2022.09.26 "What's in the Bag?" - Threatening to Arrest
You can threaten to arrest people as a way to dissuade them
from committing an offence:
- "Jimmie, if you spray paint your name on that wall, I'll arrest you for mischief"
- "Sir, I'm going to issue you a ticket. To do that I need to know who you are. If you don't identify yourself to me, I'll arrest you for obstruction."
You can't threaten to arrest them as a way to obtain their
consent to a search.
At a time when possessing marijuana was illegal, an officer
approached a group of people that smelled of burning
weed. He detained one of them, Mr
2022 ONCA 654, and asked him to show what was in his fanny
Probably because it contained a loaded handgun, Mr Mengesha
refused to say.
The officer didn't tell Mr Mengesha the reason for the
detention, nor did the officer mention the right to legal
The officer arrested Mr Mengesha for possession of marijuana.
Within 2 minutes the officer found baggies of cocaine and
fentanyl and a concealed knife. Soon after, when Mr Mengesha
tossed his fanny pack into the bushes, the officers found the
The judges didn't like the threat of arrest. They didn't like
the breaches of s.10 of the Charter.
Although Mr Mengesha's conviction stuck, that fact should not
encourage you to use the threat of arrest as a means to obtain
a "consensual" search. 'Cause even if it works, it ain't
2022.09.26 Examining Illegally Obtained Evidence - When the Complainant Breaches the Suspect's Privacy
"When citizens ... attend at the police station and provide
evidence of what they have reason to believe was a crime, the
police do not engage in an 'unreasonable warrantless search'
by examining the evidence provided."
2021 ABCA 271 kept child pornography in private electronic
devices. His wife, discovered his passwords and snooped
through his devices. She suspected infidelity. She found
She copied them onto her own flash drive, and took the images
Police officers looked at what she brought them, and
described what they saw in an application for a warrant. A
justice issued the warrant, and the officer busted Mr King for
At his trial, Mr King complained of the unreasonable search
and seizure in this case. His wife had no right to look
at his private data. Therefore, when she stole it and took it
to the police, the police had no right to look at it either,
and therefore they violated his reasonable expectation of
The trial judge bought this argument. The Court of Appeal did
The wife may have violated Mr King's expectations of privacy,
but the police did not. The police are entitled to look at
evidence that a citizen brings to them.
This conclusion conflicts with the conclusion in
2019 SKQB 135. In that case, a wife secretly recorded private
communications between her husband and his lover, in which the
husband and the lover planned to murder the wife. She gave
those recordings to police. The court found that by listening
to the recordings, the police violated the husband's
reasonable expectation of privacy.
This area of the law remains unsettled. The trouble arises
when someone tells you "I broke into the bad guy's computer /
phone and took this data without consent, would you like to
see it?" The conservative approach is to ask the witness to
describe the data, then ask a judge to authorize you to
examine the data, using the witness's description to establish
King suggests you don't have to do that. Few judges
have yet considered the reasoning in King. When they
do, we may get better answers.
2022.09.10 Publicity, Privacy, Revolution, Massacre and
Pretty Girls - Sealing Orders and Unsealing Them
Today's case resonates with recent issues in the news. First,
- Americans saw the publication of portions of the materials which justified a search of Donald Trump's clubhouse residence.
- Britons and Canadians inherited a new monarch, King Charles III.
Next, the topic: sealing orders.
When explaining the principles behind sealing orders, I find
that our new king's predecessor, King
Charles I of England, provides a useful starting point.
If that sounds like boring history, perhaps the prospect of
beach babes in bikinis will tempt you to read further.
King Charles I needed money. He imposed unpopular taxes. Some
of the rich people of his age objected. One of the tools he
used to keep them in line was the Star
Chamber. This court earned a bad reputation - so bad
that it became one of the justifications for a rebellion. That
rebellion ended badly for King Charles. They chopped off his
I hope Charles III keeps his head ... firmly attached. Long
live the king!
What was so awful about the Star Chamber? One of its flaws
was that it proceeded in secret. The public could not see and
hear how it reached its conclusions. How could anyone know
whether the evidence justified the fearsome punishments it
Criticism of the Star Chamber taught English, Canadian, and
American judges a lesson.
Good courts operate in public, so that the public can see the
fairness with which they operate. Canada's highest court keeps
re-affirming the importance of the open court principle, even
at the risk of embarrassing or inconveniencing some of the
people involved. For example, see last year's cases: Sherman
Estate v. Donovan, 2021 SCC 25; CBC
v. Manitoba, 2021 SCC 33, or the earlier case of R.
v. Mentuck, 2001 SCC 76
To maintain public trust in the justice system, courts must
expose as much as possible of what they do to public scrutiny,
and keep as few secrets as possible. The press loves this
principle, because it gives them access to information about
high-profile people (like Donald Trump), high-profile events
(like the search of his residence), and the sorts of sex and
violence that sells newspapers and click-bait.
Applications for search warrants necessarily offend the open
court principle. What good would searching a drug dealer's
residence do if you had to apply for the warrant in open
court? Someone would tip off the dealer before you get there.
Some applications rely on information from confidential
informants. Would rats help police bust gangsters if the
courts name them?
Therefore, courts must operate in secret some of the
time. The court must keep some secrets. The open court
principle requires judges to operate in secret as little as
possible, and to keep the fewest possible secrets.
The open court principle conflicts with police concerns:
- The identities of informants can be inferred from the information that they give.
- Publicizing the evidence during an ongoing investigation can taint witnesses, destroy the value of holdback, or alert culprits how to defeat the investigation.
- In high-profile cases, widespread publicity of the evidence may prejudice the public, making it difficult for the court to find impartial jurors to give the defendant a fair trial.
- Publicity can sometimes inflict further hurt on the
victims, their families, and other innocent parties.
This brings us to sealing orders and beautiful women in
I compare a blanket sealing order to the beach blanket that a bashful girl in a string bikini uses to protect her dignity,
The open court principle is like a requirement that the
bashful girl throw the banket aside. And it compels her to
wear only a string bikini to cover only the most private
Do you remember the story last year of the Norwegian
women's beach handball team? They protested a rule that
required them to wear bikinis when they competed. Like police
officers who don't like their investigations exposed to public
view, these women didn't like being ogled when they played in
The Norwegian women won worldwide support for their protest,
and got the rules changed.
I noticed a case that might change the open court rules a
bit. The bashful girl of my analogy might be permitted to wear
something a little more conservative than a string bikini when
she throws the beach blanket aside.
It arose when a reporter sought access to the applications
for search warrants issued during the investigation of a
high-profile serial killing in Nova Scotia back in 2020. CBC
v. CBSA, 2021 NSPC 48; CBC
v. CBSA, 2022 NSPC 22 The press wanted to find out
whether the police should have issued public warnings earlier.
But the warrant applications were sealed.
The reporter pointed out that the killer, Gabriel Wortman,
died during the take-down. There won't be a criminal trial.
Except for information tending to identify confidential
sources, there's no need for any redaction, right? By asking
the court to remove the sealing order, the reporter was asking
the judge to make the bashful girl throw away the beach
blanket. Expose her to public view.
Not so fast, the Crown responded.
These 22 killings left a trail of bereaved families.
Applications for search warrants necessarily recite private
information, the publication of which may hurt them.
The relatively recent Canadian
Victims Bill of Rights requires the court to
consider their privacy too, and to hear from those victims
before making decisions which affect that privacy.
The judge agreed.
It's a little victory. The bashful girl in my analogy should
be allowed to ask for the dignity of shorts, like the women of
the Norwegian women's beach handball team.
But this little victory offers police officers engaged in
fast-moving investigations a further justification for a
blanket sealing orders over their applications for warrants
If you have a boilerplate sealing order application, it
probably recites the justifications listed in s.487.3.
If your ITO or affidavit includes information private to a
victim - anyone who has suffered physical or emotional harm,
property damage or economic loss as the result of the crime -
then you might add to your justification for the sealing order
something like this:
This application contains private information about a victim. Section 11 of the Canadian Victims Bill of Rights requires this court to consider his/her privacy. Section 14 requires this court to receive his/her/their views about decisions that affect his/her/their privacy before making those decisions. Until it hears from the victim(s), this court should not risk harming him/her/them by releasing that private information.
If your victim tells you that publication of the his/her
information will cause her harm, you might want to mention
that fear in your ITO.
I note that these blanket sealing orders ought to be
temporary. The open court principle requires that eventually,
the blanket be removed, and to allow public access to all but
the private material.
Where there are victims, the Canadian Victims Bill of Rights
makes that a more complicated process.
2022.09.05 Wiretap - Investigative Necessity or Criminal Organization or Both
By definition, snooping on private phone conversations
Except in serious emergencies, police must obtain judicial
permission to do this snooping.
Because it's such a big deal, Parliament requires
investigators to show the judge that no other technique will
reasonably work to catch the bad guys, or that the offences
are "organized crime" (gang) offences.
Applications for "wire" therefore often contain fulsome
explanations why other techniques would not work.
Mr Chen, 2022 BCCA 296 supplied drugs to a dealer of kilogram
quantities of MDMA. Police found Chen by wiretapping the
dealer, who talked to him whenever he needed drugs.
Mr Chen challenged the wiretap authorization.
The officer who applied for it explained not only that no
other investigative technique would work, but also that the
targets fit the definition of a criminal organization, and
that the crimes were by and for the organization.
The application spent a lot of time explaining investigative
necessity, but merely mentioned criminal organization aspect.
The trial judge ignored the criminal organization part,
because the application didn't emphasize it.
The Court of Appeal agreed that the authorization could have
been better drafted, but disagreed that the trial judge could
ignore that part.
For officers just getting into "wire", this case provides a
reasonably clear discussion of the difficult topic of
investigative necessity, and what to expect at trial - years
after you draft your affidavit.
For experienced affiants, if you're going to rely on both
routes, this case reminds you to spell out both justifications
at the conclusion of your application.
I put the word "wire" in quotes, because modern interceptions
of communications virtually never involve wire nor tapping.
But the word "wiretap" remains a useful term - short and
evocative - of what the technologies can do.
2022.09.05 Gender Safety When a Strip Search goes Wrong
How carefully must you protect a prisoner's dignity when the
prisoner poses police a threat?
2022 ONCA 628 started the problems when he lied about his
name. Officer McCabe - a female police officer - pulled his
vehicle over because the licence plate didn't belong on that
car. When she asked him to identify himself, he gave a false
Mr Black had reasons to lie: he was on probation, a judge had
issued a warrant for his arrest for robbery, ... and the
thirty baggies of heroin in his underpants might get him into
When Officer McCabe figured out who he was, she arrested him
and took him to the police station. The seriousness of the
charges convinced her not to release Mr Black.
She asked a senior officer to permit a strip-search, to make
sure he didn't bring weapons or drugs into custody with other
Knowing that strip-searches should be done only by officers
of the same sex as the prisoner, she arranged for two male
officers to search Mr Black.
Although those officers followed the proper protocol, things
went badly. Mr Black didn't want them to find the drugs. He
reached into his pants as if to draw a weapon. He disobeyed
the officers' commands to keep his hands out of his clothing.
A struggle ensued. Mr Black kicked, pushed, banged his head
against the wall, and screamed that the officers should kill
him. One of the officers called for help.
Officer McCabe ran in and helped.
The officers bound him and stripped him naked. They carried
him naked to a cell. They supplied him with a jumpsuit.
At his trial, Mr Black complained that the female officer
should not have participated in stripping him or carrying him.
The judges disagreed. Mr Black created a crisis in which
safety took precedence over dignity. Even when bound, Mr Black
continued to thrash vigorously in a way that could hurt the
In reaching their conclusions, the judges remind us:
- A prisoner’s non-cooperation and resistance does not automatically deprive them of the right to privacy and dignity. (para 42) Even if the prisoner speaks disrespectfully to officers, you can't use the strip search as a means to punish their foul mouth.
- A compelled strip-search can inflict emotional trauma. (para 38) When you deal with an upset prisoner, try to avoid inflicting more trauma.
- Judges will scrutinize how police conduct these searches.
Don't ogle your prisoners. Get out of there if you aren't
needed. But if you are needed, make notes, and keep security
The judges' answer to the question made sense: Safety first.
If mayhem erupts in the room where the strip-search is being
conducted, you can run to your colleague's aid. You don't need
to run away, hunting for same-sex officers to solve the
situation. And you can stay until the danger subsides.
