Summaries from: 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004

2019 Developments

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:

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

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:

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.

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:

Do:

* 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:

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:

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 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.


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:

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?



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:

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:

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:

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:


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:


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:

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:

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 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:

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:

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:

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.:

The appeal court found that N.B.'s conflicting explanations of the evenings events were inadmissible.

The appeal court made several main points.

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?

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:

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:

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:

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:

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:

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:

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.

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:

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:


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 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:

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:

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:

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.

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

Yesterday, a police officer died on the job in Abbotsford, B.C.. It is the worst news his family, his friends and his colleagues could receive. I add my small voice to the multitude who honour Cst John Davidson, and I wish his family healing through their grief.

2017.11.05 Dangerous Driving - Hazards of the Job

A guy named Romano, 2017 ONCA 837 drove an F-150 at 109km/h in a 60km/h zone. He struck and killed a beautiful 18-year old girl who was trying to jay-walk across the street.

He wasn't drunk. He wasn't high.

He was just trying to catch up with some people he knew.

What do you think. Was his driving criminal?

The first jury didn't think so. But the trial judge made a mistake. The Court of Appeal ordered a new trial.

Why am I telling you this?

'Cause Romano was a police officer driving an unmarked vehicle. He wanted to catch up with the rest of the surveillance team.

Now a girl is dead, and the family sued for $2M.

Probably Romano thought that it was important to watch this particular target. Today, I'll bet he wished he drove slower.

I hope you think your work is important. Passion for the job gives you the energy to do it well. But too much passion distorts one's priorities.

It's a question of striking a sober reasonable balance.

So let's all try to be simultaneously passionate and dispassionate.

I still work on that balance. I hope you do too.

Be safe out there.

2017.11.05 When to Stop Investigating - Confidence or Completeness

A guy in a mask robbed a bank in Oakville.

A cop across the street responded just as he ran out. The cop saw the robber jump into a car. The cop drew his gun and attempted to open the driver's side. He and the robber faced each other for a 10-20 second standoff. Because the robber had removed his mask, the officer saw his face.

The robber drove off, but police soon found the car, abandoned. It still contained the mask.  The mask had 2 DNA profiles on it. One belonged to Thomas McConville, 2017 ONCA 829.

That day, other investigators prepared a photo lineup containing his face. They showed it to the officer, who picked Tom's face.

Closed case?

Not quite.

Tom's brother Shawn was in Oakville that afternoon.  Shortly after the robbery, he hired a taxi, which took him to Hamilton, 30k away.

Maybe he did the robbery.

Brothers tend to resemble each other. Brothers often associate with each other. Sometimes, they share property. One might let the other borrow his mask for a while. Shawn's picture wasn't in the photo lineup. Maybe Tom's picture was the one that looked most like the robber because Shawn did it.

And besides ... brothers have similar DNA. Those huge odds that the DNA experts quote don't apply to related individuals.

The prosecution tendered no DNA evidence from Shawn.

That could have been a problem.

The trial led to a conviction, but only because of the presence of mind of that first police officer when challenging the robber. In court, this one wasn't the slam-dunk that it probably seemed to be when the DNA and the photo-lineup led to Thomas.

Sometimes, you get a comfortable feeling that you've collected all the evidence you need. Beware.

I think an investigation is complete when all the evidence has been collected. Not "enough" evidence, but "all" evidence. In this case, Shawn's DNA profile was relevant.

Okay. To make police budgets balance, I'll concede some wiggle-room: "An investigation is complete when all reasonably available sources of evidence have been canvassed." What's "reasonably available" differs depending you're investigating a murder or a shoplifting.

2017.10.31 Oops. Should I tell Defence I made a Mistake?

Yes.

The earlier the better.

In R v Mamouni, 2017 ABCA 347, lots of disclosure came tumbling out just before trial. Some examples included:

  • The exhibit officer revealed that he made a mistake in his testimony at the preliminary hearing.
  • During pre-trial interviews, several officers revealed details about the crime that appeared nowhere in their notes or reports.
  • And by the way, during the investigation, the officers obtained a General Warrant which wasn't revealed anywhere in the disclosure.

When new information comes in at the last minute, it can change how the trial proceeds. If the trial changes too much, defence can ask for an adjournment. And blame Crown for the delay.

In this brave new regime of Jordan, that can kill a perfectly good prosecution dead.

What must you disclose? Mr Justice Watson explained it this way:

The point is that "likely relevant" can be distinguished from "barely relevant" as well as from "not relevant". The Crown should never presume that even barely relevant evidence acquired as a product of an investigation need not be disclosed and in a timely way. To say that the Crown has no such obligation is not the law, largely because it is not up to the Crown to decide what use the defence may make of any evidence, howsoever limited the relevance may be. As it was put in Vallentgoed, at para 63 "the Crown must produce records unless it is beyond dispute that they are not relevant".

Naive police officers may read this paragraph and relax. The judge keeps talking about 'Crown' not 'police'. True. But the 'Crown' can't disclose any information in the possession of 'police' unless police disclose it. Therefore, a wise police officer reads this paragraph to say:

The police should never presume that even barely relevant evidence acquired as a product of an investigation need not be disclosed and in a timely way. It is not up to the police to decide what use the defence may make of any evidence, howsoever limited the relevance may be. The police must produce records unless it is beyond dispute that they are not relevant.


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:

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.

Bad Boy Furniture Icon

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 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.

2017.02.18 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.

2017.04.05 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.

2017.01.14 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

2016.12.20 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 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:

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 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:

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?

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.

The handlers did some things the court liked.

Mr Plante did some things the court liked.

These things resulted in:

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:

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:

Feel squeamish? From my experience prosecuting cases like this, I can see reasons to train officers to do this kind of forensic work:

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:

This decision is very short and to the point.  An easy read.

Lessons to draw from it:

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.

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:

Maybe the officer did draw his gun. If so, then:

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:

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:

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:

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.

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:

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:

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:

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:

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):

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.

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?

This applies to much more than licence plates. For example, I've seen this arise with:

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:

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.

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:

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.

Although Mr Thompson's conviction stood, this case reminds us that you can avoid embarassment by:

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:

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

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:

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.

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:

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 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."
"I don't have to file a form 5.2 if I give the thing back."
"I have 7 days to file a form 5.2."

"Filing a form 5.2 means I get to keep the exhibit for a while."
"I get to keep the exhibit for 3 months after I file the 5.2."
"Form 5.2 is just for search warrants."
"I don't need to do a Form 5.2 for documents obtained through a production order."


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:

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

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:


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:

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.

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?

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?

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.

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 ju