IN SERVICE: 10-8 A PEER READ PUBLICATION “There shall be an immediate moratorium on street checks of pedestrians and passengers.” The Honourable Mark Furey Nova Scotia Attorney General and Minister of Justice Minister’s Directive issued April 17, 2019 NOVA SCOTIA’s ATTORNEY GENERAL & MINISTER OF JUSTICE TEMPORARILY BANS STREET CHECKS On April 17, 2019, the Honourable Mark Furey, Nova Scotia’s Attorney General and Minister of Justice, issued a directive to all municipal police forces and the Royal Canadian Mounted Police across the province immediately prohibiting street checks of pedestrians and vehicle passengers. “The moratorium protects people from street checks in public areas, such as parks, sidewalks or other places accessible to the public, provided there is no suspicious or illegal activity,” said a news release issued on the subject. “The directive also makes it clear that no activity conducted by police, including a traffic stop, can be done based on discrimination, including race.” • • • • - the Motor Vehicle Act to ensure compliance with license, registration, insurance and fitness of the vehicle; - the Criminal Code, or for sobriety checks; police inquiries into suspicious activity; - when inquiring into suspicious activity, police officers are directed that where there is suspicious activity and it is feasible to do so, they should first make inquiries of an individual to confirm or dispel the officer's suspicion without requesting identifying information; police investigations of an offence or where police reasonably suspect that an offence has occurred, and that the person stopped is connected to the offence; investigative detention or arrest; executing warrants. The directive, however, does not apply to the following situations as long as they are not conducted on the basis of discrimination, including race: This directive did not replace the Minister's previous directive issued to police on March 28, 2019 that prohibited the use of street checks as part of a quota system or as a performance measurement tool. • motor vehicle stops where the driver is stopped under statutory or common law, including: The “Halifax, Nova Scotia: Street Checks Report” is available here. Be Smart & Stay Safe Volume 19 Issue 2 Volume 19 Issue 2 ~ March/April 2019 Highlights In This Issue Unless otherwise noted all articles are authored by Mike Novakowski, MA, LLM. 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. Supreme Court More Divided On Cases 5 No Detention In Approach & Request For Identification 8 Jury Unanimity In Rejecting Each Self-Defence Element Not Required 11 Meaning Of Wounding In Aggravated Assault Provision 12 Obstruction Arrest Resulting From Incomplete Identification Process Lawful 14 Questioning Consistent With Traffic Purpose: No Charter Breach 16 No Charter Breach In Posing As Fictitious 14-YearOld Girl Online 19 National Cannabis Survey 23 Illicit Drug Overdose Deaths In 2019 24 Looking to refresh or develop your current skills? The JIBC’s Advanced Training Program provides in-depth development opportunities for law enforcement officers. Some of our courses involve training in traditional and online investigations; patrol operations, as well as surveillance techniques and developing leadership skills. Sworn municipal officers, RCMP, peace officers, and other law enforcement officers (by approval) are encouraged to register. “In Service: 10-8” Sign-up Now 29 Upcoming Courses for 2019 Upcoming Investigation & Enforcement Skills Courses 31 Police Leadership Development @ New West Campus: May 6-10 Advanced Police Training at the Justice Institute of BC Human Source Management @ Off Site: May 13-16 National Library of Canada Cataloguing in Publication Data Investigative Interviewing @ New West Campus: May 13-16 Main entry under title: In service: 10-8. -- Vol. 1, no. 1 (June 2001) Monthly Title from caption. “A newsletter devoted to operational police officers across British Columbia.” ISSN 1705-5717 = In service, 10-8 1. Police - British Columbia - Periodicals. 2. Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of British Columbia. Police Academy. II. Title: In service, 10-8. III. Title: In service, ten-eight. PAGE 2 Stepwise Child Interviewing @ New West Campus: May 13-17 Standard Field Sobriety Training @ New West Campus: May 21-24 Kidnapping for Investigators @ New West Campus: May 27-28 Drug Investigations @ Victoria Campus: May 27-31 Advanced Police Training Contact Information advancedpolicetraining@jibc.ca 604-528-5761 **2019 Course Calendar here** Volume 19 Issue 2 ~ March/April 2019 Digital privacy: criminal, civil and regulatory litigation. general editors, Gerald Chan & Nader R. Hasan. Toronto, ON: LexisNexis Canada, 2018. KE 1242 C6 D58 2018 WHAT’S NEW FOR POLICE IN THE LIBRARY The Justice Institute of British Columbia Library is an excellent resource for learning. Here is a list of its recent acquisitions which may be of interest to police. 