This case made me think of the difficult characters that we
must routinely manage.
Many of you struggle frequently with irrational people living
the very worst parts of their unhappy lives. Many of them
express hatred of police. One may naturally feel that they
deserve the sufferings that they bring upon themselves.
A professional strives to remain respectful of the dignity of even the most difficult people. It ain't always easy.
Respect and patience can pay in the long run. Seasoned members of our justice system all remember entrenched felons who responded to a little sympathy. Sometimes, in their gratitude, they'll later tell you - or some other officer - a crucial tip. Sometimes, they reach bottom, and turn to you - or some other officer - for redemption.
2022.08.27 Safety search during investigative detention
2022 MBCA 3 jogged through the back yards of a residential
neighbourhood. At night. Clutching the left side of his body
with his elbow.
A cop in a lane saw him, and wondered if he held his arm that
way because of an injury. The officer called out, asking if he
Mr McKenzie and the officer locked eyes. At that moment, the
officer recognized him: McKenzie was long-time member of a
street gang, who often carried weapons.
I figure that Mr McKenzie realized he was looking at a police
officer. I'm guessing that Mr McKenzie feared that the
officer would stop him. McKenzie had a reason for that fear:
he was doing something suspicious.
Mr McKenzie ran faster.
The officer suspected - from his extensive experience with
people who carry firearms - that Mr McKenzie held his arm that
way to carry a concealed weapon. The officer yelled at Mr
McKenzie to stop.
I doubt that Mr McKenzie felt any happier when he heard this.
Mr McKenzie kept running.
Mr McKenzie's reaction increased the officer's suspicions.
The cop caught up, and pinned him against the wall.
Mr McKenzie was carrying a fanny pack.
Should the officer lawfully look inside it?
Any officer interested in surviving his or her shift will say
But only the wise ones know why it's lawful.
This cop looked.
He found the handgun. He arrested Mr McKenzie, and then found
the drugs. Charges followed. At trial defence complained that
the officer lacked lawful authority to search the fanny pack.
You can - briefly - detain a person that you suspect is
involved in a crime. But suspicion - even reasonable
suspicion - does not authorize you to search the person for
evidence of that crime.
You can can arrest a person you have reasonable ("and
probable") grounds to believe that the person committed a
crime. And if you have some reason to suspect that they have
evidence of that crime with them, you can search them for it.
This cop suspected that maybe Mr McKenzie had a gun
or drugs. But the cop didn't have enough evidence to justify a
reasonable belief. Therefore, the officer could not
search incidental to arrest.
But pinning gangsters up against a wall in a back alley at
night is a risky business. Any cop who wants to stay alive
will want to take precautions to make sure that he does not
get a knife between the ribs or a bullet in his brain.
Judges saw a tension between the public's right not to be
subjected to search without reason, and the police officer's
need to protect themselves from unsavoury suspects.
They struck a balance. You can't search for weapons any time
you feel like it. But you don't need proof that the
suspect has a weapon before you search for it.
Unfortunately, as discussed in this case, the Supreme Court
of Canada used confusing language to describe this balance.
Either it's "reasonable grounds to believe that the
suspect poses the officer a risk of using a weapon"
against you, or it's "reasonable grounds to suspect
that the suspect has a weapon" that he will use against you.
If you read the decision, you will see the struggles the
judges have defining the test.
I dunno. I've long felt that this debate over language is
I think that the key concepts are obvious. To search for
- You need reason to think that the detainee may have a
- You need reason to think that the detainee may want to use it against you.
If you don't have both, don't do a safety search. As the
judges said, you can search when it is "reasonably necessary
to eliminate an imminent threat".
When asked to explain their reasons for their fears, many
officers resort to the language of safety training. Some
instructors in that field emphasize the dangers of ignorance
in a hostile situation. "You don't know what he's got in the
fanny pack. It could be a weapon. You need to be sure. You
don't know what kind of mood he suspect is in. You don't want
to wait to find out."
That language doesn't meet the legal test. If you tell the
judge that you searched the suspect because of what you didn't
know, the judge will find that you lacked reasons to
justify the search. To justify a reasonable fear, you must
talk about what you do know, rather than what you
don't know. For example, in this case:
- His running through back yards made me suspect he did not want to be seen. He was hiding for some reason.
- His holding his elbow against his body made me think either he was injured or he carried something heavy under his clothing.
- Guns are heavy, and are often carried concealed in clothing like that.
- His flight, when I told him to stop, made me think what he carried was illegal. Like drugs or a gun.
- People who carry drugs often carry weapons too.
- These observations made me think that he might be carrying some kind of weapon. if it was a weapon, it was most likely a heavy weapon like a gun.
- Because he defied me by running when I told him to stop, I feared that when I caught him, he might grow more desperate, and use any weapon in his possession against me.
When confronted with a situation like this, seasoned officers
can think all of these thoughts so quickly that they may
interpret their conclusions as "instinct". I don't believe in
instinct any more. Break the situation down. You'll find that
your "instinct" consisted of logical inferences. You can turn
those inferences into words, if you try.
When you get good at that exercise, gangsters like Mr
McKenzie will follow his footsteps ... into jail. Mr McKenzie
lost his arguments at trial and on appeal.
2022.08.23 Collision Investigation - Event Data Recorders
Two vehicles crash on a public highway.
Does the Criminal Code give you the power to seize the car of
the driver who caused the crash?
It depends. Do you think that driver committed a crime?
permits you to seize anything if:
- You're lawfully in the place (public highway)
- You believe that someone committed a crime
- You have reasonable grounds for that belief
- You also have reasonable grounds to believe that
- the criminal used the car to commit the offence or
- the car will provide evidence of the offence
Notice the last two lines. If you have grounds to seize the culprit's
car, then you may also have grounds to seize the victim's
If you have grounds to seize the car, can you seize and
download just the event
data recorder (EDR); or do you need to ask a judge for a
An Ontario line of cases says you must always ask for a
warrant. The BC Court of Appeal found that the driver/owner
does not enjoy a reasonable expectation of privacy in the data
that these devices record.
Mr Major, 2022 SKCA 80 also owned a pickup truck. He overloaded it with passengers, and blew through a controlled intersection, crashing into a big truck. The collision destroyed his truck and trapped the people in it. Emergency personnel had to rip the pickup truck open to extract him and his dead children.
Police investigators at the scene seized the EDR and
downloaded it at the scene.
It said he was travelling at 137km/h just before the crash,
but slowed to 118. The speed limit was 80 km/h, but it was
winter in Saskatchewan. The roads were packed ice and snow.
Mr Major's lawyer argued that the officer needed a warrant to
get the data.
The judges concluded that he did not in the circumstances
of this case:
- The EDR data was in a broken car, stuck in a pubic place, where authorities would need to clear it out of the way
- Other emergency personnel were tearing the car apart. The
territorial privacy was negligible.
- The EDR recorded only the last 5 seconds of driving -
nothing personal about Mr Major. The informational privacy
But that conclusion did not settle the case.
Expertise Necessary to Interpret the Data
At trial the officer who downloaded the data testified about
what the EDR told him. Defence challenged his expertise:
He might know how to download the EDR data, but did he have the expertise to say that the numbers that the EDR records are accurate? For example, in this case, the EDR reported a few numbers that could not possibly be correct. The officer could not explain how those numbers got there.
The judges agreed that the testimony at trial failed to
establish that the data that came from the EDR could be
I suspect that many crash investigators may actually have the
expertise to establish that fact. This decision should alert
you to formalize that expertise on your CV and in the reports
that you write. If you lack the expertise to interpret the
data, then the prosecutor needs to find someone who has it.
If you have any trials coming up in which your opinion relies
upon EDR data, you might want to review your report, and
contact the prosecutor to discuss the expertise necessary to
establish the reliability of that data. Tell them about the
case of Mr Major.
2022.08.20 Investigative Techniques - Wiretap and Lineups
Daniel Davis hung out with friends at 1:00am in a school
yard. Three men in hoodies surrounded him and shot him dead.
A gang killing.
Mr Bent's girlfriend drove Mr Bent there. They met with Mr Wheatle,
2022 ONCA 591, and another guy. The men went into the park,
fired their guns, and then they returned to where the
The police worked with an agent - a gangster who worked with
In a wiretapped holding cell, Mr Bent told the agent what
The agent bought drugs from Mr Wheatle and socialized in a
bugged hotel room. Mr Wheatle talked about his involvement,
giving similar details as Mr Bent.
Police arrested Mr Bent's girlfriend for murder around the
same time as they arrested Mr Wheatle for murder. When the two
were shipped to court, they travelled together in a bugged
On that transport, Mr Wheatle talked as if he knew her.
At first Mr Brent's girlfriend refused to cooperate with the
investigation. Then, as part of a total immunity agreement for
this and other serious crimes, she told them what she knew.
During an interview, an officer showed her a single picture
of Mr Wheatle, and asked if he was one of the three men. She
said he was.
The lessons learned
Gangsters don't often cooperate with police. As this
investigation demonstrates, recording their conversations can
often discover information that other techniques will never
reveal. This investigation relied heavily on authorizations to
intercept private communications. Those authorizations worked.
Prisoner transport vehicles and cells provide excellent
controlled circumstances under which gangsters may talk.
Agents and accomplices don't make great witnesses. The appeal
court judges spent most of their decision discussing whether
the jury had been sufficiently warned not to trust the
girlfriend. She got a great deal: freedom. All she
needed to do was say that the men were guilty.
The other problem was the photograph. The judges didn't like
how the officer showed her a single picture. It was like
saying "if you want to go free, all you have to do is say this
guy did it." A proper photo pack would have shown more clearly
whether she recognized the guy.
I suspect that the investigators believed that the girlfriend
knew Mr Wheatle well. But that's not what she said. She
said she met him only that night, for only a few minutes.
The judges agreed that this way to identify Mr Wheatle was
Fortunately, the recordings made up for what the
identification procedure lacked. The jury convicted and
the appeal court upheld their verdict.
This case contains lessons for general duty officers and lead
investigators of sophisticated units.
For you homicide and gang investigators, it illustrates how
much you can do with wire and a coordinated plan. It reminds
you how little judges trust agents, rats and turncoats. Get
For you first responders and junior investigators, don't show
a single photograph of a suspect to any witness (or suspect),
unless you're sure that there is a substantial prior
relationship between them. And be doubly careful when
interviewing a witness of dubious credibility about who was
there at the time of the crime.
This concept applies to live bodies too.
Sometimes, a first responder will catch - within minutes of
the crime - a suspect who resembles the person that the
complainant describes. Can you show the complainant who you
Even if the complainant does not know the attacker, you can
show the suspect to the witness, and ask "is this the
culprit?" But beware. At trial, the defence may argue
that you merely caught a person who looked like the
culprit. You'll want more evidence than this to prove beyond a
reasonable doubt that the suspect is the culprit. If
the complainant says "yes", keep investigating. For example:
- Ask how s/he knows you caught the right person
- Arrest the suspect, and search incidental to that arrest for more evidence
- Search the area for other similar people.
2022.08.20 Reasonable Grounds and Possibility
When you ask a justice for authority to search a residence
for evidence, you need to explain to the justice why you think
that the evidence is there.
If years pass between the crime and the search, you may need
compelling reasons to explain why one should expect that the
evidence still remains in the place.
Mr Collison disappeared in 2009. Nobody found his body until
2014. It bore witness to 5 gunshot wounds. One in the back of
the head. Four more in the back. Witnesses said that Mr Wise,
2022 ONCA 586 complained of disliking Mr Collison, and
expressed interest in his murder.
In 2016, could the officers search his home?
The police had reasons to think that Mr Wise was a serial
killer. They asked a psychologist whether serial killers kept
souvenirs of their killings. The expert could not say that Mr
Wise would likely keep them, but this behaviour was "within
the realm of possibility".
They put that information into the ITO to help explain why
their search would locate evidence.
Possibility ain't probability.
Although the investigators persuaded a justice to issue a
search warrant for Mr Wise's home, the trial judge and the
judges of the court of appeal held that the warrant should
never have been granted.
He did possess some things that tended to show his guilt.
Including what appeared to be a map of the place where the
body was dumped.
That evidence was excluded. Mr Wise beat the charge.
