IN SERVICE: 10!8 A PEER READ PUBLICATION A newsletter devoted to operational police officers in Canada. LAWYER GROWTH OUTPACES POLICE " Growth 1991!2006 50% A 2009 Statistics Canada report, “Aging of Justice Personnel”, shows the growth in the number of lawyers is outpacing the growth in the number of police officers. Between 1991 and 2006 the number of police officers in Canada rose from 61,910 to 69,305, an overall increase of 7,395 or 12%. Lawyers, on the other hand, rose from 53,060 to 75,105, an increase of 22,045 or 42%. Over the same time period, the number of judges increased 18% (+395), correctional services personnel 18% (+3,745), and private security personnel 19% (+17,560). This can be compared to a 14% growth in the overall Canadian work force. The report suggested that the substantial increase in lawyers could be attributable to the increased complexity of criminal cases. Justice workers represented about 2% of all Canadian workers. 42% 37.5% 25% 14% 18% 18% 19% Judges Corrections Private Security 12.5% 0% Police Lawyers Ages 39 years, compared to 41 for correctional services and private security personnel, 44 for lawyers, and 58 for judges, which was the oldest median age. Most police officers, almost 80%, were aged 25 to 49, while only 57% of the total Canadian labour force was between these ages. And more than 47% of police officers were between 25 and 39. Relatively few police officers were younger than 25 (5%) or older than 49 (16%). There were only 235 officers 19 and younger and 240 officers 65+. As for judges, most were 50 years or older (88%). In 2006 the median age of a police officer was the lowest of all workers in justice related occupations at (Source: Statistics Canada, 2009, Aging of Justice Personnel, Catalogue no. 85-002-x, Vol. 29, no. 1.) Labour Force Size of Justice Related Occupations 150000 Police Lawyers Private Security Corrections 108,345 112500 75000 Judges 90,785 61,910 60,265 2,250 2,310 24,620 24,360 22,930 20,875 75,105 69,305 64,440 63,640 58,825 53,060 37500 90,560 89,315 2,600 2,645 0 1991 1996 Be Smart & Stay Safe 2001 2006 Volume 9 Issue 6 ! November/December 2009 Highlights In This Issue Undercover Operation At Rave Not Entrapment 4 Flawed Pathological Evidence Results In Acquittal 6 BC’s New ‘Assistance to Shelter Act’ 7 s.172.1 CC Requires Subjective Standard Of Fault 9 Presence of Cell Phone Irrelevant To Limitation On Right to Counsel 12 2010 Fraser Valley Criminal Justice Conference 13 16 Judge Not Expected to Leave Common Sense At Courtroom Door ;2<;=2<;>?02@0>;2?02??AB Sample Must Be Received Directly Into Instrument 17 !" Risk That Driver Would Put Car In Motion & !"#$"%&'()*$+',-).&%)/010%$2)3&)!%$1040"5) Create Danger Establishes Care Or Control 670809:$);&"%$"%8< =19 Impaired Amendments Operate Retrospectively 6*$>?+:)@?'A&8$<)BC);-0:2)@-&%&8)D$%$'10"$2) B9E$,%0#$:( The ‘Carter Defence’ 22 FG *+C$%()*$+',-)H?8%0C0$2)!");0',?18%+",$8)BC) Continued Search After Disavowing Safety I+''+"%)J>$,?%0&" Rationale Inappropriate FK 27 23 L''$8%)*%+"2+'2)D&$8).&%)M$N?0'$)@'01+)O+,0$) FP ;+8$)O&');&"#0,%0&" National Library of Canada H?25$).&%)M$N?0'$2)3&)J"2&'8$)D("+10,) Cataloguing in Publication ;D*L) *$+',Data FQ D?+:)@?'A&8$)!",02$"%+:)*$+',-)/+RC?:)*&) Main entry under title: KG /&"5)L8)B"$)@?'A&8$)M$+8&"+9:$ In service: 10-8. -- Vol. 1, no. 1 (June 2001) Monthly S?"8T)U+0:)V)H+0:W)U0::);XK)M$#0$R K= Title from caption. *?A'$1$);&?'%)Y$+'0"58)M08$ KZ “A newsletter devoted to operational police officers across British L''$8%0"5) BCC0,$') M$:(0"5) B") [&'$)Columbia.” 3-+") P= ISSN 1705-5717 = In service, 10-8 !"#$8%05+%&'<8)U'&+2)BA0"0&") Unless otherwise noted all articles are authored by Mike Novakowski, MA. The articles contained herein are provided for information purposes only and are not to be construed as legal or other professional advice. The opinions expressed herein are not necessarily the opinions of the Justice Institute of British Columbia. “In Service: 10-8” welcomes your comments or contributions to this newsletter. If you would like to be added to our electronic distribution list e-mail Mike Novakowski at mnovakowski@jibc.ca. POLICE LEADERSHIP !"#$%&'#&()&*+,$!' (!*$#'-./-01'2.-APRIL 10-13, 2011 Mark&'(#% your)"*+,-"#.///% calendars.01+% !"#$% The British Columbia 2#343.1% 5'*(673"% 8..')3"43',% Association of Chiefs '9% 513+9.% '9% :'*3)+;%of 41+% Police, the Ministry of !3,3.4#&%'9%:(7*3)%<"9+4&%",-% Public Safety and <'*3)34'#% =+,+#"*;% ",-% 41+% Solicitor General, and >(.43)+% ?,.434(4+% '9% 2#343.1% the Justice Institute of 5'*(673";%:'*3)+%8)"-+6&%"#+% British Columbia Police 1'.43,@% 5',9+#+,)+% Academy41+% are:'*3)+% hostingA+"-+#.13B% the Police CDEE% Leadership 2011 3,% F",)'(G+#;% 5'*(673"H% 013.% 3.% 5","-"I.%This *"#@+.4% Conference2#343.1% in Vancouver, British Columbia. B'*3)+% *+"-+#.13B% )',9+#+,)+% ",-% J3**% B#'G3-+% is Canada’s largest police leadership conference ",% 'BB'#4(,34&%9'#%-+*+@"4+.%4'%-3.)(..%*+"-+#.13B%4'B3).% and will provide an opportunity for delegates to B#+.+,4+-%7&%J'#*-K#+,'J,+-%.B+"$+#.H% discuss leadership topics presented by world renowned speakers. 333456789:7:;<:=>?8596@A:=:@9:496B www.policeleadershipconference.com +C!!"*D'D,&'E()F&G *&#(D$"H(#' +C*I$I(#' J"*'!"#$%&'J(K$#$&+ !"#$%%& '()$*+,%$& "'($-.& /##& /*(,0#$%& /*$& /1()'*$-& 23& 45(6& 1. Police - British Columbia - Periodicals. 2. !"#$%&'($%)$*+#&%,-%&#$%./0+$%*1%2,&%,3$'4,5$%.6% 7,8$& 9':/8'+%8,.& 7;& <;22'(%='*-& >'#,0$?6& @)$& /*(,0#$%& Police - Legal status, laws, etc. - Canada 0'"(/,"$-&)$*$,"&/*$&A*':,-$-&='*&,"='*B/(,'"&A1*A'%$%&'"#3& 5(147$8%2,&%-,(20%*2%&#$%+658%2,&%5$/1('$0%,2%/% Cases - Periodicals. I. Justice Institute of /"-&/*$&"'(&('&2$&0'"%(*1$-&/%&#$5/#&'*&'()$*&A*'=$%%,'"/#& 14/7$9% "#*1% )$*+#&% '$:(*'$1% /% 1&'$2+&#% /20% British Columbia. Police Academy. II. Title: /-:,0$6& @)$& 'A,",'"%& $CA*$%%$-& /*$& "'(& "$0$%%/*,#3& ()$& 4,20*&*,2*2+%-,'%)#*4#%-$)%,--*4$'1%/'$%&'/*2$09%"#$% In service, 10-8. III. Title: In service, ten'A,",'"%& '=& ()$& D1%(,0$& E"%(,(1($& '=& F*,(,%)& G'#1B2,/6& H#$% eight.-./0I& +$#0'B$%& 3'1*& 0'BB$"(%& '"& '*& ./0+$%*1%2,&%;(1&%<*22$0%,2%/%4#$1&8%*&%*1%<*22$0%,2%/% &'()*+',% 7*-$1&67$9=%>%?,7*4$%@--*4$' 0'"(*,21(,'"%&('&(),%&"$+%#$(($*6&E=&3'1&+'1#-&#,8$&('&2$&/--$-& ('&'1*&$#$0(*'",0&-,%(*,21(,'"&#,%(&&$JB/,#&7,8$&9':/8'+%8,&/(&& PAGE 2 B"':/8'+%8,KL,2060/ See page 13 National Library of Canada Cataloguing in Publication Data Volume 9 Issue 6 ! November/December 2009 POLICE MAY VIDEOTAPE STATEMENT FROM THE OUTSET R.!v.!Young,!2009 ONCA 891 Molloy found there was an ongoing misperception among some police officers on the right to videotape (or tape record) the taking of a statement from an accused. In her view, police should videotape an interview from the outset: The accused, disguised in a UPS uniform and carrying a UPS box, I agree that the taking of a formal statement from went into a jewelry store with an a suspect is different from filming the routine accomplice and produced a loaded matters that occur at arrival and booking.! shot gun.!He ordered the store owner However, there is nothing about the taking of a formal statement that precludes it being tape and an employee to lie on the ground and open the recorded right from the start.! It is appropriate to store safe.! The owner managed to push the alarm explain to a suspect that the interview is being button and the accused and his accomplice fled, but videotaped and why, and there is before leaving he turned back and nothing wrong with discontinuing shot the store owner, shattering his “In short, the police are the videotaping if the suspect shin bone. entitled to begin to videotape does not wish to be recorded.! However, there is absolutely no or tape record an accused’s The accused’s fingerprint was found legal requirement to start the on the UPS box and the store interview without taping and to statement. If the accused owner identified him from a photo only turn on the recording device array. He was also interviewed by then objects or refuses to be upon obtaining consent.! Quite to police. The statements the accused videotaped, at least there will the contrary, the norm should be that a suspect is spoken to from made were not videotaped, be a record of the accused’s the outset with the videotape in although the police station had operation. It should only be refusal.” facilities available to do so. The discontinued if the suspect police officers believed they could objects. not record their investigative interview without the accused’s permission and, when he was asked, he It is not clear to me where these officers got the refused to consent to being videotaped. The accused idea that it was unlawful to start the recording made a series of inculpatory statements to the police before getting permission.! However, this is not and provided information they had not known the first time that I have heard police officers before. The accused was charged with nine offences speak of it.! It appears to be a commonly held including robbery, use of a firearm and attempted view.! Crown counsel in this case was unaware murder.! why police officers had this understanding, but agreed that there was no legal basis for it.! I felt it important to comment on this formally in the At trial in the Ontario Superior Court of Justice the hope that steps would be taken within the police voluntariness of the accused’s statements to police force to educate officers on the importance of became an issue, including the police failure to recording interviews from the outset.! [references videotape, even the initial portion of the officers’ omitted] interview with the accused. During cross examination the officers were adamant that they The accused was convicted on all counts, but the would have been invading the accused’s privacy and attempt murder charge was reduced to a conviction that it was unlawful if they started videotaping the for aggravated assault. He was sentenced to 11 years accused as soon as he was in the interview room. in prison with four years credit for pre-trial custody.! Justice Molloy noted that there is no ironclad rule against admitting a statement that is not tape The accused appealed to the Ontario Court of Appeal recorded but the Crown will face a heavy onus in arguing, in part, that the trial judge did not instruct establishing voluntariness where recording the jury strongly enough on why the police failure to equipment is available but not used. However, Justice PAGE 3 Volume 9 Issue 6 ! November/December 2009 videotape the statements might affect their reliability and weight.!The Appeal Court, however, rejected the accused’s submission and affirmed the comments of the trial judge regarding the recording of statements. By at least recording the suspect from the beginning of the interview, if he refused or wished not to have his statements taped this recording would avoid any later dispute and a court would not be relying on the bald assertion by police that the suspect refused to be recorded. “In short, the police are entitled to begin to videotape or tape record an accused’s statement,” said the Court. “If the accused then objects or refuses to be videotaped, at least there will be a record of the accused’s refusal.” The accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca UNDERCOVER OPERATION AT RAVE NOT ENTRAPMENT R. v. Yee, 2009 BCPC 0369! was asked if he had “any E”.!The accused indicated he did and led the undercover officer from the smoking area onto the dance floor where he sold two tablets of ecstasy for $5 each.! Following the transaction, the undercover officer signalled the cover team and the accused was arrested.! Following a search incidental to arrest, nine further ecstasy tablets along with two marihuana cigarettes were located on the accused. At trial in British Columbia Provincial Court the accused was convicted of trafficking two tablets of ecstasy and possessing nine tablets of ecstasy along with two marihuana cigarettes.!However, he argued that he was entrapped by the undercover police officer and a stay of proceedings ought to be directed because the investigative methodology used by the police amounted to an abuse of process. He contended the police method of walking up to people randomly inviting them to commit an offence when they know nothing of the individual was not be pursuant to a bona fide inquiry, considering there where thousands of people attending a Rave.! He urged that there were other investigative tools which could have been pursued pursuant to a bona fide inquiry, such as “scoping” of certain individuals through static, but effective, surveillance. This would more readily identify actual drug traffickers and potentially yield larger dealers than individuals like the accused. But he submitted tactics such as surveillance were not utilized for reasons of expediency.! Police set up an undercover drug sting at a Rave attended by about 5,000 people. The Rave was officially sanctioned by the city, held in an ice arena, and alcohol was prohibited.! Attendees were to be 16 years of age and older and pay about $100 per ticket.! For the most part, attendees ranged in age from teenagers and to people in their early or mid-twenties.! A common The Crown, on the other hand, submitted that the theme at Raves involved the use of amphetamine, police were conducting a bona fide inquiry; they commonly known as ecstasy.! People would take simply presented an opportunity to people who may ecstasy to heighten their senses and in particular be traffickers and did not hold out any inducement human touching.! Upwards of to encourage the commission of twelve police officers were “[The] investigation was as a result an offence.! The location of the deployed with three of the Rave at the Coliseum was a of a reasonable suspicion of drug officers being undercover, clearly identifiable geographical trafficking and not a mere tasked with purchasing location. As a result the police e c s t a s y.! Th e u n d e r c ov e r suspicion. That reasonable could present any individual, officers would randomly suspicion was well founded and the such as the accused, with the approach individuals in the opportunity to commit the investigation resulting in the arrest particular offence. coliseum and ask if they had “any E” for sale.! The accused of [the accused] was pursuant to a ! was standing in a smoking bona fide inquiry.” area near the dance floor.! and PAGE 4 Volume 9 Issue 6 ! November/December 2009 CAPB ASKS MP’s TO VOTE AGAINST DISMANTLING GUN REGISTRY Doctrine of Entrapment Entrapment is as an aspect of the common law doctrine of abuse of process. When! established on a balance of probabilities the remedy is a stay of proceedings.! It is not entrapment, however, for the police to present people with the opportunity to commit a particular crime so long as the police have a reasonable suspicion the people are already engaged in criminal activity or if the police acted in the course of a bona fide investigation. Reasonable suspicion is something more than a mere suspicion but something less than a belief based on reasonable and probable grounds.! Reasonable suspicion must exist either with respect to the person being targeted or with respect to the area being targeted. A bona fide investigation occurs where the police direct their investigation at an area where it is reasonably suspected that criminal activity is occurring.! When such a location is defined with sufficient precision, the police may randomly present any person associated with the area with the opportunity to commit the particular offence.! Such randomness is permissible within the scope of a bona fide inquiry.!! In this case, Judge Rideout found the police were aware that ecstasy was actively trafficked and consumed at Raves based on prior investigations.! Overdosing was also of particular concern for police.!The police undercover operation at the Rave was a bona fide inquiry because both police officers clearly established the reasonable suspicion that drug trafficking in ecstasy would be taking place.! The “investigation was as a result of a reasonable suspicion of drug trafficking and not a mere suspicion,” said Judge Rideout. “That reasonable suspicion was well founded and the investigation resulting in the arrest of [the accused] was pursuant to a bona fide inquiry.” The accused failed to establish on a balance of probabilities that he was entrapped and the application for a stay of proceedings was denied. Complete case available at www.provincialcourt.bc.ca www.10!8.ca According to a recent press release, the Canadian Association of Police Boards (CAPB), the national association representing civilian oversight of policing in Canada, has written to all members of parliament asking them to reconsider dismantling the gun control system. CAPB’s members provide governance and oversight to more than 35,000 municipal police officers and chiefs in Canada. In their role as civilian oversight bodies, police boards appoint and manage the performance of chiefs and deputy chiefs, set policing objectives, establish policies, and generally represent the public interest. It is from this critical and unique vantage point that CAPB advocates for strong firearms laws. CAPB believes such laws to be essential for the safety and security of individuals, families, communities and police officers and accordingly it vigorously opposes any ideologically motivated effort to weaken existing provisions as being inimical to the public interest. As civilian oversight bodies of municipal policing, CAPB will not support any attempt to weaken police ability to deal with gun violence. At a time when gun crime is a serious concern in communities across the country, reducing gun control will be irresponsible and a disservice to the cause of building safe communities. If passed, Bill C-391 will not only eliminate the need to register more than 8 million rifles and shotguns but it will also require that the existing registration records on long guns be destroyed. The federal firearms program is a vital tool for effective policing. The registry is consulted thousands of times on a daily basis by police services across the country. CAPB is proud of Canada’s international reputation as a country with effective gun control legislation and strenuously opposes any legislation that weakens Canada’s current firearms registry. CAPB is, therefore, asking members of parliament to vote against this bill. PAGE 5 Volume 9 Issue 6 ! November/December 2009 FLAWED PATHOLOGICAL EVIDENCE RESULTS IN ACQUITTAL R.!v.!Sherret-Robinson,!2009 ONCA 886! The accused was charged with the first degree murder of her four monthold-son. Dr. Charles Smith, a once well respected pathologist, performed the autopsy on the infant. He testified at the preliminary inquiry that the baby died from asphyxia, probably as a result of suffocation or smothering by a third party.! He also testified about other injuries to the infant that supported a finding of intentional killing, namely, haemorrhages in the neck tissues, a skull fracture and a healing fracture of the left ankle.!Based on this evidence, the accused was committed for trial on the charge of first degree murder which was later reduced to second degree murder. The police, the Crown and the defence all relied upon Dr. Smith’s expert opinion and, given his stature at the time, the accused and her counsel did not believe that they could successfully contest his opinion.!Just prior to trial, Crown counsel agreed to withdraw the murder charge and lay a charge of infanticide.! In return, although she initially pleaded not guilty to the infanticide charge, the accused agreed not to contest a set of facts that included an allegation that she smothered her child.! The facts also set out a summary of the evidence that Dr. Smith gave at the preliminary inquiry, including reference to the skull fracture and the fracture to the child’s ankle. The accused reached an agreement with the Crown that led to her conviction for infanticide and she was sentenced to one year imprisonment. The accused had always maintained that she did not harm her child. Years later Ontario’s Chief Coroner began to review 45 cases in which Dr. Smith had provided an opinion or testified.! This review eventually led to the Inquiry into Pediatric Forensic Pathology in Ontario.! The findings by eminent pathologists and other experts demonstrated serious errors by Dr. Smith in many cases.! In this case, Dr. Smith’s opinion was wrong in several important respects.! The skull fracture was, in fact, a normal developing cranial suture.! The haemorrhages to the neck were, in fact, dissection-related artefacts from the autopsy itself.! As for the injury to the left ankle, the experts could say only that it could have been caused deliberately or accidentally.! The experts also stated that other findings relied upon by Dr. Smith, the petechial haemorrhages and congestion of the lungs, are common findings in infant deaths and not diagnostic of an intentional act. And although Dr. Smith found swelling of the brain, the new expert evidence shows that there was no evidence of swelling of the brain. As to the cause of death, the experts could find no positive evidence to support a finding of suffocation or smothering by a third party.! At the time of his death, the infant was not sleeping in a regular crib, but rather in a playpen that contained blankets and quilts.! The autopsy findings and the findings at the scene suggest that death probably occurred by an accidental asphyxial means in an unsafe sleeping environment. In the Ontario Court of Appeal the accused sought to have the new information regarding Dr. Smith’s opinion admitted as fresh evidence.! The Crown conceded this material met the test for fresh evidence and that the fresh expert opinion now conclusively refutes critical aspects of Dr. Smith’s opinion; an opinion that was a central underpinning of the Crown’s case at trial and without that evidence there was no reasonable prospect of conviction. Had the evidence been available back at the time of the incident the Crown would have never proceeded with a prosecution. The fresh evidence was compelling and although not conclusive of the cause of death, it is likely the infant died accidentally. In this case, the the accused was wrongfully convicted of infanticide because of the flawed pathological evidence, she was subject of a miscarriage of justice, served a one-year jail sentence and lost the custody of her other child. The fresh evidence was admitted, the