Legal Topics for Canadian Criminal Investigators

2025.09.06 Warrant Drafting - Why do I Think It's There?

This comment and the next one touch on similar points. Please forgive me for repeating fundamental and important points. It's just that they're ... um ... important.

When you ask a justice for a search warrant, you need to explain what evidence you want to look for, and why you think it will be in the place you want to search. In the case of Mr Guenter, 2025 BCCA 308, the cop figured it was obvious that a search would discover evidence in his house. The defence disagreed.

In 2022, people working for Google noticed that a user of their Google Drive service (online data storage) had uploaded child exploitation images. They disclosed to law enforcement agencies:

• the name and email address associated to the account
• the IP address used to upload the child pornography.

The IP address led the police to a Virtual Private Network server - a dead end. (A VPN conceals the IP address of the person using the internet.)

The phone number started with "604" - a BC area code. For that reason, American investigators sent the information to the BC Integrated Child Exploitation team. BC investigators found the email address and phone number in BC law enforcement databases for events in 2013 and 2020. Mr Guenter's name appeared in those entries as the user of that email address and number. A BC officer looked up Mr Guenter's driver's licence data, and got a residential address.

He sought a warrant to search that residence for electronic devices that could store data relevant to the child pornography. He explained that electronic devices can retain valuable data, even after they are no longer being used to access the data sought.

His ITO explained why he thought that:

• Mr Guenter still lived at that address, and
  
• Mr Guenter's electronic devices would retain data of interest to the investigation.

The ITO did not explain why he thought that the devices that contained evidence of interest to the investigation would be at his residence.

His search discovered devices. After applying for another warrant, he found evidence in those devices of Mr Guenter collecting and dealing with child sexual abuse.

The trial judge agreed with defence argument. He threw out the evidence because the ITO contained no specific evidence which showed that the devices that uploaded the images to Google Drive or accessed them there would be in Mr Guenter's house.

The Court of Appeal disagreed with the trial judge. Those judges held that you don't need case specific evidence to support common-sense inferences. In this case, they felt that it was common sense to expect that Mr Guenter would keep his electronic devices at his home.

Careful!

Such common sense in once case may not apply to the next.

For example, judges may not draw the same inference with respect to drugs held for sale. Compare the differences between this child pornography user with a drug dealer:

One may infer that the possession of child sexual abuse images is for sexual gratification. Therefore, he needs to keep his images where he can enjoy them in private. Definitely not something to use at the workplace or in a motor vehicle. A drug dealer has different concerns. He might dip into his supply to get high. He might keep his supply at home for convenience, but nothing compels him to keep his supply close. Indeed, to foil police searches, he may prefer to store them somewhere else, like a girlfriend's apartment, or in a secret compartment in his car.

One may infer that Mr Guenter likely made no profit from his images. Therefore, unless he was rich and remarkably careful, he would not likely rent or buy some other private place at which to indulge his interest. But drug dealing is notoriously profitable. A dealer may be able to afford a storage locker.

For this reason, be cautious of relying on common sense to answer the question "Why do you think the thing you want is in the target's home?"

If you know the places that your target goes, and you can logically eliminate all but one as likely places for the evidence or contraband to be, then you've got reasonable grounds to search that place.

2025.08.18 Warrant Drafting - What am I Looking For and Why?

When you ask a justice for a search warrant, you need to explain what evidence you want to look for, and why you think it will be in the place you want to search.

When a woman complained that Mr Shen, 2025 ONCA 584 raped her, they investigated. Their efforts led to his cell phone. They asked a justice for a warrant authorizing them to search it for photos and communications.

When they executed it, they found in his phone a video of the complainant which corroborated her story.

At trial, defence complained that the warrant permitted police to search for "photos" and "communications", but not "videos". They asked the trial judge to exclude this critical evidence.

In this case, the trial judge and the appeal court judges gave the police officer a pass. This ITO explained that the communications sought could include pictures and videos. Therefore, the warrant authorized the searchers to look for videos as part of the communications.

But the basic principle matters: a warrant gives the searchers authority to look only for the things it identifies. When you draft your application, describe the all of things that you want the searchers to be permitted to look for.