Even if little time passes between the crime and the search,
your application for a search needs to explain why the
evidence will likely be there.
If your grounds lead you to conclude that the evidence could
"possibly" be there, then your grounds still aren't strong
enough. You need to be able to say that the evidence and
information you gathered so far gives you good reasons to
think that the evidence - or at least some of the things - are
2022.08.14 Don't (always) need a gun to prove it was a gun
One way to prove that what the suspect fired is a "firearm"
is to seize the thing, and send it to an expert to examine.
What if you can't get the gun? What if the lab's too
Sometimes, the prosecution can prove it's a gun by applying
the duck principle.
If it walks like a duck, and it quacks like a duck, it must
be a duck.
After a basketball game, some kids followed the coach of the
losing team. One of them, Mr O.A.,
2022 ONCA 565, pulled out something that looked like a gun.
There was a bang like a gun. Afterward, there were two small
round holes in the coach's car that weren't there before.
Even though investigators never caught Mr O.A. with any
weapons, the trial judge concluded it must have been a
Mr OA complained to the Appeal Court that a judge needs more
evidence than that to conclude that Mr OA possessed a
The court disagreed. Effectively, they applied the duck
This doesn't mean that a bang from something that looks like
a gun, leaving bullet holes, will always prove that
it's a firearm. It will depend on the quality of the evidence.
Often, you will need an expert.
But not always.
2022.08.06 Foreign Cops and Local Offences - What's your Jurisdiction?
American cops asked Canadian cops to help bust an American
drug trafficking ring. The American officers covertly seized
26kg of real cocaine, and put fake cocaine in its place. The
American police said that their targets expected the cocaine
to arrive in Canada. The American cops asked Canadian cops to
participate in the investigation.
The Canadian cops participated in the delivery of the fake
cocaine. Mr Hollaus,
2022 BCCA 272 and Mr Oliynyk showed up to pick up the fake
Canadian police officers arrested them, knowing that the
drugs in their possession were fake. No real drugs entered
When the American authorities asked the courts to extradite
Mr Hollaus, he complained that the Canadian police had no
authority to arrest him. Because the drugs were fake, he was
not really committing a crime in Canada. And besides, he said,
the Canadian police were just helping the American officers
investigate a crime that happened in the USA.
Therefore, the Canadian officers had no jurisdiction to
exercise police powers in Canada.
If the officers had arrested Mr Hollaus for possessing drugs
in the USA, there might be some force to this argument.
But in Canada, it's an offence to possess drugs for the
purpose of trafficking. And it's also an offence to attempt
to commit a crime. Nobody acquires 26kg of cocaine for
personal use. The only purpose would be to traffick.
Therefore, Mr Hollaus, attempted to possess drugs for
the purpose of trafficking.
And that's an offence in Canada.
The police arrested him for (Candian) offence of PPT, as it
was happening in Canada.
Defence argued that the underlying purpose of the arrest was
to assist an American investigation. The judges didn't care.
The arrest was good if the Canadian police arrested him for a
Canadian offence that happened in Canada. Their motive to
involve themselves for the purposes of a broader American
investigation didn't change the lawful arrest into an unlawful
For you, it serves as a reminder of some basic principles:
- Attempting to commit a crime is also a crime.
- If you merely suspect your target committed several crimes, but you have reasonable grounds to believe that the suspect committed one, then an arrest for the one crime does not become invalid by reason only that you're rather investigate the other offences.
- Beware of exercising Canadian police powers only to assist
foreign police services investigating foreign crimes. Make
sure that your help is lawful.
2022.08.06 Explaining the Reason for Detention - The Problem with Pretexts
As explained above, after an officer saw Mr Hollaus,
2022 BCCA 272 and Mr Oliynyk load a suitcase into a pickup
truck, they had grounds to arrest him for PPT.
They wanted to stop his truck, but they didn't want to tell
him the real reason at first because:
- They didn't want him to take flight.
- Doing so might reveal to him the large size and extent of the investigation against him. When he sought legal advice, he might tip off conspirators.
So they told a little white lie: it was a "routine traffic
They got him out of the truck.
Then they "disovered" the suitcase - giving him the
impression that the officers on the ground did not know
anything about the conspiracy. Within 4 minutes of the
stop, they arrested him for PPT.
it was actually an international investigation. There were
compelling reasons to protect it at that vulnerable stage.
But lying to him about the reason for the stop directly
offended s.10(a) of the Charter.
In this case, the judges found that excluding the evidence
was not appropriate because of the brief and technical nature
of the lie.
Unfortunately, I know of no lawful authority for police to
tell these lies. In most small cases, they aren't necessary.
But in multi-million dollar inter-jurisdictional
investigations, failure to tell these lies when arresting the
underlings can undermine the investigation, allowing the
kingpins to escape justice.
I fear that the day will come that a judge will conclude that
it brings the administration of justice into disrepute to have
police officers routinely breaching s.10(a) of the Charter in
For that reason, I say that police should be able to apply to
a judge for an order which grants them temporary dispensation
from the obligation to explain the true reason for the arrest
or detention. It will come with conditions, I expect,
including a firm obligation to hold off eliciting evidence of
This requires legislation. A new provision like a warrant
provision. I suggested it 15 years ago at a conference in
Ottawa. I still think it's necessary. I still think Parliament
needs to act.
Defence also argued that s.10(a) required the police to
inform Mr Hollaus that he was detained in respect of the
American offence of conspiracy. He had some case law to work
with. In R.
v. Borden,  3 SCR 145, police arrested the
defendant for one sexual offence, and they suspected him of
another. But when they arrested him, they only told him about
one offence. The court said "Once matters reached a point at
which the officers were investigating two offences, the
respondent was detained in relation to both of them, and had
the right to be informed of this dual investigative
The court rejected this argument too, but didn't provide a
clear dividing line between the situations in which you must
mention multiple matters under investigation, and the ones in
which you need only mention the matter for which you arrested.
Therefore, if you suspect your prisoner of multiple different
crimes, and arrest him for one crime, consider mentioning at
least the ones for which you have reasonable grounds to
suspect his involvement.
2022.08.01 R. v. Lafrance, 2022 SCC 32 - What's a Detention? - Time to Start Second-Guessing Yourself
If handcuffs bind your hands and a lock secures the door, you
can easily determine that you are detained.
Most folks would feel some relief when the man with the gun
says "you are free to go". But if the man with the gun does
not remove the manacles and unlock the door, that feeling of
relief will soon pass.
Canadian law recognizes another kind of detention. It happens when fear of - or respect for - a peace officer's badge, role or power would cause a reasonable person to feel they can't leave. This "psychological detention" concept causes some confusion for police officers. This decision makes it more important than ever to understand.
Police woke Mr Lafrance,
2022 SCC 32 from his bed in the early morning. They told him
to get out of his house while they searched it. They had a
warrant. An officer explained that they were investigating a
murder. The officer asked Mr Lafrance to come to the police
station to discuss the stabbing death of his drug dealer. The
officer told him he didn't have to come. He accept their offer
of a ride in a police car. He spoke with an officer for
At trial, he complained that the police detained him, but did
not give him access to a lawyer. The trial judge concluded
that the police did not detain him. Two judges of the Court of
Appeal, and 5 judges of the Supreme Court of Canada held there
was a detention. 1 judge of the Court of Appeal, and 4 judges
of the Supreme Court of Canada held that they didn't.
If you consider all the judges who considered the case, the
final score was 7:6. The majority held that Mr Lafrance was
Mr Lafrance won a new trial.
You may find this a surprising result:
- The trial judge found that this 19-year-old indigenous
high school graduate chose to speak with the police
for the purpose of misleading them in their investigation.
A pretty brazen guy. Probably not overwhelmed by police
- The trial judge found that the investigating officer told
Mr Lafrance many times that he didn't have to come
to the police station, and he could leave at any time, if he
wanted. The information was clear. How could he be mistaken?
Five judges of the Supreme Court of Canada found that police
actions can trigger a "detention" even when the subject
himself does not feel compelled to accompany police. They
relied heavily on an earlier case R. v. Le, 2019
SCC 34,  2 S.C.R. 692, in which the defendant
himself did not consider himself detained, but the judges
concluded that the officers had done what would make any
reasonable person in his shoes believe was a detention.
The judges explained their interest not in what the subject
actually felt, but what a reasonable person in the defendant's
position would feel.
But what about telling him "you're free to go"? Doesn't that
resolve any confusion?
Although telling a suspect that can leave may prevent
him from being detained, it doesn't always work - depending
upon what else the police do. Like the handcuffs that stay on
and the door that remained locked, the judges found that how
the police handled Mr Lafrance would have made a reasonable
person feel detained, even though police told him he could go:
- 11 armed cops invaded his home
- Cops supervised him at the scene
- An officer told him they wanted to question him about a homicide.
- The officers drove him to the police station in a police car
- They put him in a room behind two locked doors.
- The told him it was a secure environment, where he could
not be permitted
The majority of the judges held that even if (the reckless)
Mr Lafrance himself was not cowed by the nighttime invasion of
his house by armed officers, a "reasonable" 19-year-old
indigenous man who experienced what these officers did to him
would feel detained, even after they told him he was free to
And therefore, the police should have told him about his
right to counsel.
As the dissenting judges pointed out (para 121), this imposes
a challenging burden on police officers. After you tell a
suspect "you're free to go", and the suspect responds in a way
that makes you think that the suspect understands this
freedom, the judge may still conclude that because of his or
her race, age or vulnerabilities, a "reasonable" person in the
position of your suspect would feel like they are still
In order to persuade the judge that you delivered the
message, you may need to repeat information to the suspect,
and organize your interactions in a way that gives the suspect
a real opportunity to leave.
How far do you go? Doing too much may insult the intelligence
of a suspect who understood you the first time you said
"you're free to go". Mr Lafrance was reasonably intelligent.
If an officer had gone too far to explain and demonstrate his
liberty to him, I can imagine Mr Lafrance saying "What's the
matter? Don't you want to hear what I have to say?"
You don't want anyone in the public to think that cops don't
want information about the crime they are investigating. Least
of all the culprit.
Therefore, you need to form strategies by which you can
navigate this minefield.
What might work to create such clarity that the judge will
find that a reasonable person would understand that they are
free to go? Maybe:
- Tell the suspect about their liberty, and then ask they understand "free to go" means.
- During a street check, where you don't have any specific crime to investigate, you should say so.
- When executing a search warrant on the residence of a suspect, give the suspect a real opportunity to walk away if he wants.
- When interviewing a suspect in a secure part of your police station, explain that the security is to keep unauthorized people out, to protect the privacy of your files. It is, not to hold the suspect in the building.
- Instead of offering him a ride to the police station in a
police car, you should offer to order him a cab instead.
(Imagine the liability issues if the suspected murderer
attacks the cab driver!)
- If you can, investigate the vulnerabilities of your suspect: racial minority? age? inexperience with police? bad prior experiences with police? mental disorder? Every "hit" on this list increases the steps you must take to ensure that your subject understands that this is not a detention.
2022.07.26 Reasonable Opportunity to Get Legal Advice -
Second-Guessing the One Opportunity
Three weeks after they searched his house, police arrested Lafrance,
2022 SCC 32 for murdering his drug dealer.
When offered an opportunity to get legal advice, Mr Lafrance
accepted it. He spoke with "a free lawyer" Legal Aid. He had
never spoken with a lawyer before. He told an officer that he
had spoken to a lawyer, and that he understood the lawyer's
The interviewing officer started gently, but after several
hours, confronted Mr Lafrance with his belief that Mr Lafrance
killed the drug dealer.
What Mr Lafrance said next triggered another debate. Should
the officer have given him further access to counsel?
Q. Alright so what happens Nigel?
A. Well –.
Q. What – what went on?
A. Well I would – ah I want to talk to my dad before I continue.
Q. Ok wh – why do you say that?
A. Cause well he’s – well he’s my only chance of getting a lawyer and I just – I don’t know.
Mr Lafrance explained further:
A. Well no they told me – they told me to get a lawyer before I continue talking.
Q. Ok what do you mean by told you to get a lawyer?
A. Like someone that can come down and sit with me.
A. Instead of just over the phone.
Q. There’s a person that ah you know what – and the way that that kinda goes ah – I won’t say it’s, it’s bad advice but it’s maybe miss – a little bit miss as – miss ah – interrupted. Um there’s not any time or any process during our interview –.