appeal was allowed, the conviction for infanticide was set aside and an acquittal was entered. Complete case available at www.ontariocourts.on.ca PAGE 6 Volume 9 Issue 6 ! November/December 2009 BC’s NEW ‘ASSISTANCE TO SHELTER ACT’ British Columbia’s new Assistance to Shelter Act is now in effect. This new provincial legislation establishes a scheme for issuing and cancelling extreme weather alerts and gives police officers authority to transport persons at risk to emergency shelters when extreme weather alerts are in effect. Here is how it works. A “community representative” or the Minister of Housing and Social Development (or delegate) may issue an “extreme weather alert.” In the case of a community representative they may determine when extreme weather conditions exist, issue an extreme weather alert, notify the minister and all police forces within the geographical area where the Extreme Weather Response Plan applies, determine when the extreme weather conditions no longer exist, cancel the extreme wether alert and notify the minister and all police forces within the geographical area of the cancelation (s.2(2)). The minister also has the power to cancel an extreme weather alert issued by a community representative where the community representative fails to cancel it and extreme weather conditions no longer exist. Notification to the police force of the extreme weather alert called or cancelled by the community representative or Minister must be done by written report (fax or by electronic mail) and include: the date of the issuance/cancellation of the extreme weather alert; (f)!the names of the persons or entities that will be notified by the community r e p r e s e n t a t ive o r t h e m i n i s t e r, a s applicable, of the issuance/cancellation of the extreme weather alert as required under the Act. (see ss.3-6 of the Assistance to Shelter Regulation) The Minister, or their delegate, may issue an extreme weather alert where extreme conditions exist in a geographical area but there is no Extreme Weather Response Plan for the area. As well, the Minister may also issue an alert where extreme weather conditions exist but are not addressed or identified in the Extreme Weather Response Plan for that area, or extreme weather conditions exist as described in the Extreme Weather Response Plan for the area but the community representative has not issued the alert. (s.3) Assessment Where an extreme weather alert is in effect, a police officer may assess whether a person is at risk: s.5(1) If an extreme weather alert has been issued under section 2 or 3 and is in effect, a police officer may assess whether a person is a person at risk. A police officer includes a person under the Police Act who “is a provincial constable or municipal constable or has the powers of a provincial constable or municipal constable.” In assessing risk, the police officer must consider a number of factors: s.5(2) In an assessment under subsection (1), a police officer must consider whether all of the following apply: (a) the person is in the geographical area to which the extreme weather alert applies; (b) the person is, or reasonably appears to be, 19 years of age or older; (c) the person, in the opinion of the police officer, is suffering physical harm or is at risk of suffering physical harm because of the extreme weather conditions; (d) any other prescribed considerations. the time of the issuance/cancellation of the extreme weather alert; the description of the extreme weather conditions that led to the issuance/ cancellation of the extreme weather alert; the description of the geographical area to which the extreme weather alert applies/ applied; the name of the person issuing/cancelling the extreme weather alert; PAGE 7 Volume 9 Issue 6 ! November/December 2009 YOUTH ATTITUDES TOWARDS POLICING Request to Attend Emergency Shelter Under s.6(1) of the Act, the police may request a person at risk to go to emergency shelter or accommodation: s.6(1) If a police officer has made an assessment under section 5 that a person is a person at risk, the police officer may request the person at risk to choose to (a) accompany the police officer to an emergency shelter, or (b) go unaccompanied to (i) an emergency shelter, or (ii) any other accommodation that would protect the person at risk from the extreme weather conditions. (2) For purposes of subsection (1) (b) (ii), the accommodation must be accommodation (a) to which the person at risk can secure entry, (b) in which the person at risk is entitled or permitted to reside, (c) that is a structure, vehicle or vessel primarily designed to be used as living quarters and provides protection from physical harm or risk of physical harm due to extreme weather conditions, and (d) that meets any other prescribed conditions. In recently released report (June 2009) the Police Sector Council commissioned a study by Ipsos Reid involving youth between the ages of 16 to 27. As part of the study, the group looked at the attitudes of youth towards policing: Youth say first hand contact with police officers/civilian employees (excluding friends and family), television news programs, and first hand contact with police officers who are friends or family members have shaped their views of policing the most. A majority of youths disagree that being a police officer means you’re not allowed to think on your own. A majority of youth agree that being a police officer means you have to be a role model for others. They also say that the police play a positive role in society and that the police play a positive role in their community. An “emergency shelter” is defined as “a building or a portion of a building that is used to provide temporary accommodation free of charge to persons to meet the persons' immediate basic needs for shelter.” While youth agree that the police play a positive role in society, they also feel that the police should be more active in their community. Transport and Use of Force A majority of Canadian youth agree that the ethnic make up of any given police force should be a refection of the community it serves. While youth agree that the make up of a police service should reflect the community, the same proportion agree that in some cultural communities policing is not seen as a positive career choice. Under s.7 of the Act a police officer may use reasonable force to transport a person at risk to an emergency shelter if they refuse or fail to respond to an officer’s request that the person go accompanied or unaccompanied to a shelter: s. 7! If a person at risk refuses to comply with or fails to respond to the police officer's request under section 6, the police officer, using reasonable force if necessary, may transport the person at risk to an emergency shelter. Complete report at: www.policecouncil.ca/reports/PSCYouthFocus1.pdf Complete legislation available at www.bclaws.ca PAGE 8 Volume 9 Issue 6 ! November/December 2009 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: 1;%<=>*1?=0@=A7 charged with invitation to sexual touching under s. 152 of the Criminal Code and luring a child under s. 172.1(1)(c). !" 23 Internet At trial in the Alberta Court of Queen’s Bench the 79 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “The Internet is an open door to judge characterized the accused’s conduct as “both 4# '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ despicable and repugnant”, but found that it was not knowledge, entertainment, 9' caught by either %9+ /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ss.152 or 172.1(1)(c).! The trial communication - and analysed both the actus reus (prohibited act) @0,"$:9#56+3'$+5$A05#4$3'$0$,0 6&)*#-1+#$-+)"#$%&'()#'%*<+ judge and the mens rea (culpable intent) that constituted exploitation.” - Supreme Court of the essential elements (##$80/#$BB$=3)$6"#$0'5>#)5? of s.! 172.1(1)(c).! Regarding !"#$%&'()#'%*+,-.'-/+0#)*1)&1 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ Canada Justice Fish in R. v. Legare, 2009 SCC 56 the actus reus, the trial judge found the Crown was #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ bound — but had failed — to establish that the C?$D11$3,,980'65$3=$0$*#"+,1#$0)# at para. 1. accused’s conduct facilitated the commission of one %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ >"#'$6"#$*#"+,1#$+5$56388#4 of the specified secondary offences under ss. 151 or CC REQUIRES #$)#+ #$-+s.172.1 )"#$%&'()#'%*+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8-+ %9+respect #$)#+ to the $ F0G$!)9# 152. With mens rea, the trial judge SUBJECTIVE STANDARD OF accepted defence counsel’s submission that the %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# phrase “for the purpose of facilitating the FAULT $ %9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/<+ of3$-+ commission an offence” requires an intention to R. v. Legare, 2009 SCC 56 I?$D5J+'/$0$4)+*#)$63$A13>$+'63$ lure for the specific purpose contemplated by s. @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ ! 172.1(1)(c).! Although the judge recognized that the 89)835#$ 3=$ 4#6#)7+'+'/$ 6" 32 year old accused, /$'8$+ #$-+ The )"#$%&'('*6+ 5"16-+ claiming 8%"41+ to$).-+Crown 6&)*#-1+ #$-+ was not required to prove that the accused be 17, engaged in two private online 3439)$+5$0$8#)7+55+A1#$5,)## )"#$%&'()#'%*<+“chats” intended to carry out the specified secondary with the complainant, who '36$#'/0/#$6"#$)+/"6$63$,39 offence he nonetheless concluded that the accused was 12 years old at the time.!He was must be shown to have intended to lure a child for 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# ' %*+'9+7)#'79'-1+ M"0)6#)? in Alberta and the complainant was that purpose.! The accused had not arranged a # $-+#%#)4'#A+ %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B in Ontario. They first “met” in a public chat forum $ F0G$!)9# meeting with the complainant nor did he intend to but moved “fairly quickly” from a public to a private %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ do so. His intention to $“talk dirty” was insufficient. FAG$H015# chat.! The initial exchanges were not recorded but Interpreting s. 172.1 otherwise would cast “the net )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9"*8#'%*+'7+ $ the accused admitted that the private chat was too wide.” The accused was acquitted on both sexual in nature. second private chat #%+ -D);'*-+ #$-+The 7"==%&#'*6+ )99'1).'#+ )7+was )+ /$%4->+ )*1+ *%#+ #%+ B?$ N"+,"$ 8)3*+',#$ "04$ 6"#$ 7 counts. recorded and was almost entirely sexual and (98)#7#$M39)6$3=$M0'040$+' 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+GHH!+ KLLM+GHH!+ $ F0G$P)+6+5"$M3197A+0Q$ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# accused’s acquittal on s.152 was affirmed but his During the chat, the complainant told the accused KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ set FAG$D1A#)60Q acquittal on s.172.1 was aside and a new trial she was 13, even though she was 12. The was ordered. The Appeal Court ruled that the trial $ F,G$R'60)+3Q complainant gave the accused her phone number judge adopted an unduly narrow interpretation of s. and he called, telling the complainant — in coarse $ asF4G$S9#A#,? 