further contraversy yet.

2008-02-16 Smelling and Searching for Burnt Marijuana

- A police officer saw a truck with a burnt-out headlight.  He pulled it over.  When the driver, Mr Janvier, 2007 SKCA 147 opened the window, the officer smelled burnt marijuana.  He arrested Janvier, searched the truck, and found lots of drugs.  Was the search lawful?

A search incidental to arrest depends upon whether you have the authority to arrest.  Section 495(1)(a) allows you to arrest for indictable and hybrid offences on "reasonable grounds".  But s. 495(1)(b) allows you to arrest for summary conviction offences only if you "find" the suspect "committing" the offence.  The court pointed out that possession of less than 30 grams of marijuana is a straight summary conviction offence.  See s.4(5) of the CDSA.  Unless you believe that the suspect has more than 30 grams, you can't rely on "reasonable grounds".  You have to catch him in the act.

The smell of burnt marijuana means that the marijuana that was being smoked is now gone.  Without more than just the smell, it's difficult to say that there is any marijuana left, let alone 30 grams or more.

This officer had only the smell.  He didn't catch the driver in the act of possessing marijuana.  Therefore his arrest and his search were unlawful, and the evidence was excluded.

So what can you do when you smell burnt marijuana coming from a vehicle?

1. The smell (and the driver's behaviour) may give you grounds to suspect that the driver's ability to operate the motor vehicle may be affected by marijuana consumption.  Therefore, you can briefly detain and question the driver, and perform sobriety tests to ascertain whether he is safe to drive.  (Orbanski, 2005 SCC 37).
   
2. If there is something about the driver which suggests that he may pose a danger to you, you may search the driver and his immediate vicinity but only for weapons that may pose you a risk.  You may not search for drugs.  Be prepared to explain afterwards what indicators of risk you saw at the time.
3. Keep your eyes and ears open.
   
4. If you come to believe on reasonable grounds that the vehicle contains some marijuana, and you believe that if you do not search, the driver will leave with the evidence, then you can apply s.11(7) of the CDSA to conduct an exigent circumstances search of the vehicle, and of any person in it who you believe possesses the drug.
   
5. When testifying in court, tell the court not only what you saw and heard, but also your experience.  A police officer's knowledge and experience is admissible in establishing grounds.  Juan 2007 BCCA 351.  Do Marijuana smokers usually carry only one joint, or do they usually carry more?  Note: "often" doesn't cut it.  The judge needs to know whether the drugs you sought were "probably" there.  You may wish to gather statistics now, before you go out on the road.

My thanks to Cst Pete Gaiger for drawing this decision to my attention.

2008-02-15 Bail Terms and Wilful Blindness

- A judge released Paul Smith on bail not to attend within "fifty" metres of the British Embassy in Ottawa.  While that bail still bound him, police arrested him close to the Embassy.  At trial, he claimed that he thought the judge said "fifteen" metres, and that's why he stayed more than 15m from the embassy.  He never read the document because he didn't have his glasses when it was first given to him.  The trial judge convicted him, saying that he was wilfully blind, but the Court of Appeal acquitted him.  Mere carelessness is, in their opinion, not enough for a conviction for breach of recognizance.  To be "wilfully blind", a person has to know enough to know that there's a problem he should look into, and still not look into it.  For you police officers who release prisoners on conditions, you should explain the conditions in a way that makes it impossible for them to say afterwards that they did not understand.

2008-02-08 Hard and Soft Entries into Grow Operations

- Police knew there was a grow operation at Mr Cao's 2008 BCSC 139 place.  They got a warrant.  When they arrived to execute it, they didn't know whether anyone was home, and they had no specific information that there were firearms. Based on their expectation that grow-ops usually contain firearms, they decided to make a "hard entry" anyway.  They rang the front doorbell, and waited a short time.  Then they knocked on a side entrance, and announced themselves.  They waited a few seconds, and then burst in using a battering ram.  The judge said that the officer's didn't have enough information to justify this violation of the common law rule which requires you to:

• knock
• announce
• demand entry
• enter by force only when the occupants refuse entry

Although this decision made headlines, it merely follows some decisions made several years ago.  Essentially, the courts require specific evidence to justify hard entry.  See R. v. DeWolfe 2007 NSCA 79 for example.  Some officers find this difficult to accept, particularly because they commonly find firearms at grow operations.  While the judge spent much time discussing the evidence of firearms, I think the real question was risk.  If police enter as if conducting a "grow rip" (felons stealing drugs from felons), then the risk is higher that the occupants will use lethal force.  Even announcing yourselves doesn't resolve that risk -- how does the occupant know you're not lying thief?

2008-02-08 Taking Responsibility for Crime

- Who should pay the dollar price for the crimes of others?  Two decisions from the SCC this week addressed personal responsibility.

Many years ago, a guard at the notorious Okalla jail sexually abused an 18-year old prisoner named Zastowny 2008 SCC 4.  Zastowny's career in crime flourished.  He spent 12 of the next 15 years in jail.  Years later the guard was convicted, and Zastowny sued him.  A psychiatrist blamed the guard for Zastowny's criminal disposition. The trial judge awarded damages against the guard (and the Province) including $150,000 for wages lost because of imprisonment for the crimes Zastowny committed.  The Supreme Court of Canada disallowed the award.  To pay Zastowny for the time he spent in jail would be to reward him for the crimes he did.  People must take personal responsibility for the crimes they commit.

Compare that with the case of T.B.

Twelve years ago, T.B. stole a car, and played "bumper cars" with his friends, who were in a stolen van.  T.B. was a youth and a prolific thief.  A police officer, who was just about to go off-shift, saw the two vehicles, and followed.  T.B. drove away at high speed through a residential area, and the officer pursued with lights and siren.  T.B. ran a stop sign, and collided with another car.  He killed an innocent woman -- the mother of two small children.  I will never forget the agony of her family, because I prosecuted T.B. in youth court for that crime.  T.B. went to jail for about 18-20 months (if I recall correctly).

The family sued T.B. and the police officer who chased him.  (A.G.(B.C.) v. I.C.B.C. 2008 SCC 3)  I had nothing to do with that proceeding.  The trial judge found T.B. 90% responsible, and - to my surprise - the police officer was held 10% responsible.

Like most provinces, B.C. legislation protects the officer from personal responsibility for his negligent acts done in the course of duty.  His employer pays for his liability.

Like many provinces, where several parties are responsible for the injury, they all have to pay 100%, but they can collect the difference from each other.

Because the officer was 10% percent responsible, the Attorney General of B.C. must pay 100% to the family.

T.B. was a penniless youth.  I doubt he'll repay anything.  Thus the public will pay the price for T.B.'s crime.

One more thought:  Please be careful when pursuing felons.  Not only did that family suffer terribly, but the officer suffered personally and professionally too.

2008-02-08 Jurisdiction of Canadian Courts

- Various judges ordered Mr Rattray 2008 ONCA 74 not to possess firearms, by probation, prohibition, and recognizance.  So he went to Michigan, and bought an assault rifle.  A trespasser found it in Canada and took it to the police.  The Crown could only prove that Mr Rattray possessed it in Michigan.  Could he be convicted in Canada of breaching those orders?  The court said yes, because these were personal orders made against him in Canada that he took with him worldwide.

2008-02-08 Vigilantes and Citizen's Arrest

- Mr Abel 2008 BCCA 54 had good reason to believe that Mr Holl stole his rifle.  Mr Abel gathered some friends.  They barged into Mr Holl's residence and "arrested" him.  They tied him up and drove him away.  They made him reveal where he hid the rifle.  They recovered it, and then they delivered him to the police.
The police officer arrested Mr Abel and his friends.  He was right to do so.  A citizen may only arrest a person that the citizen "finds committing" a criminal offence.  Although Mr Holl still possessed the rifle, Mr Abel and his friends didn't find him holding the rifle or actively possessing it in any way.

2008-01-29 Burden of Proof

- If the accused testifies at trial asserting innocence, the judge or jury must analyse the evidence this way:

1. If I believe the accused, then I must acquit.
   
2. Even if I don't exactly believe the accused, if his evidence leaves me uncertain, then I must acquit.
3. Even if I don't believe anything the accused said, if something in the rest of the evidence causes me to doubt whether the accused is guilty, then I must acquit.
4. Only if all the evidence persuades me beyond a reasonable doubt of the accused's guilt may I convict.

A judge convicted young Mr C.L.Y., 2008 SCC 2 of sexual assault, but he got a new trial because the judge mischaracterized some of the evidence.  However, the judges of the SCC unanimously reaffirmed this analysis.  For police officers, this decision reminds us that conviction is never a sure thing, no matter how good your evidence seems to be.

2008-01-17 - Youth Statements & Waivers

- B.V.R., a youth, drove drunk.  When a police officer stopped him and investigated him for impaired driving, the officer did not record the youth's waiver of his right to counsel.  At trial, defence successfully argued that this statement ("I don't want a lawyer") was not obtained in accordance with s.146 of the YCJA , and therefore the Crown couldn't prove that the officer complied with s.10 of the Charter.  On appeal, the Ontario Superior Court found that s.146 addresses statements about the matter under investigation, not procedural matters like access to counsel.  It was not necessary to record the waiver.  However, I suggest that recording your efforts to address any suspect's rights will dispel doubt about whether it was properly done.

2008-01-16 - Traffic Offences - Seatbelts

- Offences break down into three types: absolute liability (for which there are no defences); strict liability (for which the only defence is proof that despite taking reasonable precautions, the defendant wound up committing the offence); and true criminal liability (to which the wide panolpy of defences and excuses apply).  In R. v. Kanda, 2008 ONCA 22, the court found that the Ontario offence of failing to wear a seatbelt is a strict liability offence, but in so doing, reaffirmed that speeding is an absolute liability offence.  Legislation in other provinces may differ.  This decision provides a useful explanation on how to tell the difference between absolute and strict liability offences.  It's of interest to officers who enforce regulatory statutes.

2008-01-15 - Applying for a Telewarrant

- A justice of the peace visits Trail, B.C. only twice a month.  Police officers in there stopped bothering to call the registry when they wanted a warrant.  When a junior officer sought a warrant against Ms Farewell, 2008 BCCA 9, she took the advice of the senior officers: she never called the Registry to see if a JP was available.  She should have.  Unless you know there is no JP available, call and find out.

2008-01-12 Right to Silence & Police Officer's Notes

- S.Sgt. Schertzer (2007 Ont. S.C.J.) and other officers faced charges involving misconduct on duty.  They complained that their notebooks should not be used in evidence against them because it violated their s.7 right not to incriminate themselves.  However, the court found that the officers were not, at the time they made them, compelled to give evidence against themselves.  Always expect that your notebooks (and your conduct) will be subjected to public scrutiny.

2008-01-11 Exigent Circumstances

- Police received an anonymous telephone call from a mall pay phone asserting that there was someone injured in Mr Wu's 2008 BCCA 7 house.  Police first went to the mall to see if they could obtain more information, but there was nobody at the pay phone.  Then they went to the house, but nobody answered the doorbell.  It looked like a grow operation.  Someone came out the back door.  An officer detained him, handcuffed him, and asked if someone was hurt inside.  In broken English he seemed to say there was.  Cst Chow entered with a drawn handgun. He found other people but nobody was hurt.  He found a grow operation.  They got a proper warrant, and took it down.  Mr Wu complained of an unreasonable search, but the court found that the police had sufficient evidence - just - to justify a search on exigent circumstances.

The basic principle of exigent circumstances is: You can enter without a warrant if you have "reasonable suspicion" that life or serious harm is at risk, or if you have "reasonable grounds to believe" that evidence will be lost.  See the exigent circumstances page.

2008-01-11 Late Disclosure

- Mr Bjelland 2007 ABCA 425 faced charges for multi-millions of dollars worth of drugs.  Luckily for him, the prosecution failed to disclose a couple of witnesses - accomplices - until a couple of weeks before trial.  The trial judge excluded the evidence from the trial, and Mr Bjelland beat the charges.  Unluckily for him, the appeal court found that the trial judge should have granted an adjournment instead of excluding the evidence.  It remains to be seen whether these unsavoury witnesses will still talk at the next trial.

Generally, the deadline for disclosure is not the day of trial, but weeks or months before trial.  In two short trial matters I handled this week, I received crucial evidence on the day before or the day of trial.  Yesterday's trial was adjourned, which hurt the case.  I'll see later today what happens to the other.

2008-01-10 Expert Testimony

- Some police testify as experts.  If you do, your obligation to be objective increases.  In Proctor, 2008 BCSC 19, the two expert witnesses acted like advocates for their opinions.  They wouldn't answer questions directly, but use each question to add to their opinion.  This undermined their credibility, and the prosecution lost the case.

2008-01-07 Report to a Justice when Charges are Laid

- Police executed a search warrant on Find-A-Car Auto Sales & Brokering Inc. (2007 Ont S.C.J), and they properly filed a report to a justice.  The business applied for return of the property anyway.  Even though charges were laid against a 3rd party, the judge decided that the police had to justify keeping each individual exhibit seized from the business.  But this was not to be done in an open hearing, but an ex parte hearing before the justice.  All they had to do was file a letter from the Crown or an affidavit which would satisfy the justice of the peace that each exhibit they seized "may be required" in the criminal proceeding.

This is not a decision of an appeal court, but it would apparently bind Ontario police.  If this judge is right, then after a successful search, you must:

1. File a report to a justice.
2. Even if charges are laid within 90 days, file a document explaining to the justice why the exhibits "may be required" in a criminal proceeding.

Because this represents a substantial increase in paperwork, you might want to get a second opinion from your own counsel.

2008-01-05 Conspiracies Large and Small

- Mr Bremner 2007 NSCA 53 participated in a broad conspiracy to market drugs to various customers at various times.  Instead of charging him with the large general conspiracy, the prosecutor charged him with several little specific ones.  After his first conviction, he'd had enough.  He complained that he'd been convicted once of the large conspiracy, and didn't want to be convicted for it again.  The trial judge agreed, but the Court of Appeal didn't.  No matter how many conspiracies the evidence in a trial might show, the accused should only be convicted if the evidence establishes his guilt in the specific one charged.  That leaves him open to prosecution for the others.

2008-01-04 Identifying a Prisoner & Holding Off Eliciting Evidence

- After his arrest, Mr Kim 2007 BCSC 1872 told the police he wanted to speak to a lawyer.  Then, before getting Mr Kim to a lawyer, the officer attempted to identify Mr Kim.  He gave a false name. When a prisoner wants counsel, you must hold off eliciting evidence until prisoner exercises or waives his right to counsel.  Was the evidence of the false name admissible in the obstruction trial?  This judge said yes.  The officer wasn't eliciting evidence.  He was trying to identify who he had in custody, and that's different.

The trial judge went on to say that the accused had a choice whether to answer who he was.  I think that the you are entitled to determine the identities of your prisoners.  You can't really justify releasing them until RICE is satisfied.  You can't do that until you know who you've got.

2007 Developments in the Law

2007-12-31 Wiretapping During Trial

- Mr Bernier, 2007 QCCA 1061 raped and murdered a stranger.  During the preliminary stages of his trial, a prisoner told police that Bernier confessed to him in jail.  The officers obtained a KGB statement from the informant, and set up wiretap to capture further conversations between Bernier and the informant.  Not until after 27 witnesses testified in the Crown's case did the Crown disclose to defence the KGB statement and the wiretap conversations.

Although the police testified that the wiretap operation was to determine the truthfulness of the informant, the judge (and the Court of Appeal) found that the wiretap operation was done in the hope of securing better evidence.  They found there was a significant risk that police might overhear the accused discussing trial strategy, which "which would have been an egregious and entirely unjustifiable violation of his rights."

The accused should have been made aware at the beginning of the trial what evidence the accused would face.  There was a breach of the accused's rights.  However, the trial judge's remedy sufficed: the accused was allowed to re-cross-examine any witness who testified before the late disclosure.

2007-12-31 Agent of the State

- In the same trial of Mr Bernier, 2007 QCCA 1061 (see above), the defence argued that the informer was an agent of the state.  He had previously been an informer while serving time in a Federal institution.  The fact that he had at one time been an agent did not make him an agent thereafter.  During the initial confession by Bernier to the informer, the informer was not acting under the instructions of the state.  The fact that he later did doesn't retroactively change his role in the first conversation.

I think that the police were right to be concerned about the truthfulness of the jailhouse informant.  Wiretap was an appropriate way to determine it.  But disclosing the informant's statement would compromise the effort to discover the truth.  The officers obviously worked impressively quickly when the new information arose.  Unfortunately, this created a situation in which the fairness of the trial would inevitably be affected.  The defence needs to know what the Crown's evidence is before it comes out at trial.  The court found that the search for the truth must at some point yield to the accused's right to a fair trial.  In this case, the judges found that point was passed some time shortly after the first witnesses testified.

2007-12-20 Inventory Search of a Motor Vehicle

- After a traffic stop, Mr Egonu (2007 Ont S.C.) refused to blow into an ASD, and he and his passenger obstructed the investigating officer.  The officer arrested both of them.  When impounding the vehicle, another officer searched it and found restricted firearms.  Was the search lawful?  The trial judge found it was, but only because the search was for civil purposes - accounting for valuables.  Had the officer been looking for evidence of criminal offences, then this search would have breached s.8.  CAUTION.  This decision relies upon the Ontario Highway Traffic Act and Nicholosi (Ont. C.A. 1998).  Although Alberta has followed this logic (Nguyen-Tran, 2006 ABQB 677; Dykhuizen, 2007 ABQB 534), other provinces have not.  I find that odd, because many other provinces have similar legislation. If you find evidence after an inventory search, bring these decisions to the attention of your prosecutor, as well as the similar provisions of your Motor Vehicle and Highway Traffic legislation.

2007-12-14 Intoxication "defence" to Murder

- Mr Daley 2007 SCC 53 was drunk when he stabbed his wife to death.  Did he "intend" to kill her?  A defence expert told the jury that alcohol deeply affected his judgment.  But purpose differs from intent.  It might have been a dumb purpose, but did he mean to kill her?  A bare majority upheld the conviction, addressing technical points about how to instruct the jury.  What's important to police officers is collecting evidence of what the accused was and wasn't able to do while intoxicated.  A neighborhood canvass found neighbors who watched and heard the accused shortly before the murder.  Investigating the whole of the night before the murder revealed the people he partied with.  The first officer on the scene took careful notes of what he said in the morning after the murder was discovered.  Too bad the relatives walked all over the blood trails in the house.

2007-12-12 Hearsay - Taking Suspect Statements -

Police arrested Mr Narwal for a kidnapping.  He refused to speak while tape-recorded.  The investigator took him to another room, where there was no tape recorder.  He gave an "off-the-record" statement admitting that he, his brother and Mr Naicker 2007 BCCA 608 were involved.  Mr Narwal was tried separately.  At the trial of the other two, he refused to testify.   The court admitted hearsay of what Mr Narwal said because:

• the officer took exceptionally good notes of the "off-the-record" conversation, immediately after it was made;
• that statement didn't downplay Narwal's involvement
• Narwal's story was internally consistent
• Narwal's story was inculpatory

You should strive to tape-record all suspect statements whenever possible.  But if the suspect insists that the tape-recorder be turned off before he will speak, then your notes must be very very accurate and complete.  Notes should include demeanour as well as content.  Try to record as many exact quotes as you can recall.

2007-12-06 Presence at the Scene of the Crime

- Police found Mr Jackson 2007 SCC 52 and 4 others sleeping in a camoflaged tent in a remote wilderness site.  All around them was a marijuana plantation.  The tent contained equipment for growing marijuana.  Was Mr Jackson guilty of producing marijuana?  The law is clear that nobody commits a crime just by being at a place where a crime is committed.  All the judges agreed if that was all the evidence, Mr Jackson should be acquitted.  But the officers in this case investigated.  They found equipment for exactly 5 people.  They found nothing to indicate any recreational or business purpose except growing marijuana.  They noticed that Jackson was wearing rubber boots when he emerged from his tent.  Some of the judges said even this evidence was not enough to prove the case, but the majority upheld the trial judge's conviction.

When you find guilty-looking people in a guilty-looking place, investigate further.  Whether it's a stolen car, a grow operation or a house full of stolen property.  Although you may have reasonable grounds to arrest, proof requires a strong link between the "found-ins" and the criminal acts.  Your search warrant should seek out more than just the contraband but evidence of the identities of the people responsible for the place.  Take photos of the scene and the suspects.

2007-12-03 Consent search - Mr 

Puyenbroek, 2007 ONCA 824 drove home drunk.  Along the way he struck two pedestrians, injuring them.  A couple hours later, the investigating police officers arrived at the door of his house.  (The trial judge called this "hot pursuit", but the appeal court said it wasn't.)  The officers told his wife they wanted to speak with him about a car accident.  It was clear his wife knew something about it.  She waved the officers in, and led them to the bedroom where he lay.  But the officers never told her she could refuse, or change her mind.  The court said this was not sufficient for a lawful consent to search.  The judges reaffirmed the very high standard it required for consent in Wills (1992 Ont. C.A.).  Although other courts often refer to Wills, I don't think other provinces follow it precisely.  I don't expect an appeal because the court admitted most of the evidence despite the s.8 breach.  For examples which in which the court took a more lenient position with police, see Perello (2005 SKCA 8) and Erickson (2003 BCCA 693).

For you officers in Ontario:

(i) consent may be express or implied consent;

(ii) the giver of the consent must have the authority to give the consent in question;

(iii) the consent must be voluntary - no threats or coercion used to get it;

(iv) the giver of the consent must be aware of the nature of the police conduct to which he or she is being asked to consent;

(v) the giver of the consent must be aware of the right to refuse to permit the police to engage in the conduct requested, and

(vi) the giver of the consent must be aware of the potential conse­quences of giving the consent.

The rest of you beware.  Many judges are partial to this test.

2007-12-01 Cell Phones

- Someone mugged a feisty lady in Vancouver.  Was it Mr Doyle 2007 BCCA 587?  A cell phone was found at the scene where the mugger struggled with the victim.  It wasn't hers.  Maybe the mugger dropped it.  Police linked it to Mr Doyle.  The victim picked Mr Doyle out of a (poorly done) photo lineup.  At trial, Doyle claimed that he lost his cell phone several days the robbery.  It was lucky for the Crown that the trial judge took an interest in the phone, which was made an exhibit.  The judge found, stored in its memory, evidence that Doyle used the phone only one day before the robbery.  Cell phones can be valuable repositories of information.  When they are, they ought to be downloaded and disclosed.

Unfortunately the Tech Crime unit here in B.C. currently has only half the technicians they require.  I understand that they're working to fill the empty desks but good people are hard to find.

2007-12-01 Photo Lineups

- In Mr  Doyle's 2007 BCCA 587 case, the officer used a 6-photo lineup, and did not videotape the procedure.  This violates the guidelines set by Judge Cory in the Sophonow Inquiry.  Although it does not render the identification inadmissible, it does reduce its value.  As best you can, try to use at least 10 similar faces, try to have an uninvolved officer conduct the lineup, and videotape the procedure if at all possible.

2007-12-01 Child Pornography - Possession

- Mr Chalk's 2007 ONCA 815 step-daughter made some kind of complaint about him.  Police arrested him.  He phoned home and asked his common-law wife to delete the files in his computer so that the authorities wouldn't find them.  Suspicious, she examined the files and found child pornography, which she turned over to the police.  The police investigated well: they seized the computer, and took statements from everyone who had access to the computer.  The accused admitted knowing for several months the pornography was there.  On appeal, he argued that that he wasn't criminally in possession because he was directing his wife to get rid of them.  The court disagreed.  A person may lawfully destroy contraband that falls into their possession.  But this guy kept it until he feared the police would find it.  Taking a statement from the suspect made a big difference here.

2007-11-27 Firearms Offences - Prohibited Firearms

- In my opinion, the firearms offences in the Criminal Code are poorly drafted.  Mr Cairns 2007 BCCA 572 got a break he didn't deserve.  Police caught him with a loaded handgun.  The serial number was filed off.  Crown charged him with an offence under s.95, but forgot to present evidence that Mr Cairns had no authorization, licence or registration certificate.  For most firearms offences, the burden lies on the accused to produce these things.  See s.117.11.  For no reason I can fathom, Parliament left this serious offence out of that section.  Therefore, the prosecutor needs evidence that the suspect had no right to possess the gun.

2007-11-27 Sexual Assault - Date Rape Drugs

- The complainant said that when she drank what Mr Fleming 2007 ONCA 808 poured, she suddenly felt weak, and groggy.  She said it felt different from the effects of alcohol.  No analyst tested her blood in time to find any date-rape drugs, but the complainant's evidence sufficed to establish that they were there.  Try for the forensic evidence if you can. (I'm told you should freeze blood samples immediately to preserve drug traces -- but don't take it from me.  Ask a forensic toxicologist.)  But it may be possible to present the case without forensic evidence.

2007-11-21 Fingerprints and Photographs on Arrest

-  In B.C., but not other provinces, a question has dogged police officers for many years: Can you take fingerprints and photographs from a prisoner that you have arrested but not yet charged?  In Vu, 2007 BCPC 344, the court answered with a clear "yes".  Unfortunately, because it's only a provincial court, I expect the issue to persist a bit longer.  (My thanks to Paul Hyland of NWPD for bringing this case to my attention.)