Q. Where we’re gonna have a lawyer sitting in the room with us.
A. No, no I – I mean, no mean like so –.
A. Like for me to sit down with them personally.
A. To talk to. [Emphasis added.]
Just as they disagreed about the detention issue, the judges
disagreed whether this triggered an obligation on the police
officer to stop and give Mr Lafrance a further opportunity to
get legal advice. A bare majority of the judges found that it
Because it suggested that Mr Lafrance didn't understand his
right to get legal advice. It suggested that the lawyer told
him that he could get another lawyer to come to the police
station and give him legal advice in person.
The dissenting judges felt that Mr Lafrance later indicated a
full understanding of his right to silence. Therefore, whether
he was confused or not about how many lawyers he could consult
with, he knew his rights in the interview.
The majority rules. If, after getting legal advice, your
prisoner raises the concern that s/he expects to speak further
with counsel before proceeding, stop investigating the
offence, and work out whether the your prisoner finished
obtained legal advice about the matter for which s/he is
arrested or detained.
Your prisoner isn't entitled to get advice from non-lawyers,
but is entitled to get help from non-lawyers to contact a
Therefore, when your prisoner says "I want to call my
dad/mom/brother/cousin/employer/friend/partner", you may want
to inquire why.
When the prisoner calls a non-lawyer to locate a lawyer, you
can participate. Why? Because it's not privileged. You may
want to make sure that the prisoner really is trying to get a
lawyer, or to ensure that the prisoner isn't asking a friend
to destroy evidence or threaten a witness.
without Legal Advice - Principles in Conflict
What obligations affect a driver and a police officer after
the officer makes a breath demand? Should the driver blow?
Should the driver talk to a lawyer first? What do you do with
a driver who refuses?
All of the sobriety-testing demands trigger "detentions"
within the meaning of s.9
and s.10(a) of the Charter. In order to avoid "arbitrary"
detentions, you must have sufficent grounds (ie reasons) to
make them. In order to satisfy s.10(a), you must explain the
purpose of the detention to the driver. (Generally, reading
the demand explains what's going on.)
Right to Counsel
Analysis demands (breathalyzer, blood, urine, DRE) trigger
the right to get legal advice before giving the sample. (Prosper,
 3 SCR 236) But screening demands (SFTS, ASD) do not. (Woods,
2005 SCC 42).
Should you arrest a drunk driver? Section 495(2)
of the Criminal Code prohibits you from arresting people for
hybrid offences if you don't need to. If the only reason
you're thinking of arresting the suspect is to get the suspect
to come with you to the police station for a breath analysis
or DRE, think again. The demand already imposes that
obligation. See s.328.28(1)(b)
If you do arrest a drunk driver, section 498
obliges you to release him or her as soon as practicable once
you know who they are, have collected all the evidence, and
addressed concerns about further offences. Judges call it
"arbitrary detention" when you hanging on to a prisoner
without justification. This violates s.9
of the Charter
Refusal of a Breath Analysis Demand
What should you do when a driver refuses a breath demand?
2022 BCCA 260 drove while drunk. Civilians complained. Police
stopped him. An officer arrested him for drunk driving, and
told him he could get legal advice. He responded that he
wanted legal advice.
The officer then demanded that he provide breath samples down
at the police station.
He told the officer that she was "way out of line".
Unequivocally, he explained that he wouldn't provide breath
samples because he wasn't drunk.
She arrested him for refusal too, and told him again of his
right to get legal advice. Again, he said he wanted to talk to
Instead of arranging for legal advice, or taking him to the
police station to blow into the breath testing instrument, she
released him on process to attend court.
Afterwards, Mr Gordon complained that she interfered with his
right to retain and instruct counsel:
- He was arrested.
- He wanted a lawyer.
- She did not get him legal advice.
Instead, she elicited evidence that could be used against him - his refusal to provide a breath sample.
Without discussing s.498 of the Criminal Code or s.9 of the
Charter, the court agreed with Mr Gordon. The judges held that
the officer "interfered" with Mr Gordon's right to get legal
I disagree with the court's analysis. By freeing Mr Gordon,
the officer gave Mr Gordon every freedom including the
ability to get legal advice if he really wanted it.
However, I agree with the court's conclusion that the officer
should have done something different.
A long time ago, that court explained what to do with
asuspect who refuses an analysis demand but wants to talk to a
lawyer. Until the suspect gets legal advice, the officer
should treat the refusal as "conditional". It isn't over yet.
After the driver gets legal advice, if he still fails or
refuses to comply with the demand, then the refusal becomes
v. Sullivan, 1991 CanLII 656.
Although some courts disagree with the BC approach (eg McKeen,
2001 NSCA 14), I think it's fair. I think this principle
would have helped the officer who dealt with Mr Gordon:
- The officer wanted evidence of Mr Gordon's intoxication.
- The demand compelled Mr Gordon to provide it.
- By refusing, Mr Gordon was making a bad decision
- The act of refusing was a crime.
- A police officer's duties include dissuading people from committing crimes. Therefore a police officer should want to persuade people not to refuse a lawful demand.
- A lawyer's job includes advising their client not to commit a crime.
- Mr Gordon said he wanted legal advice.
- Independent legal advice would likely have persuaded Mr Gordon to blow. (He seemed to believe that he was sober.)
- Therefore, keeping him in custody while he got legal
advice might prevent him from committing the crime of
I think that section 498 did not compel the officer to
release Mr Gordon at the scene:
- If the refusal was "conditional", then the officer was witnessing an ongoing offence of refusal to provide a breath sample. Further detention was necessary to put a stop to that criminal conduct.
- One of the justifications for ongoing detention is to
obtain evidence. There was evidence to obtain.
- If a lawyer would persuade Mr Gordon to provide breath samples, then ongoing detention was necessary in order to obtain evidence of Mr Gordon's impaired driving.
Because of this difference between BC and Nova Scotia, this
analysis works in BC, but might not work in Nova Scotia.
Refusal of a Breath Screening Demand
But what if Mr Gordon refused a screening demand?
There's no legal right to advice after a screening demand.
The Sullivan analysis does not apply. An unconditional
refusal terminates that part of the investigation.Even if the
driver wants to talk to a lawyer (See Woods)
What's the fair thing to do at roadside with a driver who
unequivocally refuses to blow into a screening device, but
wants to talk to a lawyer?
Here's my suggestion:
If s.495(2) prevents you from arresting him, or if s.498
compels you to release him, then I suggest that you obey your
legal obligation first - release the driver and serve process.
But before s/he goes, try to help them get legal advice. After
they get legal advice, the driver may want to comply. If so:
- Make no new screening demands (your lawful authority to do so has expired).
- Make no promises about what will happen if they comply (it has to be voluntary).
- Regardless of what result flows from the test, the suspect can technicaly be charged with the initial refusal.
- They can not be charged with another refusal for deciding
again not to comply.
- But if they pass the screening, I expect you will drop the case.
- If they fail, you can continue with your investigation.
Don't Offer Refusal as an Option
After you make a demand, you have a duty to follow through without delay.
All too often, after reading a demand, officers ask the
driver about their plan to comply.
- Are you going to comply?
- Are you going to blow into the instrument?
- Do you want to blow?
Those questions cause trouble. They suggest that the
driver has a choice of complying or refusing.
Don't suggest to a suspect that they commit a crime.
If you found a group of mischievous teens hanging around at
4:00am, you wouldn't ask them "hey kids, are you going to
throw a rock through that store window, or are you going to go
home?" If they weren't thinking of smashing the window before,
they will now. Why do the same thing with an inebriated
Act as though they're going to comply, even if they mumble
disagreement. Promptly present the instrument or do the field
sobriety tests. Or bring the driver quickly to the instrument
or the DRE.
2022.07.26 R. v. Lafrance, 2022 SCC 32 - Time to Start Second-Guessing Yourself
Last week, the Supreme Court of Canada delivered a split
decision which will cause you trouble for at least a decade.
The majority of 5 judges determined that even if you
repeatedly tell someone that he is not detained, he may still
be detained for the purposes of s.9 or s.10 of the Charter.
They also found that even after an arrested suspect exercises
his right to counsel, you may have to give him further access
to legal advice if he hints that he got bad legal advice or
that he expected to get further access to counsel.
The decision contains much to consider. I haven't finished
analyzing it. I will write more soon.
This decision matters to all police officer who interact with
suspects. Members of interview teams will need to read it
2022.07.02 When is the Case Over?
In 2010, a court found that Mr
Bailey, 2022 ONCA 507 did, indeed rob and
assault his victim, causing bodily harm. His lawyer asked
the judge to find him "not criminally responsible by reason
of mental disorder". The judge (and prosecution) agreed.
For the next decade he stayed in hospitals
and supervised placements in the community.
And after a decade, he applied to appeal
The court let him. If there's a
retrial, it's going to be a difficult one to run.
When you're clearing out your exhibit
locker after a big case, it might be worth taking a few
photographs of the exhibits before you throw them out or
return them. Especially if the defendant was found guilty.
2022.07.02 Interviewing Vulnerable Suspects - Voluntariness
2022 BCCA 226 suffered from mental illness when he killed Mr
Falardeau. Mr Hosack continued to suffer mental illness when
police interviewed him about the homicide.
He asserted his right to silence. Police kept interviewing
him. He denied killing Falardeau. Police kept interviewing
For 12 hours.
Many hours into the interview, Mr Hosack adopted a weird
"grandfather persona". This persona admitted ordering the
The trial judge admitted Mr Hosack's statement into evidence.
It, and other evidence led the trial judge find him guilty of
On appeal, Mr Hosack's lawyers argued:
- Police interviews should be limited to no more than 6 hours.
- These cops took unfair advantage of his mental illness and
- The cops "gated" Mr Hosack
These arguments all failed.
The cognitive abilities sufficient to give a voluntary
statement are modest. The evidence need only show that the
suspect knew he was speaking with police, that what he says
could be used in evidence, and that he exercised his on choice
in deciding whether to speak. You may find some value in
reviewing the trial
judge's review of the interview.
These officers video-recorded their interactions with Mr
Hosack. The recordings show that they treated Mr Hosack gently
and kindly. His responses to them through showed that he
understood what was going on.
The officers did overstate the strength of the evidence they
had gathered. That can lead to difficulties if your lies force
the suspect into confessing. That didn't happen in this case.
The officers did, however, "gate" him. He was about to be
released from jail after serving a sentence on an unrelated
matter. Police arrested him for the murder. Defence argued
that doing so would dash Mr Hosack's hopes of liberty; this
would serve as a psychological hammer to break him down.
The optics of gating suspect are ugly. Avoid proceeding in
this manner if you can.
If he was insane, how could he be convicted of murder?
Sanity isn't binary. People who hold delusional beliefs on
one topic can simultaneously think rationally on other topics.
For example, you likely know people who hold delusional
beliefs about COVID, politics or the flatness of the earth.
The evidence did not show that mental illness rendered him
unaware of the legal and moral wrongness of the killing.
The best-trained officers in interviewing did this
interview. General duty officers don't usually have that
much training. These officers took 12 hours to interview Mr
Hosack. General duty officers rarely get an hour to talk to
Even still, I suggest that general duty officers read the
trial judge's review for ideas on how to conduct their own
interviews. Even if you spend only half an hour
explaining what you know about the case, you may collect
crucial evidence. Even if you don't get a confession,
the defendant may admit background facts which will provide
important at trial.
2022.06.26 "Can I have my cell phone" - Right to Counsel
In a routine impaired driving investigation, an officer
arrested Ms Cyr-Desbois,
2021 QCCA 305, and took her to the police station.
When told she could call any lawyer she wanted, Ms
Cyr-Desbois told the officer that she wanted her cell phone so
that she could call her dad, and ask him for name and contact
information of the lawyer that her family trusted.
The officer refused to let her have her phone, and did not
let her call her father; but she got to speak with duty
At trial and appeal, the judges agreed with her complaint:
access to duty counsel wasn't good enough. She knew of a
lawyer she would trust. Police should have tried to help her
reach that lawyer.
In this case, that should have involved calling her dad, or
letting her access her cell phone
2022.06.23 Cops Need to Prove Identity
People can make mistakes about identification of strangers.
For that reason, judges view with some suspicion the word of
an eyewitness "that man over there is the man I saw 2 years
ago when the crime occurred."