172.1(1)(c) by requiring, an essential element of and explicit language — that he “would love” to that offence, a “present intent to bring about an perform oral sex on her.! The complainant hung up opportunity to commit one of the secondary T?$!"#$+'=3)706+3'01$496<$+78 and there were no further calls.! offences”.! The trial judge erred in law in his ! 5?CLFAG$3=$6"#$M"0)6#)$+5$63$ interpretation of the requisite actus reus and mens The complainant’s father became aware of the rea under s.!172.1(1)(c). '36+,#$ 3=$ 6"#+)$ )+/"65U$ '3 conversation and notified the police. A transcript of #V#),+5#$6"#7?$ the second chat was eventually retrieved. Nearly The accused then appealed to the Supreme Court of two years after the chat sessions, the accused was $ F0G$!)9#of his acquittal Canada, seeking the reinstatement arrested and his computer was seized but no child without a new trial. $Justice Fish, authoring the FAG$H015# pornography or record of other incriminating unanimous judgment for the seven member communications found.D7#)+,0'$ The accused was !"#$ (#*#'6"$was Z3)6"$ M3'=#)#',#$ 3'$ ("0J#'$ www.10-8.ca '-$)"+&.$.%&'%+/012"& 3$.4'*5"&-"$/&60$42$7& 81+9"0"+8" 1:;<=>?&@ABC&DEEF P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ 9 R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ PAGE ^0',39*#)U$ P)+6+5"$ M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#)65$ >+11$ A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$56)3'/$ W?$D$831+,#$3==+,#)$'##4$'36$7 M34#$ 088)3*#4$ 5,)##' +'560'60'#3951<$983'$4+5,3*# 01,3"31$ +'$ 6"#+)$ A34?@&%#$+'(8&'%&"'A'+#)&B.1&%.A#&01#%#(+$+'.(%6& 7:00 pm 7:00 pm –– 9:00 9:00 pm pm !"#$"%#&'()*+,-(./0(.112 Evening Evening Welcome Welcome Reception Reception 3+"&4(567(8"%%,9$%(:;(<9+(=&'(; !"#$%&'#&()'%*# WEDNESDAY, April 28, 2010 WEDNESDAY, >,-(?9@$%79$April 28, 2010 !"#$%&'($()*+*#,)%-#..%&',/#0(%+)%,/('%/#(-%,1%*"(%23''()*%4+)5%6#*3+*#,)%#)%7(0('+.%8,''(2*#,)$%+)0%*"(% Registration 8:00 –– 8:30 Registration and and Continental Continental Breakfast Breakfast 8:00 am am#9&,'*+)2(%,1%:)*(..#5()2(%5+*"('#)5; 8:30 pm pm Opening 8:30 9:00 Opening Ceremonies/ Ceremonies/ Welcoming Welcoming Remarks Remarks 8:30 am am ––+)','#"-&.#/0%1'$"1'*#%&"#2&+*,3410)&5*)0#%'6% 9:00 pm pm Deputy Chief Deputy Chief Rick Rick Lucy Lucy !"#$%&'()*%+", <#5#*+.%(/#0()2(%#$%1,3)0%#)%)(+'.=%(/('=%*=&(%,1%2'#9(%2,99#**(0%*,0+=;%8"'#$>$%&'($()*+*#,)%-#..%0#$23$$% Understanding 9:00 Understanding Gangs Gangs 9:00 am am –– 12:00 12:00 am am +)0%0(9,)$*'+*(%",-%*"(%1,'()$#2%(?+9#)+*#,)%,1%0#5#*+.%(/#0()2(%#$%3$(0%*,%+0/+)2(%#)/($*#5+*#,)$%@=% Keynote Address: Gil Johnston (SIO) and Keynote Address: Gil Johnston (SIO) and Supt. Supt. Dan Dan Malo Malo (?&.,'#)5%+*%.(+$*%,)(%2+$(%$*30=;%8"'#$%-#..%+.$,%*,32"%,)%2"+..()5($%+)0%,&&,'*3)#*#($%#)%*"(%1#(.0%,1% 2,9&3*('%1,'()$#2$; 12:00pm 12:00pm -- 1:00 1:00 pm pm &()*7'-0%&7*)&80)'*4%&"#2&9'*-0#1&:*41;&<770#2'#$& Lunch Lunch Risk Profiles for Serious and !($%-./%&0((.10%.21%!($%3(4)2%&0'"2! Risk Profiles for Serious and 11 :: 00 00 pp m Criminal m –– 22 :: 00 00 pp m m Gangs in Prison Criminal Investigations Investigations and and Violent Violent Youth Youth Offending Offending !"#$%&'($()*+*#,)%-#..%,3*.#)(%*"(%9+#)%'#$A%1+2*,'$%+$$,2#+*(0%-#*"%*"(%0(/(.,&9()*%,1%$('#,3$%+)0%/#,.()*% Gangs in Prison Computer Forensics Computer Forensics Dr. Ray Corrado and Gil Johnston Dr. Ray Corrado and =,3)5%,11()0('$;%!"(%&'($()*+*#,)%-#..%,3*.#)(%*"(%'#$A%1+2*,'$%#)%(+2"%0(/(.,&9()*+.%$*+5(B%1',9%#)%3*(',% Det. Gil Johnston Det. Chris Chris Eeg Eeg Dr. Irwin Cohen *"',35"%*,%+0,.($2()2(;%6322($$13.%#)*('/()*#,)%&',5'+9$%+)0%+&&',+2"($%-#..%+.$,%@(%0#$23$$(0 Dr. Irwin Cohen 3+"&4(567(8"%%,9$%(:.( Move Move to to Afternoon Afternoon Break Break Out Out Session Session &=61'/0&8;**10)% Youth Youth Violent Violent Offender Offender 2:30 3:30 2:30 pm pm ––8A7B(C@+,%(D@9E*%9$ 3:30 pm pm Programming Crystal MethA Programming in in British British Crystal MethA Active Shooters C2*#/(%$",,*('$B%,'%D.(*"+.%*"'(+*%#)%&',5'($$E%2+..$B%&',/#0(%(),'9,3$%'(+2*#/(%2"+..()5($%*,%'($&,)0#)5% Active Shooters Columbia: An Overview Community Response Columbia: An Overview Community Response Sgt. &,.#2(%,11#2('$;%%C%0#$23$$#,)%,1%*"(%(/,.3*#,)%,1%*"(%&,.#2(%'($&,)$(%*,%*"($(%#)2#0()*$%-#..%@(%1,..,-(0%@=% Sgt. Chris Chris Thompson Thompson Dr. METH Dr. Heather Heather Gretton Gretton and and METH BC BC +)%(?&.,'+*#,)%,1%",-%9(9@('$%,1%*"(%2,993)#*=%-,'A#)5%#)%+)0%+',3)0%$2",,.$%+)0%-,'A&.+2($%9+=%@(% Dr. Grant Burt Dr. Grant Burt +@.(%*,%"(.&%&'(/()*%,'%'(032(%*"(%2+')+5(%,1%*"($(%(/()*$%*"',35"%/+'#,3$%$*'+*(5#($%+)0%*+'5(*F"+'0()#)5% &'#)2#&.($; Meet the Speakers and Questions 3:30 3:30 pm pm –– 4:30 4:30 pm pm Meet the Speakers and Questions &+)>%1"-&?01;@&=&+*,,4#'1>&A0%3*#%0 FGDH(3C COMMUNITY FORUM (Matsqui Auditorium) The Early Bird pm registration fee is $329 for payments to January 15th, 2010. 6:00 pm – 9:00 COMMUNITY FORUMreceived (Matsqui prior Auditorium) 6:00 pm – 6((%*"(%GH(*"%:)1,%6",-G;%I,-%*,%6&,*%GH(*"%#)%C2*#,)G%+)0%-"+*%+%8,993)#*=%2+)%0,%*,%7#5"*%#*;% 9:00 pm 6322($$13.%!,,.$%1,'%J'(/()*+*#/(%K032+*#,)B%K)1,'2(9()*B%+)0%!'(+*9()*%+5+#)$*%$*'((*%0'35$%#)%5()('+.% Thereafter, a regular registration fee of $399 will apply. The Ramada Inn Hotel is providing +)0%8'=$*+.%H(*"%#)%&+'*#23.+'; accommodations for approximately $120/night on a first come, first serve basis. :*41;&9'*-0#1&<770#20)&()*$)",,'#$&'#&B)'1'%;&+*-4,C'"D&=#&+"779$(&$#(=+B(>+&$7(36+7 The full three-day conference will entail keynote addresses and break-out sessions that are :)%*"#$%&'($()*+*#,)B%<';%I(+*"('%4'(**,)%+)0%<';%4'+)*%L3'*%&',/#0(%+%$399+'=%,1%/#,.()*%,11()0('% carefully orchestrated to best suit a varied audience. One of the key goals of the conference is to *'(+*9()*%&',5'+99#)5%1,'%=,3*"%#)%L'#*#$"%8,.39@#+B%#)2.30#)5%+$$($$9()*%$*'+*(5#($%3$(0%*,%#0()*#1=% bring together professionals in the field that can speak from their experiences and established '#$A$%1,'%/#,.()2(%+9,)5%=,3*"B%+)0%+)%,/('/#(-%,1%+%9,0(.%,1%'#$AF1,23$(0%#)*('/()*#,); expertise to assist in early intervention, prevention, and risk management. The participants will have an opportunity to network and build partnerships to meet individual organizational goals, as well as the common objective of reducing crime in our communities. ! PAGE 14 Volume 9 Issue 6 ! November/December 2009 !"#$%"&'#((%)&*"+,+-#(&./$0+1%&*2-3%"%-1%&4565 72/089&*2,,/-+0+%$&#-:&08%&*"+,+-#(&./$0+1%&;)$0%, ! "#$%& !'()!*+, !'+-+ !"#$%&'%()*+% THURSDAY, April 29, 2010 THURSDAY, April 29, 2010 !"#$%#&'()'*$+#&'(&+,#&-./&-#%')#&+,#&+.0'*&)#%*1'0+'.(&2,'*,&+.0'*&3.4&2.4")&"'5#&+.&$++#()6&&7'8(&40& Continental 9:;<=>?@&%#$+'(8&'%&"'A'+#)&B.1&%.A#&01#%#(+$+'.(%6& 8:00 am – 9:00 am Continental Breakfast Breakfast 8:00 am – 9:00 am !"#$"%#&'()*+,-(./0(.112 Engaging Engaging with with Youth Youth Andrée Cazabon – Filmmaker Andrée Cazabon – Filmmaker and and former former street street youth youth !"#$%&'#&()'%*# Lunch Break 12:00 –– 1:00 Lunch Break 12:00 pm pm>,-(?9@$%79$ 1:00 pm pm TCO !"#$%&'($()*+*#,)%-#..%&',/#0(%+)%,/('%/#(-%,1%*"(%23''()*%4+)5%6#*3+*#,)%#)%7(0('+.%8,''(2*#,)$%+)0%*"(% TCO 22 Presentation Presentation 9:00 am 3+"&4(567(8"%%,9$%(:;(<9+(=&'(; 9:00 am –– 12:00 12:00 pm pm #9&,'*+)2(%,1%:)*(..#5()2(%5+*"('#)5; BC’s Office to Combat 1:00 BC’s Office to Combat Youth, Homicide and 1:00 pm pm –– 2:00 2:00 pm pm It Can Happen to Anyone Youth, Homicide and Trafficking in Persons Trafficking in Persons It Can Happen to Anyone Aggression +)','#"-&.#/0%1'$"1'*#%&"#2&+*,3410)&5*)0#%'6% Aggression Victor Porter and Diane Sowden Victor Porter and Dr. !"#$%&'()*%+",Diane Sowden Dr. Michael Michael Woodworth Woodworth Rosalind Currie Rosalind Currie <#5#*+.%(/#0()2(%#$%1,3)0%#)%)(+'.=%(/('=%*=&(%,1%2'#9(%2,99#**(0%*,0+=;%8"'#$>$%&'($()*+*#,)%-#..%0#$23$$% +)0%0(9,)$*'+*(%",-%*"(%1,'()$#2%(?+9#)+*#,)%,1%0#5#*+.%(/#0()2(%#$%3$(0%*,%+0/+)2(%#)/($*#5+*#,)$%@=% Move Move to to Afternoon Afternoon Break Break Out Out Session Session (?&.,'#)5%+*%.(+$*%,)(%2+$(%$*30=;%8"'#$%-#..%+.$,%*,32"%,)%2"+..()5($%+)0%,&&,'*3)#*#($%#)%*"(%1#(.0%,1% 2,9&3*('%1,'()$#2$; Project Fishing Can Happen Happen to to Anyone Anyone Project Resiliency Resiliency Fishing Upstream Upstream 2:30 pm – 3:30 pm ItIt Can 2:30 pm – 3:30 pm (Part II) D. &()*7'-0%&7*)&80)'*4%&"#2&9'*-0#1&:*41;&<770#2'#$& (Part II) D. Bassi, Bassi, P. P. Thomas, Thomas, Dianne Sowden D. Pearn, C. !($%-./%&0((.10%.21%!($%3(4)2%&0'"2 ! Dianne Sowden D. Pearn, C. Pettit Pettit Dr. Dr. Matt Matt Logan Logan and and Glen Flett Glen Flett !"#$%&'($()*+*#,)%-#..%,3*.#)(%*"(%9+#)%'#$A%1+2*,'$%+$$,2#+*(0%-#*"%*"(%0(/(.,&9()*%,1%$('#,3$%+)0%/#,.()*% Meet 3:30 4:30 Meet the the Speakers Speakers and and Questions Questions 3:30 pm pm ––=,3)5%,11()0('$;%!"(%&'($()*+*#,)%-#..%,3*.#)(%*"(%'#$A%1+2*,'$%#)%(+2"%0(/(.,&9()*+.%$*+5(B%1',9%#)%3*(',% 4:30 pm pm *"',35"%*,%+0,.($2()2(;%6322($$13.%#)*('/()*#,)%&',5'+9$%+)0%+&&',+2"($%-#..%+.$,%@(%0#$23$$(0 3+"&4(567(8"%%,9$%(:.( FRIDAY, April &=61'/0&8;**10)% FRIDAY, April 30, 30, 2010 2010 8A7B(C@+,%(D@9E*%9$ Continental 8:00 Continental Breakfast Breakfast 8:00 am am –C2*#/(%$",,*('$B%,'%D.(*"+.%*"'(+*%#)%&',5'($$E%2+..$B%&',/#0(%(),'9,3$%'(+2*#/(%2"+..()5($%*,%'($&,)0#)5% – 9:00 9:00 am am &,.#2(%,11#2('$;%%C%0#$23$$#,)%,1%*"(%(/,.3*#,)%,1%*"(%&,.#2(%'($&,)$(%*,%*"($(%#)2#0()*$%-#..%@(%1,..,-(0%@=% The 9:00 12:00 The Mission Mission Oriented Oriented Shooter: Shooter: 9:00 am am ––+)%(?&.,'+*#,)%,1%",-%9(9@('$%,1%*"(%2,993)#*=%-,'A#)5%#)%+)0%+',3)0%$2",,.$%+)0%-,'A&.+2($%9+=%@(% 12:00 pm pm Case Studies of the Worst School and Campus Case Studies of the Worst School and Campus Shootings; Shootings; Implications Implications for for +@.(%*,%"(.&%&'(/()*%,'%'(032(%*"(%2+')+5(%,1%*"($(%(/()*$%*"',35"%/+'#,3$%$*'+*(5#($%+)0%*+'5(*F"+'0()#)5% Law Law Enforcement, Enforcement, Mental Mental Health Health and and School School Professionals Professionals &'#)2#&.($; Dr. Dr. Mary Mary Ellen Ellen O’Toole O’Toole &+)>%1"-&?01;@&=&+*,,4#'1>&A0%3*#%0 Lunch 12:00 1:00 Lunch Break Break 12:00 pm pm ––FGDH(3C 1:00 pm pm Honourable 6((%*"(%GH(*"%:)1,%6",-G;%I,-%*,%6&,*%GH(*"%#)%C2*#,)G%+)0%-"+*%+%8,993)#*=%2+)%0,%*,%7#5"*%#*;% Honourable Kash Kash Heed Heed Minister of Public 6322($$13.%!,,.$%1,'%J'(/()*+*#/(%K032+*#,)B%K)1,'2(9()*B%+)0%!'(+*9()*%+5+#)$*%$*'((*%0'35$%#)%5()('+.% Minister of Public Safety Safety and and Solicitor Solicitor General General +)0%8'=$*+.%H(*"%#)%&+'*#23.+'; False 1:00 False Allegation Allegation of of Child Child Abduction: Abduction: 1:00 pm pm –– 2:00 2:00 pm pm :*41;&9'*-0#1&<770#20)&()*$)",,'#$&'#&B)'1'%;&+*-4,C'"D&=#&+"779$(&$#(=+B(>+&$7(36+7 Kathleen E. Canning Kathleen E. Canning :)%*"#$%&'($()*+*#,)B%<';%I(+*"('%4'(**,)%+)0%<';%4'+)*%L3'*%&',/#0(%+%$399+'=%,1%/#,.()*%,11()0('% *'(+*9()*%&',5'+99#)5%1,'%=,3*"%#)%L'#*#$"%8,.39@#+B%#)2.30#)5%+$$($$9()*%$*'+*(5#($%3$(0%*,%#0()*#1=% Break Break '#$A$%1,'%/#,.()2(%+9,)5%=,3*"B%+)0%+)%,/('/#(-%,1%+%9,0(.