365 ideas for recruiting, retaining, motivating and rewarding your volunteers: a complete guide for nonprofit organizations. first edition by Sunny Fader; revised by Angela Erickson. Ocala: Atlantic Publishing Group, Inc., 2017. HD 8039 N65 F33 2017 Cell phone distraction, human factors, and litigation. T. Scott Smith, Ph. D.; contributors, Stevie M. Breaux [and 13 others]. Tucson, AZ: Lawyers & Judges Publishing Company, Inc., 2018. KF 2780 S65 2018 The cognitive behavioral coping skills workbook for PTSD: overcome fear and anxiety and reclaim your life. Matthew T. Tull, PhD, Kim L. Gratz, PhD & Alexander L. Chapman, PhD, RPsych. Oakland, CA: New Harbinger Publications, Inc., 2016. RC 552 P67 T85 2016 Companion animals and domestic violence: rescuing me, rescuing you. Nik Taylor & Heather Fraser. Cham, Switzerland: Palgrave Macmillan, 2019. QL 85 T39 2019 The culture question: how to create a workplace where people like to work Randy Grieser, Eric Stutzman, Wendy Loewen, & Michael Labun. Winnipeg, MB: Achieve Publishing, 2019. HD 58.7 G75 2019 Pulling together: a guide for teachers and instructors. Bruce Allan, Dianne Biin, John Chenoweth, Shirley Anne Hardman, Sharon Hobenshield, Louise Lacerte, Todd Ormiston, Amy Perreault, Justin Wilson, Lucas Wright. Victoria, BC: BCcampus, BC Open Textbook Project, 2018. E 96.2 P85 2018a Pulling together: a guide for front-line staff, student services, and advisors. Ian Cull, Robert L.A. Hancock, Stephanie McKeown, Michelle Pidgeon, Adrienne Vedan. Victoria, BC: BCcampus, BC Open Textbook Project, 2018. E 96.2 P85 2018b Pulling together: a guide for leaders and administrators. Sybil Harrison, Janice Simcoe, Dawn Smith, Jennifer Stein. Victoria, BC: BCcampus, BC Open Textbook Project, 2018. E 96.2 P85 2018c Pulling together: a guide for curriculum developers. Asma-na-hi Antoine, Rachel Mason, Roberta Mason, Sophia Palahicky, Carmen Rodriguez de France. Victoria, BC: BCcampus, BC Open Textbook Project, 2018. E 96.2 P85 2018d TED talks: the official TED guide to public speaking. Chris Anderson. Toronto, ON: Collins, an imprint of HarperCollins Canada, 2016. HF 5718.22 A53 2016 PAGE 3 Volume 18 Issue 3 - May/June 2018 SHARE IT. DON’T WEAR IT. IT’S TIME TO SPEAK UP ABOUT MENTAL HEALTH. AMBULANCE PARAMEDICS OF BRITISH COLUMBIA BC EMERGENCY HEALTH SERVICES BC MUNICIPAL CHIEFS OF POLICE BRITISH COLUMBIA POLICE ASSOCIATION BRITISH COLUMBIA PROFESSIONAL FIRE FIGHTERS ASSOCIATION CANADA BORDER SERVICES AGENCY FIRE CHIEFS’ ASSOCIATION OF BC FIRST NATIONS EMERGENCY SERVICES SOCIETY OF BRITISH COLUMBIA GREATER VANCOUVER FIRE CHIEFS ASSOCIATION PROVINCE OF BC ROYAL CANADIAN MOUNTED POLICE TRANSIT POLICE VOLUNTEER FIREFIGHTERS ASSOCIATION OF BC WORKSAFEBC BCFirstRespondersMentalHealth.com For more resources on better understanding mental health in the context of the experiences and pressures of first responders, as well as the broader population, visit the following link. PAGE 23 www.BCFirstRespondersMentalHealth.com Volume 19 Issue 2 ~ March/April 2019 SUPREME COURT MORE DIVIDED ON CASES In its report, “2018 Year in Review”, last years’ workload of C a n a d a ’s h i g h e s t C o u r t wa s outlined. In 2018 the Supreme Court heard 66 appeals. This is the same number of appeals it heard in 2017. The most appeals heard annually in the last 10 years was in 2014 when 80 cases were brought before the Court. The lowest number of appeals heard in a single year during the last decade was 63 in both 2015 and 2016. Case Life Span The time it takes for the Court to render a judgment from the date it hears a case was 4.8 months, up from 4.6 months in 2017. The shortest time within the last 10 years for the Court to announce its decision after hearing arguments was 4.1 months (2014) while the longest time was 7.7 months (2010). Overall it took 17 months in 2018, on average, for the Court to render an opinion from the time an application for leave to hear a case was filed. This is up from the previous year’s statistics when it took 15.8 months. Applications for Leave In 2018 there were 484 applications for leave, meaning a party sought permission to appeal the decision of a lower court. This represents eight fewer applications for leave than in 2017 and 114 less than 2016. Ontario was the source of most applications for leave at 159 cases. This was followed by Quebec (110), British Columbia (71) the Federal Court of Appeal (48), Alberta (39), Manitoba (20), Saskatchewan (10), New Brunswick and Prince Edward Island both with eight (8), Nova Scotia (5), Newfoundland and Labrador (4), and the Yukon (2). No applications for leave came from the Northwest Territories or Nunavut. Of the 484 leave applications, 39 or 8% were granted while 24 were pending. Of all applications for leave, 23% were criminal. PAGE 5 Volume 19 Issue 2 ~ March/April 2019 Appeals Heard Appeal Judgments Of the 66 appeals heard in 2018, Ontario had the most of any province at 17. This was followed by Quebec (13), Alberta (13), British Columbia (8), the Federal Court of Appeal (8), Nova Scotia (2), Newfoundland and Labrador (2), Court Martial Appeal Court (1), Saskatchewan (1), and Manitoba (1). No appeals originated from New Brunswick, the Northwest Territories, the Yukon, Prince Edward Island or Nunavut. There were 64 appeal judgments released in 2018, up from 57 the previous year. Twenty (20) decisions were delivered from the bench while the remaining 44 were delivered after being reserved. Twenty (20) appeals were allowed while 21 were dismissed. Twenty five (25) decisions were on reserve as at December 31, 2018. Of the appeals heard in 2018, 50% were criminal. Thirty six percent (36%) were nonCharter criminal cases while 14% were Charter criminal cases. Non Criminal 50% Criminal 50% Twenty one (21) of the appeals heard in 2018 were as of right. This source of appeal includes cases where there was a dissent on a point of law in a provincial court of appeal. The remaining 45 cases had leave to appeal granted. This source of appeal requires permission from the Supreme Court to hear the case. In terms of unanimity, the judges of the Supreme Court all agreed in only 48% of its cases. This is the lowest percentage of unanimity in the last 10 years. This is down significantly from the Court’s 79% agreement Unanimous i n 2 0 1 4 . Fo r t h e Split 48% 52% remaining 52% of its judgments released in 2018 the Court was split. Source: www.scc-csc.gc.ca Average Time Lapses (in months) between SCC hearing and judgment 8 7.7 7.4 Months 7 6.2 6.3 6.2 5.8 6 5 4.8 4.8 4.6 4.8 4.1 4 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 PAGE 6 Volume 19 Issue 2 ~ March/April 2019 SUPREME COURT OF CANADA DECISIONS: SPLIT v. UNANIMOUS Split 100% 76% 63% 75% 75% Unanimous 72% 68% 79% 70% 61% 54% 48% 75% 50% 52% 46% 39% 37% 25% 32% 25% 25% 2008 2009 2010 2011 24% 30% 28% 21% 0% 2012 2013 PAGE 7 2014 2015 2016 2017 2018 Volume 19 Issue 2 ~ March/April 2019 NO DETENTION IN APPROACH & REQUEST FOR IDENTIFICATION R. v. Culligan, 2019 MBCA 33 A plainclothes police officer entered a bar to enforce the provisions of Manitoba’s Liquor Control Act (LCA) (now the Liquor, Gaming and Cannabis Control Act). He saw the accused standing in the bar with other people. The officer believed he recognized the accused from previous dealings and had received prior information that the accused was on release with conditions for a pending criminal charge. The plainclothes officer requested supporting uniform officers enter the bar and spot check the accused, confirm his identity and determine whether he was breaching any possible release conditions. When asked to produce identification, the accused did not comply, quickly became verbally aggressive and failed to respond to directions to calm down. When the accused moved to approach the plainclothes officer, pointing at him and yelling “Ask the fucking narc”, the uniform officers physically restrained him fearing for the plainclothes officer’s physical safety. The accused was detained for causing a disturbance in a licensed premise under the provisions of the LCA. He was then immediately arrested and handcuffed. After the arrest, a scuffle outside the bar transpired where the accused head butted an officer. The accused was searched and 12 rocks of cocaine were found in his pocket. The accused was charged with several offences including resisting a peace officer in relation to the scuffle outside, possessing cocaine and breaching a condition of his release for failing to keep the peace. and denied that he attempted to head-butt an officer when they were outside. The trial judge found the accused’s evidence not to be credible and accepted the police version of events. The accused also argued that his initial detention and arrest were unlawful and, therefore, all of the police actions that followed were also unlawful. He was using the illegality of his initial detention and arrest as a defence to the lawfulness of the police action and the charges that resulted. The judge, however, stated: I do not accept that the Crown evidence merely demonstrates that [the accused] used foul language. In the colourful description of [a uniformed officer], [the accused] “went from zero to pissed off in two seconds.” He commenced swearing and refused to calm down when directed to do so. When [the uniformed officer] asked for identification [the accused] proceeded to walk towards [the plainclothes officer] pointing at him and yelling: “Ask the fucking narc.” In the circumstances disclosing the identity of a plainclothes officer inside a crowed … bar could potentially place the officer at risk. In the context the comment which was yelled, could reasonably be viewed as a call to arms for the crowd against the officer. Given the volatile temper exhibited coupled with the comment and the fact that [the accused] was advancing on [the plainclothes officer], the court is satisfied that the objective reasonable grounds existed to believe that [the accused] was causing a disturbance as commonly defined. The accused was convicted of possessing cocaine, resisting a peace officer and failing to comply with an undertaking by failing to keep