More and more legal knowledge is expected of officers investigating crime.  I offer here some thoughts on criminal law.  I hope they help.

These are my opinions only, not those of any government agency.  Please do not view them as a substitute for legal advice. If you find errors or have suggestions, please email me.

- Henry Waldock

New Law

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:

You can't threaten to arrest them as a way to obtain their consent to a search.

At a time when possessing marijuana was illegal, an officer approached a group of people that smelled of burning weed.  He detained one of them, Mr Mengesha, 2022 ONCA 654, and asked him to show what was in his fanny pack.

Probably because it contained a loaded handgun, Mr Mengesha refused to say.

The officer didn't tell Mr Mengesha the reason for the detention, nor did the officer mention the right to legal advice.

The officer arrested Mr Mengesha for possession of marijuana. Within 2 minutes the officer found baggies of cocaine and fentanyl and a concealed knife. Soon after, when Mr Mengesha tossed his fanny pack into the bushes, the officers found the gun.

The judges didn't like the threat of arrest. They didn't like the breaches of s.10 of the Charter.

Although Mr Mengesha's conviction stuck, that fact should not encourage you to use the threat of arrest as a means to obtain a "consensual" search. 'Cause even if it works, it ain't consent.

2022.09.26 Examining Illegally Obtained Evidence - When the Complainant Breaches the Suspect's Privacy

"When citizens ... attend at the police station and provide evidence of what they have reason to believe was a crime, the police do not engage in an 'unreasonable warrantless search' by examining the evidence provided."

Mr King, 2021 ABCA 271 kept child pornography in private electronic devices. His wife, discovered his passwords and snooped through his devices. She suspected infidelity. She found illegal images.

She copied them onto her own flash drive, and took the images to police.

Police officers looked at what she brought them, and described what they saw in an application for a warrant. A justice issued the warrant, and the officer busted Mr King for child pornography.

At his trial, Mr King complained of the unreasonable search and seizure in this case.  His wife had no right to look at his private data. Therefore, when she stole it and took it to the police, the police had no right to look at it either, and therefore they violated his reasonable expectation of privacy.

The trial judge bought this argument. The Court of Appeal did not.

The wife may have violated Mr King's expectations of privacy, but the police did not. The police are entitled to look at evidence that a citizen brings to them.

This conclusion conflicts with the conclusion in Vey, 2019 SKQB 135. In that case, a wife secretly recorded private communications between her husband and his lover, in which the husband and the lover planned to murder the wife. She gave those recordings to police. The court found that by listening to the recordings, the police violated the husband's reasonable expectation of privacy.

This area of the law remains unsettled. The trouble arises when someone tells you "I broke into the bad guy's computer / phone and took this data without consent, would you like to see it?" The conservative approach is to ask the witness to describe the data, then ask a judge to authorize you to examine the data, using the witness's description to establish reasonable grounds.

King suggests you don't have to do that. Few judges have yet considered the reasoning in King. When they do, we may get better answers.

2022.09.10 Publicity, Privacy, Revolution, Massacre and Pretty Girls - Sealing Orders and Unsealing Them

Today's case resonates with recent issues in the news. First, the news:

Next, the topic: sealing orders.

When explaining the principles behind sealing orders, I find that our new king's predecessor, King Charles I of England, provides a useful starting point. If that sounds like boring history, perhaps the prospect of beach babes in bikinis will tempt you to read further.

King Charles I needed money. He imposed unpopular taxes. Some of the rich people of his age objected. One of the tools he used to keep them in line was the Star Chamber. This court earned a bad reputation - so bad that it became one of the justifications for a rebellion. That rebellion ended badly for King Charles. They chopped off his head.

I hope Charles III keeps his head ... firmly attached. Long live the king!

What was so awful about the Star Chamber? One of its flaws was that it proceeded in secret. The public could not see and hear how it reached its conclusions. How could anyone know whether the evidence justified the fearsome punishments it imposed?

Criticism of the Star Chamber taught English, Canadian, and American judges a lesson.

Good courts operate in public, so that the public can see the fairness with which they operate. Canada's highest court keeps re-affirming the importance of the open court principle, even at the risk of embarrassing or inconveniencing some of the people involved. For example, see last year's cases: Sherman Estate v. Donovan, 2021 SCC 25; CBC v. Manitoba, 2021 SCC 33, or the earlier case of R. v. Mentuck, 2001 SCC 76

To maintain public trust in the justice system, courts must expose as much as possible of what they do to public scrutiny, and keep as few secrets as possible. The press loves this principle, because it gives them access to information about high-profile people (like Donald Trump), high-profile events (like the search of his residence), and the sorts of sex and violence that sells newspapers and click-bait.

Applications for search warrants necessarily offend the open court principle. What good would searching a drug dealer's residence do if you had to apply for the warrant in open court? Someone would tip off the dealer before you get there. Some applications rely on information from confidential informants. Would rats help police bust gangsters if the courts name them?

Therefore, courts must operate in secret some of the time. The court must keep some secrets. The open court principle requires judges to operate in secret as little as possible, and to keep the fewest possible secrets.

The open court principle conflicts with police concerns:

  1. The identities of informants can be inferred from the information that they give.
  2. Publicizing the evidence during an ongoing investigation can taint witnesses, destroy the value of holdback, or alert culprits how to defeat the investigation.
  3. In high-profile cases, widespread publicity of the evidence may prejudice the public, making it difficult for the court to find impartial jurors to give the defendant a fair trial.
  4. Publicity can sometimes inflict further hurt on the victims, their families, and other innocent parties.

This brings us to sealing orders and beautiful women in bikinis.

I compare a blanket sealing order to the beach blanket that a bashful girl in a string bikini uses to protect her dignity,

The open court principle is like a requirement that the bashful girl throw the banket aside. And it compels her to wear only a string bikini to cover only the most private parts.

Do you remember the story last year of the Norwegian women's beach handball team? They protested a rule that required them to wear bikinis when they competed. Like police officers who don't like their investigations exposed to public view, these women didn't like being ogled when they played in public places.

The Norwegian women won worldwide support for their protest, and got the rules changed.

I noticed a case that might change the open court rules a bit. The bashful girl of my analogy might be permitted to wear something a little more conservative than a string bikini when she throws the beach blanket aside.

It arose when a reporter sought access to the applications for search warrants issued during the investigation of a high-profile serial killing in Nova Scotia back in 2020. CBC v. CBSA, 2021 NSPC 48; CBC v. CBSA, 2022 NSPC 22 The press wanted to find out whether the police should have issued public warnings earlier. But the warrant applications were sealed.

The reporter pointed out that the killer, Gabriel Wortman, died during the take-down. There won't be a criminal trial. Except for information tending to identify confidential sources, there's no need for any redaction, right? By asking the court to remove the sealing order, the reporter was asking the judge to make the bashful girl throw away the beach blanket. Expose her to public view.

Not so fast, the Crown responded.

These 22 killings left a trail of bereaved families. Applications for search warrants necessarily recite private information, the publication of which may hurt them.

The relatively recent Canadian Victims Bill of Rights requires the court to consider their privacy too, and to hear from those victims before making decisions which affect that privacy.

The judge agreed.

It's a little victory. The bashful girl in my analogy should be allowed to ask for the dignity of shorts, like the women of the Norwegian women's beach handball team.

But this little victory offers police officers engaged in fast-moving investigations a further justification for a blanket sealing orders over their applications for warrants and orders.

If you have a boilerplate sealing order application, it probably recites the justifications listed in s.487.3.

If your ITO or affidavit includes information private to a victim - anyone who has suffered physical or emotional harm, property damage or economic loss as the result of the crime - then you might add to your justification for the sealing order something like this:

This application contains private information about a victim. Section 11 of the Canadian Victims Bill of Rights requires this court to consider his/her privacy. Section 14 requires this court to receive his/her/their views about decisions that affect his/her/their privacy before making those decisions. Until it hears from the victim(s), this court should not risk harming him/her/them by releasing that private information.

If your victim tells you that publication of the his/her information will cause her harm, you might want to mention that fear in your ITO.

I note that these blanket sealing orders ought to be temporary. The open court principle requires that eventually, the blanket be removed, and to allow public access to all but the private material.

Where there are victims, the Canadian Victims Bill of Rights makes that a more complicated process.


2022.09.05 Wiretap - Investigative Necessity or Criminal Organization or Both

By definition, snooping on private phone conversations invades privacy.

A lot.

Except in serious emergencies, police must obtain judicial permission to do this snooping.

Because it's such a big deal, Parliament requires investigators to show the judge that no other technique will reasonably work to catch the bad guys, or that the offences are "organized crime" (gang) offences.

Applications for "wire" therefore often contain fulsome explanations why other techniques would not work.

Mr Chen, 2022 BCCA 296 supplied drugs to a dealer of kilogram quantities of MDMA. Police found Chen by wiretapping the dealer, who talked to him whenever he needed drugs.

Mr Chen challenged the wiretap authorization.

The officer who applied for it explained not only that no other investigative technique would work, but also that the targets fit the definition of a criminal organization, and that the crimes were by and for the organization.

The application spent a lot of time explaining investigative necessity, but merely mentioned criminal organization aspect.

The trial judge ignored the criminal organization part, because the application didn't emphasize it.

The Court of Appeal agreed that the authorization could have been better drafted, but disagreed that the trial judge could ignore that part.

For officers just getting into "wire", this case provides a reasonably clear discussion of the difficult topic of investigative necessity, and what to expect at trial - years after you draft your affidavit.

For experienced affiants, if you're going to rely on both routes, this case reminds you to spell out both justifications at the conclusion of your application.

I put the word "wire" in quotes, because modern interceptions of communications virtually never involve wire nor tapping. But the word "wiretap" remains a useful term - short and evocative - of what the technologies can do.

2022.09.05 Gender Safety When a Strip Search goes Wrong

How carefully must you protect a prisoner's dignity when the prisoner poses police a threat?

Mr Black, 2022 ONCA 628 started the problems when he lied about his name. Officer McCabe - a female police officer - pulled his vehicle over because the licence plate didn't belong on that car. When she asked him to identify himself, he gave a false name.

Mr Black had reasons to lie: he was on probation, a judge had issued a warrant for his arrest for robbery, ... and the thirty baggies of heroin in his underpants might get him into trouble.

When Officer McCabe figured out who he was, she arrested him and took him to the police station. The seriousness of the charges convinced her not to release Mr Black.

She asked a senior officer to permit a strip-search, to make sure he didn't bring weapons or drugs into custody with other prisoners.

Knowing that strip-searches should be done only by officers of the same sex as the prisoner, she arranged for two male officers to search Mr Black.

Although those officers followed the proper protocol, things went badly. Mr Black didn't want them to find the drugs. He reached into his pants as if to draw a weapon. He disobeyed the officers' commands to keep his hands out of his clothing. A struggle ensued. Mr Black kicked, pushed, banged his head against the wall, and screamed that the officers should kill him. One of the officers called for help.

Officer McCabe ran in and helped.

The officers bound him and stripped him naked. They carried him naked to a cell. They supplied him with a jumpsuit.

At his trial, Mr Black complained that the female officer should not have participated in stripping him or carrying him. The judges disagreed.  Mr Black created a crisis in which safety took precedence over dignity. Even when bound, Mr Black continued to thrash vigorously in a way that could hurt the officers.