But there's another principle that often gets overlooked. Officers sometimes confuse probative value with reasonable grounds. I mention this not because it was a problem in the Shen case, but it came up in my work.

Suppose that you are investigating a terrible axe-murder. You want to find the blood-covered axe. Suppose you want to search my house for it. No doubt, finding it in my house would advance your investigation. But no judge will give you a warrant to search my house for that axe until you explain why you think that it's there.

This week, I reviewed an application to search electronic devices. The experienced officer described all sorts of useful evidence that might be in the devices. For example, he explained that if the target photographed any of the criminal property, those photographs would show that he was connected to it.

Read that last sentence again.

Does that sentence explain why the justice should expect that those photographs are going to be in the devices?

Nope.

It only explains how useful that evidence would be if police were to find it.

The ITO did not go any further. It did not explain why in this case the target would have photographed the criminal property. Although the justice granted the application, I think that the poor drafting will become a problem at trial.

Often, explaining why the evidence will advance the investigation helps the justice decide to grant the warrant. But you need to go further, and explain why you think that evidence will be there.

(In case my example raised your suspicions, I stoutly deny possessing any blood-covered axes at the moment, and furthermore, I refuse to consent to a police search for any of them. Especially not in my basement, beside the file boxes. ;-) )

2025.07.30 Use of Force - Reports, Testimony and Video

Mistreating prisoners can undermine prosecutions, especially if the use of force reports come across as self-serving.

The Crown had a strong case against Mr Gilmore-Bent, 2025 ONCA 553 with respect to a loaded handgun. He beat the charges anyway.

How?

He had the good fortune to be pepper-sprayed. But that wasn't enough. Lady Luck blessed him with some clumsy accounting.

While he was in custody in the Toronto East Detention Centre, awaiting trial, some other inmate punched a correctional officer. That officer sprayed OC foam into Mr Gilmore-Brent's face.

The officer and several colleagues wrote reports about it afterwards, describing how Mr Gilmore-Brent lunged at the officer, which justified the spraying.

Security video contradicted their accounts.

At court, Mr Gilmore-Bent explained that after the one prisoner punched the officer, he tried to get into his cell, but it was locked. Eventually, when someone unlocked it, he obeyed the officer's instruction to go to his cell. The route to his door took him slightly closer to the officer, and so he did approach to officer briefly. Only after he entered his cell did the officer start to spray him.

Although the security camera didn't see into his cell, the video it recorded tended to support his version.

From the similarity of the reports written by the guards that witnessed the event, the trial judge inferred that they colluded. She believed that they made up a false story to protect one of their own.

Astonishingly, a senior correctional officer watched the security video, and then signed off on each report that it was accurate.

Was complacency at play? Did the correctional officers rarely experience challenges to their reports? I don't know. I have seen in some institutions, that people in authority, such as prison guards, sometimes develop a sense of invulnerability.

The trial judge threw out serious charges. That result probably annoyed the police officers who investigated Mr Gilmore-Bent.

What can an honest cop learn from this unhappy tale of failure in a correctional facility?

1. Someone may read the report that you write about using force, or witnessing another officer use force.
2. That person may compare your report with other reports, or with video which recorded the event.
3. They will be looking for differences. If they find any, they will use them against you.
   
4. Therefore, try to record as accurately as you can what you yourself observed.

Honest errors happen. As I understand the experts, our brains process observations differently from video-recorders. In tense situations, we will focus hard on one thing, and entirely miss another. (If you haven't seen the video which demonstrates selective attention, then follow the link. It will test you. See if you can get the answer right.)

What can a supervisor learn from this unhappy tale?

1. Before the incident takes on a life of its own, read all of the reports, and compare their contents with each other, and any video you might have.
2. Don't necessarily discipline officers for disagreeing. Honest errors differ from dishonest collusion.
3. Avoid creating environments which foster the appearance of collusion. For example, don't debrief the group before they write their reports. One officer's remarks may inadvertently affect how the next one write his or her report.
   

What can a correctional officer learn from this incident?

1. Sometimes, an adversary will read your use of force report critically.
2. Therefore, precision matters.
3. When the adversary challenges you, they will want to know when you wrote your report, and whether you discussed the event with any other witnesses. You might want to avoid that.