2007-11-21 Sealing Orders - Warrantless Search

- You can get a sealing order on a report to a justice after a warrantless search, and the materials you file to extend detention orders.  When you execute a search warrant, production order or other authorization, and obtain sensitive evidence, you can apply to court for a sealing order under s.487.3 to prevent anyone from seeing the materials leading to the order, and/or the evidence you obtained after executing it. But the legislation doesn't address warrantless searches.  Fortunately, the courts have always had "inherent jurisdiction to control their own processes".  That means that they can make the sealing order even without legislation.  For a recent example, see Application to extend seizure of exhibits and to seal affidavits, 2007 BCPC 281.

2007-11-16 Drug Investigations - Confirming Confidential Sources

- Mr Tetreault 2007 BCSC 1624 dealt drugs.  Informants complained.  One alleged that the drugs led to an overdose.  Police investigated well.  There's nothing  particularly special about this case, except it's an example of an investigation done right.  Notice the fine details: recent calls on cell phones match to the suspect's phone, determining ownership of the suspect's phone and linking it to him,  surveillance which confirms the sources.  Nice work, Sgt Sidhu.

2007-11-15 Use of Force - Documentation and Articulation

- Mr Nasogaluak, 2007 ABCA 339 drove drunk and tried to escape police.  When police tried to pull him over, he aimed his car at first one, and then another officer.  He resisted arrest.  The officers punched a struck him about the head and chest, but they did not document what they did to him, nor did they retain the video recordings made by equipment on their vehicles.  At sentencing Nasogaluak complained of excessive use of force and failure to disclose.  He suffered broken ribs and a collapsed lung, which required emergency surgery.  Nasogaluak didn't go to jail.  The trial judge discharged him, and on appeal 2 of 3 judges upheld this sentence.

The trial judge's finding that the police used excessive force is debatable.

But the officers set themselves up for a fall by covering up their use of force instead of documenting it.  An officer's failure to document the amount of force used to subdue a difficult prisoner suggests that the officer felt he or she had something to hide.  You are (or should be) well trained in the appropriate use of force.  Don't be ashamed of explaining what your training taught you.

2007-11-12 Prisoner's Effects - Search and Seizure -

When police arrested Mr Blake, 2007 YTCA 5, they took his shoes as part of the booking-in process.  An officer noticed that the tread on the shoes matched a tread pattern found in an unrelated crime.  The officer seized the shoes, which turned out to be valuable evidence in the other matter.  Blake complained that the officer violated his s.8 right to privacy.  The court disagreed.  Blake had no expectation of privacy over his effects when they were taken from him on arrest.  Please be cautious about this decision.  Many officers put their prisoners' effects into secure storage; it may be that this creates an expectation of privacy over them.

2007-11-10 Drugs - Report to a Justice

- After a warrantless search, if all you recover is illegal drugs, do you need to complete a form 5.2?  In a recent class, some officers suggested you don't because it would be unlawful to return the drugs to anyone.  It seems to me that CDSA s.13 and ss. 489(2) & 489.1 are pretty clear: whatever you seize, you must report.  If you fail to report to a justice reasonably promptly, then I can't find any lawful authority for you to possess the drugs.  Theoretically, you could be charged with possession.

2007-11-09 Search and Seizure - When the Courier Company Complains About a Package -

Ms Washington 2007 BCCA 540 aroused the suspicions of an air-courier service between Vancouver and Victoria.  She asked for a taxi to deliver a package from the air terminal to her.  Then she wanted to ship a package of money.  When she used a different name to receive another package, the manager of the courier got so suspicious, he opened it.  Inside he found drugs.  He called the police, but before they arrived, he wrapped up the package again.  When they arrived, either he or they opened it again.  The police, satisfied that the contents were drugs, closed it again.  When Ms Washington came and received the drugs, the officers arrested her.

The court found that the courier company had no authority to open the package, neither in their contract nor under the Transportation of Dangerous Goods Act.  Ms Washington enjoyed an expectation of privacy over it.  Therefore, whether courier company or the police opened the package the second time, it was an unlawful search.

Although 2 of 3 judges of the the court ultimately decided to admit the evidence in this case, the did so under s.24(2) of the Charter on the basis of the officers' good faith.  I don't think you'd be so lucky next time.

This case is remarkably similar to Buhay 2003 SCC 30 - the case of the drugs in the bus station locker.

What should you do?

1. If you have probable grounds to believe that the package contains contraband you can seize it (s.489(2)).  I think these officers were close to having reasonable grounds.
2. If you're nearly there, investigate.  Maybe all they needed was background checks on the sender and recipient.
3. If you think there are reasons to suspect that people will be hurt if you don't search, then you have exigent circumstances.  While this is easy to articulate if the package contains contraband firearms, many judges seem to think drugs are less dangerous.
4. If you believe that you will probably lose evidence of an offence if you do not search, then you also have exigent circumstances.  In this case, the officer didn't know whether an offence was occurring or not.
5. Consider alternatives.  The officer certainly had grounds to detain Ms Washington when she arrived to claim the package.  I wonder how she would have behaved in the presence of a uniformed officer who asked her the package.  Would she consent to a search?
   

2007-11-08 Unreliable Expert -

The convictions of Mr and Mrs Trotta 2007 SCC 49 were overturned because one of the Crown witnesses, an expert, has since been discredited.  A bad expert is worse than no expert at all.  Let's pick our experts carefully.

2007-11-05 KGB Statements - Untrustworthy Witnesses

- At the trial of Mr Kontzamanis 2007 BCSC 1603, a key eyewitness, Mr Osmond, refused to testify.  Police had previously taken a KGB statement from Osmond, and so the Crown asked the court to accept it in the place of testimony.  The court refused.  The trial judge's reasons suggest steps for us in handling such ticklish situations.  She complained:

• During the videotape, the officers reviewed the oath and public mischief warning as a matter of routine rather than emphasizing the seriousness of the occasion.  Osmond didn't even read the form they gave him before he signed it.  The officers never gave him a choice of oath or affirmation.
• Although Osmond became a police agent, the evidence did not explain what offers and promises the police made before obtaining his statement.
• The camera was placed too far back, preventing the court from seeing Osmond's expression during the statement.
• The questioner failed to probe Mr Osmond during the statement.  For example, was he using any drug at the time of the incident?
  
• There was evidence that Osmond collaborated with the offenders - he had prepared a story in case the police became involved.  And his KBG statement was completely exculpatory.
• The evidence failed to explain what the police did to secure Osmond's cooperation.
• The Crown refused to put Osmond on the stand at the preliminary hearing - when he might have testified.  Thus, he had never been cross-examined.

Don't take this list as complete, or even required.  It may be these officers could not have proceeded any other way.  But the decision gives us food for thought.  When taking KGB statements with scurrilous witnesses, don't merely create an opportunity to blame others, but make a real attempt to secure truthful information.

2007-11-03 Disclosure and Preserving Evidence - 911 calls and other contemporaneous recordings

- Mr Buyck, 2007 YKCA 11 misbehaved, but got released on bail.  When Cst Smith encountered him again, Mr Buyck apologized for his misbehaviour.  This was valuable evidence.  Cst Smith forgot that his vehicle was recording video and audio at the time, and never disclosed the videotape of the apology.  The tape was recycled, and such evidence as might have been recorded was destroyed.  Defence sought a stay of proceedings by reason of lost evidence.  The trial judge granted it.  The Court of Appeal agreed that the officer breached Buyck's rights, but ordered a new trial.  Even at the new trial, the prosecutor will have to deal with the lost evidence issue.

In your police stations, on the 911 call system, and increasingly in your vehicles are devices for recording audio and video of  witnesses and suspects.  This can help your investigation.  Losing relevant material can hinder the prosecution.  In several  of my recent cases, the 911 calls proved invaluable.  Take care to preserve them, lest you cause the kind of problem that arose in this case.

2007-11-02 Interrogation and Detention - The "Soft Interview"

- When Cst Munro invited Mr Yu, 2007 BCSC 1584 to come to the police station, Cst Munro already believed Yu was guilty of sexual offences against children.  But Cst Munro didn't give him any warnings, nor any Charter advice.  Instead, Cst Munro told him he could leave any time.  During the conversation which followed, Mr Yu confessed.  Defence complained that Yu's rights to silence and counsel were violated.  The court found there was no detention, and that there is no obligation to give any police warning.  The confession helped convict him.  Although this technique worked in this case, it can easily go wrong.  Essential in this case were:

• low-key conversation
• Mr Yu had a university education
• Cst Munro did not arrest him
• Cst Munro avoided any inducements except moral ones

2007-11-01 Interrogation and the Right to Silence - When does "no" mean "no"?

-  Someone shot a gun just outside a crowded bar.  He missed his target, but killed a bystander.  Was it Mr Singh 2007 SCC 48?  In police interviews, Mr Singh repeatedly said that he did not wish to speak of the matter.  The officer either confirmed his right to silence or changed the subject.  By continuing the conversation, the officer obtained admissions which helped prove the case.  A bare majority (5:4), the court confirmed that these tactics did not in this case violate Mr Singh's right to silence.

When a suspect asserts his right to silence, you can persuade him to change his mind, but you can't force him.  If you give the impression that he is compelled to answer questions, then the court will exclude the statement.  This can arise when you ignore his pleas for the interrogation to stop.

In the course of upholding the decision, Charron J. for the majority asserted that the time to give a suspect a police warning is at the point that you would arrest if the suspect attempted to walk away.

The dissent would have changed the law dramatically.   They said that when the suspect declares, just once, that he does not wish to answer questions, your questions must stop.  Who will be in the majority next time the court considers this question?

2007-10-24 Warrants for Public Media

- In R. v. Canadian Broadcasting Corporation, 2007 NLCA 62, Reporters videotaped union organizers preparing for a strike.  They broadcast a short clip of an of an organizer advocating violence.  Police officers obtained a search warrant for all 4 hours of the videotape, but made no effort to limit the effect of their search on the media, nor justify why all 4 hours were needed.

Reporters like to protect their sources: If police officers can protect their confidential sources with privilege, then reporters' sources should also enjoy privilege!  The courts disagree.  But the courts do grant the media greater protection from search warrants than regular folks. (See CBC v. N.B.(AG) [1991] 3 S.C.R. 459.)

It should come as no surprise, therefore, that this warrant was quashed.  The officers should have given as much information as they had:

• about how much interference executing the warrant will cause to the news organization;
• whether there were alternative sources of evidence than the organization's records;
• why obtaining 4 hours of videotape was necessary for a 30-second clip
  

They should have placed limits on the execution of the warrant, such as

• search to be executed at times convenient to the news organization
• news organization to keep the original, or at least a copy
• the officers must keep a the material in a sealed container for a sufficient time for the news organization to apply to court to set aside the warrant
• the ITO be provided to the news organization when the searhc is conducted (with such edits as are necessary to protect informants)

2007-10-24 Search and Seizure - Report to a Justice

- Does filing Form 5.2 with the Justice after a search seem to be unnecessary paperwork?  In  R. v. Canadian Broadcasting Corporation, 2007 NLCA 62, a 3-day delay in filing this report was a factor leading to exclusion of evidence.

2007-10-22 Bail Hearings - Disclosure

- Last week, an officer asked me how much disclosure we must give before a bail hearing.  Luc Cyr, a colleague in Quebec, sent me an answer: R. v. O'Neil 2007 ONS.C.  As a "minister of justice" you are obliged to be fair, which includes disclosing any information you know that helps the accused.  However, bail hearings must proceed expeditiously.  You are not obliged to disclose all the evidence in your possession if doing so will delay the process.  I do think it is appropriate to disclose to defence before the bail hearing the basics of what you know.  If your presentation takes defence by surprise, they can always obtain an adjournment. 

2007-10-19 Wrongful Conviction - Experts

- On a Saturday night, 14 years ago, Mr Mullins-Johnson, 2007 ONCA 720 babysat his nephew and neice.  On Sunday morning, the neice was dead.  A pathologist and a child-abuse expert examined her body.  From anal dilation and bodily bruising, they declared that she had been sexually abused and asphixiated.  Mullins-Johnson was convicted and spent 12 years in jail.  The experts were wrong.  Subsequent experts explained that anal dilation and lividity are normal findings in a child after death.  The lesson for all of us is to investigate and prosecute with healthy skepticism.

2007-10-19 Search & Seizure

- Seizing Garbage - Crossing the Property Line - Mr Patrick 2007 ABCA 308 put his garbage out for collection on his property.  Police officers reached over the property line and took that garbage.  Inside, they found evidence of Mr Patrick's ecstacy lab.  They got a warrant and busted him.  By crossing the property line, did they violate his s.8 rights? In a 2:1 split, the court said no.  Although this decision favours such a search, there remain differences of opinion.  Further appeal is still possible.

2007-10-18 Search of a "Crime Scene" -

There still remains a popular misconception that police can always search crime scenes without getting a warrant.  Your power to search a place depends upon the circumstances.  There is no general power of warrantless crime scene search.
Here are two decisions.  In the first, there was no crime, but there was lawful authority to search a residence without a warrant.  In the second, there was a serious stabbing in a residence, but no lawful authority to search it.

Ms Peacock-McDonald, 2007 ONCA 128 wanted to kill herself.  Police officers took her to hospital where she was detained under Ontario's Mental Health Act.  The doctor's order could hold her not more than 72 hours.  Meanwhile, one officer returned to her house and searched it for firearms.  Although the decision doesn't say, it appears he had good reason to believe that there were firearms present.  He didn't get a warrant.  He found guns.  Defence complained that he should have sought a warrant.  There was time: Ms Peacock-McDonald wasn't released for 2 days.

The officer explained that although she was detained, she could be released at any time simply by "shoring herself up" and denying that she was suicidal.  The court agreed with the officer.  This was a risk which rendered it impractical to seek a warrant, and the search was for her safety and the safety of the public.

Consider, on the other hand, Mr McCormack, 2007 BCSC 1526, who called the police after he'd been stabbed at his residence.  The attending officers also heard from a neighbor that the assailant had a gun.  They searched through the residence for guns and other occupants.  They found blood trails, including one which led to the garage, but they did not find guns nor the stabber.  McCormack became uncooperative, and told the police to leave his residence.  McCormack went to hospital, and the police left the residence.  A senior officer directed another search of the residence for weapons and evidence of the offence.  But he did not seek a warrant because the assailant enjoyed no expectation of privacy in the house.  He also thought that because the house was a "crime scene", police were entitled to search.

The second search found large quantities of drugs in the garage.  McCormack complained that the officers violated his expectation of privacy, and the court agreed.  The first search was justified by the risks to the officers and the public of an armed assailant in the house.  The second search was not.

The senior officer was right about one thing: if the assailant was a visitor to the house, then the assailant enjoyed no expectation of privacy in it.  The assailant would have no standing to complain about breaches of his rights.  But McCormack did, and he had specifically ordered the officers out of his house.

The officers went into the house as trespassers looking for evidence against the visitor, but emerged carrying evidence against the resident.

2007-10-17 Search and Seizure on Detention

- Cst Douglas noticed Ms Thiboeau, 2007 BCCA 489 driving on the wrong side of the road.  She soon veered over to the right side, but he pulled her over anyway.  He asked for her driver's licence.  For some time, she searched her wallet in vain, but she ignored the fanny pack around her waist.  She appeared particularly nervous.  Finally, she turned her back to the officer and dug around in the fanny pack where the officer could not see.  The officer felt concerned for her safety.  What weapons might she have in the fanny pack?  He asked her to turn around and show him the pack.  It contained drugs.  He arrested her, and then searched the car for drugs, and found more.  Defence objected to the searches, but the court dismissed the complaints.  This case makes no new pronouncements of law.  But the officer did the right things, and explained himself appropriately through the trial.  It's a good example case, and it's mercifully short.

2007-10-12 Informer Privilege and Public Proceedings

- The principles in this landmark case are simple: the identity of a informer must be kept secret but court proceedings must remain open.  The facts are unusual:

During extradition proceedings, the accused "Named Person" 2007 SCC 43 wanted to complain that the state abused him.  He wanted to say that police improperly revealed his identity as an informer.  The trouble was that making his complaint in open court would violate privilege.   He asked for a closed court.  The judge didn't want to close the court if the question was government misconduct.  The public ought to know if the government misbehaves.

Therefore, the judge invited the press to send their lawyers to discuss how best to protect privilege but air the problem.  The trial judge ordered that the press lawyers receive disclosure that tended to identify the informer, but on their undertakings not to disclose this information to their clients.

The Supreme Court of Canada re-affirmed both principles - open court and informer privilege.  The court said it was wrong to disclose anything that might identify the informer to the lawyers for the press, but it was correct to invite the press, and to disclose as much as possible about the proceedings without violating informer privilege.  The court is to remain as open as possible.

2007-10-12 Murder, Intent and Post-Offence Conduct -

One contraversial kind of circumstantial evidence is what the killer did after the killing.  In many cases, efforts to dispose of the body or create a false alibi suggest that the suspect killed the victim, but they don't necessarily establish whether the killer intended to kill the victim during the assault.  This is often the difference between murder and manslaughter. Arcangioli, Sabri, Bailey

However, Mr Giroux 2007 BCCA 488 claimed at trial that he was so intoxicated by alcohol and drugs that there was doubt whether he intended to kill.  The trial judge observed that Mr Giroux seemed to know exactly what he was doing after the killing, which tended to show that he wasn't so intoxicated.

This case serves again to emphasize the importance of investigating all the surrounding circumstances of the killing.

2007-10-11 Search & Seizure - Dial Number Recorders

- Mr Cody 2007 QCCA 1276 participated in a conspiracy.  In the early stages of the investigation, police gathered information using dial number recorder (DNR) warrants.  They relied on the very low standard of "reasonable suspicion" to persuade the justice to issue the warrants.  Defence relied on a B.C. case which requires "reasonable grounds to believe" that a DNR would afford evidence.  Neither the trial judge nor the Court of Appeal agreed.  This doesn't overturn the decision in B.C., but it does provide greater reason to be confident that the test for DNR warrants is "reasonable grounds to suspect".  (In another decision, Joyce J. of the B.C.S.C. took a very narrow view of the the B.C. case involving DNR warrants.)

2007-10-10 Possession of Computer Data - Child Pornography

- Mr Panko (2007 Ont S.C.J.) beat child pornography charges on the basis that hackers or others could have put the pictures on his computer.  The Crown appealed successfully.  In the absence of evidence that the computer was hacked, it was speculation to think that someone else put them there.  This decision isn't on the internet yet.  Email me if you need a copy.

2007-10-06 Expectation of Privacy & Traffic Violations

- Cst MacDonald got a report of a possible impaired driver, and found a car matching the report.  He tried to pull it over, but the driver, Mr Halloran 2007 BCSC 1425 kept going until he got to his driveway.  Then he tried to walk into his house before the officer stopped him.  Was the officer allowed onto his property, or was Mr Halloran "home free"?  The court found that the fact that the driver did not stop when signalled to do so vitiated his expectation of privacy on his property.  The judge didn't say wether the officer would have been justified in following the suspect into his house.

2007-10-05 Border Guards

- Back in July, I mentioned R. v. Sekhon, 2007 BCPC 224, the case about the behaviour of border guards which made the papers in B.C..  That judge had her knuckles rapped by a superior court in another border guard case.  Gorman 2007 BCSC 1490.

2007-10-05 Police Eyewitness Testimony - Photographs

- Cst Hall made an undercover purchase of drugs from a guy in a car.  Other officers later stopped the car and found Mr Cheema 2007 BCCA 476 driving it.  Cst Hall came by and looked at Mr Cheema during that stop, and later received a picture of Cheema.  Cst Hall said he recognized Mr Cheema.  The next day, Cst Hall made another purchase from the same guy.  At trial, he relied on the photo he had received to identify the accused in the court room.  Defence argued that none of the identification procedures were proper: Cst Hall should not have been shown a single suspect but a lineup.  Cst Hall should not have used the photograph to refresh his memory.

The court agreed that there were weaknesses in the identification procedure.  There was, however, a great deal of circumstantial evidence (not mentioned in this summary).  But the court disagreed that there was any problem with the officer bringing the photo to court to refresh him memory.

2007-10-05 Eyewitness Identification & Negligent Investigation

- Police placed a photo of Mr Hill (2007 SCC 41), an aboriginal robbery suspect, in a photo-lineup with 11 caucasian faces. Police interviewed two eyewitnesses together, with a photo of Mr Hill on the desk.  Some witnesses tentatively identified him.  Police collected other weak identification evidence, and charged him. After his acquittal, Hill sued the police for "negligent investigation".

The court found that you can get sued for negligent investigation.  In this case, the officers didn't stray far from the standards of investigation that applied back then. Beware.  In my view those standards have changed.

Beware of short-cuts in investigations. Always do the lineup correctly the first time.  Don't interview witnesses together.  Consider identification evidence carefully.  Investigate alternative suspects.

2007-10-02 Right to Counsel - Counsel of Choice - Adequacy of Advice

- Mr Osmond 2007 BCCA 470 murdered a 13-year old girl.  He was 21.  When the police arrested him, he expressed greater interest in learning what the police knew than in talking with a lawyer.  He mentioned the name of a lawyer he knew.  The police did not attempt to contact that lawyer, but instead, put him in touch with Legal Aid.  The legal aid lawyer gave him 2 minutes of advice - to keep silent even in cells.  The Court of Appeal unanimously found that the lawyer should have given more advice, and the police should have done more to facilitate access to counsel.  They didn't even give him a phone book.

I see flaws in the decision. I expect an appeal.  However, there are lessons to be drawn from it:

• When a suspect mentions a specific lawyer, try to contact that lawyer.
• Give suspects charged with serious offences plenty of time to get advice.
• If you're going to dial the phone, give the accused the numbers to choose from.

2007-09-27 Intoxication or Automatism - What have you been drinking / smoking / injecting?

- Mr Chaulk, 2007 NSCA 84 went to a party and drank some beer.  And maybe smoked some marijuana.  And swallowed a "wake-up pill" that a friend gave him.  And maybe some acid and ecstasy too.  Then he went crazy and terrorized the neighbors.  He said he didn't know that what he took would make him so high.  After a technical discussion about admissibility of evidence (skip that part), the court analyzed self-induced intoxication as a defence.  Section 33.1 of the Criminal Code says it's not a defence to a general intent offence.  (Intoxication may reduce murder to manslaughter, but it shouldn't lead to acquittal.)  So when is intoxication "self-induced"?  Suppose a doctor gives you medicine, but doesn't tell you its intoxicating effects.  You drive your car and crash, but you're not guilty of impaired driving.  How much must the accused know about the drug he's taking to make him responsible for "self-induced" intoxication?  The court said it's "self-induced" when:

1. The accused voluntarily consumed a substance which;
2. S/he knew or ought to have known was an intoxicant and;
3. The risk of becoming intoxicated was or should have been within his/her contemplation.

Therefore, where drugs are involved before the offence, you want to investigate the accused's general knowledge of these drugs, and whether the accused consumed them voluntarily.  In this case, someone had the bright idea of obtaining the medical records of the doctor who treated Mr Chaulk.  That's how they found out about the acid and ecstasy.

2007-09-26 Impaired fatality - Privacy of suspect's medical treatment

- Mr Lachappelle 2007 ONCA 655 crashed his car killing and injuring the occupants of another vehicle. Police attended and noticed he was drunk. Lachappelle suffered injuries too. A police officer climbed into the ambulance that took Lachappelle to the hospital and listened to the conversation between him and the ambulance attendants. Was this a violation of Lachappelle's s.8 rights to privacy? At the hospital, the doctors took blood samples for medical purposes. The police officer sealed the unused samples, and got a warrant. Was sealing them at the hospital a warrantless seizure of evidence?  Was the officer guilty of delaying her breath demand?

In a short decision, the court found against Mr Lachappe on all points.  It seems you can ride in the ambulance and listen to the treatment questions of the attendants.  But the court didn't seem certain about this, and added that in this case none of the questions were particularly private.

General duty members should read this one.  The investigators conducted this investigation properly.  When one of these serious cases arises, you won't have time to research proper procedures.  Now is the time to learn how.

2007-09-25 Eyewitness Identification of a Stranger - Police witnesses

- During the pursuit of two young men in a stolen car, two officers saw the driver for a second or two when the stolen car collided with their police car.  20 minutes later, other officers took Mr Klyne, 2007 MBCA 100 into custody, and the two officers went to have a look.  They recognized him as the driver from the police chase.  Neither had seen him on any earlier occasion.  Defence argued that the "fleeting glimpse" of the driver of the stolen car was not long enough for the officers to remember his face; and viewing Mr Klyne in custody was a very poor identification technique (effectively a lineup containing only one choice).  The trial judge convicted, but the court of appeal acquitted.  They thought there was a possibility that the officers recognized the passenger, not the driver.

This case illustrates dangers in the common practice of putting a recently arrested prisoner in front of an eyewitness, to make sure you have arrested the right person.  These officers took no notes before viewing Mr Klyne.  They expected to see the driver.  There was a risk that when they saw Mr Klyne, they would believe that he was the driver, whether or not they actually remembered him from the collision.  The courts treat eyewitness identification of strangers with great caution.

When an eyewitness says "yup, you got the bad guy", many officers stop investigating whether they have arrested the right person, which can leave the court with very thin evidence of identification.  Before showing the suspect to the eyewitness, I suggest you consider:

Does the witness recognize the offender from prior dealings?	If the offender was a stranger, then identification is very much in issue.
How long did the witness see the offender?	A fleeting glimpse is a weak identification, and needs more investigation.
Under what circumstances?	Trauma, poor lighting conditions, distance, bad angles etc. can detract from the quality of an observation.
How much description can the witness give before seeing the suspect?	A detailed description given before seeing the suspect can cure many defects in procedure.