What evidence should you gather so that you can prove that
the person who turns up in court year(s) later is the person
you caught committing a crime?
An undercover officer purchased drugs three times, and
arranged to purchase them a fourth time. Police arrested Mr
2022 ONCA 481 on the fourth occasion.
At trial, the undercover officer claimed
to recognize Mr Baksh as the guy he dealt with on the previous
Defence argued that the officer's brief interactions, so long
ago, raised a risk that the officer might be wrong about who
he dealt with.
If in-court recognition were the only evidence of
identification, the judge would have acquitted.
But the officer's cell phone communicated with the same
cell phone each time. The person he communicated with
each time continued a conversation that started with the first
call. Other officers tracked a car that the dealer used to the
defendant's mother's house.
For police officers, taking photos of the suspect (and
looking at them before you testify) really helps you explain
how you recognize the person in the court room. If you can't
get photographs, then consider what other evidence you can
gather that answers the question "how will we prove that the
person who comes to court a year from now is the same person
we investigated today?"
2022.06.05 Bilingual Justice System - First and Second
In Canada, people facing criminal charges have a right to a
trial in either French or English ... or both. But they don't
have a right to play games with the justice system over this
In British Columbia, the idea of a bilingual nation can seem
uniliingual people here, the vast majority speak Asian
languages. Bilingualism in French and English is
But French remains the other official language of Canada. In
an Anglophone province, this should affect your practice when
arresting and releasing bilingual Francophones for court.
A junior cop arrested Mr Tayo
Tompouba, 2022 BCCA 177 for a sexual assault. In
English, she told him about his right to counsel.
He could speak Engish and French.
So could her supervisor.
But everyone spoke English, because that's convenient in
After getting legal advice (in English), Mr Tato Tompouba
confessed to the police officer that he did sexual acts to the
complainant while she slept.
An officer released Mr Tayo Tompouba on a Promise to Appear,
which he signed.
He went to court, as he had promised.
The justice addressed him only in English.
of the Criminal Code required the justice of the peace
to tell him that he could have a trial in French if he wanted.
But she forgot.
He had an English trial.
After his conviction, Mr Tayo Tompouba wanted a do-over. In
French, this time. (Maybe he thought he sounded more innocent
in that language.) He appealed, complaining that the justice
failed to tell him about his right to a French trial.
You might not find the Court of Appeal's analysis of language
rights at trial interesting, but you should be heartened to
learn that the investigators helped salvage the case.
They used a standard form for the Promise to Appear. It
contained a notice - in both official languages - informing Mr
Tayo Tompouba that he could choose his language of trial.
At the appeal, the Crown argued: "Sure, the justice forgot to
tell him about his choices. But the cop did. Mr Tayo Tompouba
actually knew what choices he had. The minor error that the
justice made means nothing."
Legally, this form didn't cure the mistake that the justice
made. But it helped the court of appeal come to the conclusion
that the justice system treated Mr Tayo Tompouba fairly. His
This case reminds us all that in a justice system, every
defendant needs to be able to communicate effectively. Get
interpreters for folks who need them. But in Canada, French
and English are special. Even if the defendant can communicate
effectively in one language, s/he choose to use the other.
This case makes us think about pre-printed forms. I don't
them very much. Filling the blanks is so boring that many
people ignore what the forms say. When you stop thinking about
what the document actually says, you may use it for the wrong
purpose, and things will go wrong.
But when well-drafted and used properly, forms can save the
Now that you know why Promises to Appear should refer
to the choice of language of trial, you might want to check to
see whether your office still uses bilingual forms which
mention the defendant's right to trial in either official
2022.06.05 Note-Takers - First and Second Choices
When the recruit arrested Mr Tayo
Tompouba, 2022 BCCA 177, she told him about his right to
counsel and wrote some notes about it in her notebook. Her
supervisor watched, but didn't write the prisoner's answers in
The recruit died before trial.
As noted above, the prisoner made a damning confession. But
the Crown could not use it at trial unless it could prove that
the police told the prisoner about his right to counsel.
So they asked the supervisor to explain what happened.
Not easy if you don't have notes. He didn't remember.
The prosecutors relied on the recruit's notebook and some
clever legal arguments. They managed to satisfy the trial
judge and the court of appeal. Complicated legal arguments
don't always work. Evidence usually works better.
Whether you are supervising, or just providing back-up to
another officer, if you watch significant events in the
investigation, take some notes.
2022.05.29 Charges Aren't Convictions - Warrant Drafting
I often cross-examine defendants about their criminal
records. I am allowed to ask them whether they were
"convicted" of the offences on their record. They often agree
that they were "charged".
But in a court room, there is a big difference between
"charged" and "convicted". "Charged" happens when a peace
officer swears that there are reasonable grounds to believe
that someone committed a crime. "Convicted" happens when the
suspect pleads guilty, or when the judge, having heard sworn
testimony concludes beyond a reasonable doubt that the suspect
did the crime.
Many criminals don't know the difference. But judges care
about the difference. Judges (and prosecutors) do a great deal
of work moving from "charged" to "convicted". When you equate
the two, you treat the judges' work as if it doesn't matter.
Pissing off the judge does not help the case.
2022 ONCA 354 attempted two bank robberies, and at one, he got
away with lots of cash.
This wasn't new. He previously faced charges of attempted
robbery and robbery. Of banks.
When investigation of the latest ones led police to Mr
Abdoulkader, they applied for warrants for his house and cell
In the ITO, the officer who applied told the justice that Mr
Abdoulkader had previously been convicted for similar
Well, he had been convicted for a similar attempted
robbery. But only once.
A justice granted the warrants. Executing the warrants
recovered $222,000, and useful evidence.
Mr Abdoulkader was charged. At trial, his lawyer complained
that the ITO contained false information. The judges agreed.
But there was so much other evidence justifying the issuance
of the warrant that the judges dismissed his complaint. Mr
Abdoulkader was convicted, and he lost his appeal.
For the last 20 years, I've seen cases discussing this error
more times than I can count. It seems that police officers
keep making the same mistake. Next time you draft an ITO, try
to avoid annoying the judges:
- Police computer systems tend to report when charges are laid, but not whether convictions resulted. If you think that the charges are worth mentioning in the ITO, then the judge wants to know what verdict resulted. Go find out.
- Judges place no weight on acquittals. Unless there's a
special reason, you should avoid listing them in your ITO.
2022.05.17 The Intoxication Defence - A Duty to Warn
A crime occurs when someone intentionally does
something prohibited by law.
After a guy drinks so much that he does not know what he is
doing, can it really be said that he "intentionally" did
anything? Can extreme intoxication excuse every evil act?
In May, 1989, Mr Daviault  3 SCR 63 got real drunk and sexually assaulted a friend of his wife. In his defence, an expert testified that his intoxication deprived him of any understanding of what he was doing. He couldn't have acted intentionally.
The trial judge convicted him. The Supreme Court of Canada
liked the argument and ordered a new trial.
Today, the science suggests that alcohol can not create an
ability to act without knowing what you're doing. But drugs
The idea that a guy beat the charges by saying "I was too
drunk at the time to know what I was doing" annoyed a lot of
people. Parliament responded by enacting s.33.1
of the Criminal Code which eliminated voluntary intoxication
as a defence to a crime of violence.
2022 SCC 18 got high on a combination of alcohol and magic
mushrooms. In a psychotic state, he attacked a stranger,
causing terrible injuries. His lawyer complained that s.33.1
offended his Charter rights by allowing him to be convicted of
a crime when he never intended to do the harmful prohibited
The judges agreed: he didn't know - at the time that he got
high - that he would hurt anyone; and when he did hurt
someone, he was too intoxicated to intend to do anything
wrong. Therefore, he didn't intentionally do any
prohibited act that hurt anyone. Therefore, it would be wrong
to say that he committed an assault.
and Mr Chan,
2022 SCC 19 made similar successful arguments. Mr Chan also
mixed alcohol and magic mushrooms, which may have aggravated a
pre-existing brain injury. After several irrational acts, he
stabbed and killed his dad. When Mr Sullivan overdosed on a
prescription medication, he attacked his mom with a knife, but
didn't kill her.
Note that this analysis only applies to extreme
intoxication, where the defendant is a walking automaton. If
the offender still has some general idea of what he is doing,
then he may be held liable for most offences of violence.
What Parliament Can Do
The judges recognized that Canadians want to hold the
extremely intoxicated people accountable for the harm they do.
The judges suggested two ways to do it:
- Create a stand-alone offence of intoxicating oneself excessively; or
- Create a criminal negligence offence of intoxicating
oneself when one knows that doing so creates a dangerous
risk of criminal behaviour that one cannot control, and then
committing a criminal offence.
If Parliament creates only the second type of offence, the next
"Mr Brown" would escape liability. Mr Brown testified that he
had tried magic mushrooms before. According to him, they gave
a "fuzzy but positive feeling". But no homicidal madness.
Because he had no reason to expect to behave so badly after
consuming 'shrooms, he was not criminally negligent when he
Even if Parliament creates both types of offences, some
evildoers will escape liability by surprising the Crown with
Suppose, for example, that excellent security video records a
killing. The investigation locates no evidence of
intoxication. The only charge that the evidence supports would
be murder. Suppose, at trial, the defendant testifies
that he bought and used magic mushrooms shorty before the
killing, which put him into a psychotic state. If believed,
this evidence now provides a complete defence to the murder
charge. And the killer would escape conviction for the other
offences because they were not charged.
Therefore, Parliamentarians would be wise to add a section
that defines these offences as "included" offences for
offences that include violence, property damage, or risk to
Parliament might also do well to include a presumption that
everyone knows that illegal drugs inspire dangerous behaviour.
The combination of mental disorder and intoxicants
complicates the analysis some more. As does the thorny problem
of addiction. The analysts in Ottawa have some work to do.
What police can do
If you investigate a case of highly intoxicated violence, you might want to investigate the defendant's past incidents of intoxication. Did he know what would happen if he used? If it looks like he might beat the violence charges on the basis of extreme intoxication, can the Crown prove that he was criminally negligent?
Users of intoxicants need to know how dangerous they become
when they use. If they know, and still use, then they're
Therefore, if Johnny goes crazy on drugs, then when he
regains sobriety, you should:
- tell him clearly what did,
- try to find out what he was using, and
- document what you learned and what you told him.
If he uses the same drug again, he may be held criminally negligent for the harm he causes. But only because the prosecutor can prove that Johnny knew how dangerous he would become when he used.
2022.05.17 What Digital Logs can Tell You (If you Look)
What did Mr Grandine,
2022 ONCA 368 know about the effects of lorazepam, and when
did he know it?
The answers to these questions helped answer a bigger
question: was he criminally responsible for his wife's
During their relationship, his wife did not like his habit of
viewing pornography online. As part of ongoing counselling,
they installed software on a shared computer which filtered
his access to porn and reported to her account what his
account had been doing.
His wife did not like his infidelity either. He promised to
end his affair with Ms Florentino, a woman from the church.
Searches of his electronic devices suggest that he broke both
Mr Grandine told police that on the night that she died, he
left the house around 9:45pm, for a run. He returned an hour
- At 10:06pm, "someone" uninstalled the filter software on
the shared computer.
- At 10:15pm, his phone spent 26 minutes communicating with his lover.
He then called 911 to report that his wife drowned in the
Her body contained too much lorazepam.
Did she commit suicide by taking lorazepam?
Someone in her house took great interest in lorazepam.
Searches done on their shared computer showed queries on where
to buy lorazepam without a prescription, how much would be a
fatal dose, and whether it or other drugs would be detected in
In the days before she died:
- The home computer searched for sex-related websites.
- Mr Grandine exchanged 115 text messages with his lover, Ms Florentino.
- The home computer searched for "100 milligrams Ativan" and the Wikipedia page for Lorazepam. Ativan is a trade name for Lorazepam. The daily maximum therapeutic dose is around 6 milligrams.
The searches for sex-related websites occurred within minutes
of searches relating to Lorazepam. From this pattern of usage,
one can reasonably infer who took such an interest in
But there's more. When emergency personnel arrived after the
911 call, they found Ms Grandine still in the tub. Mr Grandine
had not even pulled out the plug to drain the water. Are your
suspicions aroused? Yeah, mine too.
The Court of Appeal decision addresses no points of law
relevant to police work.