Many officers demand the right to watch the video before writing their report. Careful what you ask for. If your report matches the video, your adversary will point out that this undermines your credibility. The judge is more likely to trust your word about what happened outside the view of the camera if the video independently confirms at least some of your recollections.

2025.07.28 What to Do when Defence Counsel Yells "Privilege!"

A kind reader in Alberta brought the decision of R v El-Sayed, 2025 ABKB 336 to my attention. He impressed me. I thank him.

An officer in his police service persuaded a justice to issue a warrant to search a drug dealer's house and vehicles. In the course of the search, the officers lawfully seized cell phones, which they intended to search for further evidence.

Mr El-Sayed's lawyer asserted that the cell phones contained privileged communications, and demanded that the police return them. Police refused. Crown asked the defence lawyer to help police identify what data was privileged so as to avoid examining it.

The defence lawyer refused to help the police in this search of the client's phone.

Judges take solicitor-client privilege very seriously. When you encounter communications between a lawyer and their client in which the client seeks confidential legal advice or the lawyer gives it, step back in alarm. Whether written or spoken, such communications enjoy the highest protection that the common law recognizes. Even a lawyer's bill for services rendered enjoys this protection. If you snoop through this material without specific judicial authorization, you can expect bad consequences.

In this case, some smart people drafted an application to search the phone in ways that obtained evidence relevant to trafficking, but avoided communications with legal counsel. It required the technicians searching it filter out data related to certain named lawyers and their phone numbers, and forbade them from communicating the content of any privileged material to the investigating officers. See para 58 of the decision for more details. The application explained the defence lawyer's claim, and refusal to help.

Unsurprisingly, the searches found evidence.

Unsurprisingly, defence counsel complained at trial that the police should have done more to protect privilege.

The trial judge rejected this complaint. While it is true that the defendant and his lawyer bear no duty to assist the police in investigating the defendant, the lawyer does bear a duty to assert privilege. The most efficient and effective way for the lawyer to protect the privilege is to help steer the police away from the privileged material. That's not helping the police find evidence against the client; it's just protecting the privileged communications.

On the law enforcement side, it seems reasonable to ask: "Why should the police do more to protect privilege if the lawyer himself refused to do anything?"

The answer is that you have an obligation to uphold privilege, whether the defence helps or not. The better question to ask is "How much is enough?"

In this case, the judge found that the terms of the warrant sufficed. Your mileage may differ. As the judge noted, every case is different. Sometimes, you must bring in an independent referee (a lawyer) who will examine material to determine whether it is privileged.

If you have reason to suspect that the phone / computer / residence that you will search contains privileged communications, then, at the very least, include language in the warrant which requires you to seal up such material if you encounter it, and bring it to a judge to determine if it is indeed privileged. If you have reason to believe that your search will encounter such material, then get advice. You might even impress your advisor if you bring the El-Sayed decision to their attention.

2025.06.09 Production Orders - Who is a "Person"?

I missed this decision last year when it came out. I think it's interesting enough to comment on even a year later.

A production order requires a person to produce documents or data. Section 487.014 says that a "justice or judge may order a person to produce" the material you want in your investigation. And s.??? says if they don't, they can be charged with an offence.

But most of the data and documents you obtain with these orders come from big organizations, like telecoms companies. If your production order names a particular staff member of the big corporation from which you want evidence, then that guy or gal becomes liable to criminal prosecution if they fall behind on their work. Not entirely fair to that poor sod.

I gather that some of those big organizations ask you to name the organization rather than a person.

That works. Section 2 of the Criminal Code defines "person" to include "organization". It defines "organization" to include corporations, municipalities, and trade unions.

Therefore, it's easy to stop thinking about how you name the "person" that must produce the documents or data that you want.

When investigating Mr Wahabi, 2024 MBCA 70 and his associates for a murder, Manitoban police officers needed private records from two correctional centres: Milner Ridge Correctional Centre (MRCC) and Headingley Correctional Centre (HCC). Quite properly, they applied for production orders, which identified the records and data they sought. But the production orders named the correctional centres as the "persons" required to produce the records.

Defence counsel argued out that MRCC and HCC were places, not people. They had a point. A similar argument succeeded in R v Meyers, 2017 SKQB 29, and evidence was excluded from that trial.