If your witness fares poorly on these questions, then a photo lineup done after the arrest is a wiser approach than bringing the eyewitness and suspect together.

2007-09-22 Search Warrants - Execution - Knock and Notice

- Ms Nguyen, 2007 ONCA 645 bought a house in a community where everyone knew each other.  Instead of living in it, she and another fellow installed a marijuana grow operation.  Her neighbors noticed and told the police, who got a warrant.  Although the officers had no specific knowledge of any danger in this residence, they entered without knocking or identifying themselves.  They just didn't know that you must knock, identify yourself and demand entry, except where you have clear reasons not to.  This breached s.8 of the Charter.

The trial judge admitted the evidence anyway -- only because the officers admitted their mistake, and changed their ways.  She observed that these drug growers chose a residence for the purpose of obtaining maximum Charter protection for their crime.  She thought excluding the evidence would bring the administration of justice into disrepute.  The appeal court didn't exactly agree, but didn't disagree either.

2007-09-18 Detention - Containment Areas

- Unfortunately for Mr Ingle, 2007 BCCA 445, he chose to drive a van full of drugs through a rural area just after someone had reported a theft:  2 teenage males reportedly took a toolbox from a pickup truck, dropped it, and fled.  In response to the report, police established a containment area, from which, almost an hour later, Mr Ingle emerged.  Neither he nor his passenger looked like the kids the officers sought.  But the officer didn't know this until after he stopped the van, and smelled the dope.  Was it an arbitrary detention?  From the decision in Clayton & Farmer 2007 SCC 32, one might think this little attempted theft was not important enough, nor the detention sufficiently close in time to justify a detention.  However, this court was satisfied that the circumstances justified a brief investigative delay.

2007-09-14 Child Pornography - The Personal Use Exception

- In R. v. Sharpe, 2001 SCC 2,  the court created a constitutional exception to s. 163.1's prohibition against the making and possessing of child pornography.  If people 14 or older engage in lawful consensual activity, they can record it for their personal use.  Mr Dabrowski, 2007 ONCA 619, aged 28 did just that with a 14-year-old girl.  She then complained that when they broke up, he threatened to show the videos to her family and friends.  If he did, then he no longer enjoys the protection of the Sharpe exception, and could be convicted of possessing child pornography.

2007-09-10 Detention - Triggering Charter Rights

- Police officers arrived to investigate a sudden death under suspicious circumstances..  The victim lay nude, on Mr Anthony's 2007 ONCA 609 bed, with "a lot of blood" around her hips.  The officers figured this was suspicious, but they didn't have enough to arrest anyone.  An officer told Mr Anthony he "needed" to take a statement from him.  Mr Anthony asked to sit in the front seat of the police car, but the officer chose the back seat.  The officer decided not to give him the police warning.  Mr Anthony told the officer of a night of sex with the victim, which the Crown used in the trial to convict him.  Was Anthony "detained" such that the right to counsel was triggered?  No.  The accused spoke enthusiastically to the police, and they let him go smoke and get a glass of water when he wanted.  This decision suggests that there is a downside to detaining possible suspects too early: you lose the comfort of the early stages of an investigation when everyone is just a witness.

2007-09-07 Firearms - Search and seizure - Exigent Circumstances

- Police officers attended a domestic disturbance between Mr Narayan 2007 BCCA 429 and his drunk girlfriend.  Mr Narayan had called the police, and had decided to leave, but wanted their help recovering some possessions before going.  The officers decided to give him a ride to his mother's house.  After they put his two guitar cases in the police car, the girlfriend told the police that one of the guitar cases contained a loaded handgun.  A quick search proved her right but the officers did not think they had grounds at the time to get a warrant.  Naturally, Narayan complained of an unlawful search.  The trial judge found that they actually did have reasonable grounds to search, and under the exigent circumstances of the situation, their search was justified by s.117.02.  At the end of the judgment, the court alluded to officer safety.  A simpler approach for the officers might have been to "detain" Mr Narayan, and then search for officer safety.

2007-09-05 Detention - Triggering Charter Rights

-The Ontario Court of Appeal explains a little more what triggers a detention and what does not.  Police officers driving by a school saw young Mr L.B. 2007 ONCA 596 and another youth behaving oddly, just outside a school during school hours.  They came back to check it out.  One of the officers held up a badge and announced "Toronto Police".  L.B. approached the officer, who asked "How's it goin'".  Because of the boys' strange behaviour, the officers spoke to them individually, thus preventing them from speaking to each other.  The officers asked for their names, and ran those names on CPIC.  L.B. looked fidgety, and appeared nervous.  That's not surprising when you learn that the officers found a backpack he had abandoned, and in it was a loaded hand gun.  Did the officers detain the youths?  The court found they did "detain" the youths in the sense of a brief delay, but the officers did not "detain" in the sense of a significant physical or psychological restraint.  Only that latter kind of detention triggers the rights to counsel.

2007-09-05 Impaired Driving - Operation of RSDs

- One officer demanded that Mr Padavattan (2007 ONSC) blow into a screening device, but another officer operated the device. Only the first officer formed the necessary suspicion that he had alcohol in his body. Defence argued that the second officer should have shared that suspicion before conducting the test

The court disagreed. Although the demanding officer need not operate the device,

• the demanding officer must have the suspicion, and
• the demanding officer should determine the sufficiency of the breath samples given.

(If the demanding officer doesn't have the necessary training, he or she can always ask the other one whether the sample provided was sufficient, and if not, require the suspect to blow again.)

2007-09-05 Impaired Driving - Care and Control

- Mr Smeda, (2007 ON S.C.) got drunk while changing his tires at the side of the highway. He had no plan to get home. Was he in care and control? The trial judge acquitted him, but the summary conviction judge ordered a new trial. There are several risks that the offence of "care and control" attempts to prevent:

1. The risk the vehicle will unintentionally be set in motion; (eg: Was the brake engaged?  Was the vehicle parked on a hill?  Manual or standard? etc)
   
2. The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others; (eg: efforts to dislodge a stuck car might cause it or other objects to move unpredictably)
   
3. The risk that the individual who has decided not to drive will change his or her mind.  (eg: Did the suspect change his mind often during the investigation?)

2007-05-31 Wiretap - Criminal Organizations and Criminal Lawyers

- Back at the end of May, the New Brunswick Court of Appeal upheld the constitutionality of criminal organization amendments to the wiretap sections.  They also approved a convenient monitoring of potentially privileged conversations between a suspect in custody and his lawyer.  A known felon told police that Mr Doiron, 2007 NBCA 41, a lawyer, bribed him not to testify against another accused.  The officers didn't trust the felon, and so they arranged to intercept conversations between him and the lawyer.  The authorization limited the police: they were not to intercept conversations in places where other lawyers might interview their clients; and an officer independent of the investigation would review the intercepted conversations to determine whether or not they were privileged.  These limits just sufficed to protect the privilege in the intercepted conversations.

2007-08-25 - Routine Identification Checks & Detention

  - Important case - Police stopped a car for a routine traffic violation.  Mr Harris 2007 ONCA 574 was a passenger.  The officer asked him to identify himself, so that the officer could run his name on CPIC.  Harris gave his name, and the officer discovered he was violating curfew.  The officer arrested him and found a bag of cocaine in his waistband.  Harris complained that the demand for identification was an unreasonable search and seizure.

The court found unanimously that the way the police officer dealt with the passenger - "let me see your hands" - detained him.  But the officer had good reasons for making this demand, and so it wasn't an arbitrary detention.  And because the traffic stop was going to be brief, no right to counsel was triggered.

However, in a 2:1 split, the majority found that demanding a detained person's identity just for the general purpose of running their name on CPIC is an unreasonable search and seizure of information.

The minority disagreed, saying that there was no expectation of privacy in one's name, and the suspect can not complain of the police using their own databases to learn more about them.

In this case, the majority found that the officer could have obtained the passenger's name for a lawful purpose, and so admitted the evidence anyway.  That prevents the Crown from appealing the majority's finding on the key issue.  I expect this case will haunt us for a while.

When investigating traffic offences you might ask the passengers for witness statements about the violation.  Naturally, that will require you to get their names.  And then you could run their names on CPIC.  Another thing you might do is ask the passengers for the names of the other passengers.

2007-08-22 - Informer Privilege

- Mr Omar 2007 ONCA 117 had a handgun in his car.  Somebody knew it and told the police in confidence, who caught him.  Defence applied for disclosure of information about this confidential source.  Over Crown's objections, the trial judge ordered some disclosure.  Instead of dropping the case, Crown made a special objection under s.37 of the Canada Evidence Act.  The judge denied it, but Crown successfully appealed that decision immediately to the Court of Appeal.  Informer privilege belongs to the informer.  There is a procedure to protect it even if the trial judge makes a disclosure order at trial which would violate the privilege.

2007-08-22 - "Special Provincial Constable" - Scope of Powers

- Mr Semeniuk 2007 BCCA 399 appealed his conviction for fraud.  He represented himself.  He needed transcripts of his trial, but the transcript company wouldn't prepare them unless he paid in cash up front, or if a lawyer ordered them.  So Mr Semeniuk ordered transcripts using faked letterhead of a law firm.  The first offence was investigated by a special constable to investigate offences under the mandate of the Ministry of Finance.  That same special constable investigated this second offence, and obtained a search warrant.  But the second offence did not fall under the mandate of the Ministry of Finance.  Was the special constable a "peace officer" for the purposes of the search warrant?  The court held that he was because the second offence was relevant to bail issues and sentencing during the appeal of the first offence.  This means that Provincial Constables may keep investigating the accused for as long as an appeal remains outstanding.  It also suggests that a search warrant may be granted for the purposes of obtaining evidence relevant to bail or sentencing.

2007-08-20 - Fraud and Theft - the "Bad Businessman" defence

- When accounts are a mess and the money's gone, some businessmen claim they're not thieves, just bad bookkeepers.  Mr Bodnarchuk, 2007 BCCA 417 floated a company, and loaned it cash.  He then promoted the company as one that was going to be listed soon, and the share price would rise.  The trouble is, he knew it was insolvent.  When people bought shares, he used the cash to pay his own personal debts.  Investors asked for share certificates that they could trade.  He delayed delivering the shares because the certificates would reveal that the company wasn't doing well, and he didn't want the word to get out.  Did he commit theft?  When he applied investors' money to his own debts he claimed he wasn't stealing, because the company owed him the money anyway.  But the court found that his delay in issuing certificates made the transactions fraudulent, and therefore he committed theft.

2007-08-13 - Getting away with Murder - Warrants and Affidavits - Drafting

- I am grateful to Gord Reid of IHIT at Surrey for bringing the case of Ebanks (2007 Ont. S.C.J.) to my attention. It contains lessons for all who draft search warrants and wiretap applications. In a gang-related murder investigation the investigators applied for wiretap relying on a 350 page affidavit that took over a month to write. The investigator disclosed information which supported the application but omitted information which detracted from it. For example the investigators found some evidence which contradicted parts of their main witnesses' evidence. These contradictions were left out. Similarly, where eyewitnesses gave weak identifications, the authorization omitted the evidence which showed the weaknesses.

Because these applications are made ex parte, the ITO or affidavit must include the evidence for and against the issuance of the warrant or order. Contradictory evidence must be presented in a fashion that permits the justice of the peace to reach his or her own conclusions about the strength of the evidence.

The judge also advocates filing a written argument which explains how all the evidence fits together.

2007-08-13 "Plain Smell" Seizure - Detention -

At a bus station, a police officer smelled marijuana coming from two identical bags.  He seized them.  Then, in an undercover operation, police informed the passengers on the bus that there was a problem with the baggage, and asked them to re-tag their bags.  Mr Makhmudov and Mr Marinov, 2007 ABCA 248 tagged the bags in question.  Police arrested them, searched the bags and found guns and drugs.  Defence complained that marijuana was not in "plain view", that the officers' intention to arrest was a detention, and therefore the officers should have given their clients s.10(a) & (b) rights.

The court decided that there was no detention, because an officer's intention to arrest is just a thought, not an action.  The court found that the seizure of the bags was justified under s.489(2).  (If you haven't read this subsection before, now's a good time!)

2007-08-03 Detention and Arrest - Grounds for Arrest -

Walking at a train station, Mr MacEachern, 2007 NSCA 69 changed his course, and walked in a broad arc around a clearly marked police dog.  The dog followed him, and indicated drugs -- twice.  When Mr MacEachern tried to arrange for travel on a shuttle bus, another officer touched him on the shoulder and said "you're not going anywhere".  Was this a detention?  The officer thought not, but the judges disagreed.  Did the officer have adequate grounds to arrest MacEachern for possession of narcotics?  Again, the officer thought not, but the judges disagreed.  The dog's indications and MacEachern's actions provided ample grounds for arrest.

Because the officer questioned a detained suspect before giving him his s.10 rights, the answers he received were excluded from evidence.  The officer had relied on those answers to make an arrest.  Therefore, the Crown couldn't establish that the arrest was lawful.

Was the commercial quantity of drugs found in MacEachern's backpack to be excluded from the evidence too?  The judges said no.  Because the officer tried to respect the suspect's rights, and the breaches were inadvertent, the evidence could be admitted.  Conviction upheld.

Therefore, to obtain reasonable and probable grounds, you don't need certainty.  But detention can occur quite quickly if you prevent a person from leaving.

2007-08-02 Searching Computers Incidental to Arrest -

I can't name the case or recite the details due to a publication ban.  However, a B.C. Supreme Court judge recently decided that searching a computer or cell-phone for emails or text messages it received is not an interception of a private communication requiring a wiretap authorization.  Further, this search may be done "incidental to arrest" even months after the seizure, so long as it is done reasonably promptly under the circumstances.  Please email me if you require further details. [Added later: the decision is R. v. Giles 2007 BCSC 1147 - HW]

2007-07-30 KGB Statements & Identification

- A victim and his girlfriend were assaulted, but when police investigated, they wouldn't identify their assailant. Later, the victim was more seriously beaten. The girlfriend wasn't there. This time, in a KGB statement, the girlfriend identified Mr Devine, 2007 ABCA 49 as the assailant and gave a detailed description of him; but police showed no photo lineups to her. At trial, both recanted, and the girlfriend claimed that the first assault was the only time she ever met Mr Devine. How could she know his name? Although the majority upheld Devine's conviction based on the KGB statement, all the judges of the court agreed that a photo lineup would have made the statetments much stronger. You don't need to do a photo lineup every time you do a KGB statement. But if identity could be an issue, and you're taking a KGB statement, a photo lineup is a good idea.

2007-07-28 Impaired Driving - Reasonable and Probable Grounds

In a 5:4 split, the Supreme Court of Canada upheld Mr Rhyason's 2007 SCC 39 conviction for impaired driving causing death.  The judges all agreed that evidence of alcohol consumption did not, by itself, suffice to arrest or demand a breath sample.  You must provide evidence of impairment (or that the driver's blood-alcohol level exceeding 80 mg%).  They disagreed on a legal point.

Much of the trouble arose from the way that the police officer testified.  When asked why he arrested Rhyason, the investigating officer said he formed his opinion based on his (minimal) observations of alcohol consumption, the death of the victim, and Rhyason's admission of driving.  The officer never mentioned the unexplained collision.  I suspect that this detail was so obvious that the officer forgot to include it in his testimony.

When testifying about your grounds, you should describe all the sources of information, as well as all of the inferences you drew from them.  In this case, the unexplained accident provided evidence from which the officer could infer that alcohol impaired Rhyason's ability to drive.

Note the relatively few symptoms of alcohol impairment.  Rhyason's indicia of alcohol consumption were: Crying, shaking, bloodshot eyes and moderate odour of alcohol.  After being told that the pedestrian had died, he blinked slowly and had a blank stare.  By themselves, these did not establish impairment.  With the apparent bad driving which led to the accident, they did.

2007-07-26 Criminal Organizations -

In R. v. Terezakis, 2007 BCCA 384, the Court of Appeal reinstated a criminal organization provision which a lower court had previously found was unconstitutional.  We can, once again, charge people with the offence of directing offences for the benefit of criminal organizations.

2007-07-26 Traffic Stops & Arbitrary Detention -

Mr Lamontagne 2007 BCCA 390 stopped his vehicle diagonally across two travelled lanes, and was talking with someone through the passenger side of his car when a police officer turned up.  The officer thought something was wrong and turned on his emergency lights.  The trial judge found this was a detention; but the defence complained it was arbitrary.  Was it?  In a "leave application", a single judge of the Court of Appeal ruled it was not.  That means that this judge considers the answer to be a "no-brainer".  If it was a detention, it was not arbitrary.

It occurs to me that when you folks encounter complicated situations on travelled highways, you may engage your emergency lights for no other reason than traffic safety. Beware. Doing so may cause unintended "detentions" of people present.

2007-07-20 Searches at International Borders

- The recent decision of R. v. Sekhon, 2007 BCPC 224 in the B.C. Provincial Court inspired critical remarks in the B.C. press.  I prefer not to comment on this decision until after the appeal periods have expired.

2007-07-20 "Using" a firearm in the commission of an offence

- A group of youths committed a home invasion. One of them had a firearm. In the presence of the victims, the others said to each other things like "get the gun, get the gun", which had the effect of intimidating the victims. Did these others "use" the firearm in the commission of the offence? The trial judge, the Court of Appeal and the Supreme Court of Canada all agreed that they did even though they didn't have physical possession of the gun. R. v. Steele 2007 SCC 36.

2007-07-17 Right to Legal Advice - Waiver

- When first arrested, Mr Blume 2007 BCSC 924 said he wanted to talk to his own lawyer. When the investigating officer brought him to the detachment, he asked again if Mr Blume wanted to talk to a lawyer. Blume answered: "What for, any loud mouth could win this in court." The officer took this to mean "no", and proceeded with the investigation. The court disagreed. If your detainee expresses an interest in counsel, but changes his mind, you must provide him with the Supplementary Charter Warning, which contains two key pieces of information: he has a reasonable opportunity to get legal advice and you will hold off eliciting evidence.

2007-07-14 Impaired Driving - Driver's Breath

- When first dealing with a possible impaired driver, many officers ask the suspect to blow into the officer's face, to see if it smells of liquor. If you detained the driver (and you usually do before taking this step), then beware. Some courts now say that this is an unlawful elicitation of a breath sample, and will exclude it, and all evidence obtained as a result of it. See R. v. Weintz, 2007 BCSC 915. I can't predict how appeal courts will go on this; but for the moment, you might want to engage the suspect in conversation rather than ask him or her to blow in your face.

2007-07-13 Experiments & Video Re-enactment

- Mr Walizadah 2007 ONCA 528 had an affair with a married woman. Someone murdered her husband and drove his taxi to a parking lot. Was it Mr Walizadah? After dumping the taxi, the murderer drove away in a van in the early morning hours. An honest eyewitness described the van as being different from Walizadah's van. The police re-created and videotaped the conditions under which she would have seen the van. This showed she could be mistaken about the description of the van. The court admitted the videotape in evidence, and Mr Walizadah was convicted. The court of appeal agreed. Sometimes honest witnesses are mistaken. Sometimes an experiment can answer a problematic question. Good documentation helps us later, in court.

2007-07-10 - Detention - Police powers - Roadblocks

- Police received a 911 call about 10 "black guys" outside the Million Dollar Saloon. The caller said that four of them took out handguns, and then "put them back in together". He identified four cars in the parking lot whose headlights were on. One car left the lot during the call. Within minutes, police attended and established a perimeter. They stopped the first car leaving the lot, which did not match any of the cars described.

Was it lawful for the officers to stop this vehicle? The occupants, Clayton & Farmer, 2007 SCC 32, complained that it wasn't. (They didn't like being discovered carrying handguns.) The trial judge said the roadblock was legal. The Ontario Court of Appeal said that the officers could only stop cars that matched the cars described in the 911 call. The Supreme Court of Canada unanimously agreed with the trial judge, but they disagreed among themselves as to why the trial judge was right.

After an offence, it is good police work to place officers in a perimeter in order to discover and contain people leaving the scene of the crime. But section 9 of the Charter limits who you can stop.

Why are police roadblocks such a problem? In the minority decision, Binnie J. put it very clearly:

"It is not only bad people who were leaving the Million Dollar Saloon on September 24, 1999. Individuals going about their ordinary business, even in the small hours of the morning, should not have their way physically blocked by the police and be required to account for themselves unless there exists a Charter-proof legal authority for the detention."

Difference of Opinion

The majority found that the police detention was not "arbitrary" because the 911 call sufficiently justified stopping vehicles even if they did not perfectly match the information they received.

The minority found that the police detention was arbitrary because the officers had no specific reason to believe the occupants of this vehicle was involved in the crime; but the minority went on to find that police have a very limited power of "arbitrary detention" to investigate a significant public risk.

While their analyses differ, the judges agreed on the points that you police officers must consider.

Of course you can stop cars or people who appear to match what you've been told about the offence. (See R. v. Mann, 2004 SCC 52)

But you can also stop people and cars that don't match the information you have about the offence if:

1. the offence you're investigating involves a significant public risk (most property crimes don't appear to be serious enough); (paras 31, 36, 72, 73)
2. stopping these people and cars is necessary to investigate or contain the threat; (paras 30, 31, 37)
3. you keep the size of the perimeter as small as the circumstances permit; (para 31, 90)
4. you establish your perimeter fast enough to enjoy a reasonable prospect of success; (para 31, 35, 90)
5. you maintain your perimeter only so long as there remains a some reasonable prospect of success. (para 31)

Of course, when you detain a car or a person under these circumstances, you can not search beyond plain view for evidence of the offence. But if you have reason to fear that a person is carrying a weapon that poses you a danger, then you can search for weapons.

Timeliness

In Clayton, the police officers responded within a few minutes. The majority relied upon this quick response to find their blockade was justified.

However, many police officers have told me that felons often stick around in the area of their offence for quite long periods of time. I know I've seen plenty of convenience store robberies in which the robber was located in the area 30 and 40 minutes after the crime. Arsonists usually like to watch their fires. Murderers frequently return to the scene.

Therefore, junior officers should defer to senior officers how long they expect a perimeter may be successful, and why. In the event of a Charter application, senior officers should be ready to explain in court why they thought a late perimeter may be successful. I suggest that you be proactive about this. Many prosecutors don't know how successful perimeters can be even long after an offence. Put the senior officer's name on the RCC as the person who decided how long the perimeter should persist.

Precision

The Ontario Court of Appeal found that the only vehicles the police could stop were those described in the 911 call. The majority of the Supreme Court of Canada found this unduly limiting. The caller described a group of around 10 people, but only 4 vehicles. Therefore, the majority reasoned, the officers had reason to suspect that more vehicles could be involved.

For you officers, this highlights the importance of expressing in court what information you have and what possibilities this information suggests. For example, some people can't distinguish well between other racial groups. If your 911 caller describes "a Chinese guy", he might actually have seen an aboriginal person.

Witnesses

What about potential witnesses leaving the area? in this case, the investigating officers didn't say much about the prospect of learning more about the offence from people in the area. Therefore, the Supreme Court of Canada didn't say much about it either. When establishing a roadblock, one of your objectives should be finding people who saw what you're investigating who can give you more information. (para 93) This is a valid reason for a roadblock. Say so when you are asked about it in court.

2007-07-10 - Youth Statements - The Waiver Form

- Many versions of the Youth waiver form suggest that the suspect has the "right" to have an adult present during the interview.  But the Ontario Court of Appeal says this isn't correct.  Actually, the officer has the "obligation" to bring the adult into the interview unless the youth wants the adult out.  R. v. S.S. 2007 ONCA 481.  Go check your youth waiver forms!

2007-06-29 Reasonable and Probable Grounds - Habits of Drug Dealers

- An undercover police officer arranged to purchase a large quantity of drugs from a dealer. Mr Juan 2007 BCCA 351 came in the dealer's car to meet the cop, but did not participate in the transaction. The take-down team arrested Juan too, and found drugs on his person. Defence argued that the police had insufficient grounds to believe that Juan had committed any offence. But the officers testified that in their experience, dealers conducting large transactions usually brought "muscle" for security, not innocent passengers. The appeal court found that this sufficed to establish reasonable grounds. If you read this case, you will see the importance of explaining your experience, and the inferences you drew from what you observed before you arrested.

2007-06-27 Bail Hearings - Tertiary Ground

- Many people confuse the secondary and tertiary grounds for detention. Sometimes, even judges. Mr Mordue (2006 Ont C.A.) was charged with brutally murdering his ex-wife. The evidence was overwhelming - he had a motive; he left his fingerprint in her blood at the scene, and a suicide note explaining why he did it. He attempted to kill himself by throwing himself in front of a train. His clothing and car were covered in blood. However, he had deep roots in the community, he had virtually no prior criminal record, and his family could raise $125,000 surety.

The judge who conducted the bail hearing ordered Mordue's release because:

1. there was little risk he would fail to return to court
2. he posed little risk of reoffence
3. any fears that he might commit more offences could be adequately addressed by bail conditions

But the appeal court reversed this decision on the tertiary ground.

The justice system would look pretty silly releasing someone who's almost certainly going to get a life sentence. It would appear to trivialize domestic violence.

2007-06-23 Impaired driving - ASD refusal

- Unlucky 13 - Police asked Mr Rice 2007 ONCA 105 to blow into a screening device. Twelve times he provided unsuitable breath samples. The officer warned him it was a crime to fail to provide a breath sample, but still Mr Rice provided short puffs. Did he commit an offence? Defence counsel argued that 13 attempts wasn't enough to prove that Rice was deliberately failing or refusing to provide. The court disagreed. The number of attempts doesn't matter, but evidence of what and how the suspect behaves does. I say don't give up just when you are satisfied the offence is complete. Keep trying until you have collected enough evidence to satisfy a judge beyond a reasonable doubt that the suspect is deliberately failing or refusing to provide a breath sample.