%,1%'#$AF1,23$(0%#)*('/()*#,); 2:15 2:15 pm pm –– 4:00 4:00 pm pm Psychiatric Psychiatric Issues Issues in in Murder Murder cases cases Wendy Dawson, QC, Dr. Matt Wendy Dawson, QC, Dr. Matt Logan, Logan, Dr. Dr. Lohrasbe Lohrasbe 3:30 3:30 pm pm –– 4:30 4:30 pm pm Meet Meet the the Speakers Speakers and and Questions Questions Updated UpdatedDecember December7, 7,2009 2009 PAGE 15 ! Volume 9 Issue 6 ! November/December 2009 JUDGE NOT EXPECTED TO LEAVE COMMON SENSE AT COURTROOM DOOR R. v. Twohey, 2009 BCCA 428 Two police officers saw the accused sitting alone in his vehicle and talking on a cell phone. The police checked the license plate and discovered that the accused was prohibited from possessing a cellular telephone. When they went back to speak to the accused, his vehicle was gone but they found him four or five blocks away. The police stopped the accused, who was still alone in the vehicle. He was arrested and searched and police found $860 in $20 and $50 bills, but no cell phone on his person. When asked where the cell phone was he replied that he had tossed it out the window. The vehicle, of which the accused was the registered lessee, was searched and one of the officers located a cellular telephone battery, a SIM card and a battery cover for the back of a cellular telephone in the area between the driver’s seat and the middle console. Two large Samurai swords were found in the back seat. A dog handler and drug-sniffing dog were called; the dog “hit” on the driver’s side power console for the windows and the police located a black pouch containing 12 small baggies containing 9.5 grams of cocaine, as well as a cellular telephone which was missing the SIM card, battery and battery cover. Police put all the parts of the telephone together. The display indicated three missed calls and the phone began ringing right away. The callers were seeking to buy drugs. At trial in British Columbia Provincial Court neither officer could say that the telephone they found was the same telephone they saw the accused using. However, they did not find any other cellular telephones in the car. The trial judge concluded that if the telephone found in the compartment was the same telephone that the police had observed the accused using, then the inevitable inference was that the accused knew about the hiding place and therefore he knew about the drugs. The trial judge did not accept the accused’s unsworn statement that he tossed the telephone out the window. The accused was convicted for possessing cocaine for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act and sentenced to a six month conditional sentence. The accused appealed to the British Columbia Court of Appeal arguing the trial judge’s finding that he possessed the cocaine was unreasonable, and that the trial judge misapprehended the evidence and drew the wrong inferences from the evidence. He submitted that there was no direct evidence that he knew about the drugs hidden under the power window console. In his view, the trial judge’s conclusion that he knew about the drugs turned on the judge’s finding that the cell phone located by the police was the same cell phone he was seen talking on, but his explanation that he tossed the telephone out the window was improperly rejected. Plus, since there was a brief period of time when the police did not have the accused under observation, he contended that the trial judge could not conclude that the telephone he was talking on was the same telephone the police found. The accused contended there was no evidence connecting him to the drugs found in the car as there was no forensic evidence linking him to the pouch of cocaine. “It is not disputed that in order to find that the [accused] possessed the drugs the learned trial judge needed to be satisfied beyond a reasonable doubt that he had knowledge and control of the drugs,” said Justice Bennett. “Knowledge and control does not need to be proved by direct evidence. Such a finding can be made based on circumstantial evidence, but only when the trier of fact is satisfied beyond a reasonable doubt that the guilt of the accused is the only reasonable inference to be drawn from the proven facts.” In this case, the trial judge’s conclusion that the police saw the accused using this cell phone was supported by the evidence. Only one telephone was PAGE 16 Volume 9 Issue 6 ! November/December 2009 found in the car, although “Trial judges are it was in parts. When put together, it displayed three not expected to missed calls and began to leave their r i n g c o n t i n u a l l y. Th e accused’s submission that common sense at there were other rational the door when explanations which were they enter a overlooked was rejected. The accused's contention courtroom.” that he threw his cell phone out the window and that some other unknown person or prior owner of the vehicle put a disassembled, but functioning telephone in the car, did not stand up in the face of the evidence as a whole. Nor did the accused’s related argument that some unknown person or prior owner hid the drugs in the same compartment where part of the telephone was located. “Trial judges are not expected to leave their common sense at the door when they enter a courtroom,” said Justice Bennett for the unanimous Appeal Court. The accused’s appeal was dismissed. SAMPLE MUST BE RECEIVED DIRECTLY INTO INSTRUMENT R.!v.!Mulroney,!2009 ONCA 766 At about 2:30 a.m. police saw the accused driving his vehicle erratically, weaving from side to side.!The police stopped him and the accused failed a roadside breath test. He was arrested and taken to the police station for a breathalyzer test. He was charged with impaired driving and over 80mg%. At trial in the Ontario Court of Justice the qualified breath technician testified he used an Intoxilyzer 5000C that was designed to receive and analyze breath samples for blood alcohol concentration, that it appeared to be working properly, and that the accused blew into the mouth-piece of the instrument as instructed, providing two suitable samples for analysis.!At the conclusion of the Crown’s case, the accused successfully had the charge of impaired driving dismissed.! He then moved to have the over Complete case available at www.courts.gov.bc.ca 80mg% charge dismissed, arguing that there was no evidence that his breath sample went directly into the breathalyzer and that s. 258(1)(c)(iii) was therefore not complied with.! The trial judge dismissed the motion, instead holding that there was Proof evidence sufficient to conclude that the breath sample went directly into the instrument. The “It 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ must be remembered that accused was convicted of over 80mg% and '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ sentenced to an $800 fine and was prohibited from [ judges] are not expected to driving for 12-months. %9+ /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ !"#$!!%&'("$)*+#, LEGALLY SPEAKING: !"#$%&'()#'%*+,-.'-/+0#)*1)&1 1;%<=>*1?=0@=A7 ! 2 7 4# 9' @0,"$:9#56+3'$+5$A05#4$3'$0$,0 The accused then successfully appealed to the Ontario Superior Court (##$80/#$BB$=3)$6"#$0'5>#)5? of Justice. The appeal judge treat real life cases as a 6&)*#-1+#$-+)"#$%&'()#'%*<+ completely intellectual exercise where no conclusion can be reached if 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ held that there was no evidence that the mouththere is the slightest competing possibility. The #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ piece was connected to C?$D11$3,,980'65$3=$0$*#"+,1#$0) the Intoxilyzer or, even if it was, that there was no intervening apparatus criminal law requires a very high degree of %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ >"#'$6"#$*#"+,1#$+5$56388#4 between the two.! The appeal judge concluded that proof,#$-+ especially for inferences consistent #$)#+ )"#$%&'()#'%*+ 7%"6$#+ /'44+ with )99%&1+ -.'1-*8-+ #$)#+ that $ F0G$!)9# there was %9+ no evidence could properly lead to a guilt, but it does not demand certainty.” reasonable inference that the breath samples were %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# provided by the accused$ directly into the approved British Columbia Court of /$-*+ Appeal8%*1"8#'*6+ Justice %9+ #$-+ )"#$%&'('*6+ 5"16-+ #$-+ &-.'-/<+ 3$-+ instrument. The accused’s appeal was allowed, his I?$D5J+'/$0$4)+*#)$63$A13>$+'63 @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ McEachern in R. v. To, 1992 BCAC 223 at para. 41. conviction was set aside, and an acquittal was 89)835#$ 3=$ 4#6#)7+'+'/$ 6 /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+entered. 6&)*#-1+ #$-+ 3439)$+5$0$8#)7+55+A1#$5,)# )"#$%&'()#'%*<+ PAGE 17 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()#'%*+'9+7)#'79'-1+ %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B#$-+#%#)4'#A+ %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ '36$#'/0/#$6"#$)+/"6$63$,39 M"0)6#)? $ F0G$!)9# Volume 9 Issue 6 ! November/December 2009 The Crown then appealed to the Ontario Court of Appeal arguing two points. First, as a matter of statutory interpretation, s.258(1)(c)(iii) does not require that a breath sample be received from an accused directly into an approved instrument in order for the evidence of the analysis to be conclusive proof of the concentration of alcohol in the accused’s blood.! The Crown submitted that in the wording of the legislation, “directly” applied only if the breath sample is being received into an approved container, but when it is being received into an approved instrument there is no such constraint.! The Crown submitted that the section provided no constraint at all on how the breath sample gets into an approved instrument.! Second, the Crown argued that the trial judge was correct to find that there was evidence sufficient to conclude that the accused’s breath sample was received directly into the approved instrument. think that the liberty interest of the accused requires a strict interpretation of the section.! The same strict approach also serves the objective of preserving the integrity of the breath sample in order to ensure accurate results.! On the other hand, implicit in the section is the contemplation that a breath sample could properly be received into an approved instrument not directly from an accused, but from an approved container, if there were any.! With these considerations in mind, I think the proper interpretation of s. 258(1)(c)(iii) is that the breath sample from the accused must be received into an approved instrument either from an approved container if one is used, or, if not, directly into the approved instrument itself. [paras. 16-17] But the Court of Appeal accepted the Crown’s second argument: Justice Goudge, authoring the opinion of the Ontario Court of Appeal, first outlined the requirements of the Criminal Code with respect to breath samples as it related to the appeal: Here there was not just evidence that the breathalyser used was an approved instrument and a result was obtained.! Nor did the trial judge simply take judicial notice that this must mean that the breath sample The Criminal Code provides was received directly into the that if certain conditions are “[T]he proper interpretation instrument.![The qualified breath met, the results of a breathalyser technician] testified that the of s. 258(1)(c)(iii) is that the test constitute conclusive proof instrument was designed to of the concentration of alcohol breath sample from the receive and analyse breath in an accused person’s blood, samples, that it appeared to be accused must be received ... both at the time of the test and working properly, that the at the time when the offence directly into the approved respondent blew into the was alleged to have been mouth-piece of the instrument instrument itself.” committed. One of these as instructed, and that this conditions is set by s. 258(1)(c) provided a suitable sample for (iii).! It requires that each sample be “received analysis.! None of this evidence was contested from the accused directly into an approved by the [accused].! container or into an approved instrument operated by a qualified technician”.!... [para. 1] In my view, this was ample circumstantial evidence from which the trial judge could properly conclude as he did, namely that the [accused’s] breath samples were received directly into the approved instrument in this case. [paras. 