But it does illustrate what you can learn from electronic
devices if you search broadly, and how much more you can learn
when you create a time line which shows that data in relation
to the other evidence.
Doubtless, the investigators needed a search warrant to
authorize such broad searching. I don't know how the
investigators justified the broad searches that they did.
Recall that an application for a search warrant must explain
what relevant evidence the applicant expects will be found in
the device to be searched. When a justice grants the search,
the searcher must focus the analysis on the data identified in
You won't find that data if you don't look for it. You can't
look for it in private devices without judicial
pre-authorization. You won't get broad judicial
pre-authorization unless you consider carefully what you know,
and articulate what inferences you can draw from what you
2022.05.01 Police Conduct when Providing Access to Counsel
The Supreme Court of Canada delivered a decision on Friday
that matters to investigators of every type of crime. If you
might detain or arrest anyone in the next 15 years, you ought
to read R.
v. Dussault, 2022 SCC 16.
Police officers arrested Mr Dussault for murder and arson. He
told them he wanted legal advice. He picked a lawyer at
random. That lawyer spoke to him for 9 minutes. The lawyer
asked to speak to an investigator, and did. The lawyer asked
that police to suspend the investigation, so that he could
come to the police station to talk further with Mr Dussault.
The officer told him "no problem".
The lawyer told Mr Dussault that he would come to the police
station to continue the conversation.
The investigators reconsidered whether Mr Dussault was
entitled to further legal advice. Relying on
v. Sinclair, 2010 SCC 35, they figured that Mr Dussault
already got his legal advice, and wasn't entitled to more.
They pressed on with their investigation, and told the
lawyer not to come to the police station because Mr
Dussault didn't want to meet him.
When the lawyer came to the
police station, the police officers did not permit him to
talk to Mr Dussault. Mr Dussault left an angry letter,
explaining that he didn't think his client understood the
legal advice he gave.
When Mr Dussault asked whether
his lawyer arrived, an investigator asked him who had asked
the lawyer to come. Mr Dussault said it was the lawyer's
idea. The investigator told Mr Dussault that the lawyer was
not in the police station.
A different officer asked Mr
Dussault questions. Mr Dussault expressed concern that his
lawyer didn't arrive. He then made incriminating remarks.
At trial and on appeals, Mr
Dussault complained that the police officers breached his
right to get legal advice, and the incriminating remarks
should be excluded from evidence.
The trial judge figured that Mr Dussault got sufficient legal advice in the first conversation, or at least that the police could reasonably presume under the circumstances that he did. Canadian law does not grant suspects the right to have a lawyer present during police questioning (see Sinclair). Therefore, the police did not breach his rights.
The Court of Appeal figured that Mr Dussault did not receive
a reasonable opportunity to get legal advice, and the police
knew it because of the lawyer's angry note. Those judges felt
that the police deliberately attempted to prevent Mr Dussault
from getting complete advice.
The judges of the Supreme Court of Canada all agreed with
Moldaver J. - a particularly well-respected judge on criminal
He ducked the question whether Mr Dussault got a sufficient
opportunity to get legal advice. Instead, he looked at what
the police knew about Mr Dussault's experience of getting
legal advice. The officers knew:
- Mr Dussault spoke to a lawyer;
- The lawyer said he would come to the police station to talk with Mr Dussault, and did come.
- At the beginning of the interview, Mr Dussault expected to see his lawyer.
- But police told Mr Dussault that the lawyer wasn't there.
This sequence of events would give Mr Dussault the impression
that the lawyer let him down. Why should he rely on the advice
of an untrustworthy lawyer?
Moldaver J. concluded that the police were obliged to allow
Mr Dussault a further opportunity to get legal advice because
of the impact that police behaviour had on his trust in the
legal advice he received.
You might ask yourself why Waldock thinks this case matters.
"I'm not on the homicide squad. I'm not going to investigate
the kind of cases in which lawyers rush down to the police
station to speak with their clients.".
Judges Care about Prisoners Getting Legal Advice
All of the judges concentrated hard on what police officers
did to provide the prisoner with access to counsel.
I write about s.10(b) of the Charter often because it comes
up so often.
Whether you arrest murders or drunk drivers, you can expect
defence counsel and judges will scrutinize your actions after
- Did you inform the prisoner promptly about the right to get legal advice? (Did you make notes?)
- Did you hold off asking questions about the crime before the prisoner got the access they wanted?
- Did you make reasonable efforts to accommodate their desire to identify an appropriate lawyer and contact them?
- Did you act promptly, or make the prisoner wait unnecessarily?
- When the prisoner contacted counsel, did the prisoner get a reasonable opportunity to get advice?
- Did you say or do anything which might undermine the advice that the prisoner got?
Knowing that you will face such scrutiny, do you keep
adequate notes and records?
How can police determine when a prisoner received a "reasonable opportunity to get legal advice"?
The trial judge and the Court of Appeal wrestled with this
question.Justice Moldaver ducked it. I think he declined to
answer that question because it's so important, and
because he wanted to highlight his main point.
Despite the absence of an answer, we can draw some useful
experience from this case:
- Judges won't like it if you mislead the lawyer about whether the client wants more advice.
- Judges won't like it if you make the client think that the lawyer doesn't care.
- The prisoner isn't entitled to have the lawyer present when you interview.
A single phone call may or may not suffice. Because legal
advice is privileged, you must not ask what the lawyer
discussed with the prisoner. But you do want to know whether
the prisoner got the legal advice he was seeking, or whether
he is expecting or needing more.
Undermining Legal Advice
Justice Moldaver focussed on this topic.
Many years passed since the Supreme Court of Canada last
directly discussed what a police officer can say about the
defence lawyer. In R.
v. Burlingham,  2 SCR 206, the judges didn't
like how the police officer explicitly characterized defence
counsel as greedy and uninterested in the defendant's best
In this case, even though the police officers said
nothing derogatory about the lawyer, their actions had the
effect of making him look bad.
This nuanced approach gives defence counsel broader scope to
challenge your words and conduct in the future.
How will you respond
From 1995, we know that you must not denigrate defence
Notice that the problem arose in this case partly because of
the combined remarks of more than one police officer. When one
officer hands a prisoner over to another officer, they should
communicate about the progress of the prisoner's access to
counsel. Beware of making assumptions about what previous
lawyers told the prisoner.
Notice that Mr Dussault even alerted the intervewing officer
to a potential problem. It may be wise, when you receive a
prisoner, to ask him or her about the progress of access to
counsel, and to double-check concerns that the prisoner
Seeking Legal advice is Good
What's good for the goose is good for the gander.
Judges like it when people seek legal advice.
If you read the case, you will find that one of the officers
sought legal advice before denying Mr Dussault an second
interview with counsel. Although that didn't impress the
Quebec Court of Appeal, I think it did impress Justice
Moldaver. Seeking legal advice when you're not sure is a good
2022.04.27 Home Invasion without Imprisonment - Residential
Searches Tend to Trigger Detentions
Suppose 8 men with guns invaded your home at 6 in the
morning. Suppose that they told you to go to the living room.
Would you feel "detained"?
That's what happened to Mr Scopel-Cessel,
2022 ONCA 316.
Eight police officers turned up at his place, with a warrant
to search for child pornography. They wanted to know who was
responsible for the file-sharing program running the at the
shared IP address at his residence.
The lead investigator told him and his wife that they
were free to go, but asked them to go to the living room while
the officer searched. The lead investigator told
them that they had no obligation to answer questions or
assist; but he asked them questions which they answered, and
he persuaded Mr Scopel-Cessel to use his password to log into
his computer, so that the searchers could locate evidence.
Mr Scopel-Cessel asked for permission to make coffee for
himself and his wife.
The officer never told him of his right to contact a lawyer
until the officers found the file-sharing program running on
the computer he had logged into. At that point they formally
If you read the decision (it's mercifully short), you can see that the investigating officer tried hard to avoid the detention trigger.
The trial judge found that no detention occurred before that
arrest. The appeal court disagreed.
Controlling the scene usually involves controlling the people
in it. Asking questions about their involvement in the offence
tends to focus your interaction on their involvement in a
crime. And that may defeat all the comforting words you say
that they are free to go.
This case is worth discussing before you execute your next
residential search warrant. With the benefit of hindsight, how
would you have handled this interaction with the prime suspect
and his wife? If you try to assure them that they are not
detained, and free to go, perhaps you might also suggest that
they can use their freedom to call a lawyer, if they want.
2022.04.24 Incommunicado between Arrest and Search - A Danger Zone
I found a decision which advanced and junior officers might find useful.
Confidential informants told police that Mr Ghousy trafficked
firearms. Surveillance established a network of people with
whom he associated. Police watched what looked like a firearms
transaction. A couple of days later, they saw another
transaction between Mr Ghousy and Mr Keshavarz,
2022 ONCA 312. Police officers arrested them both. They found
two handguns in Mr Ghousy's car, and cash in Mr Keshavarz's
pocket and drugs in his car.
The officers sought applied for search warrants for 3
residences associated to the two men. The officers suspended
their access to counsel until after they got and executed
At trial, both men complained that the police investigation
breached their rights.
Mr Ghousy enjoyed more success than he deserved. The trial
judge figured that the officers lacked sufficient grounds to
search his car, and excluded all the evidence as against him.
(The Court of Appeal felt that there were ample grounds.)
The trial judge convicted Mr Keshavarz of trafficking the two
guns that were found in Mr Ghousy's car.
Mr Keshavarz appealed. He complained that the judge should
have excluded even that evidence because the police violated
his right to counsel: He didn't get to talk to a lawyer for
over 7 hours after arrest!
The Crown agreed that the police breached Mr Keshavarz' right
to counsel, but disagreed about the 7 hours. The police
allowed Mr Keshavarz to make calls about an hour after the
searching was done.
The Court of Appeal agreed with the Crown. Must of the delay
There are times police can suspend a prisoner's access to
counsel. This was one of them.
- Mr Ghousy worked with others trafficking firearms. If his confederates learned of his arrest, they might well hide the rest of his firearms.
- Those firearms endangered the public.
- Police could not enter the residences and seize those firearms until they got a warrant.
An officer wisely testified that he had no concern that the
lawyers would help hide the evidence; but in his experience,
"things as simple as counsel contacting potential sureties or
family members could 'inadvertently cause [the] loss of
The court particularly liked how the police did not suspend
access to counsel as a matter of routine, but because the
specific events in this case required it. Senior police
officers should review the discussion at paragraphs 71-81 to
get a sense of what justifies the suspension of access to
Although the court upheld the conviction, they still found
that there was a breach of s.10(b).
If you suspend a prisoner's access to counsel, you must grant
access to counsel immediately after the reasons for it
subside. In this case, the moment of safety came when
the last house was searched. At that point they should have
contacted the cell block, and permitted Mr Keshavarz to get
legal advice. Instead, they packed up and drove back to the
Junior officers should not often suspend a prisoner's access
to counsel. This decision teaches them that judges care about
s.10(b). They want to see that you try earnestly to give your
prisoner access to legal advice promptly after arrest or
2022.04.13 Police Officer's Duties and Decorum in Public
2022 ONCA 288 worked as a security guard at a car factory. On
his watch, a fire broke out in an electrical cabinet. In the
recent past, that factory had suffered copper thefts. The
electrical cabinet contained copper. If someone had attempted
to remove that copper, it would have caused an "arc flash"
explosion which could have started the fire. Coincidentally,
after the fire, Mr Hall had physical symptoms consistent with
suffering the effects of such an explosion.
Maybe he started the fire by trying to steal copper.
A police officer arrested him for the theft.
The security company fired Mr Hall.
Charges proceeded to trial. The trial judge acquitted Mr
Hall, on the basis that the evidence didn't quite prove his
Then Mr Hall sued the police for malicious prosecution. He
- The available evidence could not lead to the conclusion
that probably Mr Hall tried to steal copper. The police
should have investigated other leads before arresting him.
- At the time of arrest, the arresting officer didn't actually believe that Mr Hall committed an offence.
- The lead investigator demonstrated bias against him at the criminal trial: he did a high-five with a prosecution witness outside the court room, he failed to alert the prosecutor and defence counsel when they misunderstood an important fact, and he mischaracterized some key evidence when testifying.
The trial judge agreed with Mr Hall's complaints, and ordered
the police service to pay $686,216.92. The Court of Appeal
upheld the verdict.