the peace. He was sentenced to 18 months of supervised probation and a $396 fine was imposed. Manitoba Court of Queen’s Bench Manitoba Provincial Court The accused testified that the police officers did not explain why they were asking for identification and that he questioned why they were doing so. He denied that he became combative before being arrested, denied that he had cocaine in his pocket The accused challenged his convictions but the appeal judge dismissed his appeal. She held that the issue of whether or not the accused had been unlawfully detained was not raised at trial and therefore she would not address it on appeal. PAGE 8 Volume 19 Issue 2 ~ March/April 2019    LEGALLY SPEAKING: Manitoba Court of Appeal The Court of Appeal agreed with the accused that the appeal judge erred in not hearing the legality of the detention issue and moved forward with deciding the case. The Arguments The accused submitted, among other things, that the officers detained him without adequate grounds, and therefore unlawfully, to get his identification. In his view, the police detained him when they approached him and asked for his identification but this was unlawful because the police did not suspect him of any crime. Moreover, this detention was arbitrary under s. 9 of the Charter. Further, he was not advised of the reason for his detention nor advised of his right to counsel as required by s. 10. Since the police were not acting in the lawful execution of their duty in detaining him, he was entitled to resist the detention and did so in a manner that did not constitute reasonable grounds for his arrest. In other words, the accused’s response to his unlawful detention could not be used to justify his arrest. The accused sought acquittals on all charges or, at the very least, a new trial on the cocaine possession only charge. The Crown, on the other hand, contended that the accused was not unlawfully detained or arrested. Although the police could have checked the computer for the accused’s conditions without approaching and speaking to him first, the Crown suggested the accused had not been detained when the police approached and asked him for identification. Moreover, even if the accused had been unlawfully detained, his response was so disproportionate that any nullification of the police  of Meaning Detention “In  summary, we conclude as follows:  1. Detention under 9 and 10  of the Charter refers    ss. to a suspension of the individual’ s liberty interest by a significant physical or psychological restraint.   Psychological detention is established either where the  individual has a legal obligation to comply with the restrictive  request or demand, or a reasonable person would conclude by reason of    the state conduct that he or she had no choice but to  comply.           2. In cases where there is no physical restraint or legal obligation, it  may not clear whether a person has been detained. To   be     determine  whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived   by the state of the liberty of choice, the court may consider, inter  alia, the following factors:    (a) The circumstances giving rise to the encounter as they       whether    would reasonably be perceived by theindividual:  the police were providing general assistance; maintaining      general order; making general inquiries regarding a  particular occurrence; or, singling out the individual for focussed investigation. www.10-8.ca (b) The nature of the police conduct, including the language  used; the use of physical contact; the place where the interaction occurred; the presence of others; and the  duration of the encounter.  (c) The particular characteristics or circumstances of the  individual where relevant, including age; physical stature; minority status; level of sophistication.”         Chief Justice McLachlin and Justice Charron in R. v. Grant, 2009 SCC  32 at para. 44.                “[T]he accused was not cooperative when he was asked for his identification. Instead,  he became belligerent, did not produce the identification and moved toward [the       plainclothes officer]. None of this indicates that he believed he was deprived of the               liberty of  choice.”    PAGE 9                                                                  Volume 19 Issue 2 ~ March/April 2019 “[E]ven if the police officers intended to detain the accused at the outset, that is not determinative. There was no evidence or finding by the trial judge that the police officers told the accused of their intention to detain him, and their non-communicated thoughts are of little relevance in a detainee-centred objective analysis. It is only when those intentions are communicated by conduct that they become relevant.” facts, a reasonable person in the accused’s circumstances would not have concluded that he was deprived by the state of the liberty of choice to comply with the police request. The police simply approached him and asked for his identification; the jurisprudence makes clear that