In reaching their conclusions, the judges remind us:

The judges' answer to the question made sense: Safety first. If mayhem erupts in the room where the strip-search is being conducted, you can run to your colleague's aid. You don't need to run away, hunting for same-sex officers to solve the situation.  And you can stay until the danger subsides.

This case made me think of the difficult characters that we must routinely manage.

Many of you struggle frequently with irrational people living the very worst parts of their unhappy lives. Many of them express hatred of police. One may naturally feel that they deserve the sufferings that they bring upon themselves.

A professional strives to remain respectful of the dignity of even the most difficult people. It ain't always easy.

Respect and patience can pay in the long run. Seasoned members of our justice system all remember entrenched felons who responded to a little sympathy. Sometimes, in their gratitude, they'll later tell you - or some other officer - a crucial tip. Sometimes, they reach bottom, and turn to you - or some other officer - for redemption.

2022.08.27 Safety search during investigative detention

Mr McKenzie, 2022 MBCA 3 jogged through the back yards of a residential neighbourhood. At night. Clutching the left side of his body with his elbow.

A cop in a lane saw him, and wondered if he held his arm that way because of an injury. The officer called out, asking if he was okay.

Mr McKenzie and the officer locked eyes. At that moment, the officer recognized him: McKenzie was long-time member of a street gang, who often carried weapons.

I figure that Mr McKenzie realized he was looking at a police officer.  I'm guessing that Mr McKenzie feared that the officer would stop him. McKenzie had a reason for that fear: he was doing something suspicious.

Mr McKenzie ran faster.

The officer suspected - from his extensive experience with people who carry firearms - that Mr McKenzie held his arm that way to carry a concealed weapon. The officer yelled at Mr McKenzie to stop.

I doubt that Mr McKenzie felt any happier when he heard this.

Mr McKenzie kept running.

Mr McKenzie's reaction increased the officer's suspicions.

The cop caught up, and pinned him against the wall.

Mr McKenzie was carrying a fanny pack.

Should the officer lawfully look inside it?

Any officer interested in surviving his or her shift will say "yes".

But only the wise ones know why it's lawful.

This cop looked.

He found the handgun. He arrested Mr McKenzie, and then found the drugs. Charges followed. At trial defence complained that the officer lacked lawful authority to search the fanny pack.

You can - briefly - detain a person that you suspect is involved in a crime.  But suspicion - even reasonable suspicion - does not authorize you to search the person for evidence of that crime.

You can can arrest a person you have reasonable ("and probable") grounds to believe that the person committed a crime. And if you have some reason to suspect that they have evidence of that crime with them, you can search them for it.

This cop suspected that maybe Mr McKenzie had a gun or drugs. But the cop didn't have enough evidence to justify a reasonable belief. Therefore, the officer could not search incidental to arrest.

But pinning gangsters up against a wall in a back alley at night is a risky business. Any cop who wants to stay alive will want to take precautions to make sure that he does not get a knife between the ribs or a bullet in his brain.

Judges saw a tension between the public's right not to be subjected to search without reason, and the police officer's need to protect themselves from unsavoury suspects.

They struck a balance. You can't search for weapons any time you feel like it. But you don't need proof that the suspect has a weapon before you search for it.

Unfortunately, as discussed in this case, the Supreme Court of Canada used confusing language to describe this balance.

Either it's "reasonable grounds to believe that the suspect poses the officer a risk of using a weapon" against you, or it's "reasonable grounds to suspect that the suspect has a weapon" that he will use against you.

If you read the decision, you will see the struggles the judges have defining the test.

I dunno. I've long felt that this debate over language is silly.

I think that the key concepts are obvious. To search for officer safety:

  1. You need reason to think that the detainee may have a weapon; and
  2. You need reason to think that the detainee may want to use it against you.

If you don't have both, don't do a safety search. As the judges said, you can search when it is "reasonably necessary to eliminate an imminent threat".

When asked to explain their reasons for their fears, many officers resort to the language of safety training. Some instructors in that field emphasize the dangers of ignorance in a hostile situation. "You don't know what he's got in the fanny pack. It could be a weapon. You need to be sure. You don't know what kind of mood he suspect is in. You don't want to wait to find out."

That language doesn't meet the legal test. If you tell the judge that you searched the suspect because of what you didn't know, the judge will find that you lacked reasons to justify the search. To justify a reasonable fear, you must talk about what you do know, rather than what you don't know. For example, in this case:

When confronted with a situation like this, seasoned officers can think all of these thoughts so quickly that they may interpret their conclusions as "instinct". I don't believe in instinct any more. Break the situation down. You'll find that your "instinct" consisted of logical inferences. You can turn those inferences into words, if you try.

When you get good at that exercise, gangsters like Mr McKenzie will follow his footsteps ... into jail. Mr McKenzie lost his arguments at trial and on appeal.

2022.08.23 Collision Investigation - Event Data Recorders

Warrantless Seizure

Two vehicles crash on a public highway.

Does the Criminal Code give you the power to seize the car of the driver who caused the crash?

It depends. Do you think that driver committed a crime?

Section 489(2) permits you to seize anything if:

Notice the last two lines. If you have grounds to seize the culprit's car, then you may also have grounds to seize the victim's vehicle.

Warrantless Analysis

If you have grounds to seize the car, can you seize and download just the event data recorder (EDR); or do you need to ask a judge for a warrant?

An Ontario line of cases says you must always ask for a warrant. The BC Court of Appeal found that the driver/owner does not enjoy a reasonable expectation of privacy in the data that these devices record.

Mr Major, 2022 SKCA 80 also owned a pickup truck. He overloaded it with passengers, and blew through a controlled intersection, crashing into a big truck. The collision destroyed his truck and trapped the people in it. Emergency personnel had to rip the pickup truck open to extract him and his dead children.

Police investigators at the scene seized the EDR and downloaded it at the scene.

It said he was travelling at 137km/h just before the crash, but slowed to 118. The speed limit was 80 km/h, but it was winter in Saskatchewan. The roads were packed ice and snow.

Mr Major's lawyer argued that the officer needed a warrant to get the data.

The judges concluded that he did not in the circumstances of this case:

But that conclusion did not settle the case.

Expertise Necessary to Interpret the Data

At trial the officer who downloaded the data testified about what the EDR told him. Defence challenged his expertise:

He might know how to download the EDR data, but did he have the expertise to say that the numbers that the EDR records are accurate? For example, in this case, the EDR reported a few numbers that could not possibly be correct. The officer could not explain how those numbers got there.

The judges agreed that the testimony at trial failed to establish that the data that came from the EDR could be trusted.

I suspect that many crash investigators may actually have the expertise to establish that fact. This decision should alert you to formalize that expertise on your CV and in the reports that you write. If you lack the expertise to interpret the data, then the prosecutor needs to find someone who has it.

If you have any trials coming up in which your opinion relies upon EDR data, you might want to review your report, and contact the prosecutor to discuss the expertise necessary to establish the reliability of that data. Tell them about the case of Mr Major.


2022.08.20 Investigative Techniques - Wiretap and Lineups

The crime

Daniel Davis hung out with friends at 1:00am in a school yard. Three men in hoodies surrounded him and shot him dead.

A gang killing.

Mr Bent's girlfriend drove Mr Bent there. They met with Mr Wheatle, 2022 ONCA 591, and another guy. The men went into the park, fired their guns, and then they returned to where the girlfriend waited.

The investigation

The police worked with an agent - a gangster who worked with the police.

In a wiretapped holding cell, Mr Bent told the agent what happened.

The agent bought drugs from Mr Wheatle and socialized in a bugged hotel room. Mr Wheatle talked about his involvement, giving similar details as Mr Bent.

Police arrested Mr Bent's girlfriend for murder around the same time as they arrested Mr Wheatle for murder. When the two were shipped to court, they travelled together in a bugged prisoner transport.

On that transport, Mr Wheatle talked as if he knew her.

At first Mr Brent's girlfriend refused to cooperate with the investigation. Then, as part of a total immunity agreement for this and other serious crimes, she told them what she knew.

During an interview, an officer showed her a single picture of Mr Wheatle, and asked if he was one of the three men. She said he was.

The lessons learned

Gangsters don't often cooperate with police. As this investigation demonstrates, recording their conversations can often discover information that other techniques will never reveal. This investigation relied heavily on authorizations to intercept private communications. Those authorizations worked. Prisoner transport vehicles and cells provide excellent controlled circumstances under which gangsters may talk.

Agents and accomplices don't make great witnesses. The appeal court judges spent most of their decision discussing whether the jury had been sufficiently warned not to trust the girlfriend.  She got a great deal: freedom. All she needed to do was say that the men were guilty.

The other problem was the photograph. The judges didn't like how the officer showed her a single picture. It was like saying "if you want to go free, all you have to do is say this guy did it." A proper photo pack would have shown more clearly whether she recognized the guy.

I suspect that the investigators believed that the girlfriend knew Mr Wheatle well.  But that's not what she said. She said she met him only that night, for only a few minutes.

The judges agreed that this way to identify Mr Wheatle was very weak.

Fortunately, the recordings made up for what the identification procedure lacked.  The jury convicted and the appeal court upheld their verdict.

This case contains lessons for general duty officers and lead investigators of sophisticated units.

For you homicide and gang investigators, it illustrates how much you can do with wire and a coordinated plan. It reminds you how little judges trust agents, rats and turncoats. Get corroboration.

For you first responders and junior investigators, don't show a single photograph of a suspect to any witness (or suspect), unless you're sure that there is a substantial prior relationship between them. And be doubly careful when interviewing a witness of dubious credibility about who was there at the time of the crime.

This concept applies to live bodies too.

Sometimes, a first responder will catch - within minutes of the crime - a suspect who resembles the person that the complainant describes. Can you show the complainant who you caught?

Even if the complainant does not know the attacker, you can show the suspect to the witness, and ask "is this the culprit?"  But beware. At trial, the defence may argue that you merely caught a person who looked like the culprit. You'll want more evidence than this to prove beyond a reasonable doubt that the suspect is the culprit. If the complainant says "yes", keep investigating. For example:


2022.08.20 Reasonable Grounds and Possibility

When you ask a justice for authority to search a residence for evidence, you need to explain to the justice why you think that the evidence is there.

If years pass between the crime and the search, you may need compelling reasons to explain why one should expect that the evidence still remains in the place.

Mr Collison disappeared in 2009. Nobody found his body until 2014. It bore witness to 5 gunshot wounds. One in the back of the head. Four more in the back. Witnesses said that Mr Wise, 2022 ONCA 586 complained of disliking Mr Collison, and expressed interest in his murder.

In 2016, could the officers search his home?

The police had reasons to think that Mr Wise was a serial killer. They asked a psychologist whether serial killers kept souvenirs of their killings. The expert could not say that Mr Wise would likely keep them, but this behaviour was "within the realm of possibility".

They put that information into the ITO to help explain why their search would locate evidence.

Possibility ain't probability.

Although the investigators persuaded a justice to issue a search warrant for Mr Wise's home, the trial judge and the judges of the court of appeal held that the warrant should never have been granted.

Too bad.

He did possess some things that tended to show his guilt. Including what appeared to be a map of the place where the body was dumped.

That evidence was excluded.  Mr Wise beat the charge.

Even if little time passes between the crime and the search, your application for a search needs to explain why the evidence will likely be there.