Regardless whether you agree with the conclusions in this
case, it identifies vulnerabilities for busy or enthusiastic
All too often, the complaint identifies a crime and a
criminal. An objective investigator should not arrest because
a citizen demands it, but because the evidence justifies it.
Often, the complaint supplies sufficient grounds. But you need
to think before you act. The first investigative theory ain't
necessarily the best theory. Unless there's urgency - where
delay would imperil life or evidence - investigate the
available leads before arresting the suspect.
Don't arrest if you don't think the suspect committed a
Worth repeating? Yes.
Sometimes a junior officer who knows more about the case feels obliged to obey a senior officer who knows less about the case. Rookies: if a senior officer tells you to arrest someone and you don't think the evidence justifies it, ask why. You don't want to cost your police force half a million dollars. Senior cops: listen to the rookie's concern, and if you disagree, explain your thinking
Am I counselling insubordination? Must the rookie refuse an
If an investigating officer believes the suspect is probably
guilty and has reasonable grounds for this belief, that
officer can direct another officer to make the arrest. The
arresting officer may rely on the investigating officer's
work. (Please add the investigating officer to the witness
v. Hall, 2006 SKCA 19 (Same last name, but an
The high-five in the court house demonstrated the police
officer's allegiance to the company. The judge didn't like it.
Should you stand aloof from the victims in every criminal
A good cop seeks justice. A cop who cares will support and
encourage the victims of crime, and the witnesses who
participate in the stressful business of trial.
I don't think that high-fives are inherently wrong. But they
do risk tainting you with an appearance of bias.
Seeking justice also requires caring also about the
perpetrators of crime, and ensuring that the process that
leads to their conviction is fair, and looks
As investigator, your job is not to secure a conviction, but
to present the evidence fairly. Behave in a manner which
inspires the trust of both sides of the dispute.
Next time you encounter the defendant, he may have
information that he could tell you about a crime. If you prove
yourself honest and trustworthy in your dealings with him, he
may talk with you next time.
Or maybe he meets a different cop, and remembers how you
Your objectivity and compassion in one case can ripple far
2022.04.09 Clearing a Residence - Need for Reasonable
Suspicion and Notes
Yesterday, the Supreme Court added some conditions on when
you can clear a residence, and how you should document it.
2022 SCC 11 drew attention to himself, which resulted in
police discovering his drugs. Mr Stairs complained to judges
that police overstepped their authority. The judges disagreed.
discussed his complaints to the Ontario Court of Appeal.
He didn't like their conclusions, and complained to the
Supreme Court of Canada.
While driving to his father's house, he beat on his
passenger, a woman.
Another driver noticed this, and called 911.
Police attended the residence. They knocked and announced
Fearing for the woman's safety, they entered. They announced
themselves as police, and asked all present to show
Eventually, from the top of the basement stairs, an officer
saw Mr Stairs moving around down in the basement. But he
didn't come up stairs. The woman did, with fresh
injuries on her face. She denied that anything untoward had
occurred. Mr Stairs hid. Officers descended to the basement,
found Mr Stairs and arrested him.
And then, an officer walked through the basement, looking for
people. That's when he found the drugs. At trial, the officer
explained that he was clearing the residence - looking for
other possible victims or other potential assailants.
Mr Stairs complained that the officer had no business
snooping through his home: the officers had already protected
the victim and secured the suspect. There was nothing more for
them to do in the basement. Mr Stairs proposed that police
should only be permitted to clear a residence of people when
they have reasonable grounds to believe that someone
(police or public) will suffer imminent harm if they don't.
The Supreme Court agreed with Mr Stairs that police can't
snoop through a residence just because they made a lawful
arrest inside it. They disagreed with him that officers need
to justify their search on such strong grounds.
The judges agreed with the Crown that you can still search
the vicinity of the arrest. If you find him in a bedroom, you
can look for evidence related to the offence, or weapons, in
the places to hand where he might have stowed them just before
the arrest. But you can't search the rest of the house for
Because of the enhanced privacy of a residence, you can't go
digging through the rest of it looking for evidence.
The judges said that you can't even clear it of people unless
you have have reason to suspect that there is a safety
risk to the police, the accused, or the public which would be
addressed by a search. And when you search, you must restrict
your activity to a search for people. No digging for
But in this case, there were ample reasons for concern.
Finding one battered woman does not eliminate the possibility
that Mr Stairs hurt another woman. Indeed, it raises a
distinct possibility that he did hurt someone else.
Therefore, Mr Stairs lost his appeal. And his drugs.
Specialized officers such as tactical squads and dog
handlers, beware! The judges strongly recommended that you
take fulsome notes about searching residences: what you did,
where you searched, how long, and what you searched for. In my
experience, those specialized officers often think that
because they found nothing of interest, they need not write
about it. The judges disagree.
The judges did not address what to do when you want to
protect evidence in a residence until the execution of a
search warrant. In the absence of an arrest, can you enter to
clear the residence? I did discuss "freezing the scene" a
bit, back in 2019. I don't think that the basics have changed
for other contexts. Instinctively, you should think that you
need reasons to intrude on private spaces. And then,
instinctively, you should record those reasons, as well as how
you carefully protected the privacy while performing your
2022.04.09 Reporting the Results of a Computer Search -
"5.2" Reports for Data
A trial judge in B.C. recently decided that the results of
the non-consensual search of a computer are "things" that need
reporting to a justice pursuant to s.489.1
of the Criminal Code, and renewal of detention orders pursuant
The court has not yet published the decision. Its citation
will be: 2022 BCSC 344.
2022.03.09 Arrest for the Sole Purpose of Interviewing
Can a police officer lawfully arrest a suspect for the sole
purpose of asking the suspect questions?
If the offence can be prosecuted summarily, I don't think so.
Unfortunately, the only two decisions I know of which address
the question directly come from trial judges. I don't know of
any answers from higher courts.
An Iqaluit police officer learned that Ms Akpalialuk,
2013 NUCJ 12 was bootlegging. He found her at the air cargo
office, receiving lots of boxes of booze. He arrested her and
seized the booze. He left her in custody for longer than he
should have. He then interviewed her. Five times, she told the
officer she didn't want to answer his questions. Finally, she
But in Nunavut, bootlegging is a summary conviction offence.
prohibits police officers from arresting suspects for summary
conviction and hybrid offences unless the public interest
requires an arrest. The trial judge found that none of the
justifications for arrest set out in that section applied.
In particular, the judge found that you can not justify an
arrest for the purpose of taking a statement, or for getting
the suspect legal advice. Confession excluded.
But the rest of the evidence proved the defendant's guilt.
Therefore, the Crown could not appeal this ruling.
The other decision I know of is R.
v. Dieffenbaugh, 1990 CanLII 2282 (BC SC). An officer
arrested Mr Diffenbach for assault and interviewed him.
Assault can be prosecuted summarily, which means that s.495(2)
applies. Again, the officer had no justification under s.495(2)
permitting arrest. The trial judge found that the officer
breached Mr Dieffenbaugh's right to be free from arbitrary
arrest. The judge found that the officer acted in good faith,
and Mr Dieffenbaugh would have given the statement anyway. The
judge admitted the statement into evidence, and later,
convicted Mr Dieffenbaugh.
Again, the Crown won, and therefore, had no opportunity to
appeal the finding that the interview breached Mr
Dieffenbaugh's rights. (Curiously, in the defendant's appeal,
the court said that the accused's statements were ruled inadmissible.
v. R.A.D, 1993 CanLII 6878 (BC CA) at para 13. I'm not
sure what happened there.)
Section 495(2) does not apply to the offences which can only
be prosecuted by indictment such as: robbery, aggravated
assault, residential burglary, manslaughter, murder etc. Can
you arrest a suspect for one of those offences, solely for the
purposes of interviewing them? I don't know.
If you know of court decisions which tackle this question of
arrest solely for interview, feel free to throw me an email.
A smart officer pointed out the case of R.
v. Viszlai, 2012 BCCA 442. In that case the police
arrested lawfully. They had concerns that he posed a risk of
reoffence. The officer responsible for the investigation was
out of town, and took many hours to get to the police station
to interview the suspect. The court interpreted s.498(1.1),
which requires police to release prisoners as soon as
practicable - unless the "RICE" public interest factors apply.
The judges held that after a lawful arrest, police may hold
someone for the purposes of interviewing - as long as there is
no unreasonable delay.
But the language in s.498(1.1)
is exactly the same as the language in s.495(2). How can the
same language say it is unlawful to arrest for the purposes of
an interview and but also mean that it is lawful to hold an
arrested person for the purposes of an interview?
The answer remains unclear.
2022.02.25 Night Search - s.488 of the Criminal Code - Absence makes the heart grow fonder
of the Criminal Code prohibits you from executing a search
warrant at night unless you satisfy the justice that there are
"reasonable grounds" for
executing it at night.
A little bit of history
When first enacted back in the 1890's, this made total sense.
Barging into people's residences at night when they're all
sleeping can scare them. Sometimes people mistake a police
search for a home invasion, and respond with force, which can
be bad for police and suspects.
International events highlighted the wisdom of s.488. Night
raids by government agents was a hallmark of totalitarian
regimes - like the KGB during Stalin's reign of terror, or the
Gestapo under Hitler. Nice Canadian police shouldn't raid at
night unless it is necessary. Indeed, R.
v. Sutherland, 2000 CanLII 17034 (ON CA), the
court declared that only in "exceptional
circumstances" should police execute search warrants
The concept is great, but the wording of the section did not
keep up with the times.
In times past, once an officer seized something, the officer
could examine it without judicial authority.
Now, we have cell phones. In most situations, you need a
search warrant to search a cell phone that you seized from a
suspect or a scene.
Can you execute a search warrant for a cell phone after
9:00pm? Not according to s.488. What about a warrant to search
a seized vehicle for guns? Not at night. You need special
permission from a justice before you can put in the overtime
on that search.
Of course, this is ridiculous. When you plug the cell phone
into a data download device, you won't disturb or endanger any
people sleeping inside a cell phone. When you start searching
the seized vehicle in your secure bay, you won't rouse any
people from their beds (but the bound and gagged hostage in
the trunk might be pleased that she didn't have to wait until
morning for you to release her).
Until Parliament fixes this section, you always need to ask
justices for permission to execute at night any warrants you
obtain under s487, 487.1 and 462.32 (proceeds of crime).
"Reasonable Grounds" or "Exceptional Circumstances"?
Notice the words I highlit above. The section says the
justice needs "reasonable grounds" to grant a night search.
The Ontario Court of Appeal said that the justice should grant
it only in "exceptional circumstances". At law, those are
How big an emergency must there be to justify a night search?
Last week, the BC Court of Appeal said it needs to be firmly
justified, and almost-but-not-quite agreed with the Ontario
Court of Appeal on the "exceptional circumstances" test.
It all started in September 2018, when Danny Solomon tried on
a $4,000 gold necklace at a Kamloops jewellery store. He ran
out of the store without paying for it. On December 5, 2018,
images of a matching necklace appeared in advertisements on
Facebook Marketplace and Kijiji under the name of his buddy
2022 BCCA 69.
An officer figured it was the stolen necklace. On December
10, the officer applied for a warrant to search the motel room
where he stayed, and asked to be permitted to search by
The officer wisely remembered to explain why a night search
- Urgency - Carstairs might sell the necklace at any moment.
- Transparency - Carstairs had a curfew. Night search would
ensure that he would be present when police came to search.
- Safety - Carstairs seemed to be a night owl. He was up at
4:00am on December 9.
He got his warrant and executed it. He didn't find the
necklace. He did find drugs, cash, a stolen drone and an
The trial judge felt that this night search was justified.The
appeal judges disagreed. Factor that mattered to them
- The investigation of serious offences justify night
searches more easily than minor offences like theft.
- Presence of people in the place increases risk. The fact
that the police expected Mr Carstairs would be home was a
reason not to permit night search.
- The fact that the necklace could be sold or
transferred easily did not justify the search, because
police could have monitored Mr Carstairs until morning.
However, the judges were pleased that the officer asked for
the night search, and explained his reasons fairly. They felt
that the breach of Mr Carstairs' rights under s.8 was minor.
They upheld the convictions.
For you, the lesson is reasonably clear: night searches need
permission. Always ask. Always justify it.