2007-06-23 Tunnel Vision & Investigating Groups

- Mr Persaud (2007 ONSC) taught difficult children. One of them complained of an assault in the classroom. The school suspended Mr Persaud, and wrote a letter to parents about it after which some kids made more complaints. Police took statements from the kids that complained, but not the other children who were present at the time. The absence of coroborrating evidence from other people present at the time of the alleged assaults caused the judge to doubt the allegations. It also appeared that the letter to the parents could have stirred up "me too" complaints. Defence also complained of the risk that the children colluded. When investigating complaints from a group, you should canvass with each complainant:

• Who else could have seen what happened?
• What do you know of other complaints?
• Please don't discuss your complaints with other witnesses.

To avoid accusations of tunnel vision, you should always canvass all reasonably available sources of information, not just the complainants.

2007-06-15 Spousal Incompetence & KGB Statements

- Mr Couture 2007 SCC 28 told a volunteer counsellor at prison that he murdered a girlfriend and a friend of hers. After Couture's release, he lived with the counsellor and her husband. Then she divorced her husband amd married Mr Couture. Apparently Mr Couture wasn't the perfect husband. They split after some domestic violence. She told the police about the murders. But she and Mr Couture reconciled. (Ain't love grand?) Mr Couture was charged with murder. The ancient common law rule of "spousal imcompetence" prevented the prosecution from making Mrs Couture testify about Mr Couture's confessions. But could the Crown tender the statements she gave to police?

5 of 9 judges said no. Taking a sworn statement from a spouse for the purpose of evading the spousal incompetence rule undermines the rule. 4 of 9 judges said yes, because admitting the statements would not harm the marriage.

For investigators, there are several things to note. First, spousal incompetence is riddled with holes. For many offences, a spouse may be compelled to testify. See s.4 of the Canada Evidence Act. Second, the law in this area may change, because the Supreme Court is clearly divided, and even the majority invited Parliament to change the law.

Therefore, I think you should continue to take statements from suspects' spouses. If you think a witness is likely to give you truthful evidence now, but may lie in the future, taking a sworn statements is probably a good idea. You should not compel such a person to give a statement, and you should avoid leading questions when taking such statements. Leave it to Crown to figure out what to do with the statements you obtain.

2007-06-06 International Investigations - Canadian police in foreign countries

- Mr Hape 2007 SCC 26, laundered money in the Turks & Caicos Islands. Canadian police went there, and, under the authority of the local police force, searched Mr Hape's offices. The defence complained that this search violated s.8 of the Charter. The court concluded that the Charter didn't apply.

In this decision, the court rejected its own reasoning in R. v. Cook [1998] 2 S.C.R. 597. That decision said that when you leave Canada on an investigation, you bring with you an obligation to obey the Charter. This is now wrong. Now, unless the foreign authorities permit you to apply Canadian law in their country, you must obey the laws of the foreign state; but also you must not participate in activities which violate Canada's international obligations in respect of human rights.

In this case, the officers obeyed the law of the Turks & Caicos Islands and operated under the authority and direction of their senior police officer. This satisfied the court.

2007-06-06 Expectations of Privacy & Grow-Ops

- The Saskatchewan Court of Appeal found that attaching a Digital Recording Ammetre (DRA) to the power lines going into a residence suspected of containing a grow operation does not violate s.8. R. v. Cheung, 2007 SKCA 51. As noted in the decision, this is still a contentious issue.

2007-06-05 Malicious prosecution - Do you really believe the suspect is guilty?

- In Kvello v. Miazga, 2007 SKCA 57, a prosecutor was sued for running a sexual assault prosecution against 12 defendants. The complainants were children who lied and contradicted themselves. Two of three judges of the court found that the prosecutor didn't honestly believe that all the accused were guilty, the court found that the prosecutor so distorted his role as to be liable for malicious prosecution. The third forcefully disagreed. It looks to me as if the legal point on which the judges disagreed should go to the Supreme Court of Canada. For your purposes, don't swear or recommend charges against people unless you believe that they are probably guilty. You could get sued. In this case the police officer was found liable. (The prosecutor successfully appealed the finding against him. Miazga v. Kvello Estate, 2009 SCC 51.

2007-06-04 Constitutionality of Ontario's Civil Remedies Act - Taking a criminal's profits

- Police found Mr Chatterjee, 2007 ONCA 406, an unemployed student, in possession of a large amount of cash and drug growing paraphernalia. The police applied to keep the cash and equipment. Chatterjee argued that the province of Ontario had no business enacting criminal law; criminal law is a Federal responsibility. The Court of Appeal agreed with the division of responsibilities, but found that this legislation isn't criminal law. It's about property. Chatterjee lost his cash. Tough luck for him. This is good news for similar legislation in other provinces, including B.C.'s Civil Forfeiture Act.

2007-05-23 Peace Bonds

- In Baril v. Obelnicki, 2007 MBCA 40, the Manitoba Court of Appeal upheld the constitutionality of Provincial legislation which allows a complainant of criminal harassment to apply for an immediate specialized peace bond. Procedures thereafter resolve whether the bond should be maintained. We have no legislation like this in B.C.. I'd love to hear the opinions of those of you who live in the provinces where this legislation does exist:

• Saskatchewan: The Victims of Domestic Violence Act
• P.E.I.: Victims of Family Violence Act
• Yukon: Family Violence Prevention Act
• Alberta: Protection Against Family Violence Act
• Ontario: Domestic Violence Protection Act (not yet proclaimed)
• Nova Scotia: Domestic Violence Intervention Act
• N.W.T.: Protection Against Family Violence Act
• Manitoba: Domestic Violence and Stalking Prevention, Protection and Compensation Act

2007-05-15 Investigative detention - seizing cell phones

- Plainclothes officers saw Mr White, 2007 ONCA 318 conduct what looked like a drug transaction in a high-crime area. When he drove away, they followed him, and ran his licence plate. It revealed that the owner of the car was prohibited from driving. They watched him:

• fuel his car
• walk to their car and peer in
• start walking away
• call someone on his cell phone

When the officers approached him, he said into the phone "Yeah, they’re here now." Could they seize his cell phone? The officer testified that he feared that Mr White would summon backup who would pose the officers a threat, or remove evidence. Under these circumstances, the court agreed that seizing the phone was reasonable to protect the officers. However, I don't think it gave the officer authority to search the cell phone until after an arrest for something related to it.

2007-05-15 Arrest

- After reading an ITO for a search warrant, an officer arrested Mr LeBlanc, 2007 NBCA 24, a well-known drug dealer, for trafficking. Mr LeBlanc had drugs in his possession, but the officer had no specific transaction in mind when he arrested Mr LeBlanc. Therefore, the court found that the arrest was unlawful, and excluded the evidence. You can't arrest a trafficker, but you can arrest someone who trafficked. When you arrest someone for an offence, you must know what act you are arresting the person for.

2007-05-11 Fixing a Charter Breach - how to make a "fresh start"

- These two appellate-level cases arrived within days of each other. They address the same issue:

Police arrested Mr Lewis, 2007 ONCA 349 for robbery and attempted murder. At the scene, he said he wanted to speak to a lawyer. On his return to the police station, he did not immediately mention his request again. The police officers questioned him, and he admitted being present for the incident but denied using any weapons. Then he mentioned his desire to speak with counsel again, which police accommodated. Thereafter, they recorded a voluntary statement from him. Because of the initial breach of his Charter rights, the court excluded the statements made before and after access to counsel. The court said that after such a Charter breach, you must make a "fresh start" with the suspect, and "sever" the connection between the investigation before and after access to counsel.

When police first interviewed Mr Whittwer 2007 BCCA 275 for sexual offences against young children, he was in custody for another offence. Mr Wittwer gave an incriminating story but the investigator had forgotten to explain his rights to counsel. The statement was inadmissible. Unaware of that statement, a second officer interviewed Mr Whittwer, telling him that the first officer had asked him to do so. Mr Whittwer now had counsel, but gave another statement. The officers concluded this wasn't a sufficient "fresh start" from the inadmissible first statement. Many months later, a third officer interviewed him, pretending to have no knowledge of the earlier statements. His purpose was to obtain a statement independent of the others. The court found that the third statement was admissible, and suggested that the second one might be too.

So how do you make a "fresh start"? Factors the court will consider include:

• A new officer, who gives a proper
• s.10 Charter advice,
• primary warning,
• secondary warning, and
• access to counsel (if desired).
• The passage of time helps.
• Feigning ignorance about earlier statements may also help.

But it's easier to do the investigation correctly from the beginning. If your suspect is detained, and you're investigating a new allegation, you should give him his rights.  (The SCC later reversed this decision in Whittwer 2008 SCC 33.  They noted that it was only after the third officer acknowledged that he knew about the prior statements that Whittwer confessed.)

2007-05-10 Consent search - Someone claiming to be a member of a strata council asked police to investigate marijuana found in a dumpster. It appeared that someone was growing weed somewhere in the complex. The officer asked the complainant - who asked that his identity not be revealed - for permission to walk on the roof, to smell the exhaust vents of the various units. The complainant agreed. This led to Mr DiPalma's (2007 BCSC 536) suite, arrest and charges. Because the complainant was a confidential source, the Crown could not prove whether the complainant actually had the authority to take the police onto the roof area. But the officer acted in good faith, reasonably relying upon the complainant's assertions that s/he had authority, and so the court admitted the evidence anyway. (Later affirmed: 2008 BCCA 432)

2007-05-08 Breath Demand and Charter - Which do you read first?

- Many of you have asked me whether the Charter should be read first, or the breath demand. I told you I didn't really care. I found a judge who does. A police officer found that Mr R. v. Hopfner, 2007 MBPC 17 looked impaired. The officer read him a demand. Mr Hopfner refused. The officer then read him his Charter rights. Mr Hopfner did not want to speak with counsel. Judge Corrin found that the refusal was obtained before the police told him his rights, and therefore, the evidence of the refusal should be excluded. With respect, I disagree for two reasons. First, reading the demand is the detention at issue. This ruling puts the cart before the horse. It is illogical to require the police officer to give the legal rights which flow from the detention before the detention occurs. Second, the officer did not cause the accused to speak words of refusal. His response was volunteered, not elicited. While I agree that any breath samples obtained from the suspect would have been "elicited", and therefore inadmissible until counsel is waived or consulted, I don't think the demand asks the accused for a refusal. Anyway, this judge thinks you should warn first, then demand.

2007-05-04 Breath Demands - Re-reading the demand - A couple of years ago, in R. v. Woods 2005 SCC 42, the Supreme Court of Canada reminded us that breath demands must be made "forthwith", after you form your grounds, not later, at the detachment. One officer obtained appropriate grounds to demand that Mr Townsend 2007 ONCA 332provide breath samples. At the detachment, Townsend showed such reluctance to blow that the breath tech read another demand. Did the second demand invalidate the first? Was it lawful? The court court upheld the conviction, saying it was an honest effort to get Mr Townsend 2007 ONCA 332 to blow. I don't recommend that breath techs read out new demands to the people they're trying to convince to provide breath samples; but I do think a formal review of the demand in the detachment may help the suspect understand the seriousness of refusing.

2007-05-01 Robbery or Shoplifting?

- Mr Newell, 2007 NLCA 9 stole some meat from a supermarket. When a loss prevention officer accosted him in the parking lot, he produced a knife and fought with him. I thought this common pattern is a robbery, but the court's careful reading of the legislation convinced me that this was a theft and an assault, but not a robbery. Violence used to effect an escape after the theft is complete does not convert a theft into robbery.

2007-04-30 Automatism - Action without intention

- Mr Cuthbert 2007 BCCA 240 shot a sawed-off shotgun at his ex-wife's new boyfriend. He tried to shoot her too, but the shotgun jammed. He had a long-standing feud with her about custody and access to their daughter. He claimed, by a combination of his peculiar psychological makeup, alcohol and drugs, and an emotional blow, to have been in an automatic state, in which he did not consciously control his actions. Naturally, Crown and defence psychiatrists disagreed whether this was the case. In this judgment, the court analyzes the law relating to this contraversial defence. It's long and technical. What's interesting to police is the valuable investigation the police officers did into Cuthbert's activity before and after the shootings. They found where he got the gun. Their search of his house revealed that he sawed off the barrel at his house just before the shooting. The history of the relationship for years before the incident mattered. His demeanour after the shooting mattered. What the accused intended always matters. Gathering evidence of that intention requires inguity but can pay off. The jury didn't buy this defence, nor did the Court of Appeal.

2007-04-28 Expert Evidence - Illegal drugs - In Mr Petavel's 2006 BCSC 1931 trial, the judge accepted Cst Rowe as an expert in the trafficking and consumption of cocaine. He was impressed by the officer's training, experience, and interest in the topic. Just because there aren't university degrees in this topic doesn't mean you can't have expertise in it. If you read the judgment, you will notice that there are many things you can testify about which will increase your credibility as an expert. Put them in your resumé:

• Courses, their subject matter and duration
• The expertise of the instructors in those cases
• Number of years spent investigating related offences, and number of cases investigated.
• Personal efforts made to learn about the topic

2007-04-26 Search incident to Arrest

- Just around midnight, Mr Duong 2007 BCCA 227 looked for a prostitute in the seedy part of town. Who he found was a cop who signalled other members of her team to arrest him. Things got worse for unlucky Mr Duong. Not only did those officers arrest him, but they searched his van and found $15,000 cash and over $30,000 worth of cocaine. Poor Duong: no sex and no drugs. But was the search lawful? The officer testified that because of the prevalence of violence against sex trade workers, he searched the van for items that could be used for such a purpose - zap straps, duct tape, weapons etc..  Even though he had no specific reason to believe Mr Duong would inflict such violence, the court found that this search was "incident to arrest" because it was related to the arrest.  This case stretches the powers of search incident to arrest further than I expected it to go. I note, however, that the officer also asserted that many "johns" carry multiple sets of identity in case of arrest, and he was looking for evidence of identity. That's a good reason.  When you search incident to arrest, you need to know what you're looking for and why. But you don't need to know whether it's there.

2007-04-24 "Reasonable and Probable Grounds"

- A police officer saw Mr Shepherd, 2007 SKCA 29 drive through a stop sign and speed. The officer tried to pull him over. Shepherd's vehicle pulled to one side of the road and the other, but wouldn't stop for 3km. Shepherd explained that he thought the police vehicle was an ambulance. He had some indicia of alcohol consumption. The trial judge accepted this explanation, and said that the officer didn't have reasonable grounds to make a breath demand. The Court of Appeal disagreed. In order to make a breath demand, you need to believe that the accused is probably guilty, and your observations and evidence must bring others to the same conclusion. But you don't need to find evidence that proves guilt beyond a reasonable doubt.

2007-04-24 Care or Control

- Mr Buckingham 2007 SKCA 32 often drove the company truck to the bar, but always took a cab home. One night, he couldn't get a cab, so he climbed into the company truck and started it up to get warm. The police found him slumped over the steering wheel, his foot on the gas, and the engine revving "too high". The trial judge acquitted him because he had no intention to drive, and wasn't likely to drive. The Court of Appeal convicted him, saying that the Crown did not have to prove that the accused was probably going to drive, only that there was a risk he'd set the vehicle in motion. The court identified factors of interest:

• How reliable was the accused's intention not to drive?
• What actions were necessary to make the vehicle move?

Therefore, if you find the usual drunk slumped over the wheel with the engine running, you should note:

• what kind of transmission
• whether it was in gear
• whether the parking brake was engaged

and any other indicators that suggest whether or not the accused would deliberately or inadvertently put the vehicle in motion. After dealing with rights to counsel, you could ask what he intended to do that night.

2007-04-23 Cell Plants - Volunteered remarks

- Ms Quinn 2007 BCSC 357 was arrested for her part in a sensational murder.  There wasn't time to arrange for a 1-party consent wiretap application, but there was time to put an undercover officer into the cell with her.  Ms Quinn made inculpatory remarks to her cell-mate.  At trial, her counsel complained that the conversation wasn't recorded, and that the police elicited Ms Quinn's remarks.  The court accepted the officer's explanation for the failure to record, and also found that the conversation was indeed volunteered.   In a complete review of the case law, the judge points out that ordinarily, you should record conversations with prisoners; and undercover officers placed in cells with prisoners can not question the prisoner about the offence.  But they can listen, and talk normally.

2007-04-23 Character evidence

- Although general evidence of bad character is not admissible in a trial, evidence of specific bad acts can sometimes be admitted to probe specific issues. After a violent relationship with Mr P.S., 2007 ONCA 299, his spouse left him. He abducted and sexually assaulted her. Evidence of the past violence was admissible even though it contained no incidents of abduction or sexual abuse. This is because it proved his domation and control and his propensity to act violently toward her.

2007-04-19 Search warrants for lawyer's offices - protecting privilege - searching without looking

- Executing a search warrant on a lawyer's office risks violating solicitor-client privilege.  You are not allowed to read privilged documents.  You must let a judge determine whether documents are privileged before you can use them in your investigation.  But someone must find the right documents to give them to the judge.  How do you find without looking?  In Ontario, the Crown asked the court to order the Law Society to help.  The judge declined.  I can not say that this decision establishes the correct procedure, but it does explain the issues reasonably clearly.  

2007-04-18 Search incident to Arrest - Cars and Guns

- Police noticed that the tail lights of Mr Shankar's, 2007 ONCA 280 car weren't on, even though it was dark.  When they pulled him over and asked for his licence and insurance, he showed them irregular documentation, and he couldn't spell the name on the driver's licence.  Mr Shankar resembled a known drug dealer in the area, and the home address he gave was a suspected drug house.  They arrested him for giving them a false name, and searched his car for identification and weapons.  They found handguns and ammunition.  The trial judge thought that a search of the car was "not reasonably necessary in the circumstances", and the officers should have obtained a search warrant.  The Court of Appeal disagreed.  In a clear and simple ruling, the court spells out again your powers of search on arrest.  When you search the suspect or his vicinity, you must be looking for evidence related to the offence for which you have arrested, or, if you have reason to suspect your safety or public safety is at risk, for weapons.

The real key to this case isn't emphasized in the judgment:  During their testimony, these officers must have explained all the reasons that they thought this guy gave a false name, and why they suspected he had weapons.  Read it looking at the factual details these officers gave the court.  When you investigate, these are the details you need to record, so that you can recount them later.

2007-04-14 Detention - Driving Offences vs. Suspicious Activity

- Mr Schell 2006 SKCA 128 drove away from a bar around closing time.  For that reason only, a police officer stopped him. Was it an "arbitrary" detention?  The trial judge and the summary conviction appeal court thought so, but the Court of Appeal disagreed.  It's okay to check for drunk drivers coming from bars, even without any reason to suspect any particular vehicle.  (When you're on the stand defending your decision to stop such a driver, I suggest that you should articulate the obvious logic: People who go to bars drink.  People who leave bars often have too much alcohol in their bodies to be safe to drive.  Therefore, for the protection of the public using the roads, you want to check the sobriety of drivers leaving bars.)

On the other hand, a police officer saw Mr Houben 2006 SKCA 129, drive back and forth late at night in a residential neighborhood.  Nothing about him or his driving caused the police officer to suspect criminal activity except the lateness of the hour.  The officer decided to stop him to find out what was going on.  This led to breath samples at .210 and .200.  These were excluded because it was an arbitrary detention.

If your purpose in stopping a vehicle is road safety, then you do not require grounds to believe that there is a problem.  If your purpose is to investigate a criminal offence, you need reasonable grounds to suspect that something criminal is afoot.

Knowing that they have drawn this distinction, courts will be wary of police officers who claim that every stop was for traffic enforcement.  That applies particularly to you officers in the drug units out there!

2007-04-13 "Investigative Detention" - When to give 10(b) Information

- Mr Suberu 2006 ONCA 60 and a buddy went shopping with a stolen credit card.  When police attended a liquor store in response to a complaint, Mr Suberu tried to walk away quickly.  A police officer detained him and asked a few questions to determine what was going on.  But the officer didn't tell him about rights to counsel.  The answers led to an arrest.  Were Suberu's answers admissible at trial, or had the officer breached Mr Suberu's right to be informed "without delay" of his right to counsel?

The court opined that an officer should be able to ask questions during the "brief interlude between the commencement of an investigative detention and the advising of the detained person’s right to counsel under s. 10(b) during which the officer makes a quick assessment of the situation to decide whether anything more than a brief detention of the individual may be warranted".

When are s.10(b) rights triggered?  "It is often difficult to tell exactly when in the course of a dynamic interchange between the police and an individual that a detention based on psychological compulsion begins. ... If the officer has already made up his or her mind that the detained person will be detained for something more than a brief interval, there is no justification for not providing the individual with his or her right to counsel immediately."

This is an important decision for all first-responders.  You can stop the people you find, and ask a few quick questions to find out what is going on.  You should tell them why you are stopping them (s.10(a)), but you don't need to offer them access to counsel until you have determined:

• the subject isn't going to be allowed to leave for an extended time; or
• the subject is likely responsible for a criminal offence (even if you plan to release the subject for court later).

(This case went on to the Supreme Court of Canada, which changed the analysis of the Ontario Court of Appeal.

2007-04-13 Search and Seizure - The Trunk of the Car

- Police found Mr Alkins 2007 ONCA 264 in the driver's seat of a car stopped in a dark parking lot.  There were four men in it, and the front passenger was on probation, with a condition not to be in the area.  They arrested the passenger, and found him in possession of hidden weapon.  They searched Mr Alkins, and found him in possession of a hidden weapon.  When they removed the back passengers, they found large knives at their feet.  The officers searched the trunk and found a loaded sawed-off shotgun.  The trial judge thought this was an unlawful search.  In a strong clear decision, the Court of Appeal found otherwise.

"where multiple suspects have been lawfully arrested and several weapons have been discovered pursuant to lawful searches of the arrested persons and the interior of a car, it is appropriate for a police officer to search the trunk of the same car with a view to discovering additional weapons."

2007-04-06 Sexual Assault

- At 2:00am, Mr English 2007 BCCA 169 is alleged to have entered the bedroom of a sleeping 9-year-old girl.  He pulled down the covers, put his hand under her nightie and rubbed her back.  When she woke, she told him to leave.  He did.  She tried to turn on the lights, but the lamp and her night-light were unplugged.  The events occurred in the USA, who sought extradition.  In order to extradite, the court must be satisfied that the acts would be an offence in Canada.  Were they?  Even though no sexual part of the body was touched, the court found that a jury could lawfully convict him of sexual assault or attempted sexual assault, and upheld the extradition order.  Sexual assault is not about the part of the body touched, but the interference with sexual integrity.

2007-04-03 Forgery & Fake ID

- Mr Sommani operated a business which sold "high quality novelty identification".  For a price greater than official identification, he would produce fake identification which looked very real.  He posted disclaimers in his store and which urged customers not to break the law.  In fine print on the documents themselves, he put words which indicated that they were not genuine.  Some of the fake ID did not resemble the original documents at all.  But his advertising material suggested that even police officers would be fooled by the documents he produced.  The court found that he created this id for the purpose of inducing officials to believe it was genuine, and therefore it was forgery.

2007-03-30 Search & Seizure for Breach of a Condition

- Police found Mr Olivera 2007 BCSC 385 driving a car after his Conditional Sentence Order curfew.  Olivera got out of his car immediately. Even though he gave an explanation for his breach, the officers arrested him and placed him in a police car.  They searched his car finding drugs.  Was the search lawful?  The officer claimed the search was for two reasons: officer safety, and to find evidence explaining why Olivera would risk being out after curfew.  Nobody accepted the officer safety reason -- Olivera was in custody, and wasn't a risk.  But the other reason was acceptable.  You can't search a persons car just because he's on a probation or conditional sentence order.  But after an arrest for a breach, you can search the car if you think it might contain evidence relevant to the breach.

2007-03-28 Defence of property - How much force can someone in peaceable possession of property use to eject a trespasser?

A partier wouldn't leave when asked, so Mr McKay (2007 SCC) attacked him with two paring knives, injuring him.  The trial judge acquitted McKay because he was defending his property; the court of appeal convicted him because he used too much force; and the Supreme Court of Canada ordered a new trial.  They agreed that the trial judge interpreted "defence of property" too widely, but they wouldn't say just how much force is too much when defending property.

2007-03-27 KGB statements

- Ms Goodstoney, 2007 ABCA 88 persuaded a friend to stab an enemy.  The enemy died.  During the police investigation, the police persuaded the friend to tell all, and she did.  In a sworn videotaped statement.  At the preliminary hearing, the friend recanted.  At the trial, the friend refused to be sworn.  Were the friend's hearsay remarks admissible?  Defence complained that the administration of the oath was done without a real Bible.  The trial judge agreed the police made an error, but found this wasn't fatal.  What convinced the judge to admit the statement was that evidence demonstrated that the friend had no motive to lie about Ms Goodstoney's involvement.

The little point in this case is following the proper procedure for taking oaths, including having a Bible handy.

The big point is the value of investigating the motives of the crucial witnesses, particularly where they may recant.

2007-03-21 Crime-Stoppers tips - In R. v. Hanano, 2006 MBQB 202 (Man. Q.B.), the defence sought disclosure of information which would identify a Crime-Stoppers tipster.  The defence theory was that the police were calling Crime-Stoppers themselves, and providing invented tips, to give themselves the power to conduct random virtue testing.  The court held that the identity of Crime-Stoppers tipsters is privileged.  Although hardly new law, the court reminds us to preserve the anonymity of these tips carefully, because it's so difficult to tell what bits of of the tip might actually identify the tipster.