But section 2 also defines "organization" to include an association of persons created for a common purpose, with an operational structure, which presents itself to the public as an association of persons. (Therefore, if a quilting club votes in a president and a treasurer, then the quilting club is "person" for the purposes of production orders.)

The judges observed that at these places, a highly structured organization of people (prison guards and their management) housed, fed and managed prisoners on behalf of the provincial government. Therefore, the names of those places "MRCC" and "HCC" sufficiently identified the "organizations" of people that ran them.

Whew! The production orders were therefore good, and the murder trial could proceed.

If you use loose language to identify the group of people who must produce the evidence you seek, you might not be so lucky.

Whenever you apply for a production order, recall that you are asking for an order against a "person". That "person" can be a corporation.

If you know the legal name of the corporation, then use that, even if it's just a numbered company. (Make sure you spell the name correctly.)

If you don't know the legal name, then you can use the name by which it advertizes itself.

If it doesn't advertize itself, then you may need to prove in your ITO who these people are, and that they have an operational structure, and how they present themselves to the public. What name does grandma's quilting club hang over its booth at the Christmas craft fair?

If you can't figure out what to call this group of people, then figure out which one of them has the documents you need. And name that individual person in your ITO.

2025.06.10

 Wiretap and Production Orders - What do Friends Talk About?

When applying for wiretap or production of recording of conversations, one of the things that you must establish is the likelihood that the people will or did talk about the matter that you are investigating.

Here's some judicial language that might help:

“It is a reasonable inference that persons who are known to one another and who trust one another are likely to speak to one another about areas of mutual interest and concern” Wahabi, 2024 MBCA 70 at para 96.

The judges were commenting on whether a production order was justified. What do you think?

There was an ongoing feud between rival gangs. Mr Wahabi, 2024 MBCA 70, and his buddy Hagos belonged to one gang. Someone murdered Wahabi's brother. After that murder, Hagos went to jail. Jail logs showed that Wahabi and Hagos communicated frequently. The jail telephone system recorded those conversations.

Then someone murdered a member of the rival gang. Two reliable confidential sources said that Wahabi and Hagos planned it and Wahabi and others committed it.

Should a judge authorize the production of the recorded conversations between Wahabi and Hagos? Was there any reason to expect that those conversations would reveal information about the second murder?

The Court of Appeal sure thought so: "We see it as a common-sense and reasonable inference that the dramatic circumstances of a recent and very public shooting war between rival drug factions would likely be discussed by a member of one of the factions."

How would you express this inference in your ITO?

Here's my "blame the evidence" approach:

1. The Manitoba Court of Appeal said in R. v. Wahabi, 2024 MBCA 70, “It is a reasonable inference that persons who are known to one another and who trust one another are likely to speak to one another about areas of mutual interest and concern”.
2. The fact that Mr Wahabi, his brother and Mr Hagos all belonged to the same gang makes me think that the brother's murder would have weighed heavily on the survivor's minds.
3. Their membership in the gang makes me think that they likely trusted each other, and this death held great mutual interest and concern.
   
4. Like the Manitoba Court of Appeal, I infer that they would have talked about it.
5. Therefore, if nothing else, I expect that the jail phone recordings will likely confirm that Mr Wahabi had a motive for the final murder.
6. Furthermore, the confidential sources asserted that Wahabi and Hagos planned the final murder. Other communications would have been difficult while Hagos remained in jail, I infer that these recordings likely captured that planning.
   

2025.06.09 Traffic Tickets and Murder - The Importance of Doing Routine Tasks Correctly and Documenting

At 2:38am, Sgt Sidhu stopped a car for speeding, and running a red light. Considering the time of night, the traffic offences probably posed little danger to the public. But other dangers sometimes haunt the hours after midnight.

Sgt Sidhu approached the driver's side of the car and explained the reason for the traffic stop. The driver, Mr Rhoden, shook and his hands trembled. The driver produced a driver's licence, but could not produce ownership or insurance documentation. The passenger, Mr Anderson, 2025 ONCA 408, remained cool as a cucumber. He dug about in the glovebox looking for documents, and gave the officer what he found, including a take-out menu. But not the vehicle documentation.