If your grounds lead you to conclude that the evidence could "possibly" be there, then your grounds still aren't strong enough. You need to be able to say that the evidence and information you gathered so far gives you good reasons to think that the evidence - or at least some of the things - are there.


2022.08.14 Don't (always) need a gun to prove it was a gun

One way to prove that what the suspect fired is a "firearm" is to seize the thing, and send it to an expert to examine.

What if you can't get the gun?  What if the lab's too busy?

Sometimes, the prosecution can prove it's a gun by applying the duck principle.

If it walks like a duck, and it quacks like a duck, it must be a duck.

After a basketball game, some kids followed the coach of the losing team. One of them, Mr O.A., 2022 ONCA 565, pulled out something that looked like a gun. There was a bang like a gun. Afterward, there were two small round holes in the coach's car that weren't there before.

Even though investigators never caught Mr O.A. with any weapons, the trial judge concluded it must have been a firearm.

Mr OA complained to the Appeal Court that a judge needs more evidence than that to conclude that Mr OA possessed a "firearm".

The court disagreed. Effectively, they applied the duck principle.

This doesn't mean that a bang from something that looks like a gun, leaving bullet holes, will always prove that it's a firearm. It will depend on the quality of the evidence. Often, you will need an expert.

But not always.

2022.08.06 Foreign Cops and Local Offences - What's your Jurisdiction?

American cops asked Canadian cops to help bust an American drug trafficking ring. The American officers covertly seized 26kg of real cocaine, and put fake cocaine in its place. The American police said that their targets expected the cocaine to arrive in Canada. The American cops asked Canadian cops to participate in the investigation.

The Canadian cops participated in the delivery of the fake cocaine. Mr Hollaus, 2022 BCCA 272 and Mr Oliynyk showed up to pick up the fake drugs.

Canadian police officers arrested them, knowing that the drugs in their possession were fake. No real drugs entered Canada.

When the American authorities asked the courts to extradite Mr Hollaus, he complained that the Canadian police had no authority to arrest him. Because the drugs were fake, he was not really committing a crime in Canada. And besides, he said, the Canadian police were just helping the American officers investigate a crime that happened in the USA. Therefore, the Canadian officers had no jurisdiction to exercise police powers in Canada.

If the officers had arrested Mr Hollaus for possessing drugs in the USA, there might be some force to this argument.

But in Canada, it's an offence to possess drugs for the purpose of trafficking. And it's also an offence to attempt to commit a crime. Nobody acquires 26kg of cocaine for personal use. The only purpose would be to traffick.  Therefore, Mr Hollaus, attempted to possess drugs for the purpose of trafficking.

And that's an offence in Canada.

The police arrested him for (Candian) offence of PPT, as it was happening in Canada.

Defence argued that the underlying purpose of the arrest was to assist an American investigation. The judges didn't care. The arrest was good if the Canadian police arrested him for a Canadian offence that happened in Canada. Their motive to involve themselves for the purposes of a broader American investigation didn't change the lawful arrest into an unlawful one.

For you, it serves as a reminder of some basic principles:

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:

So they told a little white lie: it was a "routine traffic stop".

They got him out of the truck.

Then they "disovered" the suitcase - giving him the impression that the officers on the ground did not know anything about the conspiracy.  Within 4 minutes of the stop, they arrested him for PPT.

it was actually an international investigation. There were compelling reasons to protect it at that vulnerable stage.

But lying to him about the reason for the stop directly offended s.10(a) of the Charter.

In this case, the judges found that excluding the evidence was not appropriate because of the brief and technical nature of the lie.

Unfortunately, I know of no lawful authority for police to tell these lies. In most small cases, they aren't necessary. But in multi-million dollar inter-jurisdictional investigations, failure to tell these lies when arresting the underlings can undermine the investigation, allowing the kingpins to escape justice.

I fear that the day will come that a judge will conclude that it brings the administration of justice into disrepute to have police officers routinely breaching s.10(a) of the Charter in serious investigations.

For that reason, I say that police should be able to apply to a judge for an order which grants them temporary dispensation from the obligation to explain the true reason for the arrest or detention. It will come with conditions, I expect, including a firm obligation to hold off eliciting evidence of the offence.

This requires legislation. A new provision like a warrant provision. I suggested it 15 years ago at a conference in Ottawa. I still think it's necessary. I still think Parliament needs to act.

Defence also argued that s.10(a) required the police to inform Mr Hollaus that he was detained in respect of the American offence of conspiracy. He had some case law to work with. In R. v. Borden, [1994] 3 SCR 145, police arrested the defendant for one sexual offence, and they suspected him of another. But when they arrested him, they only told him about one offence. The court said "Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention".

The court rejected this argument too, but didn't provide a clear dividing line between the situations in which you must mention multiple matters under investigation, and the ones in which you need only mention the matter for which you arrested.

Therefore, if you suspect your prisoner of multiple different crimes, and arrest him for one crime, consider mentioning at least the ones for which you have reasonable grounds to suspect his involvement.

2022.08.01 R. v. Lafrance, 2022 SCC 32 - What's a Detention? - Time to Start Second-Guessing Yourself

If handcuffs bind your hands and a lock secures the door, you can easily determine that you are detained.

Most folks would feel some relief when the man with the gun says "you are free to go". But if the man with the gun does not remove the manacles and unlock the door, that feeling of relief will soon pass.

Canadian law recognizes another kind of detention. It happens when fear of - or respect for - a peace officer's badge, role or power would cause a reasonable person to feel they can't leave. This "psychological detention" concept causes some confusion for police officers. This decision makes it more important than ever to understand.

Police woke Mr Lafrance, 2022 SCC 32 from his bed in the early morning. They told him to get out of his house while they searched it. They had a warrant. An officer explained that they were investigating a murder. The officer asked Mr Lafrance to come to the police station to discuss the stabbing death of his drug dealer. The officer told him he didn't have to come. He accept their offer of a ride in a police car.  He spoke with an officer for 3 hours.

At trial, he complained that the police detained him, but did not give him access to a lawyer. The trial judge concluded that the police did not detain him. Two judges of the Court of Appeal, and 5 judges of the Supreme Court of Canada held there was a detention. 1 judge of the Court of Appeal, and 4 judges of the Supreme Court of Canada held that they didn't.

If you consider all the judges who considered the case, the final score was 7:6. The majority held that Mr Lafrance was detained.

Mr Lafrance won a new trial.

You may find this a surprising result:

Five judges of the Supreme Court of Canada found that police actions can trigger a "detention" even when the subject himself does not feel compelled to accompany police. They relied heavily on an earlier case R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, in which the defendant himself did not consider himself detained, but the judges concluded that the officers had done what would make any reasonable person in his shoes believe was a detention.

The judges explained their interest not in what the subject actually felt, but what a reasonable person in the defendant's position would feel.

But what about telling him "you're free to go"? Doesn't that resolve any confusion?

Although telling a suspect that can leave may prevent him from being detained, it doesn't always work - depending upon what else the police do. Like the handcuffs that stay on and the door that remained locked, the judges found that how the police handled Mr Lafrance would have made a reasonable person feel detained, even though police told him he could go:

The majority of the judges held that even if (the reckless) Mr Lafrance himself was not cowed by the nighttime invasion of his house by armed officers, a "reasonable" 19-year-old indigenous man who experienced what these officers did to him would feel detained, even after they told him he was free to go.

And therefore, the police should have told him about his right to counsel.

Wow.

As the dissenting judges pointed out (para 121), this imposes a challenging burden on police officers. After you tell a suspect "you're free to go", and the suspect responds in a way that makes you think that the suspect understands this freedom, the judge may still conclude that because of his or her race, age or vulnerabilities, a "reasonable" person in the position of your suspect would feel like they are still detained.

In order to persuade the judge that you delivered the message, you may need to repeat information to the suspect, and organize your interactions in a way that gives the suspect a real opportunity to leave.

How far do you go? Doing too much may insult the intelligence of a suspect who understood you the first time you said "you're free to go". Mr Lafrance was reasonably intelligent. If an officer had gone too far to explain and demonstrate his liberty to him, I can imagine Mr Lafrance saying "What's the matter? Don't you want to hear what I have to say?"

You don't want anyone in the public to think that cops don't want information about the crime they are investigating. Least of all the culprit.

Therefore, you need to form strategies by which you can navigate this minefield.

What might work to create such clarity that the judge will find that a reasonable person would understand that they are free to go? Maybe:

2022.07.26 Reasonable Opportunity to Get Legal Advice - Second-Guessing the One Opportunity

Three weeks after they searched his house, police arrested Lafrance, 2022 SCC 32 for murdering his drug dealer.

When offered an opportunity to get legal advice, Mr Lafrance accepted it. He spoke with "a free lawyer" Legal Aid. He had never spoken with a lawyer before. He told an officer that he had spoken to a lawyer, and that he understood the lawyer's advice.

The interviewing officer started gently, but after several hours, confronted Mr Lafrance with his belief that Mr Lafrance killed the drug dealer.

What Mr Lafrance said next triggered another debate. Should the officer have given him further access to counsel?

Q. Alright so what happens Nigel?
A. Well –.
Q. What – what went on?
A. Well I would – ah I want to talk to my dad before I continue.
Q. Ok wh – why do you say that?
A. Cause well he’s – well he’s my only chance of getting a lawyer and I just – I don’t know.

Mr Lafrance explained further:

A. Well no they told me – they told me to get a lawyer before I continue talking.
Q. Ok what do you mean by told you to get a lawyer?
A. Like someone that can come down and sit with me.
Q. Ok.
A. Instead of just over the phone.
Q. There’s a person that ah you know what – and the way that that kinda goes ah – I won’t say it’s, it’s bad advice but it’s maybe miss – a little bit miss as – miss ah – interrupted. Um there’s not any time or any process during our interview –.
A. Um?
Q. Where we’re gonna have a lawyer sitting in the room with us.
A. No, no I – I mean, no mean like so –.
Q. Ok.
A. Like for me to sit down with them personally.
Q. Ok.
A. To talk to. [Emphasis added.]

Just as they disagreed about the detention issue, the judges disagreed whether this triggered an obligation on the police officer to stop and give Mr Lafrance a further opportunity to get legal advice. A bare majority of the judges found that it did.

Why?

Because it suggested that Mr Lafrance didn't understand his right to get legal advice. It suggested that the lawyer told him that he could get another lawyer to come to the police station and give him legal advice in person.

The dissenting judges felt that Mr Lafrance later indicated a full understanding of his right to silence. Therefore, whether he was confused or not about how many lawyers he could consult with, he knew his rights in the interview.

The majority rules. If, after getting legal advice, your prisoner raises the concern that s/he expects to speak further with counsel before proceeding, stop investigating the offence, and work out whether the your prisoner finished obtained legal advice about the matter for which s/he is arrested or detained.

Your prisoner isn't entitled to get advice from non-lawyers, but is entitled to get help from non-lawyers to contact a lawyer.

Therefore, when your prisoner says "I want to call my dad/mom/brother/cousin/employer/friend/partner", you may want to inquire why.

When the prisoner calls a non-lawyer to locate a lawyer, you can participate. Why? Because it's not privileged. You may want to make sure that the prisoner really is trying to get a lawyer, or to ensure that the prisoner isn't asking a friend to destroy evidence or threaten a witness.