On the other hand, those of you tempted to give your investigation a "leg up" by calling Crime-Stoppers, beware.  Defence lawyers are suspicious, and if you are caught, judges will take a very dim view of this behaviour.

2007-03-19 Post-offence Conduct - What does it mean when a suspect flees the scene of a crime?

Although it suggests that the suspect wants to escape responsibility for the crime, the courts take care not to jump to conclusions.  Mr Chaffey 2007 BCCA 135 fled from police after a chain of robberies and car thefts led them to him.  Chaffey explained that he fled from police because of crimes he committed 3 days before.  The Court of Appeal upheld his conviction because of the strength of other evidence.  If your suspect runs away, don't conclude that he's guilty of the offence you're investigating until you've eliminated all other possibilities.

2007-03-10 Drug Trafficking - "Buyer's Agent"

- Mr Wood, 2007 ABCA 65, a panhandler, agreed to help an undercover police officer to obtain drugs.  He called a dealer using the officer's phone.  He conducted the transaction with the dealer at the dealer's car, and delivered the drugs to the officer.  Was he merely the buyer's agent, guilty only of possession, or was he trafficking?  The court found him to be a trafficker, neatly explaining this peculiar corner of the law.

2007-03-08 Confessions

- Cst Rob Parker questioned Mr Spencer 2007 SCC 11 for many hours about a serious robbery spree in which Spencer's girlfriend was minor player.  Spencer asked Parker for deal: if he confessed, the girlfriend would not get charged.  Parker said he couldn't make deals, but pointed out that prosecutors will often drop charges against minor players if they can get the main culprits.  In exchange for Spencer "clearing his plate", Parker did agree to let him see his girlfriend.  Spencer gave a partial confession.  Parker permitted him to speak with his girlfriend.  Then Spencer confessed to further robberies.  The trial judge found that the statement was voluntary, but two of three judges in the Court of Appeal disgreed.  The Supreme Court of Canada found that the statement was voluntary.

It's a borderline case.  The danger zones were:

• agreeing to do something in exchange for a confession, and
• implicitly offering lenience from the justice system for the suspect or people close to him in exchange for a confession.

When questioning a suspect, try to avoid talking about what the judge or the prosecutor will do.  If you must talk about them, stay strictly factual: "the prosecutor reads the file and decides what charges to prosecute; the judge decides the case based on the evidence presented in court."  Beware of holding out promises of lenience like "if you talk about the offence, then the prosecutor/judge will see you're a nice guy, and take a softer line with you"  In this case, Cst Parker walked very close to the line, and with difficult cases, that's good police work.  But don't walk that line if you don't have to.

What helped make the statement voluntary was Mr Spencer's clear understanding that the officer could not promise him lenience from the justice system.  Consider saying things like "You understand that my job is to collect the evidence?  You understand that I can't tell you what the judge or the prosecutor will do?  You understand I don't tell those folks what to do?"

Well done, Rob!

2007-03-05 Drug sentencing

- Mr Van Santvoord 2007 BCCA 23 kept detailed records of his two marijuana grow operations, which projected profits of $190,000 annually (tax free).  The sentencing judge imposed a fine of $20,000, but the Court of Appeal imposed 1 year jail instead.  Evidence of the personal profits and social costs of an offence makes a big difference in sentencing.

2007-03-01 Firearms search for public safety

- Ms McDonald 2007 ONCA 128 was suicidal.  Police officers investigated, and took her to the hospital for a doctor to examine her.  They obtained her house keys.  An officer went to search her house for firearms.  Before he got there, the doctor detained Ms McDonald under the Mental Health Act.  Without getting a warrant, the police officer entered the house and seized firearms.  The police applied to court for an order of forfeiture, and the judge granted it.  Ms McDonald appealed.  Was this warrantless search lawful?  Considering that a doctor would assess her mental health, either she would be detained (eliminating urgency) or released (because she was no danger).  The Court of Appeal upheld the search:

• Although s.117.04(2) only permits search for firearms in "exigent circumstances" when a warrant could not be obtained, the police could not know whether a doctor would detain her, nor how long she would be detained.  Therefore, the police could not know how much time they had to get a warrant.
  
• The officer testified that when facing the prospect of detention under the Mental Health Act, some patients deny they are suicidal.  Therefore the police could not know whether she would be detained.
  
• The Mental Health Act test differs from the Criminal Code test: doctors may release people who are still possibly dangerous with firearms.  Even if the doctor released Ms McDonald, it was still in the public interest to remove the firearms.
  

This decision confirms your power to search a residence for firearms where you have grounds to believe that there is a risk to the public.  Don't forget that you should first consider getting a warrant under s.117.04(1), and determine whether making such an application is practicable under the circumstances.  But practicality yields to urgency in situations of public danger.

2007-02-27 Admissible Hearsay & Interview Techniques

- In attempting to solve the rape-murder of an innocent young woman, a police officer repeatedly interrogated a potential witness improperly.  He suggested recollections to her, he invited her to speculate and imagine recollections.  The witness was a drug addict at the time of the murder, and at first, she claimed to have little memory of the event.  By the time the officer was done with her, she had a story.  Perhaps because of the media frenzy over the case, she discussed her story with acquaintances, who were prepared to give it some support with claimed recollections.  Her story was completely incompatible with the fact that Mr Post's 2007 BCCA 123 DNA was in the body of the victim.   At trial, the witness claimed to have little or no recollection.  Defence wanted to present recordings of her interviews, but the judge excluded it because it was unreliable.  The judge condemned the officer's interview technique.  I guess there are two lessons to be learned here: (1) Beware of making suggestions to witnesses: make sure that your interviewing doesn't change their recollections; (2) Recording the interviews helps later review.

2007-02-20 "Causing a Disturbance" - Caution

- There was a warrant out for a gang-member's arrest.  Cst Walker 2007 ONCA 104 stopped a fellow walking on the street, but it wasn't the guy he was looking for.  Cst Walker continued questioning him.  The fellow swore loudly at Cst Walker, causing some people to look out of their homes.  Cst Walker arrested him for causing a disturbance.  He resisted. Cst Walker struck a blow which broke his jaw.  Cst Walker was convicted of assault causing bodily harm, finding that there was no lawful purpose to the detention nor arrest, the disturbance was slight, and it was caused by Cst Walker.  (See also R. v. Fruling 2006 BCSC 1950)

Not every emotional upset is a disturbance.  "Attracting curiosity is not synonymous with causing a disturbance."  A criminal disturbance is something which "rises above the normal forms of activity that can occur on our streets on any given day".

I always encourage police officers to be clear about how much force they used when effecting an arrest.  This case points out the importance of having solid grounds for the use of legal power.  The complainant used rude abusive language.  Arresting him for it resulted in the police officer's conviction.

(The Court of Appeal's decision is very brief.  The lower courts' more complete decisions are not available on the internet, but are on private legal databases.  Please let me know if you want a copy.)

2007-02-20 Impaired driving - refusal to blow

- How many times do you ask the driver to blow when you know he's messing around?  This police officer asked Mr Rice 2007 ONCA 105 to blow 13 times into a screening device before giving up.  Defence appealed, saying even that wasn't enough.  The question isn't whether you are satisfied he's playing games with you, but whether the evidence will satisfy the judge at a trial that he was playing games with you.  13 tries sufficed.  Conviction upheld.

2007-02-17 Right to Silence - When and how is the evidence you gather from a suspect admissible?

Today, I added a new page that analyzes these.   I'm interested in your comments.

2007-02-17 Defining Detention & Sniffing Suitcases

- Mr Rajaratnam, 2006 ABCA 333 stopped at a Calgary bus terminal on a cross-Canada trip when a police officer asked him some questions.  The officer told him he was not in any trouble, and he was free to go.  Mr Rajaratnam answered some questions and showed his bus ticket and identification.  These answers suggested drug transportation.  A police officer sniffed his luggage.  It smelled so strongly of Bounce fabric softener (often used to mask drug odours) that the officers arrested him for drugs.  Was it a detention?  Close, but no, it was only questions.  (See also R. v. Lewis 2007 NSCA 2)  Was the sniff an unconstitutional search?  No, because Rajaratnam expected the baggage handlers to smell the same smells.

2007-02-10 Value of Lies

- In an impressive murder investigation, police persuaded Mr Pritchard 2007 BCCA 82, to speak about the disappearance of a drug dealer's wife.  He told them lies.  In court, he told more lies.  Lies like this can help prove guilt but only if:

1. he didn't tell the lies to cover up some other crime or embarrassing act; and
   
2. independent evidence shows that they were lies.

Asking the suspect about the offence is good practice.  Checking out his story is even better.  If his story is false, then best of all is proving that he told his false story for no other reason than to conceal his guilt.

2007-02-02 Stop Using Hypnosis

- Police used hypnosis to improve the memory of a witness against Mr Trochym 2007 SCC 6.  It worked.  Mr Trochym was convicted.  But the Supreme Court of Canada ordered a new trial.  Courts will no longer admit the evidence of a witness who has been hypnotized and questioned about the matter under investigation, unless we can prove that the witness' evidence is reliable.  That's going to be difficult.  Therefore, for the purposes of improving memory, hypnotize only those witnesses you know we won't need at trial.

2007-02-01 Undercover Operations

- Mr Big met Mr Osmar, 2007 ONCA 50, who confessed to two murders.  The court observed that the question whether Mr Big violates a suspect's s.7 right to silence depends upon how the undercover officers treat the suspect during the operation.  If the suspect is effectively detained or imprisoned by the operation, or if the officers threaten him or abuse power, then a court might exclude the evidence.  The conviction was upheld.  Those of you who plan Mr Big operations should review this case to see what conduct the court will tolerate in eliciting confession.

2007-01-31 Police Ethics & Discretion - Preferential Treatment for Police - Doing your Duty

- Cst Plourde drove home drunk.  Cpl Beaudry 2007 SCC 5 pulled him over and arrested him.  Cpl Beaudry did not conduct a proper investigation and the trial judge found his purpose was to give preferential treatment to a fellow officer.  The judge convicted Beaudry of obstructing justice, and the Supreme Court of Canada upheld the conviction.

If you read only one decision this month, read this one.  It's important.

On Cpl Beaudry's mind was the fact that another police officer had recently committed suicide after failing a breath test.  He had met Cst Plourde before, and knew he had personal problems.  Cpl Beaudry knew the terrible consequences for Cst Plourde of failing the breath test.  But the court pointed out that a decision not to prosecute could be made later, after the evidence was collected; but the decision not to investigate ensured there would be no evidence.

Many officers feel uncomfortable investigating fellow officers.  This is natural.  It's particularly acute if you know the officer in question.  It's a conflict of interest.  So what do you do when you discover a fellow officer committing an offence?  As I read this decision, you should immediately secure perishable evidence.  If you feel a conflict between your duty to the public and your allegiance to the officer, you should turn the investigation over to another officer as soon as practicable.

The decision emphasizes that you do have a discretion not to investigate, particularly minor offences.  But you must exercise that discretion in the public interest.

The result also reminds us of the high standards required of peace officers, Crowns and judges.  In this case, one  officer's crime took down another officer who was just trying to help.  Cops committing offences can hurt more people than just themselves.

I don't claim to be an expert on police ethics.  I'd be interested in your comments.

2007-01-29 Charter Warning - "Chatting" between the warning and the access to counsel

An officer arrested Mr Mallory 2007 ONCA 46 on a warrant for murder.  They knew each other, and were on reasonable speaking terms.  After the officer told Mallory about his rights to counsel, he asked Mallory if he knew what the warrant was about.  Mallory gave some incriminating answers.  Because the officer didnt give Mallory access to counsel until they arrived at the detachment, these answers were obtained in violation of s.10(b) of the Charter.  I see this kind of "chat" after the Charter warning all too often, sometimes proudly presented as good investigation.  Questioning the accused before he exercises or waives his right to counsel is unlawful.  (But there is nothing wrong with recording the unprompted monologue of an arrested suspect.)  Unless the accused volunteers information, his remarks are generally inadmissible.

2007-01-23 Obstructing a Peace Officer - False Name

- Three cars crashed.  Mr Levene 2007 ONCJ 6 was driving one of them.  He reported the accident, but used identification in the name of Dwayne Gamble.  The police officer testified at trial about the Gamble identification, but provided no evidence that his name was really Levene.  The judge acquitted.  In order to prove a false name, we need admissible evidence to prove the true one.  This often requires a second officer to testify about the real name.

2007-01-20 Interrogation & Voluntariness

- this older case was recently released. Under interrogation, Mr Perovic, 2004 BCSC 643, a murder suspect, repeatedly said "I'm not saying anything". The police officer suggested that his behaviour would be presented to the jury as evidence of his cold, uncaring attitude about the killing, and this was his only opportunity to provide the police with information that they could present to the jury to show otherwise.  These were illegal inducements.  During interrogation, don't suggest that the accused stands to lose or gain in the criminal trial by his choice whether to speak to you.  Choose other reasons.  Avoid discussing the judge or the jury.

2007-01-19 Impaired drivers

- Many people think that "care and control" of a motor vehicle ends when the vehicle is undriveable.  Not so.  In R. v. McBrine (2007 Ont C.A.), the car was undriveable, but the engine still worked, and the accused tried to get the car moving.  Because there was a risk of harm to the driver or others from his actions, he was in care and control of the vehicle.  For more detail on the facts, see the decision of the court below.

2007-01-17 Ontario Sqeegee Kids

- In R. v. Banks, (2006 Ont C.A.), the Ontario Court of Appeal upheld the constitutionality of Ontario legislation which limits soliciting people in cars and other public places.  The defendants complained that it prevented them from earning their living by washing the windshields of drivers stopped in traffic.  The defendants attacked the entire Safe Streets Act and s.177(2) of the Highway Traffic Act.  The court limited their consideration to only a couple of subsections.  If the squeegee kids keep working the streets of Ontario, we may see these arguments arise again.
2007-01-01 Mr von Meyenfeldt 2006 BCSC 1142 and two friends sat on the art gallery steps in downtown Vancouver.  When a police officer approached, they stood and started to leave.  The officer noticed that they left a can of bear spray behind.  He stopped them to investigate.   He had previously taken a can of bear spray from one of von Meyenfeldt's friends.  He searched them for officer safety.  It took up to 20 minutes to convince von Meyenfeldt to submit to a search, and because he struggled, the officers handcuffed him.  They found a stun-gun.  They arrested him and found drugs.  The court found the evidence admissible because the officer initially searched for officer safety.  Although the 20-minute delay was problematic, it was not fatal in this case.  The defence argued that the investigation into the bear spray can was a mere pretext -- nobody tested it for fingerprints.  The court found that the more serious discoveries justified a change in focus.  The lesson to draw from this successful prosecution is that defence counsel are aware that this power to search for officer safety can be abused, and will accuse you of searching on a pretext.  Therefore, when searching for officer safety, be clear why your safety is actually at risk.  Record your concerns.

2006 Developments in the Law

2006-12-23 Access to counsel - answering counsel's questions

- A police officer investigated Mr Fitzsimmons (2006 Ont CA) for impaired driving.  When he exercised access to counsel, the lawyer wanted information from the investigator.  The investigator refused to answer his questions.  Did this violate Fitzsimmons' right to get legal advice?  The court said that it did not because in this case the lawyer could have got all the information he required from his client.

The court ducked the key question: Must an investigator ever answer the lawyer's questions?  The decision offers some hints.  If the information that the lawyer seeks is known to his client, then you could respectfully suggest that the lawyer ask the client.  If answering the questions will interfere with your investigation - such as disclosing hold-back information - then declining to answer would be appropriate.  But the court did not dismiss the complaint out of hand either - in order to advise the client properly, a lawyer might want information that the client does not know.

2006-12-21 Access to counsel - counsel of choice

- At the end of this judgment, an Ontario judge recommends how police should manage the endless requests for access to counsel of choice outside business hours.  His suggestions seem generally to make sense to me.

2006-12-21 Street Racing

- for those of you who wanted to read the new legislation on street racing, here it is.  This bill came into force on December 14, 2006.

I found an anomaly in it: a person who commits dangerous driving causing death  (s.249(4)) can be compelled to give a sample to the DNA databank; but someone who commits dangerous driving causing death while street-racing can not.  See s.487.04.

2006-12-19 Disclosure - Destroying Evidence

- In a motor vehicle pursuit, police chased Mr Knox (2006 Ont C.A.) until he crashed the car and ran away.  The investigating officer was so sure of his identification of the driver that he did not photograph the wrecked vehicle, nor test it for fingerprints.  Instead, it was turned over to a wrecker and destroyed.  Defence sought a stay of proceedings.  The court found that you bear an obligation to preserve relevant evidence; before destroying it, you ought to inform the defence of your intention to do so.  In this case, however, the court declined to stay the case because it was clear that the defence was playing games with their constitutional rights.

2006-12-19 Detention - Arrest - Search incidental to arrest

- This short tidy case demonstrates several principles well. Vancouver police officers noticed Mr Aslam 2006 BCCA 551 driving a van. It was registered to a person with an Asian name, but the driver didn't look Asian. The registered owner lived in Chilliwack, which is a fair distance from Vancouver. They decided to pull it over to check the driver's licence and registration. But the van stopped erratically, and the occupants tried to walk away. The officers detained them. An officer noticed a punched ignition and damaged door lock. With the other observations, these gave him reasonable and probable grounds to arrest the two for possession of a stolen vehicle. He arrested them. He searched the vehicle incidental to arrest and found hundreds of pounds of marijuana. When reading this case, consider how carefully the officers observed and recorded the information available to them, and how they must have described it on the stand.

A more difficult case involved Lance Wust 2006 BCSC 1858.  A police officer found a vehicle stopped without reason in a troublesome spot.  The driver ducked as he drove by.  The police computer alerted the officer of an association between this car and Lance Wust, a well-known ruffian who was prone to violence with firearms.  The officer detained Wust at gunpoint to find out what was going on.  For officer safety, he searched Wust.  This led to the discovery of a loaded handgun.  The trial judge found that the officer had insufficient evidence of an offence to detain Wust in this fashion, and excluded the evidence.

I'm sure you know people who seem to commit crime in every waking hour.  When you find them in suspicious circumstances, you can talk to them without detaining them.  But to detain them, with the power of search for officer safety, you must be able to identify evidence which shows that they were involved in a criminal offence.  I am sympathetic with the officer in the Wust case: some fellows, you just know are up to no good.  The judges will require you to explain why that knowledge wasn't just a hunch.

2006-12-07 Privacy rights

- We all know that knocking on the door of a suspected grow operation violates the occupant's expectation of privacy (Evans).  Recent decisions have chipped away at that principle.  Police received a complaint about Mr Lotozky's (2006 Ont C.A.) driving.  Police attended his residence in time to see him arrive, driving badly.  He pulled into his driveway, where the officer investigated him and found he was drunk.  Lotozky complained that the officer trespassed on his property, thereby violating s.8 of the Charter.  The court found that the officer enjoyed an implied invitation onto the driveway under the circumstances, and because Lotozky didn't tell him to leave, the officer could remain.

Similarly, police received a complaint about Mr Fowler's (2006 NBCA 90) driving.  They went to his place and knocked on the door.  He didn't answer, but his voice could be heard saying "Don't answer the door.  I’ve been home all night."  They knocked again, he answered, but locked them out.  He later stepped out of his door, and police detained him.  The court found that because the officer's purpose was communicating with Mr Fowler, not collecting evidence against him, the officer did not violate his rights.

For various reasons, several courts have allowed impaired investigations to occur on people's driveways and doorsteps.  See also  Petri, Johnson,  Apparently, it's lawful to investigate offences on a driveway, but not at a doorstep.  It's lawful to communicate with a suspect in his doorway, but not for the purposes of incriminating him.  I'm looking forward to a coherent explanation of what's lawful.  Maybe the Supreme Court of Canada will help.

2006-12-02 Search and Seizure on Detention for Officer Safety - This old case was only recently released, but it demonstrates how detailed cross-examination can be when you search a suspect for weapons.  Mr Fettes 2001 BCSC 1535 rode a bike on the sidewalks in the rough part of Vancouver, and he wasn't wearing a helmet.  When officers stopped him, he made a couple of sudden aggressive moves.  The officers took him down and found drugs in quantity.  In testimony, the officers contradicted each other on some points.  One appeared to embellish her written report.  The defence suggested that the officers were justifying their search after the fact.  Although the judge found the officers credible, it could have gone the other way.  Carefully document the reasons for your warrantless searches.

2006-11-29 Warrantless Search in Exigent Circumstances

- Mr Hill's 2006 BCCA 530 neighbor heard what she thought were gunshots coming from his property.  She called police.  The officers who attended heard two more gunshots in that general vicinity.  When they asked Mr Hill what was going on, he gave inconsistent explanations.  They searched his residence "for the purpose of securing the life and safety of anyone who might be in harm's way", and not for the purpose of investigating a crime.  This search was lawful.  The police officers found a grow operation and got a search warrant.  Because it was based upon information discovered in a lawful search, the warrant survived judicial scrutiny.

By way of contrast, Mr Mann 2003 BCSC 1725 made a 911 call complaining about a home invasion.  When police arrived, he told them that the invaders were not in his house.  He refused to permit the officers to enter.  A suspect said that she was with a group who attended for the purpose of stealing marijuana from Mr Mann's grow operation.  The officers testified that they searched the residence for public safety, but the judge found that they really searched it for the purposes of discovering evidence of the grow-op.  This was an illegal search, and the evidence of the marijuana grow operation was excluded.

When you suspect that life or serious bodily harm is threatened and only immediate action will provide protection, privacy rights become secondary.  You can enter and search a residence for the purpose of protecting people.

When you believe that evidence will be lost or destroyed, and only immediate action will preserve it, there you have some specific powers to exercise. section 529.1

2006-11-28 Disclosure

- Yesterday, during trial, a civillian witness testified that the investigating officer took photographs of the scene.  This came as a surprise to me.  I didn't have these pictures.  It could have derailed the trial, but fortunately, defence didn't care and the trial proceeded.

In the murder case of R. v. Wood, 2006 ABCA 343 (Alta C.A.) the police forgot to mention that hold-back information was disclosed to another police force, and that the eyewitness had identified another person as the killer.  The murder occurred in 1979.  He was convicted, appealed successfully and was convicted again.  Now, more than 25 years later, he gets another trial.  He almost got a stay of proceedings.  Please remember to disclose everything in your file.

2006-11-25 Confessions and Videotape

- The Ontario Court of Appeal has frequently warned that they will exclude statements taken from suspects if the investigating police officers don't carefully document the interview process.  Somebody robbed a woman, and stabbed her many times.  Police arrested Mr Philogene (2006 Ont C.A.) nearby, and took him to the police station.  He confessed, and the jury convicted him.  On appeal, the court excluded the statement and acquitted him because:

• officers interviewed him several times without making adequate notes of the conversation;
• the accused's request to speak with counsel wasn't communicated from the arresting officer to the interviewing officer, and so
• the accused never got the access to counsel he asked for;
• although the accused entered the interview room at 9:00pm, the video recorder wasn't turned on until 11:00pm to record the confession;
• the accused complained of intimidation and inducements.

Therefore, document your dealings with prisoners as carefully as you would document your handling of highly sensitive evidence from a crime scene, like DNA.  Everyone who talks with the prisoner must be able to describe their conversation a year later in court.  Turn on a video or voice recorder early, and keep it on.  If the prisoner asked for counsel, make sure that his exact request is passed on to the officers who can accommodate his request.

2006-11-24 Conspiracy

- It is not an offence in Canada to attempt to conspire to commit a criminal offence. R. v. Déry, 2006 SCC 53. If the accused tries to talk someone into committing an offence with him, try counselling instead.

2006-11-17 Tipsters & Agents of the Police

- Police officers received an anonymous tip of a marijuana grow operation at Mr Wallis' 2006 BCCA 481 house.  Electrical records obtained from BC Hydro indicated nothing unusual.  If there were a grow-op there, then there would also likely be an electrical by-pass installed -- these folks would also be stealing electricity.  The police informed BC Hydro.  BC Hydro's security staff (all ex-police officers) investigated.  Using their private contractual rights to enter the property, they confirmed that electricity was being stolen at that address.  They complained to the police, who obtained a warrant and found the grow-op and the by-pass.  Wallis complained that the BC Hydro staff were acting as agents of the police, and therefore had no right to trespass on his land.  The court disagreed.  Because the BC Hydro security staff restricted their investigation to matters within their contractual rights - electricity usage - they were not acting as police agents.  Close cooperation between BC Hydro and police did not transform the relationship.  As long as you understand the role and the limits of the authority of private security officers, police officers can work with them successfully.

2006-11-16 Highway traffic stops - demanding identification

- An Ontario police officer pulled over Mr Plummer (2006 Ont C.A.) for failing to wear his seatbelt.  The officer asked him for his licence.  Mr Plummer was rude and abusive, and failed to produce a licence.  The officer asked again for his licence, and warned him that he could be arrested if he failed to identify himself.  Mr Plummer's demeanour did not improve.  The officer arrested him.  But the court said it was an illegal arrest: the officer should have asked him first for a licence, and when that wasn't forthcoming, asked him to identify himself generally.  In the Ontario legislation, only after a general failure to identify could the accused be arrested.