21-21] As for the Crown’s first argument, it was rejected. Justice Goudge opined that “the Crown had to establish beyond a reasonable doubt that the breath samples were received into the approved instrument directly from the accused.” Because the section provides the Crown with proof that is deemed conclusive of the concentration of alcohol in an accused’s blood, I The Crown’s appeal was allowed and the accused’s conviction was restored. Complete case available at www.ontariocourts.on.ca PAGE 18 Volume 9 Issue 6 ! November/December 2009 RISK THAT DRIVER WOULD PUT CAR IN MOTION & CREATE DANGER ESTABLISHES CARE or CONTROL BY THE BOOK: s. 258(1)(c)(iii) Criminal Code R.!v.!Ruest,!2009 ONCA 841 ! s.258. (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2) ... (c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if ... (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician … evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed[.] ! At about 2:50 a.m. on New Year’s day the accused, who had been drinking and celebrating the New Year, left an Army Navy Club. Several of his friends had e n c o u r a g e d him to call a taxi, rather than drive, because of his inebriated state.! However, he insisted he would drive and offered to give his friends a ride home.!One friend was so concerned that she called the police.! A police officer arrived about a minute after the call and saw one car parked in the Army Navy Club parking lot.!The accused was scraping ice off the its rear window.!The engine was running and the accused’s fiancée was sitting in the front passenger’s seat.! The police officer approached the accused and spoke to him.! He had difficulty standing on the icy parking lot and the officer noticed other signs of impairment.! Because there were no keys in the vehicle, the officer asked the accused to give him the keys.! In response, he pulled the keys out of his pocket and gave them to the police officer.! There was a remote starter on the key chain and the car could not be driven until the key was inserted in the vehicle.!The accused was arrested and a subsequent analysis of his breath revealed blood-alcohol levels of 160mg% and 150mg%. He was charged with care or control while impaired under s.253(1)(a) and blowing over under s.253(1)(b).! At trial in the Ontario Court of Justice the judge made the following findings of fact: • the accused’s car was parked in the parking lot of the Army Navy Club; • the car was operable; www.10!8.ca • the accused was standing at the car clearing ice from the window; PAGE 19 Volume 9 Issue 6 ! November/December 2009 • the accused intended to get into his car and drive away in the immediate future and would have done so, but for the arrival of the police officer; • the accused engaged the engine of the motor vehicle using a remote starter device; • the accused had the keys to the car; • the accused had opened the driver’s side door and removed the snow scraper; or control was described as “the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.” (see R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont.C.A.) As a result, Justice Doherty then framed the question on appeal as: “did the conduct of the [accused] in relation to his car create a risk that the [accused], while impaired, would put his car is motion and thereby create a danger?” He answered it this way: • the accused did not sit in the driver’s seat and had not inserted the key in the ignition; and • the car could not move without the key being inserted in the ignition. Despite these findings the judge nonetheless concluded the accused was not in care or control. He had been intercepted prior to entering the vehicle and prior to inserting the key into the ignition. Thus, there was no present danger. The accused was neither in the vehicle nor in a position to bring about any danger or harm to anyone within the meaning to be given to the legislation. The accused was therefore acquitted because there was no proof of “some actual evidence of risk or danger, as might occur by starting to enter the vehicle or by placing the key in the ignition”. ... [The accused’s] stated intention to get in his car and drive away in the immediate future was the paramount feature of the risk assessment to be made in this case.! An intention to drive the vehicle is not an essential element of the offence of “care or control”. ... It is, however, part of the conduct of the accused that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger.! The [accused’s] intention to get into the car and drive away, probably within seconds, had the officer not arrived certainly magnifies the risk that the [accused] would put his car in motion and create a danger. The [accused’s] car was operable, running and sitting in an unobstructed parking lot, and the [accused] had the keys in his pocket.! He intended to drive away, presumably as soon as the window was cleared.! With respect to the decisions below, it is impossible to say on these The Crown appealed to the Ontario Superior Court findings of fact that the [accused] was not in of Justice, but the accused’s acquittal was upheld. care or control of the vehicle ....! Speculation as The appeal judge ruled that the Crown had not to when the [accused] first assumed the proven the actus reus of the offence of “care or necessary care or control of the vehicle is control”- the risk necessary.! The irrelevant to his criminal Crown again appealed, this time liability.!The point is that by the “An intention to drive the to the Ontario Court of Appeal. time the officer arrived and vehicle is not an essential stopped the [accused] from Justice Doherty, delivering the getting into his vehicle and element of the offence of judgment of the Ontario Court of driving away, the [accused] had “care or control”. ... It is, Appeal, ruled the lower courts taken steps to start the vehicle and prepare for its immediate a p p l i e d a t o o n a r r ow a n d however, part of the conduct d e p a r t u r e .! Th e r e w a s a n restrictive notion of the degree of of the accused that is relevant obvious, significant risk that the risk required in determining [accused] would put the car in to the determination of whether a person was in care or motion and endanger the control. whether that conduct in public.! relation to the motor vehicle ......... In earlier, but binding appellate In this case, the existence of the had created a risk of danger.” authorities, the actus reus of care PAGE 20 Volume 9 Issue 6 ! November/December 2009 mischief targeted by the “care or control” criminal prohibition is all the more obvious in that the [accused] fully intended to get into his car and drive away.! This was not a case where liability turned on a possible risk that the vehicle might be started despite the driver’s intention not to start the vehicle.!Rather, this is a case where a driver was standing at a fully operable vehicle with the keys and with the intention to get in the vehicle and drive it away.! [references omitted, paras. 15-18] UNLAWFUL PURPOSE MUST BE DIFFERENT FROM SUBSEQUENT OFFENCE R.!v.!Quinn,!2009 ONCA 817 !!!!!! The accused answered a telephone call the complainant made to an e s c o r t a g e n c y.! O n c e i n t h e c o m p l a i n a n t ’s h o m e , h av i n g concluded some preliminary In Justice Doherty’s view, the facts unequivocally negotiations and activities, the accused went established the legal elements of the offence of “care downstairs on the pretence of getting a drink of or control” and the accused was guilty. The Crown’s water.! She unlocked the door to the house.! By preappeal was allowed, the accused’s acquittal was set arrangement, others entered the residence, aside, and a conviction of impaired care and control handcuffed and beat the complainant with the butt was entered. of an imitation firearm, and ransacked the premises, taking various items with them as they left, closely Complete case available at www.ontariocourts.on.ca followed by the accused. At trial in British Columbia Supreme Court the judge explained the requirements of liability, including the grounds that the accused !" was a party to the principals’ offences under s.21(2) 23 “Care or Control” of the Criminal Code because she formed a common intention with them to commit and to help them 7 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “The mischief sought to be commit robbery. The jury found the accused guilty of 4# '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ robbery, using an imitation firearm while committing prohibited by the section as 9' robbery, unlawful %9+ /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+confinement and assault causing expressed by the wording is harm arising out@0,"$:9#56+3'$+5$A05#4$3'$0$,0 of her conduct during the 6&)*#-1+#$-+)"#$%&'()#'%*<+ bodily home invasion. that an intoxicated person !"#$!!%&'("$)*+#, LEGALLY SPEAKING: 1;%<=>*1?=0@=A7 !"#$%&'()#'%*+,-.'-/+0#)*1)&1 (##$80/#$BB$=3)$6"#$0'5>#)5? 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ who is in the immediate presence of a motor The accused appealed arguing, among other #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ vehicle with the means of controlling it or grounds, that the trial C?$D11$3,,980'65$3=$0$*#"+,1#$0) judge failed to adequately instruct the jury on the objective foreseeability %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ >"#'$6"#$*#"+,1#$+5$56388#4 setting it in motion is or may be a danger to the component in s.21(2) of the Criminal Code. The #$)#+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8-+ %9+ #$)#+ $ Appeal F0G$!)9# public.#$-+ Even)"#$%&'()#'%*+ if he has no immediate intention British Columbia Court of agreed: %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# of setting it in motion he can at any instant $ “unlawful in s. 21(2) must be %9+ #$-+ )"#$%&'('*6+ 5"16-+his/$-*+ 8%*1"8#'*6+ #$-+The &-.'-/<+ 3$-+purpose” determine to do so, because judgment may different from the I?$D5J+'/$0$4)+*#)$63$A13>$+'63 “offence” the principal @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ commits in carrying out the common purpose. ... be so impaired that he cannot foresee the 3=$ serve 4#6#)7+'+'/$ 6" In this instance, robbery cannot /$'8$+ )"#$%&'('*6+ 6&)*#-1+ #$-+the same89)835#$ possible #$-+ consequences of his5"16-+ actions.”8%"41+ - New $).