2022.07.26 Refusal

 without Legal Advice - Principles in Conflict

What obligations affect a driver and a police officer after the officer makes a breath demand? Should the driver blow? Should the driver talk to a lawyer first? What do you do with a driver who refuses?

Detention

All of the sobriety-testing demands trigger "detentions" within the meaning of s.9 and s.10(a) of the Charter. In order to avoid "arbitrary" detentions, you must have sufficent grounds (ie reasons) to make them. In order to satisfy s.10(a), you must explain the purpose of the detention to the driver. (Generally, reading the demand explains what's going on.)

Right to Counsel

Analysis demands (breathalyzer, blood, urine, DRE) trigger the right to get legal advice before giving the sample. (Prosper, [1994] 3 SCR 236) But screening demands (SFTS, ASD) do not. (Woods, 2005 SCC 42).

Arrest

Should you arrest a drunk driver? Section 495(2) of the Criminal Code prohibits you from arresting people for hybrid offences if you don't need to. If the only reason you're thinking of arresting the suspect is to get the suspect to come with you to the police station for a breath analysis or DRE, think again. The demand already imposes that obligation. See s.328.28(1)(b)

If you do arrest a drunk driver, section 498 obliges you to release him or her as soon as practicable once you know who they are, have collected all the evidence, and addressed concerns about further offences. Judges call it "arbitrary detention" when you hanging on to a prisoner without justification. This violates s.9 of the Charter

Refusal of a Breath Analysis Demand

What should you do when a driver refuses a breath demand?

Mr Gordon, 2022 BCCA 260 drove while drunk. Civilians complained. Police stopped him. An officer arrested him for drunk driving, and told him he could get legal advice. He responded that he wanted legal advice.

The officer then demanded that he provide breath samples down at the police station.

He told the officer that she was "way out of line". Unequivocally, he explained that he wouldn't provide breath samples because he wasn't drunk.

She arrested him for refusal too, and told him again of his right to get legal advice. Again, he said he wanted to talk to a lawyer.

Instead of arranging for legal advice, or taking him to the police station to blow into the breath testing instrument, she released him on process to attend court.

Afterwards, Mr Gordon complained that she interfered with his right to retain and instruct counsel:

Instead, she elicited evidence that could be used against him - his refusal to provide a breath sample.

Without discussing s.498 of the Criminal Code or s.9 of the Charter, the court agreed with Mr Gordon. The judges held that the officer "interfered" with Mr Gordon's right to get legal advice.

I disagree with the court's analysis. By freeing Mr Gordon, the officer gave Mr Gordon every freedom including the ability to get legal advice if he really wanted it.

However, I agree with the court's conclusion that the officer should have done something different.

A long time ago, that court explained what to do with asuspect who refuses an analysis demand but wants to talk to a lawyer.  Until the suspect gets legal advice, the officer should treat the refusal as "conditional". It isn't over yet. After the driver gets legal advice, if he still fails or refuses to comply with the demand, then the refusal becomes unconditional. R. v. Sullivan, 1991 CanLII 656.

Although some courts disagree with the BC approach (eg McKeen, 2001 NSCA 14), I think it's fair. I think this principle  would have helped the officer who dealt with Mr Gordon:

  1. The officer wanted evidence of Mr Gordon's intoxication.
  2. The demand compelled Mr Gordon to provide it.
  3. By refusing, Mr Gordon was making a bad decision
  4. The act of refusing was a crime.
  5. A police officer's duties include dissuading people from committing crimes. Therefore a police officer should want to persuade people not to refuse a lawful demand.
  6. A lawyer's job includes advising their client not to commit a crime.
  7. Mr Gordon said he wanted legal advice.
  8. Independent legal advice would likely have persuaded Mr Gordon to blow. (He seemed to believe that he was sober.)
  9. Therefore, keeping him in custody while he got legal advice might prevent him from committing the crime of refusal.

I think that section 498 did not compel the officer to release Mr Gordon at the scene:

  1. If the refusal was "conditional", then the officer was witnessing an ongoing offence of refusal to provide a breath sample. Further detention was necessary to put a stop to that criminal conduct.
  2. One of the justifications for ongoing detention is to obtain evidence. There was evidence to obtain.
  3. If a lawyer would persuade Mr Gordon to provide breath samples, then ongoing detention was necessary in order to obtain evidence of Mr Gordon's impaired driving.

Because of this difference between BC and Nova Scotia, this analysis works in BC, but might not work in Nova Scotia.

Refusal of a Breath Screening Demand

But what if Mr Gordon refused a screening demand?

There's no legal right to advice after a screening demand. The Sullivan analysis does not apply. An unconditional refusal terminates that part of the investigation.Even if the driver wants to talk to a lawyer (See Woods)

What's the fair thing to do at roadside with a driver who unequivocally refuses to blow into a screening device, but wants to talk to a lawyer?

Here's my suggestion:

If s.495(2) prevents you from arresting him, or if s.498 compels you to release him, then I suggest that you obey your legal obligation first - release the driver and serve process. But before s/he goes, try to help them get legal advice. After they get legal advice, the driver may want to comply. If so:

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.

Those questions cause trouble. They suggest that the driver has a choice of complying or refusing.

Don't suggest to a suspect that they commit a crime.

If you found a group of mischievous teens hanging around at 4:00am, you wouldn't ask them "hey kids, are you going to throw a rock through that store window, or are you going to go home?" If they weren't thinking of smashing the window before, they will now.  Why do the same thing with an inebriated driver?

Act as though they're going to comply, even if they mumble disagreement. Promptly present the instrument or do the field sobriety tests. Or bring the driver quickly to the instrument or the DRE.

2022.07.26 R. v. Lafrance, 2022 SCC 32 - Time to Start Second-Guessing Yourself

Last week, the Supreme Court of Canada delivered a split decision which will cause you trouble for at least a decade.

The majority of 5 judges determined that even if you repeatedly tell someone that he is not detained, he may still be detained for the purposes of s.9 or s.10 of the Charter.

They also found that even after an arrested suspect exercises his right to counsel, you may have to give him further access to legal advice if he hints that he got bad legal advice or that he expected to get further access to counsel.

The decision contains much to consider. I haven't finished analyzing it. I will write more soon.

This decision matters to all police officer who interact with suspects. Members of interview teams will need to read it carefully.

2022.07.02 When is the Case Over?

In 2010, a court found that Mr Bailey, 2022 ONCA 507 did, indeed rob and assault his victim, causing bodily harm. His lawyer asked the judge to find him "not criminally responsible by reason of mental disorder". The judge (and prosecution) agreed.

For the next decade he stayed in hospitals and supervised placements in the community.

And after a decade, he applied to appeal his conviction.

The court let him.  If there's a retrial, it's going to be a difficult one to run.

When you're clearing out your exhibit locker after a big case, it might be worth taking a few photographs of the exhibits before you throw them out or return them. Especially if the defendant was found guilty.

2022.07.02 Interviewing Vulnerable Suspects - Voluntariness

Mr Hosack, 2022 BCCA 226 suffered from mental illness when he killed Mr Falardeau. Mr Hosack continued to suffer mental illness when police interviewed him about the homicide.

He asserted his right to silence. Police kept interviewing him. He denied killing Falardeau. Police kept interviewing him.

For 12 hours.

Many hours into the interview, Mr Hosack adopted a weird "grandfather persona". This persona admitted ordering the killing.

The trial judge admitted Mr Hosack's statement into evidence. It, and other evidence led the trial judge find him guilty of murder.

On appeal, Mr Hosack's lawyers argued:

These arguments all failed.

The cognitive abilities sufficient to give a voluntary statement are modest. The evidence need only show that the suspect knew he was speaking with police, that what he says could be used in evidence, and that he exercised his on choice in deciding whether to speak. You may find some value in reviewing the trial judge's review of the interview.

These officers video-recorded their interactions with Mr Hosack. The recordings show that they treated Mr Hosack gently and kindly. His responses to them through showed that he understood what was going on.

The officers did overstate the strength of the evidence they had gathered. That can lead to difficulties if your lies force the suspect into confessing. That didn't happen in this case.

The officers did, however, "gate" him. He was about to be released from jail after serving a sentence on an unrelated matter. Police arrested him for the murder. Defence argued that doing so would dash Mr Hosack's hopes of liberty; this would serve as a psychological hammer to break him down.

The optics of gating suspect are ugly. Avoid proceeding in this manner if you can.

If he was insane, how could he be convicted of murder?

Sanity isn't binary. People who hold delusional beliefs on one topic can simultaneously think rationally on other topics. For example, you likely know people who hold delusional beliefs about COVID, politics or the flatness of the earth. The evidence did not show that mental illness rendered him unaware of the legal and moral wrongness of the killing.

The best-trained officers in interviewing did this interview.  General duty officers don't usually have that much training. These officers took 12 hours to interview Mr Hosack. General duty officers rarely get an hour to talk to the suspect.

Even still, I suggest that general duty officers read the trial judge's review for ideas on how to conduct their own interviews.  Even if you spend only half an hour explaining what you know about the case, you may collect crucial evidence.  Even if you don't get a confession, the defendant may admit background facts which will provide important at trial.


2022.06.26 "Can I have my cell phone" - Right to Counsel

In a routine impaired driving investigation, an officer arrested Ms Cyr-Desbois, 2021 QCCA 305, and took her to the police station.

When told she could call any lawyer she wanted, Ms Cyr-Desbois told the officer that she wanted her cell phone so that she could call her dad, and ask him for name and contact information of the lawyer that her family trusted.

The officer refused to let her have her phone, and did not let her call her father;  but she got to speak with duty counsel.

At trial and appeal, the judges agreed with her complaint: access to duty counsel wasn't good enough. She knew of a lawyer she would trust. Police should have tried to help her reach that lawyer.

In this case, that should have involved calling her dad, or letting her access her cell phone

2022.06.23 Cops Need to Prove Identity

People can make mistakes about identification of strangers. For that reason, judges view with some suspicion the word of an eyewitness "that man over there is the man I saw 2 years ago when the crime occurred."

What evidence should you gather so that you can prove that the person who turns up in court year(s) later is the person you caught committing a crime?

An undercover officer purchased drugs three times, and arranged to purchase them a fourth time. Police arrested Mr Baksh, 2022 ONCA 481 on the fourth occasion.

At trial, the undercover officer claimed to recognize Mr Baksh as the guy he dealt with on the previous three occasions.

Defence argued that the officer's brief interactions, so long ago, raised a risk that the officer might be wrong about who he dealt with.

If in-court recognition were the only evidence of identification, the judge would have acquitted.

But the officer's cell phone communicated with the same cell phone each time. The person he communicated with each time continued a conversation that started with the first call. Other officers tracked a car that the dealer used to the defendant's mother's house.

For police officers, taking photos of the suspect (and looking at them before you testify) really helps you explain how you recognize the person in the court room. If you can't get photographs, then consider what other evidence you can gather that answers the question "how will we prove that the person who comes to court a year from now is the same person we investigated today?"

2022.06.05 Bilingual Justice System - First and Second Choices

In Canada, people facing criminal charges have a right to a trial in either French or English ... or both. But they don't have a right to play games with the justice system over this right.

In British Columbia, the idea of a bilingual nation can seem theoretical. Of uniliingual people here, the vast majority speak Asian languages. Bilingualism in French and English is fairly rare.

But French remains the other official language of Canada. In an Anglophone province, this should affect your practice when arresting and releasing bilingual Francophones for court.