By way of contrast, under the B.C. Motor Vehicle Act, there is no specfic arrest power for a driver who fails to identify himself.  An officer can demand a driver's licence (s.33(1)), and a driver's name and address (s.73(2)).  If the driver failed to do the former, then the officer could write him a ticket.  But without the name and address, the officer could not complete the job --  the driver would be obstructing the officer in the execution of his duty.  Therefore, in B.C., police should follow the same procedure as the Ontario police:

1. Ask the driver for a licence.
2. If the driver fails or refuses that, ask the driver to identify him- or her-self generally.

Only if you were going to give the driver a ticket for failing to produce a licence can you arrest for obstruction for failure to identify.

I find this analysis peculiar, and I'm interested to know if any of you have anything to add.  Please email me with your comments: henry.waldock@gov.bc.ca.

2006-11-14 Roadside Screening Device and access to counsel

- Section 254(2) provides that you make an RSD demand, the breath test should proceed "forthwith".  The suspect gets no access to counsel unless the test is delayed.  Mr Najm (2006 Ont C.A.) had a cell phone with him, but the officer who demanded his breath didn't have an RSD.  During the 12 minute delay while one arrived on scene, Mr Najm could have called a lawyer for advice, if the officer had told him about his right to counsel.  The trial judge excluded the breath tests, and the Ontario Court of Appeal agreed.  Don't make a screening device demand unless you know you can test the suspect's breath in just a few minutes.

If, on the other hand, you make an RSD demand, but wait a few minutes to allow mouth alcohol to dissipate, you will want to observe the suspect to ensure that he does not burp or ingest anything that might affect the result. You can't do that and provide him with privacy to speak with counsel. You don't have to give the suspect access to counsel during delays caused by the administration of the RSD test. R. v. Sandy 2006 BCPC 0458.

2006-11-13 The Reliability of a Rat

- In September 2000, Robert Moyes offered police information about murders he committed with Mark Therrien 2005 BCSC 153 for Salvatore Ciancio 2006 BCSC 1673.  But if Moyes was going to jail for his confession, he wanted money and special treatment in return.  The investigators wanted his testimony too.  Moyes delivered at two different trials.  One judge believed him, but the other did not.  These two cases illustrate the necessity of corroborrating evidence when tendering the evidence of a scoundrel.  Don't rely solely on a rat.

2006-11-13 Mr Big's Mixed Success

- In the same two cases, Therrien 2005 BCSC 153 and Ciancio 2006 BCSC 1673, police relied upon undercover operations.  In the former, they used the traditional methods of building a relationship of trust and honesty, but in the latter, they were obliged to take a short-cut, using the rat Moyes to introduce Mr Big to the target.  The tried-and-true methods worked.  The short-cut did not.  When a suspect confesses for personal gain, the judge will wonder whether the suspect made the statement because it's true, or because the suspect wanted to profit by it.

2006-11-11 The Danger of Character evidence - Prior Bad Acts - After his third trial for the same murder, Mr Vanezis (2006 Ont CA) won another appeal, based upon the risk that bad character evidence prejudiced the jury against him.  The Crown had tendered evidence that the accused was a violent guy.  Now, ten years after the murder, the Crown must decide whether to put him on trial again.  Although there are times that evidence of the accused's past offences can lawfully help prove the case, this wasn't one of them.

2006-11-09 Murder - Investigating Intoxication and Provocation - Mr MacDonald 2005 BCSC 473 put a gun to his wife's head and pulled the trigger. In his defence, he claimed alcohol may have affected his ability to appreciate the consequences of his act. He claimed that she attacked him with a shard of glass and threatened to kill him. Was there sufficient evidence to rebut these contentions? Read this case, thinking to yourself what these officers did to investigate the case and preserve evidence. Their careful work led the judge to conclude that Mr MacDonald was guilty of 2nd degree murder, not manslaughter.

2006-11-05 Informer Privilege

- If you handle a confidential informant, don't ever say that the informant's identity will "never" be revealed.  If the informant was an eyewitness to the crime, or the one who initiated the crime, or the only person who can prove the innocence of the accused, then the court may order you to reveal the identity of the informant.  Naturally defence counsel will strive to make the facts appear to fit these exceptions.  In R. v. Deol 2006 MBCA 39, 208 C.C.C. (3d) 167 (not available on the internet), the court confirmed that defence speculation isn't good enough to defeat this privilege; defence needs evidence.
2006-11-04 Interesting Link - T. J. Romaniuk, a Justice of the Peace in Alberta, created this page on search warrants.  It addresses most of the common issues which arise.  Very informative.

2006-10-31 Handwriting comparison - Finding a "known" sample

- To prove that your suspect wrote a document, it's handy to have a known sample of his handwriting.  In the past, I usually called the probation office, because they required people on probation to fill out all sorts of forms.  Computerization is changing that.  But you might look on past fingerprint forms.  In R. v. Osayimwen (2006 Ont S.C.J.) (not on the internet) the court found that during fingerprinting, the practice of requiring a prisoner to fill in his address and sign the form did not violate his s.7 rights.

2006-10-30 Wilful Blindness

- Some people claim they didn't know they were committing an offence: "I didn't know the car was stolen."  "I didn't know the gun was loaded", "I didn't know the package contained drugs".  Mr Malfara (2006 Ont CA) received $50 to deliver a package of clothing to a jail.  It contained more than clothes.  The trial judge said he should have been suspicious, and convicted him.  The Court of Appeal overturned the conviction, explaining that he can't be convicted unless he actually was suspicious, but didn't care.  Therefore, when someone tells you that he bought the stolen property from some guy in a bar for real cheap, you need to ask him whether he was at least a little bit suspicious about where it came from.

2006-10-27 Investigative Detention - When to give rights to counsel

- Mr Suberu (2006 Ont S.C.J.) and a buddy went shopping with a stolen credit card.  When police attended a liquor store in response to a complaint, Mr Suberu tried to walk away quickly.  A police officer detained him and asked a few questions to determine what was going on.  But the officer didn't tell him about rights to counsel.  The answers led to an arrest.  Were Suberu's answers admissible at trial, or had the officer breached Mr Suberu's right to counsel?  This judge said that police had no obligation to give s.10(b) information during a "momentary investigative detention", and accepted the evidence.  Unfortunately, this does not answer the key question: when does a "momentary investigative detention" turn into a detention that triggers s.10(b)?  I'm not sure when this occurs, but I think it happens when you have gathered enough information to know either:

• the subject isn't going to be allowed to leave for an extended time; or
• the subject is likely responsible for a criminal offence (even if you plan to release the subject for court later).
  

2006-10-26 Investigative Detention and Search - the dangers of pushing the envelope

- during a summer festival in downtown Edmonton, a police officer saw Mr Calder, 2006 ABCA 307 pass what appeared to be money to another fellow, and then return his cupped hand to his pocket.  The officer testified that he suspected a drug deal, but the trial judge didn't think he had seen enough to justify this belief.  The officer searched him "for officer safety", and found a knife.  He searched further, and when he found a small bulge in a pocket, fished out two small "spitballs" of cocaine.  He arrested Calder, searched for evidence, and found a loaded prohibited firearm.  The trial judge did not believe the officer's evidence that he thought the small bulges could endanger him, but admitted the evidence anyway.  Most courts would not be so generous.  This case shows the logic that judges use to determine what to do with evidence after a Charter breach.  In the appeal, the majority upheld the trial judge's decision.  Read the dissenting judgment.  This is what the defence will argue.  In my province, it would probably succeed.

2006-10-20 Confidential informants & Wiretap - protecting identity - During the investigation of Thompson, Guilbride and others (2006 BCCA 392) for narcotic importation, police obtained information from a co-conspirator, Snow. Drafting the affidavit in support of wiretap was a challenge. In order to give full disclosure to the authorizing judge, the officers had to identify Snow as an informant, but also name him as an appropropriate target for wiretap.  Somehow the affidavit had to name Snow but also prevent the accused from determining his identity as an informer.  To solve this, they described him in three different ways, “the third man”, “Snow” and “Informant A”. In the affidavit, they disclosed what paragraphs they intended to edit out for the purposes of disclosure to defence. The trial judge found this was an abuse of process because it gave the impression that one person was really three. The Court of Appeal disagreed because the affidavit never overstated the strength of the available evidence. Read this case if you think you'll ever write wire.

2006-10-18 Murder - Planning and deliberation

- M.M.K. (2006 ABCA 284) and his buddies said they were going to "beat" the victim "kick his ass".  They discussed taking him out of town and abandoning him in the cold of Alberta in January.  They took the victim for a ride into the country.  They threw his cell phone out of the vehicle, and when he got out to retrieve it, they stabbed him 5 times and left him to die.  The trial judge convicted MMK of first degree murder, but the Court of Appeal reduced it to second.  Although there was a plan to harm the victim, and there was a killing, there wasn't sufficient evidence of a plan to kill.  This short simple case highlights the importance of collecting evidence of the suspects' words and actions before the killing.

2006-10-18 Murder/Manslaughter - "Abandonment"

- K.K.P. (2006 ABCA 299) was one of M.M.K.'s buddies.  When they got the victim out of the car, K.K.P. dropped his cigarette, and stopped to pick it up.  He did not participate in the fatal stabbing.  The trial judge convicted him of manslaughter, and the court of appeal upheld it:  He participated in a plan to inflict non-trivial bodily harm, and death resulted.  Defence argued that K.K.P. had "abandoned" the group's plan, and therefore should be acquitted.  The court rejected this.  To abandon a group's plan, the accused must generally communicate to the group his desire to participate no further.  There was no evidence he did this.  In your investigations, therefore, you should be interested if any of a group of suspects ever stated that they weren't going to participate any further.

2006-10-17 Post-offence conduct

- Mr Ramikissoon's (2006 Ont C.A.) wife disappeared.  He carried on the best he could without her.  Nine months after she disappeared, police interviewed him again.  Over the next couple of days, he liquidated his assets, cashed in his RRSPs, pulled his kids from school, and bought a one-way ticket to Guyana.  Although courts are very cautious about admitting evidence of "post-offence conduct", it can, in cases like this one, assist in establishing guilt.  The Court of Appeal upheld Mr Ramikissoon's conviction for murder.

2006-10-16 Motor Vehicle Accident Investigation - Distinguish between civil and criminal investigaton

- Mr Powers 2006 BCCA 454 crashed his car.  When a police officer asked him who was driving, he said he was because he had to under s.67 of the Motor Vehicle Act.  The officer noticed indicia of alcohol consumption, and made a breath demand.  He failed, and later blew "over .08".  The court threw out the breath tests, because the officer relied upon information that the driver was compelled to give.  Therefore, in B.C., when switching from an accident investigation to a criminal investigation you must either:

1. tell the suspect that he doesn't have to answer your questions because you are investigating him/her for a criminal offence; or
2. gather your evidence other ways than by asking the suspect questions.
   

You can't rely upon the answers he gave you about the accident to make any demands (or warrants) for breath or blood samples.

2006-10-16 Probation and Addiction

- Mr Shoker 2006 SCC 44 got high, got naked, got into a stranger's house, and into her bed.  He was convicted of B&E with intent to commit a sexual assault.  The sentencing judge imposed jail and probation including a condition that he abstain from alcohol and drugs, and provide bodily samples on the demand of his probation officer.  The Supreme Court of Canada found that last condition was illegal because the Criminal Code doesn't specifically permit it.  This means little to you in your daily work, except to show how strictly the courts will interpret legislation which grants enforcement powers.

2006-10-14 Right to Counsel - Mentally Disordered people

- Police took Ms C.B. (2006 Ont C.A.) to the hospital for a mental health assessment.  She sued the doctors for failing to inform her of her rights to counsel.  The court found that doctors don't have the same heavy obligations that police officers do to inform their prisoner of her rights.  Even when it's just for a mental health assessment, if you detain someone, you must give them their s.10(a) & (b) rights.

2006-10-13 "Privacy Act" / Freedom of Information Requests - Identifying your "lawful authority"

If you write a letter to a corporation, such as Bell Canada, asking them for subscriber information, they may supply you with it. PIPEDA is the Federal Act which governs the use national corporations make of the private information that they obtain from their customers. Section 7(3)(c.1) permits the corporation to release private information to you without warrant, if you identify your "lawful authority" to obtain it. In the first salvo of what I expect will be a confusing battle, an Ontario Justice of the Peace received a warrant application which described subscriber information that Bell Canada released to a peace officer.  The ITO didn't identify any "lawful authority" the police used to obtain this information.  The JP refused to grant the warrant.  This may have been overzealous protection of privacy.  I think there are several other lawful reasons for which Bell Canada could have released the information sought, for example s.7(3)(h.2).   This is a thorny area, in which I need to do more research.  I hope to give you folks clearer answers in the new year.

2006-10-07 Handwriting Comparison

- You don't need an expert to testify that one piece of handwriting is similar to another.  If it's really obvious, then Crown can just ask the judge to look at the two samples.  R. v. Adam 2006 BCSC 1401.

2006-10-07 Similar Fact - Arson

- Did Mr Grabowski 2004 BCSC 328 set the 5 fires which burned within blocks of each other between 3:15am and 5:16am?  These investigations are notoriously difficult, so it's worth seeing what worked.  Someone looking like him was seen at three of those fires.  Tiny traces of materials particular to each location were found in his clothing.  These details combined with the similar fact evidence to make the case.

2006-09-30 Wiretap - Investigative Necessity

- No judge should grant a wiretap authorization unless you can show that other investigative methods are unlikely to succeed.  In the investigation of more significant targets, the police obtained an authorization for wiretap which produced evidence against Mr Wasfi 2006 BCCA 55 (B.C.C.A.).  He complained  that:

• the police could have gathered sufficient evidence against him using their undercover operator, and
  
• the investigators presumed from the beginning of their investigation that wiretap would be needed, instead of exploring other investigative techniques.

The court agreed that the police could have caught Wasfi other ways, but observed that wiretap was necessary to catch Wasfi's suppliers.  This was obvious from the very beginning of the investigation.  It's permissible to commence a major investigation on the assumption that wiretap will be required.  But every time you apply for an authorization or an extension of an existing authorization, make sure that you document why other techniques will fail to gather sufficient evidence against the targets of your investigation.

2006-09-30 Expert Evidence - Footprints in the Snow

- A thief left footprints in the snow when he walked away from the car he broke into.  When the investigating officer arrested Powell, 2006 ABCA 267 (Alta C.A.), he took Powell's sneakers and pressed them into the snow beside the thief's footprints.  Even though the officer had no special expertise, the court accepted the officer's evidence that the prints in the snow were the same size and had the same tread pattern.  (In circumstances like these, take great care to document the whole trail of prints and the print comparison.  Photograph if possible.)

2006-09-29 Search Warrants - Anonymous Tips

- A tipster said that someone "may" be growing drugs and Mr Jacobson's (2006 Ont C.A.) house.  The investigating officer did his own investigation, and confirmed some details in the tip.  In the ITO, the officer summarized the tip.  The court found it would have been better to quote it, so that the justice of the peace would know the strength of the information, rather than the officer's impression of it.  For short anonymous tips, this is probably a good idea.  (The warrant survived judicial review.)

2006-09-28 Reasonable and Probable Grounds - confidential informants.

A confidential informant told police where and when an armed drug dealer would turn up while carrying an handgun and a quantity of drugs.  Police went there and saw someone matching the general description given by the informant crossing the street while reaching into his shirt as if holding something tucked into his pants.   They arrested him, and it turned out to be Mr Murphy (2006 Ont.C.A.).  At trial, defence demanded to know more about the confidential informer, which the officer quite properly refused to divulge.  Then defence argued that without knowing more about the informant, there were insufficient reasons before the court to find that the arresting officer had "reasonable and probable grounds" to arrest Mr Murphy.  The court would have agreed, except for the officer's observations (location, time, description, apparent weapon) which confirmed the informant's information.  Therefore, in order to protect even your most reliable and trusted informants, it is helpful to gather detail from the source, and independent confirmation of that detail.

2006-09-08 Handling Difficult Witnesses - Benefits for Testimony

- Mr Adams 2006 BCSC 1355 and others trafficked drugs between B.C. and the U.S.A.. Police arrested two minor players, and in a series of negotiations, got them to provide information and testimony in exchange for lenient prosecution. At trial, they refused to answer questions. However, their K.G.B. statements were admitted because of the reliability of the methods by which the investigators obtained their information. (The Canadian officers did make a mistake - they took a KGB statement in the USA, where they lacked jurisdiction to administer an oath.) Attached to the decision are the written agreements the investigators signed with the two co-conspirators which required their truthfulness at all times during the investigation and testimony.

2006-09-07 Handling Difficult Witnesses - Benefits for Testimony

- Mr MacInnis 2006 NSCA 92 trafficked drugs with Mr Deleski.  Both were charged, but Mr Deleski decided to give evidence for the Crown.  Defence cross-examined him closely to suggest that he was being paid for his evidence by special treatment from the Crown.  Deleski (and the Crown) denied it.  The Mr MacInnis was convicted and sentenced to 2 years.  Mr Deleski waived his charges to Vancouver.  A police officer wrote him a letter of recommendation.  Deleski got probation.  MacInnis appealed, claiming that this was proof that Deleski was a paid rat.  This re-opened the question of how Deleski was handled before he gave his testimony.  Fortunately, the police had sufficient evidence to establish that they made him no special promises.  Appeal dismissed.

When you offer benefits to scurrilous witnesses in exchange for testimony it reduces the value of their testimony.  Those benefits must be disclosed to defence.  Don't offer benefits for testimony unless you have considered all the consequences, and have cleared it with senior officers.  Document all your transactions with the accused's associates, whether or not you offer benefits for testimony.

2006-09-06 Search and Seizure - Dog Sniffs

- Police received a tip that an undelivered courier package addressed to Taylor 2006 NLCA 41 contained drugs. FedEx gave them permission to bring a drug dog to sniff the package. It detected drugs. They got a warrant, and found the drugs. Defence complained that the dog sniff violated Taylor's expectations of privacy. The court found it wasn't a search, but cautioned that this doesn't mean drug dogs can be used indiscriminately to sweep the population for drugs. According to them, you need a target and grounds to suspect. I suspect that other courts will reach similar conclusions using different logic.

2006-09-06 Power to Arrest

- Mr Patterson (Ont. S.C.) had a beer in his hand as walked down the hallway of a locked apartment building.  The residents of this building were such troublemakers that the owner of the building gave the police a key, and an open invitation to patrol its hallways.  Police arrested him for carrying open liquor in a public place, and during the arrest found cocaine.  Unfortunately, it wasn't a public place.  The court found that the officer should have known the law.  Cocaine excluded.

On the other hand, a civil rights lawyer named Richardson 2006 BCCA 36 tried to break through a police cordon during a protest in order to advocate for the protestors.  After he was arrested, Richardson argued that if the officer had known who he was, the officer would not have arrested him.  He said that the officer who arrested him should have known who he was because other officers in the Vancouver police force did.  The court found that an arresting officer must operate based on the information known to him; he is not required to obtain the collected knowledge of the entire force before acting.

Therefore, when making an arrest, you must know the law but it would seem that you don't require perfect knowledge of the facts.  (I suggest that before arresting, you investigate as diligently as the circumstances permit.)

2006-08-31 Collateral Damage to Charter Rights

- In the course of investigating other people, B.C. police seized Mr Ciarniello's (2006 Ont C.A.) computers and records pursuant to a warrant.  He persuaded a B.C. judge to quash the warrant and order return of the property because the ITO did not state sufficient grounds for this seizure.  Contrary to an agreement between counsel, the B.C. police shared data from the computer with Ontario police, who then obtained another warrant to seize the exhibits.  Ciarniello then persuaded an Ontario judge to quash that warrant too.  Ciarniello asked the judge to order the "Crown" (which includes the police) to pay his legal bills.  The appeal court agreed because Ciarniello wasn't the target of the police investigation.  Therefore, beware of trampling on the Charter rights of non-suspects.  It could come back to haunt you.

2006-08-31 Search of Cell Phones

- Off topic, but did you know there's software for recovering "deleted" information from cell phones?

2006-08-24 Articulating the reason for a search

- Ms Thibodeau 2006 BCSC 1262 drove briefly on wrong side of the road. Cst Douglas pulled her over, and asked for her licence and registration. She concealed her fanny pack with her body while searching for her licence. The officer feared she might draw a weapon, and insisted on searching it. He found drugs. Was this an unreasonable search? Because the officer could explain the reasons he felt she might have a weapon the search was justified as an incident to a lawful detention. Well done, Cst Douglas. It's a short simple case about a search done for the right reasons, and articulated appropriately on the stand.

2006-08-23 Interrogations - What is a "Detention"?

- Police suspected that Mr Marlo 2006 BCPC 330 committed a sexual assault.  An officer invited him over to the police detachment.  The officer repeatedly told him that he was free to leave at any time, but did not discuss rights to counsel with him.  When the questioning got pointed, Mr Marlo said he wanted to leave, but the officer never got up to let him out.  Instead, he pressed closer with his questions.  The trial judge found that despite the officer's verbal assurances, his actions detained Mr Marlo.  While the legal merits of this judgment might cause debate, the judge's message is clear: when it comes to determining whether an officer "detains" a suspect, actions speak louder than words.

2006-08-23 Murder Investigations - Evidence of Intoxication

- Mr Daley 2006 SKCA 91 and his girlfriend partied with friends and drank all night.  She quit around 4:00am, but he went looking for more parties till 5:00am.  He returned pretty drunk.  He woke a new neighbor to welcome him to the neighborhood - the neighbor wasn't impressed.  Nor was Daley's girlfriend.  Antoher neighbor heard Daley yelling about being locked out of his own house.  Later that day, Daley was found passed out in the bedroom, and she was dead of stab wounds in the hall.  The key question in the case became: "When he stabbed her, was he so drunk that he did not know that doing so could kill her?"  The investigating officers took care to collect all possible evidence of Mr Daley's actions before and after the incident.  The jury convicted Mr Daley of murder, and two of three appeal judges upheld the conviction.  For you murder investigators, and for you general duty members who arrive first on the scene, this shows the importance of investigating and documenting evidence of the suspect's sobriety before and after the offence.

2006-08-12 Proceeds of Crime

- Undercover officers sold drugs to Mr Le (2006 Ont S.C.)  When charged, he pleaded guilty.  Then the prosecutor sought an order that he repay the money he obtained from the police officers.  Mr Le complained that this violated his Charter rights, but the judge disagreed.  Not only did the judge make the order, but the judge made the accused pay in full.  He gave no discount for the wholesale cost of the drugs because Mr Le provided no evidence about wholesale prices of his drugs, nor the identity of the supplier to whom he must have paid some of the proceeds of his sales.

2006-08-11 Preserving Exhibits

- After Diana Russell's murder, police officers searched her car thoroughly for evidence before returning it to her family.  They found Mr Fowler's (2005 BCSC 1876) DNA, but also some evidence of a third party.  Defence complained that the police should not have returned the vehicle without giving the defence an opportunity to search for and examine the evidence it contained.  The judge agreed.  At first blush this appears to create an obligation to keep everything.  It doesn't.  But it does require you to ask yourself "if I return this exhibit, could the defence be deprived of any useful evidence?"

 2006-08-11 Searching a "detained" suspect for evidence - Police officers believed (on reasonable grounds) that Mr Parchment 2006 BCSC 1871 was dealing drugs.  Instead of arresting him, the investigating officer "detained" him, but searched him for weapons and drugs.  Although the law does permit an officer in these circumstances to search for evidence, the court observed that it's bad procedure because it's confusing.  (The judge did admit the evidence.)

If you must search a person for evidence without arresting them, I suggest that you tell the suspect why he's detained (s.10(a)) and that legal advice is available (s.10(b)).  Then say "I have reasonable and probable grounds to believe that you are in possession of [name the evidence], and I am going to search you for it."

But I think it's simpler to arrest.

2006-08-10 Ertmoed

Some of you who followed the outrageous antics of defence counsel Goldberg at this fellow's trial.  After Mr Ertmoed was convicted, he hired new counsel who complained that Ertmoed did not receive a competent defence.  Although the Court of Appeal has previously commented on Mr Goldberg''s competence, they did not find his tactics prejudiced Mr Ertmoed.  The conviction stands for this child-killer.  The lesson to be learned here is patience and professionalism on the witness stand, even when defence counsel asks you insulting or repetetive questions.

2006-07-28 Duties of the "Exhibit Man/Woman" - What should an officer do with privileged documents that were seized as part of a search?

In a civil case, Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, the plaintiff's law firm obtained the civil equivalent of a search warrant for the records of the defendant. They copied electronic records from the defendant's computer system, but some of those records turned out to be privileged communications to or from the defendant's lawyers. Because the plaintiff's lawyers never tracked of who examined what privileged material, they couldn't say whether or not they learned anything useful from the privileged documents. The Supreme Court kicked the plaintiff's lawyers off the case -- which involves great cost to the plaintiff. What we can learn from this case in the criminal context is the importance of tracking continuity of exhibits. If you find letters between lawyers and their clients amongst the documents seized in a search, anyone who read them must be able to prove that nothing they learned from those letters was considered in the ongoing investigation (unless life and limb were at stake). Practically speaking, this means kicking those officers off the investigative team. The privileged documents should be sealed up, so that no other officer accidentally reads them, and taints the investigation. (Note: Not all lawyer's letters are privileged. Get advice if you're not sure.)