-+ as both the “unlawful purpose” and the 3439)$+5$0$8#)7+55+A1#$5,)# )"#$%&'()#'%*<+ “offence”.! If s. 21(2) applied at all in this case, Brunswick Court of Appeal in R. v. Price (1978), 40 '36$#'/0/#$6"#$)+/"6$63$,39 the more appropriate “unlawful purpose” may C.C.C. (2d) 378 (N.B.C.A.) at p.384. have been a home invasion or the unlawful entry 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# '%*+'9+7)#'79'-1+ M"0)6#)? offence of s. 349(1) of the Criminal Code. [para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www.10!8.ca Volume 9 Issue 6 ! November/December 2009 The jury was not properly instructed on the legal principles that they were to apply to determine whether the the accused’s guilt had ben established beyond a reasonable doubt. Her appeal was allowed, the convictions were quashed, and a new trial was ordered. Complete case available at www.ontariocourts.on.ca BY THE BOOK: s. 21(2) Criminal Code s. 21(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. IMPAIRED AMENDMENTS OPERATE RETROSPECTIVELY toxicology evidence would be irrelevant. The trial judge, however, concluded that the Crown could not raise the issue at this point and the evidence related to the Carter defence resulted in the accused’s acquittal. The Crown then appealed the accused’s acquittal for driving over 80mg% to the Ontario Superior Court of Justice, again arguing that the amendments to s.258 applied retrospectively to offences committed before it came into effect, but involving trials commencing or continuing after that date. The appeal judge concluded it was not improper for the Crown to raise the retrospectivity issue when the trial resumed, but held Bill C-2 (the amendments to the Criminal Code) did not apply retrospectively.!In his view, the amendments virtually eliminated a defence and were therefore substantive law and not exclusively procedural.! Thus, the amendments could only take prospective effect. The accused’s appeal was dismissed and the accused’s acquittal was upheld. The Crown then appealed to the Ontario Court of Appeal. Justice MacPherson, writing the unanimous judgment, first found the amendments of Bill C-2 were essentially procedural or evidentiary in nature, not substantive in nature. He then went on to conclude that the amendments did not eliminate the Carter defence: The Carter defence has not been virtually eliminated, neutered or abolished.! It has been changed, but it survives in a different form, subject as always to the ingenuity of defence lawyers and the new jurisprudence that the courts will inevitably enunciate.![para. 26] R.!v.!Dineley,!2009 ONCA 814 The accused went to a nightclub to drink with several friends.! He returned to his car and soon after he started driving the car mounted a curb and struck a parked vehicle. The police arrived to investigate the accident and conducted breath tests that produced blood alcohol concentrations of 99mg% and 97mg%.!The accused was charged with impaired driving and driving over 80mg%. At trial in the Ontario Court of Justice the accused raised the “Carter defence”. The Crown then pointed out that s.258 of the Criminal Code had been amended and the provisions operated retrospectively. Thus, the accused’s proposed Instead, the defence will need to shift its direction to the reliability of the approved instrument by such things as cross-examining the operator, or pointing to an error on the face of the test records or a problem with the alcohol standard solution. In Justice MacPherson’s opinion, the amendments merely altered the evidentiary content of a defence and did not remove or eliminate it, therefore the provisions applied restrospectively. The Crown’s appeal was allowed and a new trial was ordered. Complete case available at www.ontariocourts.on.ca PAGE 22 Volume 9 Issue 6 ! November/December 2009 of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed. SAY WHAT? Furthermore, s.258 (d.01) excludes the following as evidence tending to show that an approved instrument was malfunctioning, was operated improperly, or the analysis was performed improperly: Prospective - looking towards the future Retrospective - looking backwards THE ‘CARTER DEFENCE’ the amount of alcohol that the accused consumed, What is the Carter defence? It is also known as the two drink defence. In the National Survey of Crown Prosecutors and Defence Counsel on Impaired Driving (June 2009), the Carter or two drink defence is described as follows: With the “2-drink” defence, the accused suggests that the evidential breath test result must be incorrect because it is incompatible with other evidence (e.g., testimony of the accused or witnesses, receipts to demonstrate the amount of alcohol consumed, etc.). The defence will also often present testimony from an expert witness (e.g., a toxicologist) that, based on evidence of the amount of alcohol the accused reported he/she consumed, the accused’s BAC would have been less than that recorded by the evidential test. [at p. 43] the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body, or a calculation based on that evidence of what the concentration of alcohol in the accused’s blood would have been at the time when the offence was alleged to have been committed. Other Impaired/Over 80 mg% Defences: With Bill C-2, the Tackling Violent Crime Act, s. 258(1)(c) of the Criminal Code was amended on July 2, 2008 to now provide that the result of a driver’s lowest breath test is conclusive proof that their blood alcohol concentration at the time of the offence, in the absence of evidence tending to show that: the approved instrument was malfunctioning or was operated improperly, the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg Last Drink defence - the accused alleges that their pattern of alcohol consumption was such that the blood alcohol concentration was still rising at the time they were driving and that it had not yet exceeded 80mg%. ! Drinking After Driving defence - the accused alleges that they consumed alcohol after driving but before the samples were taken. Thus the reading at the time of driving was actually lower (and below the legal limit) than at the time of test when the alcohol had been absorbed and showed a reading higher than the legal limit. Bolus (or Mouth Alcohol) defence - the accused alleges that the blood alcohol concentration reading over the legal limit was artificially high due to mouth alcohol arising from alcohol immediately prior to the stop. The observation period before and between each sample makes it unlikely that mouth alcohol is the source of an elevated reading. PAGE 23 Volume 9 Issue 6 ! November/December 2009 Charter Defences Right to Counsel defence - the accused alleges that the police violated their constitutional right to counsel under s.10(b) of the Charter and therefore the breathalyzer readings should be excluded under s.24(2). s.10(b) Charter - Everyone has the right on arrest or detention ... (b) to retain and instruct counsel without delay and to be informed of that right; ... Unreasonable Search & Seizure defence - the accused alleges that the police did not have the requisite reasonable suspicion under s.254(2) of the Criminal Code for the ASD demand, which then provided the reasonable grounds necessary for the breathalyzer demand and resultant breath samples. Or, the accused alleges that the police officer did not have the requisite reasonable belief to demand a breath sample under s.254(3). If successful, the accused will make an application to have the breathalyzer readings excluded under s.24(2) of the Charter resulting from the s.8 breach. s.8 Charter - Everyone has the right to be secure against unreasonable search or seizure. Arbitrary Detention defence - the accused alleges they were detained arbitrarily under s.9 of the Charter and the evidence flowing therefrom is inadmissible under s.24(2). s.9 Charter - Everyone has the right not to be arbitrarily detained or imprisoned. OTHER NOTE-ABLE REPORT RESULTS Paperwork - “Lawyers agree that the most compelling evidence, again, in addition to the BAC, comes from the police (e.g., paperwork containing details of the investigation). “ (at p. 52) Video Evidence - “Crown prosecutors and defence counsel note that video at the roadside is almost never available, and video taken during booking or the breath test is available slightly more often. Even though such video is not often available, both Crown prosecutors and defence counsel agree Did You Know “Lawyers generally a gree that impaired driving cases can be challenging to process as they frequently involve more scientific and technical evidence and complex legal arguments, relative to other types of CCC cases. In fact, due to the nature of the evidence, these cases are often considered as challenging as homicides and sexual assaults. As such, the manner in which evidence is collected, documented, and presented in Court can significantly impact outcomes.” !National Sur vey of Crow! Prosecutors and Defence Counsel on Impaired Driving #June 2009$ at p. 51!52. that it can sometimes or often be of considerable value, resulting in a guilty plea, a conviction at trial, or an acquittal.” (at p. 52) Evidence of Impairment - “A majority of Crown prosecutors across jurisdictions (50-70%) believe that police officers rely too heavily on the BAC result (CCC s. 253(b)) as evidence of impairment, to the detriment of other evidence related to behavioural signs of impairment. As a result, Crown must more often proceed on the ‘over 80’ charge instead of the ‘impaired driving’ charge. Unfortunately, when cases are challenged in Court and the results of the breath test are brought into question, the Crown do not often have behavioural evidence to demonstrate the defendant was impaired and prove any impaired driving charge (CCC s.253 (a)). So when the breath result is challenged by defence counsel, prosecutors encounter substantial difficulty proving the case beyond a reasonable doubt and these cases can result in an acquittal despite a positive BAC reading based on a two tier evaluation and a certificate from the breath technician.” (p. 53) Police Training - “To facilitate the accurate and relevant collection of evidence and its presentation in Court, a majority (85%) of prosecutors agreed that police officers can benefit from more training in the PAGE 24 Volume 9 Issue 6 ! November/December 2009 enforcement of impaired driving laws as well as in giving Court testimony.” (p. 54) Case Preparation - ”[T]he survey revealed that defence counsel spend at least twice as many hours, and in some instances, four times as many hours preparing for impaired driving cases as do Crown.” (p. 63) Conviction Rate - “The average overall conviction rate (including plea agreements, guilty pleas and convictions at trial) for impaired driving cases is 78%. This is comparable to a recent Statistics Canada study revealed that Criminal Code traffic offences had findings of guilt in almost 80% of cases (CTV 2008). ... Based on the findings from this survey, a majority of jurisdictions report an overall estimated conviction rate of 72%-73%. Higher overall conviction rates are reported in the Saskatchewan, Manitoba and Northwest Territories region (86%) and the Atlantic region (90%). Nationally, the average overall conviction rate for impaired driving cases is 78%.” (p. 65) Reasons for Acquittal - “More prevalent issues related to acquittals are linked to procedures and practices followed by police during an investigation