Judges aren't fond of night searches. But in this context,
"absence makes the heart grow fonder" means "absence [of
people from the place you're going to search] makes the
[judicial] heart grow fonder [of night
That suggests night searches for cell phones or seized
vehicles should be easier to justify than night searches of
2022.02.20 "U good for powder?" - Entrapment
For those of you who investigate dial-a-dopers, this case
provides a short clear distinction between entrapment and
development of reasonable suspicion.
When an anonymous tipster gives you the phone number of a
suspected dial-a-doper, your investigation should not start by
immediately calling it and offering to buy. That's entrapment.
You need to develop a "reasonable suspicion" that the number a
drug dealer uses the number. Maybe your databases tell you
something about this number. Maybe your tip gives you more
After canvassing other sources, you might try calling the
number and asking whether the person who answers deals in
An officer received such a tip. It led him to the information
that the number belonged to Mr Zakos,
2022 ONCA 121, who had no criminal record.
The officer texted the number:
Officer: This tj?
Zakos: Who is this
Officer: Scot, got your number from my cousin. You still around the college?
Zakos: Who’s your cousin
Zakos: Yes still close but I moved
Officer: Jay said he got off you at the gas station a while back. U good for powder?
Zakos: How much were you looking for
Defence complained that the question "U good for powder?"
constituted entrapment before the officer had formed a
The judges disagreed. It wasn't an offer to buy, it was an
inquiry to determine if the suspect was in the business. It
was close to the line but did not cross it.
2022.02.18 Storing Digital Evidence
If you don't yet have a convenient and formal method of
storing digital evidence, get one now.
In 2011, someone wearing a balaclava robbed a donut shop at
gunpoint. Police seized security video, and a balaclava from
nearby. They found some saliva 60m from the shop. DNA analysis
from the balaclava and saliva did not match known offenders.
The robber left a white kitchen garbage bag on the counter in
In 2017, DNA from Mr Janeiro,
2022 ONCA 118 entered the DNA database. It matched DNA from
the saliva, but not the balaclava. He was about the
right height and age to be the robber. Of the 5 identifiable
fingerprints on the bag, one belonged to Mr Janeiro. He was
As trial approached, officers could not find the security
video. After it was first obtained, an officer labelled it,
and put it in a filing cabinet - in an unmarked brown
envelope. Other officers viewed it. But nobody could find it
for trial. The trial proceeded without it.
Defence asked the trial judge to drop the case because of the
missing evidence. The trial judge refused, and convicted Mr
Janeiro based on the evidence that remained. The appeal court
agreed with defence counsel. In this case, the video was too
important. The officers did not take sufficient care to
preserve it. Losing it undermined the fairness of trial.
General duty police officers routinely take snapshots with
their cell phones. Complainants regularly email screenshots,
photographs, email and chat chains. All sorts of
electronic evidence pours in.
If you don't yet have a formal, secure and convenient system
to preserve it, then evidence will go missing, and judges
won't be sympathetic.
2022.02.17 "Holding Off" Eliciting Evidence before Access to Counsel
"Before you talk to a lawyer, please tell me about the drugs
in your possession."
Such a question attempts to elicit evidence of a crime. If
you arrested the suspect before asking it, then you have an
obligation to "hold off" asking such questions.
Relying on a 911 call, police arrested Mr Mohamed,
2022 ONCA 117 at first for sexual assault. On a pat-down, they
found a knife and a small quantity of drugs, so they arrested
him for that too. Mr Mohamed wanted a lawyer.
He appeared intoxicated. He talked in circles about what a
good guy he was.
At the police station, he suddenly stopped talking.
That happened when an officer asked him whether he was hiding
any weapons or contraband. No more rambling. Silence.
From that silence, the officers inferred that he was hiding
A strip search discovered 20 ounces of crack cocaine
concealed in his anus.
The court found that the question violated Mr Mohamed's
rights. Even worse, the officer who asked it testified that he
routinely asked that question. The judges decided
to put the word out to police: don't ask investigative
questions before the defendant gets (or waives) legal advice.
Mohamed beat the charge.
Does this mean you can ask no questions whatever between
arrest and access to counsel?
A good discussion of this appears in R.
v O’Reilly, 2021 BCSC 766, which agrees with an older
"Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited..."
Basically, you can't ask investigative questions. Be
wary of asking questions that could, as in the case of
O'Reilly, turn out to provide evidence. (In that case, they
asked the prisoner if he wanted anything from his vehicle. He
described his phone. That phone contained evidence of his
involvement in the crime. The court excluded evidence of that
But you can ask the suspect if they have weapons or objects that could hurt you when you're searching for such things. R. v. Patrick, 2017 BCCA 57.
2022.02.08 Full Disclosure means More than "Evidence Supporting Conviction"
2022 BCCA 9 left a a 17-month old baby unsupervised in a
bathtub. The baby drowned - or so said the pathologist.
Ms Bouvette pleaded guilty to criminal negligence causing
After sentencing, questions arose about the pathologist's
competence. The Crown hired an independent lawyer to
It turns out that 43 pages - a peer review report which
criticized the pathologist's conclusions - was not disclosed
That justified a re-hearing of the case
This time it was the prosecution that failed to disclose
relevant evidence. Don't let "next time" be you.
It's surprisingly easy to fall into the trap of thinking that
information about the case in your possession is "not
relevant". This happens often when the information does not
fit your theory of what happened. But that's exactly why it's
2022.02.07 After Arrest - Preserving and Proving Voluntariness
She told police "my cousin raped me last night."
Police officers arrested Mr S.S.S.
2022 YKCA 2. They (wisely) swabbed his penis and interviewed
him. He told police that he didn't remember putting his
penis in his cousin. DNA testing showed that he did.
At trial, his memory returned. He remembered the sex, and
particularly how consensual it was. He explained that his
statement was wrong because he suffered a seizure. He also
told the judge that the police told him that they would
not release him if he did not cooperate.
Don't say stuff like that.
Judges exclude confessions if the police apply pressure of
this sort to the suspect. This statement was obviously
important. The appeal court ordered a new trial because of his
claim (and a procedural mis-step).
I rather doubt that the officers in this case said anything
of the sort. But proving what police officers did not
say can be tricky:
- The prosecutor needs to know the names of all of the officers that speak to the suspect, from arrest to statement.
- Every one of those officers needs to be able to explain
what they did say to the suspect.
If you provide security to an officer who arrests the
suspect, you may figure that it's not your investigation, and
you aren't an important witness.
At trial, the defendant may claim "it wasn't the arresting
officer who threatened me, it was the other guy".
Suddenly, your role changes from spectator to key witness.
You'll wish you took more notes.
How do you handle this risk? There are two strategies:
- Say nothing, stay out of the action, and make a note - no conversation with suspect.
- Get involved, and document fully. Notes. Audio-recording
Even if you were a minor player at the arrest, during
transport, or when receiving the prisoner at the police
station, your name goes on the witness list, and the extent of
your interaction appears in your notes.
2022.01.16 Imperfections and Delays in the Justice System
After an evening of drinking with a friend, Mr Girbav,
2012 ABPC 219 drove off the road. The streets in Calgary can
be icy in January.
Two police officers saw the car go off the road, and went to
investigate. The car was stuck - high-centred on accumulated
ice and snow. One officer broke the driver's side window,
pulled him out of the vehicle, and arrested him. Finding him
too drunk to drive, the officer made a breath demand. He blew
He beat the charges.
He told the trial judge that the police officer attacked him
without warning, and that a swarm of police officers jumped on
him when he was pulled out of the car, and they beat him close
to unconsiousness. He suggested that one of them made a remark
that suggested that they needed to invent false charges
against him, to cover up their own violence ("You better get
something on this guy or you could have a problem.") He
complained that he tried to get legal advice from a particular
lawyer, but the police only let him talk to duty
counsel. He produced photographs of injuries to his head
and to his arm. His long-time friend testified similarly about
the bad behaviour of the police. They both mentioned that more
than one officer removed Mr Girbav from the vehicle.
The police officers explained that even after they knocked on
the driver's side window, Mr Girbav revved the engine. It
looked like he was trying to get away. The one officer had to
break the window in order to stop him. They disagreed that
there was a crowd of police officers present to arrest Mr
Girbav. It was just the two of them. The other officers
arrived later. They agreed that he suffered an injury, but
denied a beating.
The judge believed Mr Girbav and his friend. The judge
inferred from differences in the officers' accounts that they
had had not given accurate stories.
Did the violent officer and his partner lie to protect
About 5 years later, a lawyer complained about the officers
to the Police Service and the Police Commission. ASIRT -
Alberta's independent police watchdog - investigated. That
investigation took 5 years. They concluded that the officers
likely told the truth, and that Mr Girbav and his friend were
the inaccurate ones. Decision
of the Executive Director of the Alberta Serious Incident
Response Team, January 6, 2022 (2017-32(S)
The most important piece of evidence came from an independent
witness that police interviewed at the scene. Her version
matched the version of the officers and contradicted the
versions that Girbav and his friend gave.
The trial judge never heard her evidence. It would have been
difficult to reach the same conclusion if he had.
Why didn't the prosecutor present this evidence? I suspect
several reasons. For one, she seemed unimportant: she saw
neither the driving before the crash, nor the driver's
symptoms of impairment afterwards. I wonder whether defence
gave sufficient notice of the details of Mr Girbav's claims. I
am troubled by the manner in which they were litigated - but
that's a lawyer's problem.
The trial judgement reflected badly on Csts MacGregor and
Johnson. It took 10 years for them to receive vindication. I
hope the judgment did not harm them.
Mr Girbav was convicted before and since this trial of
impaired driving. When ASIRT interviewed him he denied
responsibility for drunk driving. Information in the ASIRT
report suggests that he is an unrepentant drunk driver. I hope
he harms no one.
When the justice system reaches the wrong result, people can
suffer. When it takes too long to reach the right
result, people can suffer.
This case resembles the fiasco which led to
(Attorney General) v. Clark, 2021 SCC 18, which I
discussed back in May.
Lessons to draw from this case include:
- When you hurt your suspect, even if you followed the use
of force model perfectly, you create an opportunity for
defence to allege a police coverup. It's even worse when
your suspect hurts you.
- Interviewing independent witnesses promptly can make a big difference.
- Gathering evidence about how you handled the suspect - whether by audio-recording, cell block video or otherwise - can resolve many problems.
- Sometimes, watchdogs over the police can be your friend.
This was a good case for a bodycam or a dashcam, and
audio-recording of the process of offering medical treatment
and discussing access to counsel.
2022.01.15 Evidence - Take a Second Look
Four gangsters told police that Mr Vallee,
2022 BCCA 11 murdered Kevin Leclair. Everyone knew it happened
at a mall in Langley. Was Mr Vallee there? Some of the
gangsters said he went to Tim Hortons with them.
It was a big investigation. Investigators gathered a million
documents. Yes. A million.
Buried in that pile was security video from Tim Hortons.
Investigators summarized those videos saying that they did not
record anything of interest.
They were wrong.
To those who looked closely, images of Mr Vallee could be
seen in those security videos.
Relying on the police summary, Crown left the video out of
the disclosure package, and ran much of the case without
looking at them. Part way through trial, defence asked Crown
to admit that the videos showed nothing useful. Crown looked
at the video. Crown realized that the video confirmed that the
4 gangsters were telling the truth about Vallee.
The Crown's case changed shape.
At the trial, defence counsel asked the judge to declare a
mistrial. (Mistrials can destroy prosecutions.) The trial
judge said no. The defendants appealed, complaining that it
should have. The Court of Appeal upheld the conviction.
Prosecutorial tactics aren't your problem. Disclosure is.
Prosecutors find that investigators overestimate the value of
the evidence they gather. That's natural. You gather it in the
context of inquiry. We use in in an adversarial context, where
the other side attacks it from every angle. Examined
skeptically, much evidence loses its shine.
But sometimes investigators underestimate the value of the
evidence. There are times that I have found more in a
photograph or a statement than was first apparent. Usually,
this occurs when cross-referencing evidence.
In an enormous case like that, an error of this sort is easy
It could have been avoided by taking a second look at the
video. The importance of that video would only have become
obvious after the gangsters gave statements discussing Tim
Uninformed summaries are less likely to be accurate than
informed ones. Once you understand how the evidence fits
together, you can identify the evidence that merits a second
That second look can pay dividends.