this kind of limited interaction does not necessarily create a detention. In all of the circumstances, there was, at law, no detention for Charter purposes. Nor was there any prima facie interference with the accused’s liberty interests which is required, preliminarily, to even engage an inquiry under Waterfield/ Dedman. [para. 28] acting in the lawful execution of duty ended and there were reasonable grounds for his subsequent arrest. With a lawful arrest, there was no basis to exclude the cocaine and the accused was properly convicted of resisting a peace officer. Furthermore, even if the arrest was unlawful, the Crown argued the cocaine could not be excluded because the accused made no such motion under s. 24(2) at trial. Lawfulness of Detention/Arrest Justice Simonsen, for the unanimous Court of Appeal, examined the meaning of detention as articulated by the Supreme Court of Canada. She recognized that “whether there was a detention will depend on all of the circumstances of the case.” In this case, there was no physical detention when the accused was approached for his identification. He was only grabbed by the arm once he moved toward an officer. Hence, there was no physical detention at the outset. Nor was there a psychological detention. No one suggested that a psychological detention was created as a result of the accused having a legal obligation to comply with the request for his identification. Nor would a reasonable person in the accused’s circumstances, by reason of police conduct, have considered that they had no choice but to comply with the police request. Justice Simonsen stated: The trial judge found that the accused was not cooperative when he was asked for his identification. Instead, he became belligerent, did not produce the identification and moved toward [the plainclothes officer].None of this indicates that he believed he was deprived of the liberty of choice. Rather, he made choices to not cooperate and to move away. On these Police Intent The accused contended that the police officers’ evidence supported the conclusion that there was a detention because they testified that they intended to, and believed that they did, detain the accused when they approached him and asked for his identification. Justice Simonsen, however, rejected this argument. “Regardless, and even if the police officers intended to detain the accused at the outset, that is not determinative,” she said. “There was no evidence or finding by the trial judge that the police officers told the accused of their intention to detain him, and their non-communicated thoughts are of little relevance in a detaineecentred objective analysis. It is only when those intentions are communicated by conduct that they become relevant.” The accused’s arrest was lawful and his appeal was dismissed. Complete case available at www.canlii.org PAGE 10 Volume 19 Issue 2 ~ March/April 2019 JURY UNANIMITY IN REJECTING EACH SELF-DEFENCE ELEMENT NOT REQUIRED R. v. Randhawa, 2019 BCCA 15 BY THE BOOK: s. 34 Criminal Code The accused, while in a bar, was asked by a woman to take a photograph of her and some friends using her phone. An altercation arose between the accused and other patrons. Words were exchanged and a brawl broke out. The accused brandished a knife and stabbed six people. He was charged with six counts of aggravated assault and possessing a weapon for a dangerous purpose. Defence — use or threat of force s. 34 (1) A person is not guilty of an offence if (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c) the act committed is reasonable in the circumstances. British Columbia Supreme Court Factors The accused did not contest the underlying conduct establishing the elements of the offences. He acknowledged that he stabbed each of the victims. He testified that there were bodies swarming around him, he was punched in the face and upper body, and bodies were hurled on top of him. His knee was bent awkwardly. He felt there were ten to twelve hands punching him during parts of the fight, meaning five or six men were beating him. He pulled a knife from his pocket, opened it and swung it around. The accused relied on the self-defence provisions under s. 34 of the Criminal Code. When the judge gave the jury instructions on selfdefence, the judge said the onus was not on the accused to prove he acted in self defence. Rather, the burden was on the Crown to prove beyond a reasonable doubt that the accused did not act in self-defence. In doing so, the jury would have to consider three (3) questions: (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person's role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or • • Had the Crown proven that the accused did not believe on reasonable grounds that force was being used against him? Had the Crown proven that the accused did not commit the act for the purpose of threat of force that the person knew was lawful. defending or protecting himself from the use of force? • PAGE 11 Had the Crown proven that the accused’s act was not reasonable