A junior cop arrested Mr Tayo Tompouba, 2022 BCCA 177 for a sexual assault. In English, she told him about his right to counsel.

He could speak Engish and French.

So could her supervisor.

But everyone spoke English, because that's convenient in B.C..

After getting legal advice (in English), Mr Tato Tompouba confessed to the police officer that he did sexual acts to the complainant while she slept.

An officer released Mr Tayo Tompouba on a Promise to Appear, which he signed.

He went to court, as he had promised.

The justice addressed him only in English.

Section 530 of the Criminal Code required the justice of the peace to tell him that he could have a trial in French if he wanted.

But she forgot.

He had an English trial.

After his conviction, Mr Tayo Tompouba wanted a do-over. In French, this time. (Maybe he thought he sounded more innocent in that language.) He appealed, complaining that the justice failed to tell him about his right to a French trial.

You might not find the Court of Appeal's analysis of language rights at trial interesting, but you should be heartened to learn that the investigators helped salvage the case.

They used a standard form for the Promise to Appear.  It contained a notice - in both official languages - informing Mr Tayo Tompouba that he could choose his language of trial.

At the appeal, the Crown argued: "Sure, the justice forgot to tell him about his choices. But the cop did. Mr Tayo Tompouba actually knew what choices he had. The minor error that the justice made means nothing."

Legally, this form didn't cure the mistake that the justice made. But it helped the court of appeal come to the conclusion that the justice system treated Mr Tayo Tompouba fairly. His conviction stuck.

This case reminds us all that in a justice system, every defendant needs to be able to communicate effectively. Get interpreters for folks who need them. But in Canada, French and English are special. Even if the defendant can communicate effectively in one language, s/he choose to use the other.

This case makes us think about pre-printed forms. I don't them very much. Filling the blanks is so boring that many people ignore what the forms say. When you stop thinking about what the document actually says, you may use it for the wrong purpose, and things will go wrong.

But when well-drafted and used properly, forms can save the day.

Now that you know why Promises to Appear should refer to the choice of language of trial, you might want to check to see whether your office still uses bilingual forms which mention the defendant's right to trial in either official language.


2022.06.05 Note-Takers - First and Second Choices

When the recruit arrested Mr Tayo Tompouba, 2022 BCCA 177, she told him about his right to counsel and wrote some notes about it in her notebook. Her supervisor watched, but didn't write the prisoner's answers in his notebook.

The recruit died before trial.

As noted above, the prisoner made a damning confession. But the Crown could not use it at trial unless it could prove that the police told the prisoner about his right to counsel.

So they asked the supervisor to explain what happened.

Not easy if you don't have notes. He didn't remember.

The prosecutors relied on the recruit's notebook and some clever legal arguments. They managed to satisfy the trial judge and the court of appeal. Complicated legal arguments don't always work. Evidence usually works better.

Whether you are supervising, or just providing back-up to another officer, if you watch significant events in the investigation, take some notes.


2022.05.29 Charges Aren't Convictions - Warrant Drafting

I often cross-examine defendants about their criminal records. I am allowed to ask them whether they were "convicted" of the offences on their record. They often agree that they were "charged".

But in a court room, there is a big difference between "charged" and "convicted". "Charged" happens when a peace officer swears that there are reasonable grounds to believe that someone committed a crime. "Convicted" happens when the suspect pleads guilty, or when the judge, having heard sworn testimony concludes beyond a reasonable doubt that the suspect did the crime.

Many criminals don't know the difference. But judges care about the difference. Judges (and prosecutors) do a great deal of work moving from "charged" to "convicted". When you equate the two, you treat the judges' work as if it doesn't matter.

Pissing off the judge does not help the case.

Mr Abdoulkader, 2022 ONCA 354 attempted two bank robberies, and at one, he got away with lots of cash.

This wasn't new. He previously faced charges of attempted robbery and robbery. Of banks.

When investigation of the latest ones led police to Mr Abdoulkader, they applied for warrants for his house and cell phone.

In the ITO, the officer who applied told the justice that Mr Abdoulkader had previously been convicted for similar robberies.

Well, he had been convicted for a similar attempted robbery. But only once.

A justice granted the warrants. Executing the warrants recovered $222,000, and useful evidence.

Mr Abdoulkader was charged. At trial, his lawyer complained that the ITO contained false information. The judges agreed.

But there was so much other evidence justifying the issuance of the warrant that the judges dismissed his complaint. Mr Abdoulkader was convicted, and he lost his appeal.

For the last 20 years, I've seen cases discussing this error more times than I can count. It seems that police officers keep making the same mistake. Next time you draft an ITO, try to avoid annoying the judges:


2022.05.17 The Intoxication Defence - A Duty to Warn

?

A crime occurs when someone intentionally does something prohibited by law.

After a guy drinks so much that he does not know what he is doing, can it really be said that he "intentionally" did anything? Can extreme intoxication excuse every evil act?

In May, 1989, Mr Daviault [1994] 3 SCR 63 got real drunk and sexually assaulted a friend of his wife. In his defence, an expert testified that his intoxication deprived him of any understanding of what he was doing. He couldn't have acted intentionally.

The trial judge convicted him. The Supreme Court of Canada liked the argument and ordered a new trial.

Today, the science suggests that alcohol can not create an ability to act without knowing what you're doing. But drugs can.

The idea that a guy beat the charges by saying "I was too drunk at the time to know what I was doing" annoyed a lot of people. Parliament responded by enacting s.33.1 of the Criminal Code which eliminated voluntary intoxication as a defence to a crime of violence.

Mr Brown, 2022 SCC 18 got high on a combination of alcohol and magic mushrooms. In a psychotic state, he attacked a stranger, causing terrible injuries. His lawyer complained that s.33.1 offended his Charter rights by allowing him to be convicted of a crime when he never intended to do the harmful prohibited thing (assault).

The judges agreed: he didn't know - at the time that he got high - that he would hurt anyone; and when he did hurt someone, he was too intoxicated to intend to do anything wrong.  Therefore, he didn't intentionally do any prohibited act that hurt anyone. Therefore, it would be wrong to say that he committed an assault.

Mr Sullivan and Mr Chan, 2022 SCC 19 made similar successful arguments. Mr Chan also mixed alcohol and magic mushrooms, which may have aggravated a pre-existing brain injury. After several irrational acts, he stabbed and killed his dad. When Mr Sullivan overdosed on a prescription medication, he attacked his mom with a knife, but didn't kill her.

Note that this analysis only applies to extreme intoxication, where the defendant is a walking automaton. If the offender still has some general idea of what he is doing, then he may be held liable for most offences of violence.

What Parliament Can Do

The judges recognized that Canadians want to hold the extremely intoxicated people accountable for the harm they do. The judges suggested two ways to do it:

  1. Create a stand-alone offence of intoxicating oneself excessively; or
  2. Create a criminal negligence offence of intoxicating oneself when one knows that doing so creates a dangerous risk of criminal behaviour that one cannot control, and then committing a criminal offence.

If Parliament creates only the second type of offence, the next "Mr Brown" would escape liability. Mr Brown testified that he had tried magic mushrooms before. According to him, they gave a "fuzzy but positive feeling". But no homicidal madness. Because he had no reason to expect to behave so badly after consuming 'shrooms, he was not criminally negligent when he consumed them.

Even if Parliament creates both types of offences, some evildoers will escape liability by surprising the Crown with this defence.

Suppose, for example, that excellent security video records a killing. The investigation locates no evidence of intoxication. The only charge that the evidence supports would be murder.  Suppose, at trial, the defendant testifies that he bought and used magic mushrooms shorty before the killing, which put him into a psychotic state. If believed, this evidence now provides a complete defence to the murder charge. And the killer would escape conviction for the other offences because they were not charged.

Therefore, Parliamentarians would be wise to add a section that defines these offences as "included" offences for offences that include violence, property damage, or risk to life.

Parliament might also do well to include a presumption that everyone knows that illegal drugs inspire dangerous behaviour.

The combination of mental disorder and intoxicants complicates the analysis some more. As does the thorny problem of addiction. The analysts in Ottawa have some work to do.

What police can do

If you investigate a case of highly intoxicated violence, you might want to investigate the defendant's past incidents of intoxication.  Did he know what would happen if he used? If it looks like he might beat the violence charges on the basis of extreme intoxication, can the Crown prove that he was criminally negligent?

Users of intoxicants need to know how dangerous they become when they use. If they know, and still use, then they're criminally negligent.

Therefore, if Johnny goes crazy on drugs, then when he regains sobriety, you should:

  1. tell him clearly what did,
  2. try to find out what he was using, and
  3. document what you learned and what you told him.

If he uses the same drug again, he may be held criminally negligent for the harm he causes. But only because the prosecutor can prove that Johnny knew how dangerous he would become when he used.


2022.05.17 What Digital Logs can Tell You (If you Look)

What did Mr Grandine, 2022 ONCA 368 know about the effects of lorazepam, and when did he know it?

The answers to these questions helped answer a bigger question: was he criminally responsible for his wife's overdose?

During their relationship, his wife did not like his habit of viewing pornography online. As part of ongoing counselling, they installed software on a shared computer which filtered his access to porn and reported to her account what his account had been doing.

His wife did not like his infidelity either. He promised to end his affair with Ms Florentino, a woman from the church.

Searches of his electronic devices suggest that he broke both promises.

Mr Grandine told police that on the night that she died, he left the house around 9:45pm, for a run. He returned an hour later.

But:

He then called 911 to report that his wife drowned in the bathtub.

Her body contained too much lorazepam.

Did she commit suicide by taking lorazepam?

Someone in her house took great interest in lorazepam. Searches done on their shared computer showed queries on where to buy lorazepam without a prescription, how much would be a fatal dose, and whether it or other drugs would be detected in an autopsy.

In the days before she died:

The searches for sex-related websites occurred within minutes of searches relating to Lorazepam. From this pattern of usage, one can reasonably infer who took such an interest in lorazepam.

But there's more. When emergency personnel arrived after the 911 call, they found Ms Grandine still in the tub. Mr Grandine had not even pulled out the plug to drain the water. Are your suspicions aroused? Yeah, mine too.

The Court of Appeal decision addresses no points of law relevant to police work.

But it does illustrate what you can learn from electronic devices if you search broadly, and how much more you can learn when you create a time line which shows that data in relation to the other evidence.

Doubtless, the investigators needed a search warrant to authorize such broad searching. I don't know how the investigators justified the broad searches that they did.

Recall that an application for a search warrant must explain what relevant evidence the applicant expects will be found in the device to be searched. When a justice grants the search, the searcher must focus the analysis on the data identified in the warrant.

You won't find that data if you don't look for it. You can't look for it in private devices without judicial pre-authorization. You won't get broad judicial pre-authorization unless you consider carefully what you know, and articulate what inferences you can draw from what you know.


2022.05.01 Police Conduct when Providing Access to Counsel

The Supreme Court of Canada delivered a decision on Friday that matters to investigators of every type of crime. If you might detain or arrest anyone in the next 15 years, you ought to read R. v. Dussault, 2022 SCC 16.

Police officers arrested Mr Dussault for murder and arson. He told them he wanted legal advice. He picked a lawyer at random. That lawyer spoke to him for 9 minutes. The lawyer asked to speak to an investigator, and did. The lawyer asked that police to suspend the investigation, so that he could come to the police station to talk further with Mr Dussault.