and arrest ... More than 1/3 of prosecutors and defence counsel (37% and 43% respectively) agree that improper procedures by arresting officers are always or often a problem. Defence counsel is somewhat more likely to report that officers did not have reasonable suspicion for an ASD demand; 17% of Crown and 26% of defence counsel say that officers always or often do not have reasonable and probable grounds for an evidential breath or blood test. Errors in police paper work were cited by prosecutors and defence counsel as always or often an issue in 13% and 16% of cases respectively. Prevalent issues related to acquittals are linked to procedures and practices followed by police during an investigation and arrest.” (p. 68) “The Charter issues most frequently raised include: officers not having reasonable and probable grounds (RPG) for arrest, section 8 pertaining to search and seizure, section 9 involving the right not to be arbitrarily detained, and section 10(b) which is the right to retain and instruct counsel without delay. Occasional and infrequent references to other Charter sections were noted, but not raised as serious concerns.” (p. 71) Training, Training & More Training - “Impaired driving cases are complex due to the nature of intersecting scientific, legal and constitutional issues. Case law in this area has grown exponentially, making it difficult for police and lawyers to keep abreast of current decisions. ... It cannot be overlooked that, while Charter issues pose a considerable challenge in the processing of impaired driving cases, this is not unusual. In fact, these issues impact a broad cross-section of cases and will likely continue to do so in the future. However, efforts can be taken to minimize their impact by ensuring that police are aware of relevant cases as the law evolves, and understand what impact these decisions will have on their investigative procedures. Crown and defence counsel can play a significant role in ensuring that officers are well-equipped to navigate constitutional issues in the future. The findings also suggest that the processing of cases can be improved with some practical measures. To begin, Crown and police can benefit from more consistent and sustained institutional efforts regarding education and training in this area, particularly in light of the rapidly evolving jurisprudence. Some jurisdictions have more ongoing and comprehensive initiatives than others however, they are frequently ad hoc and informal. Unfortunately, educational and training efforts are driven internally, often as a function of policy, available resources, and competing priorities. To this end, better and more consistent education and training initiatives for practitioners on impaired driving issues can help agencies move collectively towards reducing or eliminating cases in which evidentiary issues lead to an acquittal.” (p. 108) Complete report available at: h t t p : / / w w w. t i r f . c a / p u b l i c a t i o n s / P D F _ p u b l i c a t i o n s / Lawyers_Survey_Report_Final_2009.pdf PAGE 25 Volume 9 Issue 6 ! November/December 2009 Did You Know “Today, defendants are willing to go to trial because the potential payoff is significant. One commonality that cannot be overlooked is the distinct willingness of people to fight to avoid a criminal conviction as well as the one year driving prohibition. These findings clearly demonstrate that, in the face of such severe penalties, many of those accused of impaired driving see the penalties as an incentive to go to great lengths to avoid a conviction, which has substantial implications for the ability of the justice system to manage such cases in its current form.” !National Survey of Crown Prosecutors and Defence Counsel on Impaired Driving #June 2009$ at p. 111. REQUEST FOR DRIVER TO EXIT VEHICLE IS NOT COMPELLED PARTICIPATION IN ROADSIDE TESTS R. v. Quenneville, 2009 ONCA 325 At about 2:20 a.m. in mid-December a police officer saw a vehicle travelling at an abnormally slow speed. The officer followed the vehicle and activated his emergency lights to stop the vehicle, but the vehicle continued for about two blocks after the emergency lights were activated and then turned into a residential driveway and stopped. The officer approached the driver's side of the vehicle and the driver opened his door. A smell of alcohol was detected and the driver was requested to produce his driver’s license, insurance and ownership papers. The driver's speech was slurred and he was asked to exit the vehicle, stumbled while getting out. The driver placed his hand on the ground when he stumbled and when he attempted to stand up, he stumbled backwards into his vehicle and could not stand without leaning on his vehicle. At trial in the Ontario Court of Justice the police officer testified that he stopped the vehicle for a sobriety check given the hour (2:20 a.m.), the abnormally slow driving speed and the time of year (holiday season) he suspected the driver might be impaired. The driver not immediately stopping reinforced his suspicion. The accused was convicted of impaired under s.253(a) of the Criminal Code. The accused appealed to the Ontario Superior Court of Justice submitting that the evidence observed by the police officer when he was ordered to exit the vehicle was not admissible. The appeal judge found that if the accused had exited the vehicle voluntarily then the stumbling evidence would have been admissible. On the other hand, if the accused exited the vehicle pursuant to a demand for sobriety screening pursuant to s.48(1) of the Highway Traffic Act then it could not be used as evidence of impairment at trial. The Crown argued that asking the accused to exit his vehicle and observing the manner in which he did was not a sobriety screening test, analogizing the order to exit the vehicle to the order to produce the driver's documents. The appeal judge rejected this analogy noting that the officer was authorized by law to request the driver's documents and, other than pursuant to s.48(1) of the Highway Traffic Act or for officer safety, he had no authority to ask the accused to exit his vehicle. Since the trial judge failed to address the admissibility of the stumbling evidence (which may or may not have been admissible), the accused’s appeal was allowed and a new trial was ordered. The Crown then appealed to the Ontario Court of Appeal which restored the accused’s conviction at trial. “The line drawn ... as to the limitation on the use of evidence acquired at the roadside, is evidence obtained through the ‘compelled direct participation’ in sobriety trials,” said the Court in a short endorsement. “The observations made as the [accused] exited his vehicle, even in response to a direction from the officer, is not compelled direct participation in the roadside tests so as to attract the limitation on use.” Complete case available at www.ontariocourts.on.ca PAGE 26 Volume 9 Issue 6 ! November/December 2009 1;%<=>*1?=0@=A7 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: BY THE BOOK: !"#$%&'()#'%*+,-.'-/+0#)*1)&1 ! 2 7 s. 48(1) Ontario’s Highway Traffic Act “I 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ have concluded that the 4 '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ s.48(1) A police officer, readily provisions allowing for a breach 9 identifiable as such, may require )"#$%&'('*6+ of %9+ the /$'8$+ motorist'#$-+ s s. 10(b) rights at 5"16-+ 8%"41+ $).-+ the driver of a motor vehicle to @0,"$:9#56+3'$+5$A05#4$3'$0$,0 the6&)*#-1+#$-+)"#$%&'()#'%*<+ roadside would not be saved stop for the purpose of (##$80/#$BB$=3)$6"#$0'5>#)5? determining whether or not there Admissibility of Non Compelled Roadside Observations under s. 1 if the3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ evidence resulting from is evidence to justify making a compelled participation in the tests -- designed #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ demand under section C?$D11$3,,980'65$3=$0$*#"+,1#$0) 254 of the Criminal Code to firm up mere suspicion of impairment or a %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ (Canada). >"#'$6"#$*#"+,1#$+5$56388#4 blood-alcohol level exceeding 80 mg./'44+ -- could be -.'1-*8-+ %9+ #$)#+ $ F0G$!)9# #$)#+ #$-+ )"#$%&'()#'%*+ 7%"6$#+ )99%&1+ used for trial purposes to incriminate and %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# %9+ #$-+ a)"#$%&'('*6+ convict motorist of5"16-+ either /$-*+ offence.8%*1"8#'*6+ I wish to #$-+ &-.'-/<+ 3$-+ $ I?$D5J+'/$0$4)+*#)$63$A13>$+'63 @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ make it clear that this conclusion applies only to 89)835#$ 3=$ 4#6#)7+'+'/$ 6 /$'8$+ )"#$%&'('*6+ 5"16-+ 8%"41+ evidence#$-+ obtained from compelled direct$).-+ 6&)*#-1+ #$-+ 3439)$+5$0$8#)7+55+A1#$5,)# )"#$%&'()#'%*<+ participation by the motorist in roadside tests '36$#'/0/#$6"#$)+/"6$63$,39 authorized by s. 48(1) of the HTA, specifically 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# '%*+'9+7)#'79'-1+ M"0)6#)? designed to determine impairment or a blood#$-+#%#)4'#A+ $ F0G$!)9# %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B alcohol level exceeding 80 mg. I am not referring %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ $ FAG$H015# to observations the officer might make of the )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7CONTINUED +9"*8#'%*+'7+ SEARCH $ AFTER driver while carrying out other authorized B?$ N"+,"$ 8)3*+',#$ "04$ 6"#$ #%+ -D);'*-+ #$-+ 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ )*1+DISAVOWING *%#+ #%+ SAFETY duties. Thus, by way of example, an officer may (98)#7#$M39)6$3=$M0'040$+ RATIONALE INAPPROPRIATE 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+GHH!+ KLLM+GHH!+ et al.,!2009 %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# strong odour of alcohol, blood-shot and glassy KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q After stopping a vehicle a police eyes, dilated pupils, slurred speech, unsteadiness $ F,G$R'60)+3Q officer saw guns in plan view in ofwww.10-8.ca gait upon the driver exiting the vehicle, or the back The accused told the $ seat. F4G$S9#A#,? officer that the guns were toys, other similar signs. These observations would be which the officer confirmed, but '-$)"+&.$.%&'%+/012"& admissible at trial to prove impairment.” - she continued searchingT?$!"#$+'=3)706+3'01$496<$+78 the vehicle anyways. The 5?CLFAG$3=$6"#$ +5$63 officer subsequently located a bag of marihuanaM"0)6#)$ and Ontario Court of Appeal Justice Moldaver in R. v. 3$.4'*5"&-"$/&60$42$7& the accused was charged. '36+,#$ 3=$ 6"#+)$ )+/"65U$ ' Milne (1996), 107 C.C.C. (3d) 118 (Ont.C.A.) . 81+9"0"+8" At trial in the Ontario Court#V#),+5#$6"#7?$ of Justice the officer $ F0G$!)9# that once she knew the guns were toys she 1:;<=>?&@ABC&DEEF testified “didn’t need to investigate further.” The evidence www.10!8.ca $ FAG$H015# was clear that the discovery of the toy guns and the !"#$ (#*#'6"$ Z3)6"$ D7#)+,0'$ M3'=#)#',#$ 3'$ ("0J#'$ P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ PAGE 27 R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P)+6+5"$ M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#)65$ >+11$ W?$D$831+,#$3==+,#)$'##4$'36$ M34#$ 088)3*#4$ 5,)## +'560'60'#3951<$983'$4+5,3* 01,3"31$ +'$ 6"#+)$ A34