in the circumstances? Volume 19 Issue 2 ~ March/April 2019 “Juror unanimity is required only on the ultimate conclusion: whether the Crown proved beyond a reasonable doubt that the accused did not act in self-defence.” If the jury were to reject self-defence, it need not be unanimous on which question(s) they answered “yes” to as long as they all agreed that one or more of these questions was answered “yes”. A jury convicted the accused on five counts of aggravated assault and one count of possessing a weapon for a dangerous purpose. A six person stabbed did not testify and the accused was acquitted in relation to that charge. He was sentenced to 18 months in jail for each aggravated assault conviction, to run concurrently, and an additional concurrent six-month sentence for possessing a weapon for a dangerous purpose. element of the defence is not required. “Juror unanimity is required only on the ultimate conclusion: whether the Crown proved beyond a reasonable doubt that the accused did not act in self-defence,” said Justice Griffin, writing the Appeal Court’s decision. “If this Court were to accept [the accused’s] argument, it could lead to the strange result that an accused would be acquitted because the Crown failed to disprove the defence of self-defence, even though each juror unanimously agreed, but in their own ways, that they were satisfied beyond a reasonable doubt that the defence did not apply.” The accused’s appeal was dismissed. British Columbia Court of Appeal Complete case available at www.canlii.org The accused argued that the trial judge erred in instructing the jury on self-defence. In his v i e w, a j u r y m u s t b e unanimous on which of the three elements of the defence the Crown has disproved. In other words, juror unanimity was required on which question of self-defence was answered “yes”. The Crown, on the other hand, submitted that each juror only need to be satisfied beyond a reasonable doubt that one element of the self-defence provision did not apply. In other words, the Crown asserted there was no requirement that the jury be unanimous on which question they answered “yes”. Self-Defence Unlike the Crown’s burden in which it must prove each and every essential element of an offence beyond a reasonable doubt, it need only disprove one element of the defence of self-defence beyond a reasonable doubt. In this case, since all three criteria in s. 34(1) must be present for the defence of self-defence to be available, once an air of reality to the defence has been raised the Crown need only prove beyond a reasonable doubt one of the three elements of the defence did not apply. A unanimous view by every juror about each Editor’s note: Additional facts taken from R. v. Rhandawa, 2018 BCSC 545. MEANING OF WOUNDING IN AGGRAVATED ASSAULT PROVISION R. v. Pootlass, 2019 BCCA 96 A man heard his door open while he lay in his bed. The accused, who the man knew, entered the room. The man thought the accused was going to ask for a cigarette. Instead, however, the accused began punching the man repeatedly in the head and continued to do so for about 30 to 40 seconds. After the attack, the man was found bleeding in the lobby and an ambulance was called. The man had two cuts, one on his forehead and one on the back of his head. The forehead cut required five or six stitches, and the other required five or six staples. The accused was charged with aggravated assault under s. 268 of the Criminal Code. PAGE 12 Volume 19 Issue 2 ~ March/April 2019 British Columbia Provincial Court The judge found the victim’s injuries did not amount to a wound. He said, “a wound contemplates a tissue injury that results in permanent damage or longstanding dysfunction, including injuries that result in serious internal or external bleeding or other serious internal tissue damage.” Since the injuries did not fall within this meaning, the judge acquitted the accused of aggravated assault, but convicted him of the lesser included offence of assault causing bodily harm instead. British Columbia Court of Appeal The Crown argued the trial judge erred by finding that a wound under s. 268 required “permanent damage or longstanding dysfunction”. The Crown submitted that the word “wound” required no more than a breaking of the skin that bleeds and something that amounted to more than minor bodily harm. The accused, on the other hand, contended that the trial judge did not err in holding that the victim’s injuries were not sufficiently serious to be an aggravated assault. Aggravated Assault Section 268(1) of the Criminal Code creates the offence of aggravated assault. It reads: Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. “Wound”, however, is not defined. In determining whether an injury rises to the level of a “wound” in s. 268(1) Justice Bennett, authoring the unanimous Court of Appeal decision, examined the legislative history of the word “wound” as it appeared in United Kingdom offences and Canadian criminal statutes. She also noted that today’s Criminal Code utilizes