2006-07-26 Breach of Conditional Sentence

- Is it different from breaching probation?  Yes.  When an offender breaches probation, normal bail rules apply.  But if the offender breaches a conditional sentence, you should usually seek his detention at a bail hearing.  After the bail hearing, the offender's probation officer must prepare a report about the breach, which the court will use to decide whether to make the offender serve the rest of his conditional sentence in jail.  The probation officer needs your help.  Although some courts allow all sorts of hearsay at this hearing, our Court of Appeal in R. v. McIvor 2006 BCCA 343 decided that the probation officer can only use signed statements of the witnesses who observed the breach.  This is not necessarily the same as a narrative in an RTCC.  If you found the offender breaching a curfew, your signed narrative suffices.  But if you learn that he got drunk yesterday in violation of his abstention condition, then we need a signed statement from the witness who saw it.  Tape recordings are cumbersome, but signed transcripts of tape recordings are fine.  For those of you who report offences electronically, digital signatures become important.

2006-07-23 "Intention" and "purpose"

- The legal difference between "intention" and purpose is often misunderstood.  This recent case illustrates it well.  Mr Earl 2006 NSSC 52 caught his son playing with fire.  To discipline him, Mr Earl light a lighter, and let it heat up.  He then pressed the lighter against his son's skin, giving him a burn.   At trial, the father said he never "intended" to burn his son, just discipline him.  The court found that the father "intended" to put a hot object against his son's skin to cause pain.  The fact that the father never considered the risk of a burn is irrelevant.  For you police officers interviewing suspects, the fact you want to establish is that the accused didn't act accidentally.  That's sufficient for "general intent" offences.  (Of course for "specific intent" offences, like murder, sexual touching and theft, courts need evidence that the accused wanted a specific result.)

2006-07-20 Breaching the public trust

- In R. v. Boulanger, 2006 SCC 32, the Supreme Court defined the offence of Breach of Public Trust:

1.   The accused is an official;

2.   The accused was acting in connection with the duties of his or her office;

3.   The accused breached the standard of responsibility and conduct demanded of him or her by the nature of the office;

4.   The conduct of the accused represented a serious and marked departure from the standards expected of an individual in the accused’s position of public trust; and

5.   The accused acted with the intention to use his or her public office for a purpose other than the public good, for example, for a dishonest, partial, corrupt, or oppressive purpose.

Considering that you police officers and I, as a prosecutor, are public officials, this case is fair warning that we not use our positions improperly to our advantage.  Considering that two police officers just recently lost their lives in public service, this warning seems ill-timed. 

2006-07-16 Reasonable and Probable Grounds

- Always consider the reliability of the source.  In three separate search warrant applications, police officers received FAXes from technicians in the electrical company complaining of theft of electricity.  They passed these FAXes on to other officers who prepared search warrants, which were granted and executed.  Mr Le, Mr Nguyen and Mr Tran 2006 BCCA 298 were all charged, but the trial judges thought that the police had to do more investigation, and should not have relied upon double or triple hearsay.  The court of appeal disagreed: the documents came from qualified people, and were therefore credible.  No matter how many hands they passed through to get to the officer who drafted the ITO, they were reliable.

2006-07-07 Privilege

- Privileged information should not be disclosed unless "absolutely necessary".  In Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, the Supreme Court of Canada reasserted a well-known principle.  Take care to identify information in your files which would tend to identify confidential informers and legal advice you obtained, so that it is not inadvertently disclosed.  Don't write in your RCCs what advice you obtained from Crown.

2006-07-01 Searching a vehicle incidental to arrest

- A confidential informant told police officers that Mr Mitchell 2005 NBCA 104 would drive between provinces in breach a recognizance in order to sell cocaine to prostitutes.  When the officers found him he gave a false name.  They arrested him for obstrucing a peace officer, but they did not arrest him for possession of a narcotic because they feared that he would deduce the identity of their source.  The officers searched his car for drugs, and found them.  The court of appeal acquitted him anyway because in their view, the police had not searched the vehicle "incidental to arrest".  They were looking for drugs, not evidence of obstruction.  While this case runs contrary to some decisions which permit search before arrest, it serves a caution against indiscriminate search after arrest.

Consider this counter-example:  Csts Cho & Kelly arrested Mr Duong, 2005 BCPC 675, a john who had communicated with an undercover policewoman for the purposes of prostitution.  Although the officers had no specific reason to suspect him of intending violence against prostitutes, they searched the car in which he was arrested for weapons, duct tape or zap straps, because violence against prostitutes is unfortunately common.  They found 170 grams of cocaine instead.  Defence objected to the search, but the court admitted the evidence because it was found during a proper search incident to arrest.

The moral of these two stories is that when you arrest someone in a car, you don't have a blanket authority to search the car.  You can only search for items related to the offence for which you arrested.  But you  don't need to know that the items are there; you need only explain why they might be there.

2006-06-28 Articulating Evidence - Grounds for Detention and Search for Officer Safety - A police officer observed Mr Duong, 2006 BCCA 325 sitting in the driver's seat of a car, looking around the vehicle.  Twenty minutes later, he was in the passenger seat looking out the window as if waiting for someone.  It was an area where theft of car stereos was common.  The officer questioned him, and received some vague answers.  The officer described the fellow's suspicious demeanour in excellent detail.  The officer observed a car stereo in the back of the vehicle, with its wires hanging out.  He figured it might be stolen.  The officer detained Mr Duong, and while searching him for weapons, found drugs.  The trial judge admitted the evidence.  On appeal, the defence argued that the officer's suspicions weren't reasonable, and that the officer wasn't searching for his safety, but to find evidence.  The court of appeal rejected this because of the excellent evidence collected at the scene and the way it was articulated at trial.  When reading this decision, skip the first bit which discusses appeal procedures.  Start at paragraph 19. Imagine what testimony the officer had to give to bring the judges to these conclusions.  Then consider what observations and notes the officer took at the scene in order to give this evidence.  Articulating evidence well on the stand requires detailed description (which usually requires good notes), and a clear understanding of the bounds of your authority.  This officer had both at the scene and on the stand.  Well done!

2006-06-23 Investigative Interviewing - Recording the conversation - Mr Wilson (2006 Ont C.A.) was caught at the airport importing cocaine from Jamaica. Police officers interviewed him in a room designed for videotaping, but because the audio system suffered from "echo", they didn't use it. Even though they had tape recorders available, they didn't use them either. But they obtained a written confession from Mr Wilson. A jury convicted him, but the Court of Appeal overturned the verdict because the jury wasn't told that they could draw an adverse inference against the police if the police deliberately fail to record their interview with the suspect. In Ontario, therefore, if you can videotape or audiotape your interview with a suspect, then you must, or else the court may suspect that the statement you obtain is inaccurate. Other provinces may follow. (If you can't audiotape it, then make the best record that you can. Quotes are always better than paraphrases.)

2006-06-22 MLAT

- Who pays for the labour when a Canadian judge orders a Canadian company to locate and produce voluminous information for an American investigation? Pacific Securities Inc. 2006 BCCA 303 had to hire extra staff to comply with a production order to assist American authorities prosecute a cross-border crook. They wanted repayment from the Crown. The trial judge ordered the Crown to pay but the Crown appealed. The Court of Appeal overturned the order. Canadian companies have to bear the costs of complying with production orders. How keen will Canadian companies be to assist foreign police authorities now?

2006-06-20 Child Pornography

- Is copying child pornography from one medium to another "making" child pornography? Mr Horvat (2006 Ont Prov. Ct.) did just that, and was found guilty. However, this was only a decision of the Ontario Provincial Court.  Now that there are minimum jail terms for this offence, I expect courts to rethink this proposition.

2006-06-20 Child Pornography

- Proving "possession" of digital data requires more evidence than just finding it on the suspect's computer. Mr Panko (2006 Ont Prov. Ct.) took his computer in to a repair shop.  When the technicians fixed it, they found child pornography on it. Mr Panko called repeatedly asking if his computer was fixed.  He refused to divulge his password when the technicians asked. The Crown's expert said that there were three ways the files could get onto the laptop:

• downloading it knowingly;
• downloading it unknowingly; or
  
• a third party put it there

In the absence of evidence establishing it was Mr Panko who put it there, there was insufficient proof of possession, and Mr Panko was acquitted.

2006-06-16 Searching Vehicles - Reasonable and Probable Grounds

- Some of you have asked me to define what constitutes "reasonable and probable grounds".  I'm still assembling a page on it.  In the mean time, here's a nice case illustrating how police officers "got it right": R. v. Boudreau & Gwilt 2006 BCSC 914.

2006-06-16 Search Warrants - drafting ITOs - keeping it short

- When BC Hydro complained that their investigation revealed that a theft of electricity was occurring at the residence of Mr Le 2006 BCCA 298, the police drafted an ITO based upon the brief written complaint BC Hydro sent in.  The trial judge found that BC Hydro failed to narrate the whole of their investigation, and threw out the evidence obtained in the search (cannabis, of course).  But the Court of Appeal concluded that the police could rely upon the information given by known experts.  This ITO could be short and to the point.

2006-06-10 "What did the bad guy look like?"

- A bank clerk identified Mr Campbell (2006 BCCA 109) as the man who robbed her bank.  Just after the robbery, she gave a description to a police officer, who wrote it down, but did not ask her to check what he wrote for accuracy. At trial, she couldn't remember the description she gave the officer, but testified that what she told him was accurate.  The trial judge relied upon the officer's notes of the description, but the appeal court said the officer should have asked her to check his notes for accuracy at the time she gave the description.  In cases of eyewitness identification, you want to nail down the witness' description early and accurately.

In cases of offences on strangers, have you considered taking full-body photographs of the people you arrest?  This is particularly useful for sorting out people who offend in groups.  Each witness will tend to notice a different identifying feature.  One witness may notice the hat, another may remember the logo on the T-shirt or clothing style.  Head-shots don't capture these details.

2006-06-05 What's a "detention"?

- The Ontario Court of Appeal is reluctant to give any clear definition.  Three large police officers stopped a suspicious pedestrian named Grant (2006 Ont C.A.). They told him to show his hands at all times, and asked him if he had ever been arrested.  They asked him if "Do you have anything on you that you shouldn't?"  Curiously enough, he did: a handgun and drugs.  The court found that the officers created a situation in which Grant reasonably believed that he could not walk away.  This was a detention.  The judges refused to decide whether police must give Charter rights in such a situation.

2006-05-25 Production Order for Banking Records

- ICBC complained to police about some some cheques totalling $400,000, which ICBC said were fraudulently cashed. A bank account number was written on the cheques. ICBC suspected that their employee, Ms Quinn 2006 BCCA 255 defrauded them. Instead of applying for a production order to confirm this information, police called the bank and asked if the suspect owned that account. The bank confirmed it, and the officer got a search warrant. Was the call to the bank an unlawful search? The court found it wasn't because the bank account number reveals no personal biographical core information.

2006-05-25 Search and Seizure from a car

- Two police officers saw Mr Do 2006 BCSC 708 and two others leave a suspected grow-op carrying packages in plastic bags, which they put in a car and drove away.  The driver was young, so the officers pulled the car over to check his licence.  They smelled a faint smell of marijuana in the car, so they searched it.  In testimony, one officer said he didn't think he had grounds for a warrant.  The court found that the detention was not arbitrary, but search was illegal.  If you don't have grounds for a warrant (or for an arrest), then you don't have authority to infringe on people's privacy to search for evidence.

2006-05-24 Search and Seizure - Do drug dogs sniff private places?

Mr Nguyen 2006 MBQB 120 (sorry, no link available yet) drove a pickup truck from British Columbia to Manitoba.  He was heading east on Highway 1 when an officer stopped him because his passenger didn't appear to be wearing a seatbelt.  The officer observed enough to suspect that the truck carried drugs, but he did not have sufficient grounds to arrest and search.  He called a dogmaster who happened to be nearby.  When the dog walked near the truck, it indicated drugs.  Was this an unlawful "search"?  By reason of the public place in which the dog detected the scent, and the minimal personal information such a sniff detected, this judge differed from A.M. (2006 Ont C.A.) (see below), and found that there was no "search" within the meaning of s.8.  I bet Mr Nguyen appeals, but I won't bet on the outcome of the appeal.  My thanks to Simon Thompson for pointing this case out.

2006-05-22 Knocking on the Door - when is an investigator trespassing?

Mr LeClaire 2005 NSCA 165 (N.S.C.A.) drove home drunk, but someone called the police.  When they arrived at his house, the garage door was open.  In the garage was a door to the house.  The officers went into the garage, and knocked on the door.  Mr LeClaire let them in.  He admitted to driving, and they arrested him.  Did they violate his expectation of privacy?  The court found that officers who attend and knock an ordinary entrance to a house for the purposes of communicating do so under the implied invitation extended by every homeowner.  That's what these officers were doing.  But officers who go there for the purposes of discovering other evidence against the residents are committing an unlawful search.  If the resident tells you to leave, then you are trespassing.

2006-05-20 Expectation of Privacy at Border Crossings

- Mr Hudson (2005 Ont CA) tried to enter the U.S.A., but US Custms officials suspected he was abducting a child, and turned him back.  As he returned to Canada, Canadian customs searched his pockets and found couterfeit money.  He complained that it was unreasonable to search him considering that he didn't really leave Canada.  The court found that this kind of search was expected at border crossings; the customs officers did not need any special reason.  But if they had done a skin search, they would have required reasonable grounds to suspect an offence.

2006-05-12 Impaired Driving - Sobriety Tests

- After pulling the driver over and getting a vague admission of drinking, the officer asked the driver to blow in his face. The driver did. Defence counsel complained that this was an unreasonable and warrantless search of the person. There are cases that go both ways. This judge concluded that the search was lawful, but only for detecting impaired drivers. R. v. Bishop 2006 BCPC 0189.

2006-05-09 Drug searches in schools

- The principal of a high school invited police to search the school for drugs.  They walked a dog through the school.  It found A.M. 's (2006 Ont C.A.) backpack sitting on the floor in the gymnasium containing marijuana and psilocybin in sufficient quantities to be trafficked.  The court found this search violated the students' expectations of privacy.  Curiously, the court did not consider R. v. Gosse 2005 NBQB 293. PS: The Supreme Court of Canada heard an appeal of this decision.

2006-05-09 Impaired driving - silence is not a refusal

- When asked to provide breath samples into a Datamaster, Mr Lannigan 2006 PESCAD 10 said nothing.  The officer thought it was a refusal, and never presented the instrument to Mr Lannigan to blow into.  The court found a difference between exercising the right to silence and refusing to provide a breath sample.

2006-05-09 Tricks by police agents and undercover officers

- although the law permits you to trick a suspect into admitting an offence, you may not use dirty tricks.  A frequently used example of a dirty trick is posing as a priest for the purposes of obtaining the suspect's confession.  Mr Rowe (2006 Ont C.A.), a bank robber who shot and killed a bank clerk, consulted a practitioner of Caribean black magic for the purpose of obtaining magical protection from police detection and arrest.  But the magician was, by his own admission, a fake, who wore wire for the police.  Was the confession he elicited from Rowe admissible?  The court found it was becase of Mr Rowe's illegal purposes in seeking the magician's assistance.

2006-04-28 DNA Database

- the Supreme Court of Canada lent further support for the DNA Database in R. v. Rodgers, 2006 SCC 15, which dealt with technical procedural matters involving getting DNA from offenders who were convicted before the DNA legislation came into force.

2006-04-21 The importance of routine procedures

- A popular defence to speeding charges is to ask the officer whether the speed limit signs were visible that day.  After driving at 141 km/h on the Coquilhalla Highway, Mr Potts 2006 BCSC 592 beat his ticket because the officer had no specific recollection about the presence of speed limit signs on the highway that day, no note about the presence of signs, and he did not testify that it was his invariable practice to check for speed limit signs before or after issuing tickets.  I don't blame him for not remembering -- the presence of speed limit signs on a highway isn't memorable or noteworthy.  Unfortunately, in speeding cases, it is important.  Therefore, for routine observations and procedures that you will forget a year later, you should make a note and/or maintain an invariable practice.  When you testify, you will be able to say:

• I know that the speed limit signs were visible because I always check before issuing speeding tickets.
• I know that my prisoner discarded the drugs in my police car because I always search it before taking it out on the road.
• I know that I did not contaminate the murder weapon with DNA from the accused because I always put on clean new plastic gloves before handling exhibits at a crime scene.
  

2006-04-18 Drug pipeline

- In a typical highway police stop a couple of experienced officers found that Mr Binning 2006 BCSC 576 and his friends were transporting large quantities of cash and drugs. The officers handled Charter issues pretty well, but the trial judge found one mistake: their backup officer stopped the second of the two vehicles on a pretext, and waited unnecessarily long to explain what the stop was really all about. Under s.24(2), the judge was prepared to overlook it. The judge expressed some sympathy for police who try to understand their obligations under the Charter:

"... the interpretation of Charter rights and how best they might be protected since the Charter’s passage some 25 years ago, have somehow failed to provide those charged with enforcing the criminal law, particularly police officers, with a concise and succinct direction as to how they might perform their task while, at the same time, ensuring that they respect the Charter rights of those with whom they come into contact when enforcing the criminal law. The Charter requires restraints be placed on police actions, but the police deserve to know with clarity what those restraints are."

I couldn't agree more. I hope his judgment helps.

2006-04-13 "Causing" death

- Mr C.W. (2006 Ont C.A.) maintained a party house, to which he invited young girls to consume drugs.  He encouraged a 13-year old girl to take what turned out to be a lethal combination of percocet, speed and morphine.  He showed her how to circumvent the "time-release" coating on one of the pills, and encouraged her to take more when she wasn't feeling high.  But he wasn't present for all of her drug-taking.  He didn't make her take them:  She ingested them herself.  Were his actions a contributing cause of her death?  The Ontario Court of Appeal said yes, and upheld his conviction for manslaughter.

2006-04-10 Warrant Applications - What to do if the Justice of the Peace turns you down

In R. v. Duchcherer and R. v. Oakes, 2006 BCCA 171, police sought a search warrant under the CDSA, but the justice turned them down.  Rather than adding any new evidence, the officer added a paragraph explaining that he applied, that he was turned down, and why he disagreed with the Justice's conclusion.  He took the new ITO to a Provincial Court judge, and got his warrant.  The trial judge threw out the evidence, but the Court of Appeal disagreed.  Note that a Provincial Court Judge and a Judicial Justice of the Peace have equal authority to grant warrants; you can't appeal JJP's decision to a Provincial Court Judge.  However, it appears that you can get a reliable second opinion, even if you can not provide new evidence.  I am surprised by this decision, and I urge caution.  Don't go reapplying to another JJP every time a JJP turns you down.
2006-04-07  Charter Applications - This paper by the Chief Justice of the P.E.I. Court of Appeal explains Charter applications in more detail than most police officers want to know.  But it's one of the clearest explanations I've seen in a while.

2006-03-30 "Investigative Detention" - when the police cruiser drove by a closed restaurant, Mr Chaisson 2006 SCC 11 was sitting in his car, in the dark parking lot, with another feillow.  They threw something out the window, and the officer suspected drugs.  The officer told them to get out of the car, but didn't tell them why.  His intention was to search the vehicle.  He found the drugs, and then arrested them.  But he didn't give them their rights until after backup arrived. The court found that the officer breached Mr Chaisson's rights under s.8 (search), s.9 (arbitrary detention) and s.10 (right to counsel).  There are three main points to this case: Except in exigent circumstances, you can't use suspicion to justify a search for evidence.  When detaining people, you must explain why.  And if you've got the scene under control, then tell your prisoners about their rights.

2006-03-27 Revisiting the Report to a Justice

- If it takes more than 90 days after the search or seizure to lay charges, then s.490(2) requires you to apply to a JP for an extension.  The lawyer for Mr Correia 2005 ONCJ 435 (Ont Prov. Ct.) noticed that the police forgot to get an extension for the blood samples they got from the hospital after Mr Correia was driving very drunk (.260).  He persuaded the judge to exclude the blood samples from evidence.

2006-03-23 Reasonable and Probable Grounds to Arrest

- a cautionary tale about adrenaline.  After watching a movie with a friend Ryan Scullion waited  for a bus at a bus stop.  He noticed the lights and sirens of police cars pursuing a stolen van nearby.  Csts Flis & Grande (2006 Ont CA), two off-duty police officers in plain clothes decided to assist in capturing the car thieves, but mistook Scullion for a fleeing crook.  Scullion complained the police officers beat him up.  He certainly suffered injuries consistent with such a beating.  Csts Flis and Grande were charged and convicted, and probably sued.  Enthusiasm is good, but adrenaline can make you reckless.  Please be careful out there, folks.

2006-03-23 Immunity Agreements

- Judges warn juries that it is "dangerous to rely upon the unconfirmed evidence" of scumbag witnesses.  The unconfirmed evidence of an accomplice to an offence won't make a very good case against the main perpetrator.  Any immunity agreement we make with the bit-player in a crime will undermine his credibility at trial.  Sometimes, it's the only way to prove a case, but only if you have other evidence to substantiate what the accomplice says.  Granting immunity in exchange for testimony is therefore a difficult choice.  Involve senior management in your organization, and involve the Crown.  A good recent example of what happens in court is R. v. Chenier (2006 Ont CA).

2006-03-16 Warrantless Entry under Exigent Circumstances - Police responded to a complaint of strange noises in an appartment building.  The complainant indicated that water was leaking through his ceiling.  The police officer went upstairs and found large amounts of water pouring under Mr Atlas's 2005 BCPC 456 door.  The caretaker of the building was present, with the master key.  The police officer knocked, demanded entry, and went in.  At court, the officer explained that he feared for the safety of people inside the appartment.  The judge couldn't see any reason why a plumbing problem endangered anyone's life, and found the search unconstitutional.  The officer should have relied upon the caretaker to enter, and asked his permission to enter with him. 

2006-03-07 Right to Counsel - How long is a "reasonable opportunity" to get advice?

- I found this fascinating 2005 case today.  Mr Sargent 2005 NBPC 27 (N.B. Prov Ct.), an impaired driver, spent 61 minutes talking to his lawyer, and complained that the police violated his rights by asking him to finish the telephone call.  The trial judge didn't buy it, but, starting at para 49, reviewed many cases which discuss how long is long enough.  The answer?  "Although there is no firm time limit to the consultation it must be reasonable given the circumstances unique to each case."  ("It depends.")

2006-02-24 Fingerprints

- Three men did a home invasion, but the victims couldn't describe them.  To get the victims to open the door, one of them pretended to be delivering pizza.  Police found Mr Mars' (2006 Ont C.A.) fingerprint on the box.  The trial judge thought that was enough to convict him of involvement in the robbery, but the Court of Appeal disagreed.  Unless the Crown presents evidence to exclude innocent explanations (perhaps Mr Mars worked at the pizza shop), this evidence was not sufficient.  Therefore, if you have fingerprint evidence, investigate all possible innocent explanations for its presence.  It's like R. v. Yonkman 2005 BCCA 561, which reaches the same conclusion.

2006-02-22 Voluntariness - "quid pro quo" or an "overborne" mind?

When police arrested Mr Spencer 2006 BCCA 81 and his girlfriend for an armed robbery involving a shooting, they suspected him and his accomplices of involvement in many others. In an interview, Spencer offered to confess to 20 or 30, in exchange for immunity. He also asked to talk with his girlfriend. The officer explained he could give no assurances about immunity, but tried to "tell it like it is" about what would happen to the girlfriend, if the accused confessed. The officer encouraged him to confess without mentioning the girlfriend's name. The officer did agree to let Spencer talk with the girlfriend if Spencer confessed. The trial judge found that the officer did not offer an immunity deal. The trial judge found that offering to let Spencer talk with is girlfriend was an inducement, but it wasn't sufficiently strong to overbear Spencer's mind. The majority of the Court of Appeal overturned the conviction finding that the trial judge should have been more concerned about the explicit quid pro quo (confess and I'll let you talk to your girlfriend) and the implicit immunity deal, and less about oppression. Therefore, you should be very careful not to offer suspects deals: "if you tell me about it, then I will do X for you". When discussing the consequences of a confession, be hesitant to predict what charges will be recommended by police or approved by Crown. Don't predict what a judge will do at trial or on sentencing. (In my opinion, the dissenting judge's opinion provides a good foundation for further appeal to the Supreme Court of Canada. But I don't make those decisions.)

2006-02-22 Immediate non-private access to counsel

- Cst Canning was dealing with a mundane complaint when he came to the door of Mr Luu & Ms Tran 2006 BCCA 73. He smelled marijuana and observed nervous behaviour, and so he arrested both of them, for possession of marijuana. In the process they stumbled into the house. He cuffed both of them, and searched the house quickly for other people. He saw marijuana. He called for back-up, but did not give them their rights to counsel while they waited for the other officers to arrive. The court found that the officer was obliged to provide non-private access to counsel once the scene was under control; and give them private access to counsel later. However, the court did not exclude the evidence in this case. In my opinion, you should facilitate this kind of access by making the telephone call yourself to the lawyer, so that the suspects don't summon help from friends to overwhelm you. You should tell the lawyer that you can't give privacy yet, but will later.

2006-02-18 Recording interviews

- Police busted Mr Kim (Ont CA July 2005) and other members of a robbery ring.  One of them agreed to be interviewed, but insisted that the interview occur without tape or video recording.  He then attacked the interviewing officer, and suffered injuries in the ensuing melee.  At trial, this fellow alleged that his confession was beaten out of him, presenting evidence of his injuries as proof of police violence.  Although the case did not turn on this issue, it illustrates the value of keeping the tape recorder on, at the very least during his request that it be turned off.
 