The officer told him "no problem".

The lawyer told Mr Dussault that he would come to the police station to continue the conversation.

The investigators reconsidered whether Mr Dussault was entitled to further legal advice. Relying on R. v. Sinclair, 2010 SCC 35, they figured that Mr Dussault already got his legal advice, and wasn't entitled to more. They pressed on with their investigation, and told the lawyer not to come to the police station because Mr Dussault didn't want to meet him.

When the lawyer came to the police station, the police officers did not permit him to talk to Mr Dussault. Mr Dussault left an angry letter, explaining that he didn't think his client understood the legal advice he gave.

When Mr Dussault asked whether his lawyer arrived, an investigator asked him who had asked the lawyer to come. Mr Dussault said it was the lawyer's idea. The investigator told Mr Dussault that the lawyer was not in the police station.

A different officer asked Mr Dussault questions. Mr Dussault expressed concern that his lawyer didn't arrive. He then made incriminating remarks.

At trial and on appeals, Mr Dussault complained that the police officers breached his right to get legal advice, and the incriminating remarks should be excluded from evidence.

The trial judge figured that Mr Dussault got sufficient legal advice in the first conversation, or at least that the police could reasonably presume under the circumstances that he did. Canadian law does not grant suspects the right to have a lawyer present during police questioning (see Sinclair).  Therefore, the police did not breach his rights.

The Court of Appeal figured that Mr Dussault did not receive a reasonable opportunity to get legal advice, and the police knew it because of the lawyer's angry note. Those judges felt that the police deliberately attempted to prevent Mr Dussault from getting complete advice.

The judges of the Supreme Court of Canada all agreed with Moldaver J. - a particularly well-respected judge on criminal law.

He ducked the question whether Mr Dussault got a sufficient opportunity to get legal advice. Instead, he looked at what the police knew about Mr Dussault's experience of getting legal advice. The officers knew:

  1. Mr Dussault spoke to a lawyer;
  2. The lawyer said he would come to the police station to talk with Mr Dussault, and did come.
  3. At the beginning of the interview, Mr Dussault expected to see his lawyer.
  4. But police told Mr Dussault that the lawyer wasn't there.

This sequence of events would give Mr Dussault the impression that the lawyer let him down. Why should he rely on the advice of an untrustworthy lawyer?

Moldaver J. concluded that the police were obliged to allow Mr Dussault a further opportunity to get legal advice because of the impact that police behaviour had on his trust in the legal advice he received.

You might ask yourself why Waldock thinks this case matters. "I'm not on the homicide squad. I'm not going to investigate the kind of cases in which lawyers rush down to the police station to speak with their clients.".

Judges Care about Prisoners Getting Legal Advice

All of the judges concentrated hard on what police officers did to provide the prisoner with access to counsel.

I write about s.10(b) of the Charter often because it comes up so often.

Whether you arrest murders or drunk drivers, you can expect defence counsel and judges will scrutinize your actions after the arrest.

  1. Did you inform the prisoner promptly about the right to get legal advice? (Did you make notes?)
  2. Did you hold off asking questions about the crime before the prisoner got the access they wanted?
  3. Did you make reasonable efforts to accommodate their desire to identify an appropriate lawyer and contact them?
  4. Did you act promptly, or make the prisoner wait unnecessarily?
  5. When the prisoner contacted counsel, did the prisoner get a reasonable opportunity to get advice?
  6. Did you say or do anything which might undermine the advice that the prisoner got?

Knowing that you will face such scrutiny, do you keep adequate notes and records?

How can police determine when a prisoner received a "reasonable opportunity to get legal advice"?

The trial judge and the Court of Appeal wrestled with this question.Justice Moldaver ducked it. I think he declined to answer that question because it's so important, and because he wanted to highlight his main point.

Despite the absence of an answer, we can draw some useful experience from this case:

A single phone call may or may not suffice. Because legal advice is privileged, you must not ask what the lawyer discussed with the prisoner. But you do want to know whether the prisoner got the legal advice he was seeking, or whether he is expecting or needing more.

Undermining Legal Advice

Justice Moldaver focussed on this topic.

Many years passed since the Supreme Court of Canada last directly discussed what a police officer can say about the defence lawyer. In R. v. Burlingham, [1995] 2 SCR 206, the judges didn't like how the police officer explicitly characterized defence counsel as greedy and uninterested in the defendant's best interests.

In this case, even though the police officers said nothing derogatory about the lawyer, their actions had the effect of making him look bad.

This nuanced approach gives defence counsel broader scope to challenge your words and conduct in the future.

How will you respond

From 1995, we know that you must not denigrate defence lawyers.

Notice that the problem arose in this case partly because of the combined remarks of more than one police officer. When one officer hands a prisoner over to another officer, they should communicate about the progress of the prisoner's access to counsel. Beware of making assumptions about what previous lawyers told the prisoner.

Notice that Mr Dussault even alerted the intervewing officer to a potential problem. It may be wise, when you receive a prisoner, to ask him or her about the progress of access to counsel, and to double-check concerns that the prisoner raises.

Seeking Legal advice is Good

What's good for the goose is good for the gander.

Judges like it when people seek legal advice.

If you read the case, you will find that one of the officers sought legal advice before denying Mr Dussault an second interview with counsel. Although that didn't impress the Quebec Court of Appeal, I think it did impress Justice Moldaver. Seeking legal advice when you're not sure is a good idea.



2022.04.27 Home Invasion without Imprisonment - Residential Searches Tend to Trigger Detentions

Suppose 8 men with guns invaded your home at 6 in the morning. Suppose that they told you to go to the living room. Would you feel "detained"?

That's what happened to Mr Scopel-Cessel, 2022 ONCA 316.

Eight police officers turned up at his place, with a warrant to search for child pornography. They wanted to know who was responsible for the file-sharing program running the at the shared IP address at his residence.

The lead investigator told him and his wife that they were free to go, but asked them to go to the living room while the officer searched.  The lead investigator told them that they had no obligation to answer questions or assist; but he asked them questions which they answered, and he persuaded Mr Scopel-Cessel to use his password to log into his computer, so that the searchers could locate evidence.

Mr Scopel-Cessel asked for permission to make coffee for himself and his wife.

The officer never told him of his right to contact a lawyer until the officers found the file-sharing program running on the computer he had logged into. At that point they formally arrested him.

If you read the decision (it's mercifully short), you can see that the investigating officer tried hard to avoid the detention trigger.

The trial judge found that no detention occurred before that arrest. The appeal court disagreed.

Controlling the scene usually involves controlling the people in it. Asking questions about their involvement in the offence tends to focus your interaction on their involvement in a crime. And that may defeat all the comforting words you say that they are free to go.

This case is worth discussing before you execute your next residential search warrant. With the benefit of hindsight, how would you have handled this interaction with the prime suspect and his wife? If you try to assure them that they are not detained, and free to go, perhaps you might also suggest that they can use their freedom to call a lawyer, if they want.


2022.04.24 Incommunicado between Arrest and Search - A Danger Zone

I found a decision which advanced and junior officers might find useful.

Confidential informants told police that Mr Ghousy trafficked firearms. Surveillance established a network of people with whom he associated. Police watched what looked like a firearms transaction. A couple of days later, they saw another transaction between Mr Ghousy and Mr Keshavarz, 2022 ONCA 312. Police officers arrested them both. They found two handguns in Mr Ghousy's car, and cash in Mr Keshavarz's pocket and drugs in his car.

The officers sought applied for search warrants for 3 residences associated to the two men. The officers suspended their access to counsel until after they got and executed their warrants.

At trial, both men complained that the police investigation breached their rights.

Mr Ghousy enjoyed more success than he deserved. The trial judge figured that the officers lacked sufficient grounds to search his car, and excluded all the evidence as against him. (The Court of Appeal felt that there were ample grounds.)

The trial judge convicted Mr Keshavarz of trafficking the two guns that were found in Mr Ghousy's car.

Mr Keshavarz appealed. He complained that the judge should have excluded even that evidence because the police violated his right to counsel: He didn't get to talk to a lawyer for over 7 hours after arrest!

The Crown agreed that the police breached Mr Keshavarz' right to counsel, but disagreed about the 7 hours. The police allowed Mr Keshavarz to make calls about an hour after the searching was done.

The Court of Appeal agreed with the Crown. Must of the delay was justified.

There are times police can suspend a prisoner's access to counsel. This was one of them.

  1. Mr Ghousy worked with others trafficking firearms. If his confederates learned of his arrest, they might well hide the rest of his firearms.
  2. Those firearms endangered the public.
  3. Police could not enter the residences and seize those firearms until they got a warrant.

An officer wisely testified that he had no concern that the lawyers would help hide the evidence; but in his experience, "things as simple as counsel contacting potential sureties or family members could 'inadvertently cause [the] loss of evidence'".

The court particularly liked how the police did not suspend access to counsel as a matter of routine, but because the specific events in this case required it.  Senior police officers should review the discussion at paragraphs 71-81 to get a sense of what justifies the suspension of access to counsel.

Although the court upheld the conviction, they still found that there was a breach of s.10(b).

If you suspend a prisoner's access to counsel, you must grant access to counsel immediately after the reasons for it subside.  In this case, the moment of safety came when the last house was searched. At that point they should have contacted the cell block, and permitted Mr Keshavarz to get legal advice. Instead, they packed up and drove back to the police station.

Junior officers should not often suspend a prisoner's access to counsel. This decision teaches them that judges care about s.10(b). They want to see that you try earnestly to give your prisoner access to legal advice promptly after arrest or detention.


2022.04.13 Police Officer's Duties and Decorum in Public

Mr Hall 2022 ONCA 288 worked as a security guard at a car factory. On his watch, a fire broke out in an electrical cabinet. In the recent past, that factory had suffered copper thefts. The electrical cabinet contained copper. If someone had attempted to remove that copper, it would have caused an "arc flash" explosion which could have started the fire. Coincidentally, after the fire, Mr Hall had physical symptoms consistent with suffering the effects of such an explosion.

Maybe he started the fire by trying to steal copper.

A police officer arrested him for the theft.

The security company fired Mr Hall.

Charges proceeded to trial. The trial judge acquitted Mr Hall, on the basis that the evidence didn't quite prove his guilt.

Then Mr Hall sued the police for malicious prosecution. He complained:

The trial judge agreed with Mr Hall's complaints, and ordered the police service to pay $686,216.92. The Court of Appeal upheld the verdict.

Ouch.

Regardless whether you agree with the conclusions in this case, it identifies vulnerabilities for busy or enthusiastic cops.

Arrest

All too often, the complaint identifies a crime and a criminal. An objective investigator should not arrest because a citizen demands it, but because the evidence justifies it. Often, the complaint supplies sufficient grounds. But you need to think before you act. The first investigative theory ain't necessarily the best theory. Unless there's urgency - where delay would imperil life or evidence - investigate the available leads before arresting the suspect.

Don't arrest if you don't think the suspect committed a crime.

Obvious? Yes.

Worth repeating? Yes.

Sometimes a junior officer who knows more about the case feels obliged to obey a senior officer who knows less about the case. Rookies: if a senior officer tells you to arrest someone and you don't think the evidence justifies it, ask why. You don't want to cost your police force half a million dollars. Senior cops: listen to the rookie's concern, and if you disagree, explain your thinking

Am I counselling insubordination? Must the rookie refuse an order? No.