a three-tier scheme for assaults of increasing seriousness: (1) assault simpliciter, (2) assault causing bodily harm and (3) aggravated assault. “Bodily harm” is defined in s. 2 as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”. As for bodily harm, Justice Bennett found it “is defined in terms of both the significance of the injury and its persistence through time—bodily harm can be either trifling or transient as long as it is not both.” Justice Bennett recognized that “aggravated assault is a more serious offence than assault causing bodily harm” and therefore requires something more. She also noted that courts in Alberta have required a “wound” to result in permanent or longlasting damage while courts in Ontario have required the injury to be more than merely trifling, fleeting or minor. In British Columbia, some courts have held that a “wound” required more than minor bodily harm. Since aggravated assault by wounding is more serious than assault causing bodily harm in both penalty and the fact assault causing bodily harm is a lesser and included offence of aggravated assault, Bennett decided that the definition of a “wound” must include a more serious consequence. In defining the word “wound” in s. 268(1), Justice Bennett rejected a requirement that the injury be permanent or long-lasting. Nor would any injury that meets or marginally exceeds “bodily harm” as long as it bleeds suffice. Rather, wounding will require a consequence sufficiently more severe than mere bodily harm. Bennett concluded that wounding requires “serious bodily harm”. She stated: [T]he definition of ‘wound’ contemplated by the aggravated assault provision is a break in the continuity of both the epidermal and dermal layers of the skin that constitutes serious bodily harm. [para. 3] And further: PAGE 13 Volume 19 Issue 2 ~ March/April 2019 [A] wound, as the word is used in s. 268(1) of the Code, is a break in the continuity of the whole skin that constitutes serious bodily harm. Serious bodily harm is any hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant. [para. 113] In this case, the injuries to the victim amounted to wounding. They were breaks in the continuity of the skin (they bled) that constituted a substantial interference with the physical integrity or wellbeing of the victim. “[The victim’s] bleeding is decisive evidence of a break in the continuity of his whole skin,” said Justice Bennett. “A cut that requires five stitches or staples is a substantial interference with someone’s physical integrity.” The Crown’s appeal was allowed, the accused’s conviction for assault causing bodily harm was set aside, and a conviction for aggravated assault was substituted. The accused’s sentence, however, was not changed. Complete case available at www.courts.gov.bc.ca OBSTRUCTION ARREST RESULTING FROM INCOMPLETE IDENTIFICATION PROCESS LAWFUL R. v. Lloyd, 2019 BCCA 128 Two plain clothes police officers in an unmarked police car saw the accused and a companion leaving the Downtown Eastside, an area known for drugs and drug related offences. They were headed to an area known for its high rate of property crime, particularly theft from autos. When the two men sat down at the sidewalk tables of a coffee shop and began to smoke cigarettes within six meters of the doorway, which was prohibited by a city bylaw, the police officers approached them with the possibility of issuing a bylaw ticket in mind. One of the officers believed he may have dealt with the accused about a year earlier. The officers advised the men that they were police officers investigating a bylaw infraction for smoking within six meters of a doorway, told them that they were not free to leave and asked for their names and dates of birth. The accused was uncooperative but eventually gave his name after being asked two or three times. The accused was agitated, verbally challenging, saying it was “bullshit” to be asked his name, and stated the police had no reason to stop him. One of the officers queried both names on the computer in the police car. Before the process was complete, the other officer noticed a bulge in the accused’s clothing, near his rear hip, that he suspected to be a weapon based on its size, shape and placement. The officer also noted the accused was “blading” – turning his hip at an angle away from the police. The accused was moving around, looking from side to side, and backing away. The officers were concerned that the accused was about to run. They advised him again that he was not free to go and warned him of the offence of obstructing police, but he continued to back away. When an officer attempted to grab his arm, the accused lashed upwards with a closed fist and an intense fight ensued which took them all to the pavement. The accused attempted to draw a knife from his waistband. The police knocked the knife out of his hand and a bystander retrieved it. The accused was arrested, handcuffed and searched. One of the officers sustained a fractured rib. A leather purse the accused was carrying