2006-02-15 Keeping notes - The police officer who investigated Mr Forster's 2005 SKCA 107 $150,000 grow operation collected notes of his observation on scraps of paper, or by writing on his hand.  He transferred these notes to a computer disk, and from those notes created his application for a search warrant.  Once he received the warrant, he destroyed all his notes and the disk, keeping only his ITO.  Despite his testimony that all information he collected was recorded in the ITO, the court found that he failed in his duty to preserve all relevant evidence.  The court stayed the case.  Keep your notes.  If you must write on something odd like the back of your hand, copy the notes word-for-word onto a permanent record.

2006-02-14 Consent Search

- Tape recording a consent & being clear about detentions - Police investigated a 911 complaint of a B&E in progress.  When they knocked at the front door, Mr Groat appeared, surrounded by the smell of growing marijuana.  After discussing the 911 call with him, they asked about the smell.  He gave contradictory answers, ultimately admitting responsibility for it.  The officers then asked for permission to search the residence.  He gave it.  The lawyers argued that the conversation leading to the consent was inadequately recorded (the officers couldn not testify exactly what was said).  The court admitted the evidence, but commented that recording the conversation leading to a consent would be a good idea.

2006-02-02 Identification Evidence

- Good luck and not good planning saved this flawed identification. Ms Whitford 2006 BCCA 32 attacked a relative stranger. When police investigated, they showed the victim a 3-photo lineup containing Whitford's photo. The victim picked Whitford. Police prepared a proper lineup, with a significantly different photograph of Whitford. The victim picked Whitford out again. The court was prepared to accept that in this case the first identification procedure did not taint the second. Beware. There are experts out there who will testify that this procedure is flawed. Avoid informal lineups like this if you possibly can.

2006-01-27 Reporting child abuse

- When must you report a 'situation' to social workers? How speculative can your information be? In Young v. Bella 2006 SCC 3, a Newfoundland university professor inferred that a student might be abusing children, but the professor's logic was too speculative. The ensuing investigation ruined the student's career. She sued, successfully. Under s. 14 of the Child, Family and Community Service Act, we all have an obligation to report to the Ministry when we have "reason to believe that a child needs protection". Our act provides stronger protection than the Newfoundland one for a person who makes an unfounded report, but this case may encourage law suits. Therefore, before making a report to social workers, consider whether you have reason to believe the child needs protection. You don't need evidence of past abuse, and you don't need to investigate. But your inferences should be defensible.

2006-01-17 Interview tactics

- Mann & Soomel 2006 BCCA 17 planned with others to kill Mr Sohi.  After the shooting (which didn't kill Sohi), police interrogated the accomplices on videotape.  As they got information, they played ever more portions of videtaped statements to successive suspects.  They did not permit Mann's lawyer to be present during his interrogation.  At trial, many of the suspects signed immunity agreements and testified for the Crown.  Defence argued that viewing others' statements allowed the accomplices to concoct matching stories.  In this case, the court found that it did not significantly taint the witnesses because it was used sparingly.  Therefore, think twice before showing a witness' statement to any potential witness.  The court also confirmed that the accused does not enjoy the right to the assistance of counsel during the interrogation.  Mann's counsel says he'll appeal that ruling to the Supreme Court of Canada.  Expect more on that issue a year from now.

2006-01-07 Justifying Strip Searches

- Mr Thomas (2004 Ont Sup.Ct., affirmed by Ont C.A. 2005) secreted 7 grams of crack cocaine between his buttocks before police executed a search warrant for drugs in his residence.  The officers conducting the search had good reasons to believe that Mr Thomas possessed the drugs for trafficking, and so they arrested him.  They found no drugs in the apartment, but when they frisked him they found a small quantity of marijuana.  All the same, they took him back to the police station where another officer, who knew only about the marijuana, took him into a private cell and asked him to pull down his pants and bend over.  The trial judge found that the last officer did not have reasonable and probable grounds to believe that there was evidence to be found there, nor any bona fide belief that the search was necessary for the protection of prisoners (because nobody detains people for possession of a couple of joints).  Therefore it was an illegal search.  However, the judge admitted the evidence anyway, because the officers involved carefully respected the accused's privacy, and because the original arresting officers had sufficient grounds for the search.  So if you're going to search a place or a person, it's a good idea to find out all the reasons why.  And if you need to search someone's privates, follow the rules respecting privacy.
2006-01-03 More relief for Wiretap Affiants - Trial judges and the Court of Appeal really do seem more likely to restrict and even prohibit cross-examination of affiants in wiretap cases, unless defence can show a real reason to permit it.  I see no reason why this logic should not be extended to regular search warrant cases too.  R. v. Camara, (AKA R. v. Araujo) 2005 BCCA 639 (B.C.C.A.).

2005 Developments in the law

2005-12-22 - Growers lose guns - The Supreme Court of Canada upholds the mandatory firearms prohibition that s.109 of the Criminal Code imposes on people convicted of growing marijuana.  R. v. Wiles, 2005 SCC 84.

2005-12-21 - What is "indecent"?

In R. v. Labaye 2005 SCC 80 & R. v. Kouri 2005 SCC 81, while determining whether swinger's clubs constitute bawdy houses for the purposes of s. 210 of the Criminal Code, the Supreme Court of Canada redefined this term to require proof of harm or risk of harm arising from the acts in question.  But sexually transmitted disease doesn't count -- it's a health problem.  Note that the term arises in other offences, such as indent acts s.173, indecent performances 167.

For philosophers, this represents the triumph of Mill's libertarianism over social morality.  For practical cops, it means proving "indecent" acts will generally require expert evidence of harm.  I suggest that officers in vice squads might retain some psychologists, send them copies of these cases, and ask them to provide you with research relating to the harm caused by questionable sexual practices.

2005-12-15 - Henry fixes Christmas!

In R. v. Henry, the Supreme Court of Canada corrected a problem in the previous case of R. v. Noël, which let defendants on retrials lie.  This case doesn't do much for police officers, but the prosecutors are happy with this Christmas present.

2005-12-14 - Criminal Organizations

- The case that found the criminal organization legislation unconstitutional may be found here.  I decline comment because cleverer people than me are working on it.

2005-12-07 - Child pornography

- surreptitiously recoded videos of teenage girls in the bathroom are child pornography.  R. v. Ilhas 2005 BCCA 584.  This might seem obvious to you, but this case actually pushes the envelope in the law of child pornography.

2005-12-06 - Whodunnit? - Party liability

- Where the criminal act is done by one member of a group, and you can't tell which one, can anyone be convicted?  In R. v. H. (M.S.), 2005 BCCA 202 someone in a group of three youths set a houseboat on fire, endangering the life of a resident.  But because the three of them had been engaged together in a night of mischief, the court convicted all three.  Therefore, when investigating a criminal act committed by a member of group, investigate also the behaviour of the group before the crime to see whether they acted in concert, or aided or abetted each other.

2005-11-28 - Wiretap - Voice identification

- At the end of an investigation involving wiretap, you need a witness who can identify the voices on the recorded conversations. To achieve this, the officer who heard the wire may participate in the arrest. Be careful how you go about it. Until your suspect has dealt with his right to counsel, conversation elicited from him will be inadmissible. But evidence of voice recognition which arises incidental to an ordinary arrest, (or after he has spoken with counsel) is admissible. R. v. Oliynyk, Lepage and Ferris, 2005 BCSC 386.

2005-11-26 - Relationship violence - investigating the whole soap opera.

In R. v. D.D. (2005 Ont C.A.), the accused made a scene outside his ex-girlfriend's house.  Was it criminal harassment?  The trial judge excluded evidence of the accused's bad conduct toward her and her new boyfriend over the 8 previous years, but the Court of Appeal found it was relevant to whether the complainant's fear was reasonable, and whether the accused intended to harass her.  This case makes no new law, but it emphasizes an important point: in relationship violence, the past matters.

2005-11-16 - Co-accused's confession

- when only one of several co-accused confesses, the confession only proves the case against the one, and not the others. In R. v. Parberry 2005 Ont CA, one of three confessed. Unfortunately, at the trial the Crown asked the jury to use what the one said to help determine the guilt of the others. The Court of Appeal granted a retrial. This principle of law has been around for a long time, but it's easy to forget. One confession doesn't prove the case against the others. Keep investigating.

2005-11-15 - Disclosure - Police pay costs of adjournment

- In R. v. Delorme, 2005 NWTSC 78, a murder trial was adjourned because the police didn't fully disclose. There was no bad faith. It was simply that this police detachment lacked efficient means to disclose all relevant material. The judge ordered costs of $15,000 to be paid to the defence team to compensate them. Managers beware! In the investigation you are supervising, do you know where all the relevant information is? Can you disclose it when required?

2005-11-02 - Eyewitness identification - recognition differs from resemblance.

In R. v. Monias 2005 ABCA 353, a bank teller "recognized" the accused robber from a photo lineup by hesitating over a photo, and going back to it; but when he later turned up in her bank acting suspicious she didn't recognize him.  This is a good example of the courts noticing and applying the difference between recognition, and noticing an resemblance.
2005-10-11 - Right to Counsel - Good reading for every police officer.  After Mr Sweezey 2005 BCSC 1233 called Legal Aid, Sgt Parker asked him:

1. Did you speak with a lawyer?
2. Did you get advice?
3. Did you understand that advice?

Sgt Parker told him about another lawyer that called the police station asking for Mr Sweezey, but Sweezey didn't speak with him.  Although there were complications in contacting counsel, the positive answers to these questions resolved the right to counsel questions.  (Well done Rob!)

In my opinion, the real question is whether the accused has received sufficient opportunity to get the advice he needs to deal with the legal problem he now faces.  In this case, Sgt Parker mentioned to the accused that the lawyers usually advise the suspect not to speak to police... but he took care not to inquire into the advice Sweezey received.  Sweezey responded that he had received such advice.  Parker thereby acquired proof that Sweezey received advice on the only relevant legal issue.

2005-10-11 - "Who was driving?"

At the scene of an accident, Mr Powers (2005 BCSC 1317) answered, "me".  The investigating officer noticed he was drunk, and made a breath demand.  At trial, he said he felt compelled by s.67 of the Motor Vehicle Act (the accident report section) to answer the question.  The trial judge believed it, and excluded the answer.  Without that answer, the officer had inadequate grounds to make the demand.  In the result, the breath sample was excluded, and the drunk beat the charge.  Therefore, make a clear distinction between investigating an accident and investigating a criminal offence.  Make sure the context of the question is clear before you ask it.

2005-10-05 - Search and Seizure - Don't we all expect dogs to sniff luggage in bus stations?

Mr Gosse  (2005 NBQB 293) complained that the police dog that sniffed his luggage in a bus station violated his privacy.  The fact that it contained 1kg of cocaine, 5kg of marijuana and 961 pills of meth was beside the point.  The same thing happened to Mr Kang-Brown (2005 ABQB 608) whose luggage contained cocaine and heroin.  The trial judges disagreed.  The "search" was one done in a public place over which the bus company had control.  Searches for contraband were appropriate in such places.  And besides, the "search" revealed nothing else about his life or lifestyle.  Nobody dug through his underwear or examined the magazines he had packed away between the packages.  These are trial level decisions, not binding in the rest of Canada.  But it does suggest that searches which reveal contraband, but nothing else may not offend the Charter.
 
2005-10-04 - Agent of the State - when are BC Hydro loss prevention officers agents of the drug squad? In R. v. McGarry 2005 BCCA 480, the court side-stepped the question. But beware! This kind of judgment is usually a warning that the Court of Appeal will rule on the question soon. Therefore, drug cops should take care to avoid asking BC Hydro staff to investigate for them. Where privacy is concerned all peace officers should take care not to ask government agencies to investigate and report to the police without authority. With most government agencies, you should communicate in writing to request information. To comply with s.32.2 of the Freedom of Information and Protection of Privacy Act the request should:

• identify the information required;
• explain that it relates to an ongoing investigation of a criminal charge, which, if successful will result in charges;
• identify the investigation if not by offence, then by file number.

2005-09-30 - Right to Silence

- "an accused’s right to silence applies any time he or she interacts with a person in authority, whether detained or not.  An individual can provide some, none, or all of the information he or she has." - Mr Turcotte (2005 SCC 50) turned up at a police station telling them to send a police car to the ranch where he worked.  He refused to tell them why.  He did ask them to arrest him, and he told them there was a firearm in his truck.  Three men were found slain at the ranch.  At trial, he testified he was innocent.  The Crown asked the jury to infer guilt from his inexplicable refusal to tell the police what was wrong.  The Supreme Court of Canada granted a new trial.  The right to silence "severs any link between silence and guilt", although the court conceded that there are some exceptions to the right to silence, such as alibi.

2005-09-29 - CDSA - Night-time search warrants

- Our Court of Appeal confirms that you don't need justification for a night search under the CDSA for a valid warrant, even if you got a telewarrant. R. v. Dueck 2005 BCCA 448. I would recommend that you enter at times most likely to ensure officer and occupant safety. If that's going to be in the middle of the night, then saying so on the ITO may help defeat later complaints about the manner of your search.

2005-09-27 - Eyewitness Identification & Negligent Investigation

- Police place a photo of Mr Hill (2005 Ont CA), an aboriginal robbery suspect, in a photo-lineup with 11 caucasian faces. Some witnesses tentatively identify him. Police collect other weak identification evidence, and charge him. After his acquittal, Hill sues the police for "negligent investigation". Although he loses his suit, a special 5-judge bench of the Ontario Court of Appeal unanimously agree that police officers who do their job badly can be sued by the people arrested, or by the victims of criminals that should have been caught. Therefore, always do the lineup correctly the first time. Beware of short-cuts in investigations. Consider identification evidence carefully.  (2007-10-05: The SCC upheld this decision: .)

2005-09-19 - Protecting Prisoners

- What happens if your prisoner gets beaten up by other prisoners? You get sued. Take care not to lodge the sex offender in the drunk tank with the town goon.

2005-09-15 - Voluntariness

- Court permits police to tell the truth!  Mr Teske (2005 Ont CA) reported that his wife was missing.  During a massive search, police polygraphed him.  He failed, but would not confess.  The police could not arrest him, but feared for the safety of his children because of a remark he made.  A police officer told him if he confessed, he would be arrested, but if he did not confess, his children would be apprehended.  He confessed, but his lawyers complained that the officer's remark amounted to an improper inducement.  The appeal court held that the officer's remark was just a statement of fact, not an offer. I think that the court would have ruled differently if the officer had not made such a balanced statement. Beware!  This case illustrates two dangerous lines which you can cross too easily when seeking a confession:

Telling the suspect what's going to happen to his liberty can be viewed as a threat.  Avoid talking about what the JP or judge will or will not do.

An inducement can be a threat or promise to do something to or for someone else.  In this case it was the children.

2005-09-05 - Bad tip costs money

- acting on information from a confidential informant, police raided Mr Crampton's (2005 ABCA 81) house while he was making sandwiches, and took him down hard.  They found nothing illegal, but the left the man with injuries, for which he sued.  Inadequate communications between investigating officers and the tactical squad led to embarrassment in court.  Because police did not explain why they feared he had weapons that could harm them, the court could not find that they were just doing their duty.  It awarded $20,000 damages against the police.  Don't be afraid to use force to protect yourself, but always be ready to articulate why you used as much force as you did.

2005-08-31 - Identity, appearance notices and photographs

- Save yourself some trouble down the road: photograph the people you detain and record how you know their identity before you release them. Mr Ouellette 2005 ABCA 282 drove drunk and ran away from the scene. Police found him by the descriptions that eyewitnesses gave. After the usual processing, police released him on a promise to appear. At trial 3 years later, the investigating officer couldn't recognize him any more. At trial and appeal defence asked "How do you know the person before the court was the driver?" Photographs would have matched the eyewitnesses' descriptions. Photographs would have helped the officer testifying. Taking photographs for this purpose is OK (R. v. Multani 2002 BCSC 68) Fortunately, the officer noted a tattoo, and the prosecutors did some good legal work with the appearance notice.

2005-08-29 - Investigative detention

- The Arkinstall (2005 BCPC 0357) case demonstrates the importance of documenting and articulating the reasons why you decided to stop someone. The investigating officer's instincts were 100% when she stopped the Arkinstall brothers' truck. It contained 30 pounds of packaged marijuana and $23,000 cash. The judge found that her several explanations why she would have stopped the truck conflicted, and not one of them gave reasonable grounds to suspect specific criminal activity. Don't criticize her -- this could be you. Another judge might have ruled differently, particularly if she could have articulated the cumulative effect of all the things she knew about this vehicle when she pulled it over.

2005-08-22 - 24 hours or less - how long can you hold the prisoner before taking him before the JP?

The court says s.503 isn't a "speed test", but excluded statements in a home invasion case R. v. Dumont and Richardson 2005 BCPC 204 because the police didn't get around to interviewing until after 24 hours had passed.

2005-08-17 - Informer's privilege - never say you'll never tell

- during the trial of R. v. Toews et al 2005 BCSC 727, defence counsel wanted to ask the victim whether he had ever been a police informant in the past, and discover details.  Crown objected on the basis of informer privilege.  Defence argued that the victim may have invented his story of the offence (a drug rip-off / extortion) in the hopes of receiving money, and a history of payoffs would support this theory.  The court permitted defence to ask the witness and police officers limited questions about the victim's past track record as an informer.

2005-07-29 - Counselling the commission of an offence

- Mr Hamilton 2005 SCC 47 sent an email to 300 people offering a credit card number generator, for them to use illegally.  The trial judge acquitted him of counselling the commission of an offence (fraud), because she didn't think Hamilton really wanted other people to commit crimes, he just wanted to make money.  The Supreme Court disagreed.  Motive isn't important.  Intention is.  You can't instruct people how to commit crime if there's a real risk that they will follow your instructions.

2005-07-22 - Videotape interviews with all children and vulnerable witnesses

whether or not the offence is a sexual one. Bill C-2 is not yet law, but looks likely to pass. It permits videotapes of children and mentally and physically disabled people to be entered in evidence.

2005-07-12 - Right to Counsel - calling defence counsel from the scene of arrest

- A trial level court says the suspect in an impaired driving case should have been allowed to use his cell phone at the scene to call a lawyer while waiting for a screening device to arrive.  R. v. Murphy 2005 Ont S.C.J..  Although this case sets no precedent in B.C., I think it's an indication of rulings to come.  If you have a cell phone in your pocket, and a secure back seat in your car, then you better have a reason for not letting the suspect get in and call counsel "without delay" as is his s.10(b) right.

2005-06-29 - Sealing Orders & Publication bans

- Toronto Star v. Ontario, 2005 SCC 41.  This is big news for officers who write authorizations and warrants.  You can expect the judges and JPs to raise the evidentiary requirements for sealing orders.  You can no longer rely upon a "generalized assertion that publicity could compromise investigative efficacy".  You must explain specific reasons why the material needs to be sealed, such as revealing the identity of a confidential informant, destroying specific hold-back information, or revealing such salacious detail in a high-profile case that the resulting media frenzy could compromise the jury selection process.  If you run into trouble obtaining a sealing order, I recommend that you seek a temporary sealing order, and ask the JP or judge to read paragraph 8 of this decision.

2005-06-29 - Roadside Screening Devices

- R. v. Woods 2005 SCC 42.  If the driver clearly fails or refuses to blow at roadside, then the refusal is complete.  If later (after consulting with a lawyer, for example) the accused offers to blow at the detachment, treat it as a voluntary offer.  Don't read the driver another RSD demand!

2005-06-17 Telewarrants

- The media got excited: Child pornography evidence admitted after a warrantless search of the offender's home! R. v. Smith 2005 BCCA 334. Don't get excited - this case solves nothing for police. It confirms:

• before getting a telewarrant, police officers can not rely upon the JJP centre memo only;
• the ITO must explain how the officer determined that no JJP was available;
• the ITO must be accurate about factual details in the investigaton. Distinguish between hearsay and personal knowledge. Attribute your sources!

I think what really decided this case was the seriousness of the offence, and (though the court didn't say so) exigent circumstances. If you think that waiting until tomorrow for your warrant means losing evidence today, perhaps you should explain it in your ITO.

2005-06-16 - Roadside sobriety tests and questions about alcohol consumption

may be done before explaining rights to counsel, but only to the extent necessary to determine whether the driver poses a risk on the road. Beware: this applies only to driving investigations, not generally; and the court still requires you to explain the reason for the detention. R. v. Orbanski; R. v. Elias, 2005 SCC 37. Evidence collected in this manner may be used only for establishing grounds for demands and arrests. It can not be used to prove intoxication. Therefore, consider doing sobriety tests again after dealing with rights to counsel.

2005-06-09 - Search warrants for medical records

Although this case says search warrants require no special conditions for you to search a medical office for records, it warns of the high degree of privacy in such records.  Protect the privacy as much as you can during the search, and afterwards.  R. v. Serendip Physiotherapy Clinic (2004 Ont C.A.).

2005-06-06 - Confessions - Don't give legal advice.

Hinting to a murder suspect that the death penalty is available in Canada can be "oppressive", particularly if you tell the suspect that he must prove his innocence to the police, the judge and the jury. Be careful how you describe that "freight train". R. v. Espadilla 2005 BCSC 174.

2005-06-06 - Possession

- It is possible to prove that a passenger was in "possession" of a stolen car. But look how much more evidence you should have beyond mere occupation of the front passenger seat. R. v. T.A.K., 2005 BCCA 293.

2005-05-03 - Inmate telephone calls are not private

. R. v. McIsaac 2005 BCSC 385. See inmate telephone calls for more details.

2005-04-21 - Consensual fighting

is still an assault if the participant intended to cause bodily harm, and succeeds.  R. v. Paice (SCC).

2005-04-18 Inmate Telephone Calls

- The new Corrections Act came into force, changing the law regarding inmate telephone calls.

2005-03-10 Search and Seizure - Third Party Rights

- Investigating a grow-op, police trespassed at night (s.177) on the property of neigbors of the suspect, and obtained evidence.  The trial judge excluded the evidence obtained by that technique, but found that the police had obtained enough evidence by other means to justify the search warrant.  The Court of Appeal upheld the conviction, but expressed strong disapproval of police trespassing.  R. v. Hok 2005 BCCA 132.  Drug cops take warning!

2005-03-03 Search and Seizure - Report to a Justice

- Always do a report to a justice!  According to R. v. Backhouse (2005 Ont C.A.), s. 489.1 applies whether you seize property under warrant or under common law powers.

2005-03-03 Search Incidental to Arrest - Gunshot Residue

- Gunshot residue test may be done as an incident to a lawful arrest. R. v. Backhouse (2005 Ont C.A.).

2005-02-03 - Acquiring confidential information without authority.

Police officer investigating a serious car crash sees hospital staff take blood samples from the suspect.  No problem.  Then the police officer learns from the hospital staff that the hospital's tests showed the suspect to be impaired.  This is a problem because the police should not obtain this confidential information without lawful authority.  Police seek a warrant for the blood sample.  Because they had ample other grounds for the warrant, the court permits the evidence to be admitted at the trial.  R. v. Stinn 2005 BCCA 41.

2004 Developments in the law

2004-12-16 Probation orders and alcohol testing

- Bail and probation orders which authorize taking bodily samples from substance abusers are unenforceable.  According the the BCCA, courts may prohibit offenders from consuming drugs or alcohol, but without further legislation, courts may not authorize peace officers and probation officers to demand bodily samples to check whether the offender is complying.  R. v. Shoker 2004 BCCA 643.

2004-11-29 Search and Seizure incidental to arrest

- Search before arrest: Where a peace officer has reasonable and probable grounds to believe a suspect committed an offence and possesses evidence of the offence (such as drugs), the officer may search before arrest. R. v. Dubois 2004 BCCA 589. If you reach this stage in your investigation, Charter rights and a warning would be appropriate.  Although the Ontario Court of Appeal approved this approach (R. v. Polashek), you must have very solid grounds for the search (eg R v. Calderon 2004 Ont CA).

2004-11-18 Right to Counsel

- After an arrest, give the accused access to counsel as early as possible, even at the scene of arrest, if practicable.  This is not new law, but the advent of cell phones may change your procedures.  R. v. Manninen [1987] 1 S.C.R. 123; R. v. Couturier 2004 NBCA 91.

2004-10-29 Search and Seizure - FLIR

- FLIR devices are constitutional!  R. v. Tessling 2004 SCC 67.  The Supreme Court of Canada focussed on how much information the device provides about the suspect's lifestyle or core biographical data.  Because the current technology reveals so little, it does not invade any reasonable expectation of privacy.  But if the technology improves, it might offend s.8 of the Charter.

2004-10-01 Arrest and Detention

- The BCCA further clarifies police powers of search on detention: R. v. Greaves 2004 BCCA 484.  You can demand identification, but the detainee can refuse to answer; you can detain without providing Charter rights until you "significantly" restrict liberty.

2004-09-15 - "Production Orders"

- new legislation allows a judge to order a person, corporation or bank to produce information about a suspect.  The process to apply closely resembles a search warrant.  This legislation comes into force on September 15, 2004.  See this link for sections 487.012 and 487.013.

2004-07-24 - Investigative detention

- The Supreme Court of Canada confirmed what I have been saying about investigative detention:  You can detain on articulable cause, and you can search at that time for weapons for officer safety, so long as you can articulate the reasons you had to be concerned for your safety. You can't use this as a means to search for evidence.  R. v. Mann 2004 SCC 52.

2004-03-15 DNR Warrants

DNR warrants require R&P grounds; and you now need a search warrant to get unlisted telephone numbers.  R. v. Nguyen 2004 BCSC 76  Better go back and check the foundations for your wiretap authorizations.