If an investigating officer believes the suspect is probably guilty and has reasonable grounds for this belief, that officer can direct another officer to make the arrest. The arresting officer may rely on the investigating officer's work. (Please add the investigating officer to the witness list.) R. v. Hall, 2006 SKCA 19 (Same last name, but an unrelated case.)

Objectivity

The high-five in the court house demonstrated the police officer's allegiance to the company. The judge didn't like it.

Should you stand aloof from the victims in every criminal case?

No.

A good cop seeks justice. A cop who cares will support and encourage the victims of crime, and the witnesses who participate in the stressful business of trial.

I don't think that high-fives are inherently wrong. But they do risk tainting you with an appearance of bias.

Seeking justice also requires caring also about the perpetrators of crime, and ensuring that the process that leads to their conviction is fair, and looks fair.

As investigator, your job is not to secure a conviction, but to present the evidence fairly. Behave in a manner which inspires the trust of both sides of the dispute.

Next time you encounter the defendant, he may have information that he could tell you about a crime. If you prove yourself honest and trustworthy in your dealings with him, he may talk with you next time.

Or maybe he meets a different cop, and remembers how you behaved.

Your objectivity and compassion in one case can ripple far and wide.


2022.04.09 Clearing a Residence - Need for Reasonable Suspicion and Notes

Yesterday, the Supreme Court added some conditions on when you can clear a residence, and how you should document it.

Mr Stairs, 2022 SCC 11 drew attention to himself, which resulted in police discovering his drugs. Mr Stairs complained to judges that police overstepped their authority. The judges disagreed. I previously discussed his complaints to the Ontario Court of Appeal. He didn't like their conclusions, and complained to the Supreme Court of Canada.

The facts

While driving to his father's house, he beat on his passenger, a woman.

Another driver noticed this, and called 911.

Police attended the residence. They knocked and announced themselves.

Nobody answered.

Fearing for the woman's safety, they entered. They announced themselves as police, and asked all present to show themselves.

Nobody appeared.

Eventually, from the top of the basement stairs, an officer saw Mr Stairs moving around down in the basement. But he didn't come up stairs.  The woman did, with fresh injuries on her face. She denied that anything untoward had occurred. Mr Stairs hid. Officers descended to the basement, found Mr Stairs and arrested him.

And then, an officer walked through the basement, looking for people. That's when he found the drugs. At trial, the officer explained that he was clearing the residence - looking for other possible victims or other potential assailants.

The complaint

Mr Stairs complained that the officer had no business snooping through his home: the officers had already protected the victim and secured the suspect. There was nothing more for them to do in the basement. Mr Stairs proposed that police should only be permitted to clear a residence of people when they have reasonable grounds to believe that someone (police or public) will suffer imminent harm if they don't.

The Conclusion

The Supreme Court agreed with Mr Stairs that police can't snoop through a residence just because they made a lawful arrest inside it. They disagreed with him that officers need to justify their search on such strong grounds.

The judges agreed with the Crown that you can still search the vicinity of the arrest. If you find him in a bedroom, you can look for evidence related to the offence, or weapons, in the places to hand where he might have stowed them just before the arrest. But you can't search the rest of the house for those things.

Because of the enhanced privacy of a residence, you can't go digging through the rest of it looking for evidence.

The judges said that you can't even clear it of people unless you have have reason to suspect that there is a safety risk to the police, the accused, or the public which would be addressed by a search. And when you search, you must restrict your activity to a search for people. No digging for evidence.

But in this case, there were ample reasons for concern. Finding one battered woman does not eliminate the possibility that Mr Stairs hurt another woman. Indeed, it raises a distinct possibility that he did hurt someone else.

Therefore, Mr Stairs lost his appeal. And his drugs.

The Warning

Specialized officers such as tactical squads and dog handlers, beware! The judges strongly recommended that you take fulsome notes about searching residences: what you did, where you searched, how long, and what you searched for. In my experience, those specialized officers often think that because they found nothing of interest, they need not write about it. The judges disagree.

The Gap

The judges did not address what to do when you want to protect evidence in a residence until the execution of a search warrant. In the absence of an arrest, can you enter to clear the residence? I did discuss "freezing the scene" a bit, back in 2019. I don't think that the basics have changed for other contexts. Instinctively, you should think that you need reasons to intrude on private spaces. And then, instinctively, you should record those reasons, as well as how you carefully protected the privacy while performing your duties.


2022.04.09 Reporting the Results of a Computer Search - "5.2" Reports for Data

Head's up!

A trial judge in B.C. recently decided that the results of the non-consensual search of a computer are "things" that need reporting to a justice pursuant to s.489.1 of the Criminal Code, and renewal of detention orders pursuant to s.490

The court has not yet published the decision. Its citation will be: 2022 BCSC 344.

2022.03.09 Arrest for the Sole Purpose of Interviewing

Can a police officer lawfully arrest a suspect for the sole purpose of asking the suspect questions?

If the offence can be prosecuted summarily, I don't think so.

Unfortunately, the only two decisions I know of which address the question directly come from trial judges. I don't know of any answers from higher courts.

An Iqaluit police officer learned that Ms Akpalialuk, 2013 NUCJ 12 was bootlegging. He found her at the air cargo office, receiving lots of boxes of booze. He arrested her and seized the booze. He left her in custody for longer than he should have. He then interviewed her. Five times, she told the officer she didn't want to answer his questions. Finally, she confessed.

But in Nunavut, bootlegging is a summary conviction offence. Section 495(2) prohibits police officers from arresting suspects for summary conviction and hybrid offences unless the public interest requires an arrest. The trial judge found that none of the justifications for arrest set out in that section applied.

In particular, the judge found that you can not justify an arrest for the purpose of taking a statement, or for getting the suspect legal advice. Confession excluded.

But the rest of the evidence proved the defendant's guilt. Therefore, the Crown could not appeal this ruling.

The other decision I know of is R. v. Dieffenbaugh, 1990 CanLII 2282 (BC SC). An officer arrested Mr Diffenbach for assault and interviewed him. Assault can be prosecuted summarily, which means that s.495(2) applies. Again, the officer had no justification under s.495(2) permitting arrest. The trial judge found that the officer breached Mr Dieffenbaugh's right to be free from arbitrary arrest. The judge found that the officer acted in good faith, and Mr Dieffenbaugh would have given the statement anyway. The judge admitted the statement into evidence, and later, convicted Mr Dieffenbaugh.

Again, the Crown won, and therefore, had no opportunity to appeal the finding that the interview breached Mr Dieffenbaugh's rights. (Curiously, in the defendant's appeal, the court said that the accused's statements were ruled inadmissible. R. v. R.A.D, 1993 CanLII 6878 (BC CA) at para 13. I'm not sure what happened there.)

Section 495(2) does not apply to the offences which can only be prosecuted by indictment such as: robbery, aggravated assault, residential burglary, manslaughter, murder etc. Can you arrest a suspect for one of those offences, solely for the purposes of interviewing them? I don't know.

If you know of court decisions which tackle this question of arrest solely for interview, feel free to throw me an email.

Update:

A smart officer pointed out the case of R. v. Viszlai, 2012 BCCA 442. In that case the police arrested lawfully. They had concerns that he posed a risk of reoffence. The officer responsible for the investigation was out of town, and took many hours to get to the police station to interview the suspect. The court interpreted s.498(1.1), which requires police to release prisoners as soon as practicable - unless the "RICE" public interest factors apply. The judges held that after a lawful arrest, police may hold someone for the purposes of interviewing - as long as there is no unreasonable delay.

But the language in s.498(1.1) is exactly the same as the language in s.495(2). How can the same language say it is unlawful to arrest for the purposes of an interview and but also mean that it is lawful to hold an arrested person for the purposes of an interview?

The answer remains unclear.


2022.02.25 Night Search - s.488 of the Criminal Code - Absence makes the heart grow fonder

Section 488 of the Criminal Code prohibits you from executing a search warrant at night unless you satisfy the justice that there are "reasonable grounds" for executing it at night.

A little bit of history

When first enacted back in the 1890's, this made total sense.

Barging into people's residences at night when they're all sleeping can scare them. Sometimes people mistake a police search for a home invasion, and respond with force, which can be bad for police and suspects.

International events highlighted the wisdom of s.488. Night raids by government agents was a hallmark of totalitarian regimes - like the KGB during Stalin's reign of terror, or the Gestapo under Hitler. Nice Canadian police shouldn't raid at night unless it is necessary. Indeed, R. v. Sutherland, 2000 CanLII 17034 (ON CA), the court declared that only in "exceptional circumstances" should police execute search warrants at night.

The concept is great, but the wording of the section did not keep up with the times.

In times past, once an officer seized something, the officer could examine it without judicial authority.

Now, we have cell phones. In most situations, you need a search warrant to search a cell phone that you seized from a suspect or a scene.

Can you execute a search warrant for a cell phone after 9:00pm? Not according to s.488. What about a warrant to search a seized vehicle for guns? Not at night. You need special permission from a justice before you can put in the overtime on that search.

Of course, this is ridiculous. When you plug the cell phone into a data download device, you won't disturb or endanger any people sleeping inside a cell phone. When you start searching the seized vehicle in your secure bay, you won't rouse any people from their beds (but the bound and gagged hostage in the trunk might be pleased that she didn't have to wait until morning for you to release her).

Until Parliament fixes this section, you always need to ask justices for permission to execute at night any warrants you obtain under s487, 487.1 and 462.32 (proceeds of crime).

"Reasonable Grounds" or "Exceptional Circumstances"?

Notice the words I highlit above. The section says the justice needs "reasonable grounds" to grant a night search. The Ontario Court of Appeal said that the justice should grant it only in "exceptional circumstances". At law, those are different standards.

How big an emergency must there be to justify a night search? Last week, the BC Court of Appeal said it needs to be firmly justified, and almost-but-not-quite agreed with the Ontario Court of Appeal on the "exceptional circumstances" test.

It all started in September 2018, when Danny Solomon tried on a $4,000 gold necklace at a Kamloops jewellery store. He ran out of the store without paying for it. On December 5, 2018, images of a matching necklace appeared in advertisements on Facebook Marketplace and Kijiji under the name of his buddy Matthew Carstairs, 2022 BCCA 69.

An officer figured it was the stolen necklace. On December 10, the officer applied for a warrant to search the motel room where he stayed, and asked to be permitted to search by night.

The officer wisely remembered to explain why a night search made sense:

He got his warrant and executed it. He didn't find the necklace. He did find drugs, cash, a stolen drone and an imitation handgun.

The trial judge felt that this night search was justified.The appeal judges disagreed. Factor that mattered to them included:

However, the judges were pleased that the officer asked for the night search, and explained his reasons fairly. They felt that the breach of Mr Carstairs' rights under s.8 was minor. They upheld the convictions.

For you, the lesson is reasonably clear: night searches need permission. Always ask. Always justify it.

Judges aren't fond of night searches. But in this context, "absence makes the heart grow fonder" means "absence [of people from the place you're going to search] makes the [judicial] heart grow fonder [of night search]."

That suggests night searches for cell phones or seized vehicles should be easier to justify than night searches of homes.


2022.02.20 "U good for powder?" - Entrapment

For those of you who investigate dial-a-dopers, this case provides a short clear distinction between entrapment and development of reasonable suspicion.