Sgt Sidhu began to suspect that they occupied a stolen car. He asked the passenger for identification. The passenger gave a name (which turned out to be false), but denied possessing any id. He said he expected to be able to get into the bar without identification.

Several minutes after stopping the vehicle, Cst Sidhu asked where they were going in such a hurry. The explained that they fled for their safety from a shooting at the Cameo Lounge - a shisha bar only 100m away.

The delay seemed odd. You would expect most people who feared for their lives would express their concerns more urgently when a police officer stopped them for speeding or blowing a red light. Wouldn't you expect the driver to show relief rather than anxiety when a uniformed police officer turned up? If feared harm from gunmen, wouldn't they explain the danger to the officer, rather than wait for the shooter to approach?

Sgt Sidhu returned to his car computer to run some checks. Moments later, the radio informed him of a shooting incident at the Cameo Lounge.

What would you do?

Sgt Sidhu now suspected that these guys might be the shooters.

He called for backup, and briefed the officers who arrived moments later. They took over. They detained the men for the shooting. The investigation discovered evidence - particularly security video - which supported Cst Sidhu's suspicion. Charges proceeded.

At the attempted murder trial, counsel for Anderson and Rhoden challenged Sgt Sidhu's actions. They claimed:

1. Sgt Sidhu detained them both without explaining why;
2. Sgt Sidhu had no grounds to detain them for possessing a stolen car;
   
3. He failed to tell them that they could get legal advice.

The first paragraph of the trial judge's decision complained that Sgt Sidhu forgot to turn on his audio recording device. A recording would have answered the first two questions without the bother of testimony.

Without it, the trial judge had to assess Sgt Sidhu's reliability as a witness.

Sgt Sidhu made that job more difficult by contradicting himself on questions about whether he heard Rhoden give other officers permission to search the vehicle.

However, the trial judge believed Sgt Sidhu, recognizing that this simple traffic matter escalated rapidly into a major investigation, which distracted the officer from noting some ordinary things.

The judges agreed that Sgt Sidhu had good reason to stop the vehicle for the traffic offence.

They disagreed that during the traffic stop, Sgt Sidhu detained Anderson, the passenger.

Obviously, pulling over a vehicle detains the driver ... but not necessarily the passengers. It depends upon how you treat them. The judges relied on the officer's testimony that he asked for, but did not demand that the passenger produce identification. Had Sgt Sidhu demanded it, or told Anderson to show his hands, or to get out, or to stay in the vehicle, then he could have caused Anderson to believe - reasonably - that he was no longer free. That would have triggered a detention at very beginning of the interaction, with serious consequences for the prosecution at the end.

The judges agreed with Sgt Sidhu that the odd behaviour of the car and the men in it raised real concerns that it might be stolen.

Sgt Sidhu never told the men of a detention in relation to a stolen car. But there wasn't time.

What can we learn from Sgt Sidhu's experience?

1. Figure out your body-cams and your car-cams. Develop professional habits of turning them on and off. Judges like having recordings of the investigations of serious incidents. You will never know which trivial incidents will become serious; but you will have good reasons for turning the devices on and off.
2. Follow procedure, even in the trivial investigations. Avoid detaining if you don't need to. By treating the passenger differently from the driver, Sgt Sidhu avoided detaining him. That led to valuable fruits in the investigation afterwards.
3. When other officers arrive to take over, keep taking notes. The bigger the case, the more likely you'll be challenged on everything. Not just what you did, but what you saw other officers do.
   

2025.06.09 Traffic Tickets and Murder - How Long can you Detain a Suspect?

This article picks up from the story above. The officers that took over for Sgt Sidhu formally detained Mr Rhoden and Mr Anderson, 2025 ONCA 408. The officers kept the suspects waiting for two hours before arresting them.

You know that you can detain people that you reasonably suspect of a crime. But nobody who knows what they are talking about has yet told you precisely how long you can detain suspects before you must arrest or release them.

I won't either. Nor did these judges.

But they did say something useful:

“[t]he purpose of the brief detention contemplated under the investigative detention power is to allow the police to take investigative steps that are readily at hand to confirm their suspicion and arrest the suspect or, if the suspicion is not confirmed, release the suspect”

Complexity justifies taking more time.