When an anonymous tipster gives you the phone number of a suspected dial-a-doper, your investigation should not start by immediately calling it and offering to buy. That's entrapment. You need to develop a "reasonable suspicion" that the number a drug dealer uses the number. Maybe your databases tell you something about this number. Maybe your tip gives you more information.

After canvassing other sources, you might try calling the number and asking whether the person who answers deals in drugs.

An officer received such a tip. It led him to the information that the number belonged to Mr Zakos, 2022 ONCA 121, who had no criminal record.

The officer texted the number:

Officer: This tj?
Zakos: Who is this
Officer: Scot, got your number from my cousin. You still around the college?
Zakos: Who’s your cousin
Zakos: Yes still close but I moved
Officer: Jay said he got off you at the gas station a while back. U good for powder?
Zakos: How much were you looking for

Defence complained that the question "U good for powder?" constituted entrapment before the officer had formed a reasonable suspicion.

The judges disagreed. It wasn't an offer to buy, it was an inquiry to determine if the suspect was in the business. It was close to the line but did not cross it.


2022.02.18 Storing Digital Evidence

If you don't yet have a convenient and formal method of storing digital evidence, get one now.

In 2011, someone wearing a balaclava robbed a donut shop at gunpoint. Police seized security video, and a balaclava from nearby. They found some saliva 60m from the shop. DNA analysis from the balaclava and saliva did not match known offenders. The robber left a white kitchen garbage bag on the counter in the shop.

In 2017, DNA from Mr Janeiro, 2022 ONCA 118 entered the DNA database. It matched DNA from the saliva, but not the balaclava. He was about the right height and age to be the robber. Of the 5 identifiable fingerprints on the bag, one belonged to Mr Janeiro. He was charged.

As trial approached, officers could not find the security video. After it was first obtained, an officer labelled it, and put it in a filing cabinet - in an unmarked brown envelope. Other officers viewed it. But nobody could find it for trial. The trial proceeded without it.

Defence asked the trial judge to drop the case because of the missing evidence. The trial judge refused, and convicted Mr Janeiro based on the evidence that remained. The appeal court agreed with defence counsel. In this case, the video was too important. The officers did not take sufficient care to preserve it. Losing it undermined the fairness of trial.

General duty police officers routinely take snapshots with their cell phones. Complainants regularly email screenshots, photographs, email and chat chains.  All sorts of electronic evidence pours in.

If you don't yet have a formal, secure and convenient system to preserve it, then evidence will go missing, and judges won't be sympathetic.


2022.02.17 "Holding Off" Eliciting Evidence before Access to Counsel

"Before you talk to a lawyer, please tell me about the drugs in your possession."

Such a question attempts to elicit evidence of a crime. If you arrested the suspect before asking it, then you have an obligation to "hold off" asking such questions.

Relying on a 911 call, police arrested Mr Mohamed, 2022 ONCA 117 at first for sexual assault. On a pat-down, they found a knife and a small quantity of drugs, so they arrested him for that too.  Mr Mohamed wanted a lawyer.

He appeared intoxicated. He talked in circles about what a good guy he was.

At the police station, he suddenly stopped talking.  That happened when an officer asked him whether he was hiding any weapons or contraband. No more rambling. Silence.

From that silence, the officers inferred that he was hiding something.

A strip search discovered 20 ounces of crack cocaine concealed in his anus.

The court found that the question violated Mr Mohamed's rights. Even worse, the officer who asked it testified that he routinely asked that question.  The judges decided to put the word out to police: don't ask investigative questions before the defendant gets (or waives) legal advice. Mohamed beat the charge.

Does this mean you can ask no questions whatever between arrest and access to counsel?

A good discussion of this appears in R. v O’Reilly, 2021 BCSC 766, which agrees with an older case:

"Questioning to assist the accused to exercise his rights, preserve his property, provide care for his family, or protect his health and safety or the health and safety of others, just to name the most obvious examples, are not prohibited..."

Basically, you can't ask investigative questions. Be wary of asking questions that could, as in the case of O'Reilly, turn out to provide evidence. (In that case, they asked the prisoner if he wanted anything from his vehicle. He described his phone. That phone contained evidence of his involvement in the crime. The court excluded evidence of that conversation.)

But you can ask the suspect if they have weapons or objects that could hurt you when you're searching for such things. R. v. Patrick, 2017 BCCA 57.

2022.02.08 Full Disclosure means More than "Evidence Supporting Conviction"

Ms Bouvette, 2022 BCCA 9 left a a 17-month old baby unsupervised in a bathtub. The baby drowned - or so said the pathologist.

Ms Bouvette pleaded guilty to criminal negligence causing death.

After sentencing, questions arose about the pathologist's competence. The Crown hired an independent lawyer to investigate.

It turns out that 43 pages - a peer review report which criticized the pathologist's conclusions - was not disclosed to defence.

That justified a re-hearing of the case

This time it was the prosecution that failed to disclose relevant evidence. Don't let "next time" be you.

It's surprisingly easy to fall into the trap of thinking that information about the case in your possession is "not relevant". This happens often when the information does not fit your theory of what happened. But that's exactly why it's relevant.

2022.02.07 After Arrest - Preserving and Proving Voluntariness

She told police "my cousin raped me last night."

Police officers arrested Mr S.S.S. 2022 YKCA 2. They (wisely) swabbed his penis and interviewed him.  He told police that he didn't remember putting his penis in his cousin. DNA testing showed that he did.

At trial, his memory returned. He remembered the sex, and particularly how consensual it was. He explained that his statement was wrong because he suffered a seizure. He also told the judge that the police told him that they would not release him if he did not cooperate.

Don't say stuff like that.

Judges exclude confessions if the police apply pressure of this sort to the suspect. This statement was obviously important. The appeal court ordered a new trial because of his claim (and a procedural mis-step).

I rather doubt that the officers in this case said anything of the sort.  But proving what police officers did not say can be tricky:

If you provide security to an officer who arrests the suspect, you may figure that it's not your investigation, and you aren't an important witness.

Surprise!

At trial, the defendant may claim "it wasn't the arresting officer who threatened me, it was the other guy".

Suddenly, your role changes from spectator to key witness. You'll wish you took more notes.

How do you handle this risk? There are two strategies:

Even if you were a minor player at the arrest, during transport, or when receiving the prisoner at the police station, your name goes on the witness list, and the extent of your interaction appears in your notes.

2022.01.16 Imperfections and Delays in the Justice System

After an evening of drinking with a friend, Mr Girbav, 2012 ABPC 219 drove off the road. The streets in Calgary can be icy in January.

Two police officers saw the car go off the road, and went to investigate. The car was stuck - high-centred on accumulated ice and snow. One officer broke the driver's side window, pulled him out of the vehicle, and arrested him. Finding him too drunk to drive, the officer made a breath demand. He blew 210mg%.

He beat the charges.

He told the trial judge that the police officer attacked him without warning, and that a swarm of police officers jumped on him when he was pulled out of the car, and they beat him close to unconsiousness. He suggested that one of them made a remark that suggested that they needed to invent false charges against him, to cover up their own violence ("You better get something on this guy or you could have a problem.") He complained that he tried to get legal advice from a particular lawyer, but the police only let him talk to duty counsel.  He produced photographs of injuries to his head and to his arm. His long-time friend testified similarly about the bad behaviour of the police. They both mentioned that more than one officer removed Mr Girbav from the vehicle.

The police officers explained that even after they knocked on the driver's side window, Mr Girbav revved the engine. It looked like he was trying to get away. The one officer had to break the window in order to stop him. They disagreed that there was a crowd of police officers present to arrest Mr Girbav. It was just the two of them. The other officers arrived later. They agreed that he suffered an injury, but denied a beating.

The judge believed Mr Girbav and his friend. The judge inferred from differences in the officers' accounts that they had had not given accurate stories.

Did the violent officer and his partner lie to protect themselves?

About 5 years later, a lawyer complained about the officers to the Police Service and the Police Commission. ASIRT - Alberta's independent police watchdog - investigated. That investigation took 5 years. They concluded that the officers likely told the truth, and that Mr Girbav and his friend were the inaccurate ones. Decision of the Executive Director of the Alberta Serious Incident Response Team, January 6, 2022 (2017-32(S)

The most important piece of evidence came from an independent witness that police interviewed at the scene. Her version matched the version of the officers and contradicted the versions that Girbav and his friend gave.

The trial judge never heard her evidence. It would have been difficult to reach the same conclusion if he had.

Why didn't the prosecutor present this evidence? I suspect several reasons. For one, she seemed unimportant: she saw neither the driving before the crash, nor the driver's symptoms of impairment afterwards. I wonder whether defence gave sufficient notice of the details of Mr Girbav's claims. I am troubled by the manner in which they were litigated - but that's a lawyer's problem.

The trial judgement reflected badly on Csts MacGregor and Johnson. It took 10 years for them to receive vindication. I hope the judgment did not harm them.

Mr Girbav was convicted before and since this trial of impaired driving. When ASIRT interviewed him he denied responsibility for drunk driving. Information in the ASIRT report suggests that he is an unrepentant drunk driver. I hope he harms no one.

When the justice system reaches the wrong result, people can suffer.  When it takes too long to reach the right result, people can suffer.

This case resembles the fiasco which led to Ontario (Attorney General) v. Clark, 2021 SCC 18, which I discussed back in May.

Lessons to draw from this case include:

This was a good case for a bodycam or a dashcam, and audio-recording of the process of offering medical treatment and discussing access to counsel.


2022.01.15 Evidence - Take a Second Look

Four gangsters told police that Mr Vallee, 2022 BCCA 11 murdered Kevin Leclair. Everyone knew it happened at a mall in Langley. Was Mr Vallee there? Some of the gangsters said he went to Tim Hortons with them.

It was a big investigation. Investigators gathered a million documents. Yes. A million.

Buried in that pile was security video from Tim Hortons. Investigators summarized those videos saying that they did not record anything of interest.

They were wrong.

To those who looked closely, images of Mr Vallee could be seen in those security videos.

Relying on the police summary, Crown left the video out of the disclosure package, and ran much of the case without looking at them. Part way through trial, defence asked Crown to admit that the videos showed nothing useful. Crown looked at the video. Crown realized that the video confirmed that the 4 gangsters were telling the truth about Vallee.

The Crown's case changed shape.

At the trial, defence counsel asked the judge to declare a mistrial. (Mistrials can destroy prosecutions.) The trial judge said no. The defendants appealed, complaining that it should have. The Court of Appeal upheld the conviction.

Prosecutorial tactics aren't your problem. Disclosure is.

Prosecutors find that investigators overestimate the value of the evidence they gather. That's natural. You gather it in the context of inquiry. We use in in an adversarial context, where the other side attacks it from every angle. Examined skeptically, much evidence loses its shine.

But sometimes investigators underestimate the value of the evidence. There are times that I have found more in a photograph or a statement than was first apparent. Usually, this occurs when cross-referencing evidence.

In an enormous case like that, an error of this sort is easy to make.

It could have been avoided by taking a second look at the video. The importance of that video would only have become obvious after the gangsters gave statements discussing Tim Hortons.

Uninformed summaries are less likely to be accurate than informed ones. Once you understand how the evidence fits together, you can identify the evidence that merits a second look.

That second look can pay dividends.






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