This shooting injured three people, rendering one of them quadraplegic. It happened at a busy social venue. Lots of potential victims. Lots of potential witnesses. Lots of investigators. Guns were involved. One of the suspects apparently lied about his name.

This complexity justified taking 2 hours to figure out what to do.

Simpler cases do not.

The judges criticized the officers for not investigating Mr Anderson's identity promptly, but recognized that the officers had their hands full.

2025.06.09 Traffic Tickets and Murder - Interviewing Dos and Don'ts

This article continues the story from the previous two. (Will Waldock never shut up about this case?)

Back at the police station, after police told Rhoden and Anderson, 2019 ONSC 2739 that they were under arrest for murder, an investigator tried asking them questions.

Mr Rhoden clammed up.

The interviewer tried a different tactic with Mr Anderson.

The interviewer knew that Mr Anderson and Mr Rhoden told Sgt Sidhu that they were innocent bystanders fleeing gunshots. But the interviewer also knew that investigators at the scene found some evidence implicating them.

Instead of cautioning him as a suspect, the interviewer told Mr Anderson that he was just a witness.

The trial judge didn't like that. It was a trick that rendered the statement inadmissible. As a uniformed police officer, if you have reasonable grounds to believe that the person you are interviewing about a crime is the culprit, then you should tell them. Detained or not, they have a right to choose whether or not to speak about the crime.

Also, an officer told Mr Anderson that he wouldn't be released until he told police his real name. Mr Anderson finally gave his real name. The trial judge didn't like tactic that either. That was an improper inducement - an offer of freedom in exchange for information.

The astute reader will notice that I provided only the trial judge's decision. That's because the Court of Appeal didn't deal with these issues.

2025.05.16 Hearsay in Traffic Court in British Columbia

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

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

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

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

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

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

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

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

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

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

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

2025.05.07 Charter 10(a) - What but not How

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

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

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

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

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

The search discovered handguns.

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

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

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

But wait, there's more.

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

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

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

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

The Court of Appeal disagreed with those judges.

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

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

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

So he did screw up.

But there was a reason. Things got sketchy fast.

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

P.C. Osman called for backup.

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

So there were some extenuating circumstances.

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

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

Lessons to learn from this case include:

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

2025.05.02 Warrant Drafting - How did the Informant Know?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

He said nothing about the killing.

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

Mr Pietz maintained his silence about the homicide.

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

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

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

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

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

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

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

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

Interviews are not unexpected investigative techniques.

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

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

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

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

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

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

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

Phillippe Lugela was a jerk.

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

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

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

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

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

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

Mr Lugela fell as he ran. Officers arrested him.

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

Mr Araya's satchel contained a loaded handgun.

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

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

Mr Araya:

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

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

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

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

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

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

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

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

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

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

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

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

Mr Griffith's convictions stuck.

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

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

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

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

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

Then things got exciting.

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

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

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

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

In it, the officer found marijuana and a handgun.

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

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

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

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

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

I lied.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2025.03.20 "Intoxicated" by a Drug in a Public Place

A BC police officer sent me a good question:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The police interpreter believed that Mr Chen understood Cantonese.

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

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

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

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

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

The appeal court granted the appeal.

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

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

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

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

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

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

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

Have you seen any screw-ups yet?

Me neither. Nor did the judge.

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

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

What should the undercover officers do?

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

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

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

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

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

Is that ringing sound getting louder? Good!

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

You probably know where this is going.

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

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

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

This prosecution involved no drug charges. Just the gun.

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

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

What an excellent fact pattern for discussions!

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

2025.01.06 ITO Drafting - Confessing Rejection

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

It's easy to forget that second obligation.

This principle applies to the facts.

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

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

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

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

The requirement of frank disclosure applies also to rejections.

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

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

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

Go do it again!

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

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

2025.01.01 Right to Counsel in Exigent Circumstances

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is it your job to save lives?

Damn tootin' it is!

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

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

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

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

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

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

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

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

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

Evidence!

How much evidence?

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

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

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

Option 1 - Discuss it with Mr Mucpa

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

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

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

Option 2 - Discuss it with counsel

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

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

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