under his shirt contained $8,000 in drugs in small plastic bags including about 26 grams of cocaine, 57 grams of methamphetamine, and 51 grams of a heroin and fentanyl combination. The accused was also carrying a digital scale, two knives, and $1,780 in cash. He was charged with several offences including assault with a weapon (knife), carrying a concealed weapon (knife), possessing a weapon dangerous to the public peace, obstruction, possessing cocaine, methamphetamine, and heroin and fentanyl for the purpose of trafficking. British Columbia Provincial Court PAGE 14 The accused argued the entire police investigation was predicated on a ruse because the police abandoned their interest in the possible theft offences Volume 19 Issue 2 ~ March/April 2019 and turned to the bylaw smoking infraction. In his view, the ruse was intended to give the police a reason to interact with him to find out who he was in the absence of grounds to investigate him for any other offence. Alternatively, the accused submitted that the arrest for obstruction was unlawful because t h e o f f i c e r s h a d a l r e a dy c o m p l e t e d t h e identification of the accused: they had learned his name and one of them recognized it. At this point, the accused contended that he was free to leave and therefore the police had no further reason to detain him, the arrest was therefore unlawful, and the ensuing search violated s. 8 of the Charter. The judge held that the police did not try to conceal the initial purpose of their investigation. She then found that “having more than one reason to stop a suspect, including specifically having other reasons for wanting to identify a suspect, does not transform a lawful stop into an unlawful one.” In this case, the police, having abandoned their interest in whether the accused was committing theft offences, had the authority under Vancouver’s Health Bylaw to approach the accused for smoking within six meters of the door to the café. The judge stated: [The police] evidence was clear and specific that the accused and his companion were inhaling from lit cigarettes and exhaling smoke. The police identified themselves. They explained the bylaw infraction and advised the accused he was required to identify himself. Although he did not immediately identify himself, he did, after a few requests, provide a name. It was while the police were entering the query relating to that name, but before they received the response back, that the situation escalated. At this point, the police had to make a splitsecond decision whether to let him walk away, as they suspected he was going to do, or whether they should take steps to keep him at the scene until the identification was confirmed. their duty to identify him at the time of the obstructive conduct. “I find it was part of the execution of their duty for the police to detain the accused until identification was confirmed and the ticket could be personally served,” said the judge. She concluded that the arrest was lawful and the search justified as an incidental to arrest as a safety search, as the officers had reason to believe the accused was carrying a weapon and was backing away while blading his body. The evidence was therefore admissible. The accused was convicted of multiple counts of possessing controlled substances for the purposes of trafficking, carrying a concealed weapon, possession of a weapon for a purpose dangerous to the public peace, obstructing a peace officer, and assaulting a peace officer with a weapon. He was sentenced to six years in prison. British Columbia Court of Appeal The accused appealed his convictions submitting that the trial judge erred in holding his arrest lawful and the search incidental thereto reasonable. But the Court of Appeal disagreed. The accused could not demonstrate any palpable and overriding errors of fact made by the trial judge. Rather, he was simply trying to reargue his case at trial. “[The accused] has not demonstrated any reversible error in the judge’s findings or reasoning,” said Justice Harris for the Court of Appeal. “What he has done is attempt to persuade us that the judge ought to have reached different conclusions, for example, by taking a different view of the credibility of the officers or in her assessment of whether subjective and objective grounds existed for the arrest.” The trial judge’s material findings of fact were wellsupported by the evidence. The accused’s appeal was dismissed substantially for the reasons given by the trial judge. Complete case available at www.courts.gov.bc.ca The judge concluded that the police had not yet completed their confirmation of the accused’s identity and were still engaged in the execution of Editor’s Note: Additional facts taken from R. v. Lloyd, 2019 BCCA 128, R. v. Lloyd, (16 May 2017) File No: 233735-2-C (BCPC), R. v. Lloyd, (18 September 2017) File No: 233735-2-C (BCPC). PAGE15 Volume 19 Issue 2 ~ March/April 2019 QUESTIONING CONSISTENT WITH TRAFFIC STOP PURPOSE: NO CHARTER BREACH R. v. Zolmer, 2019 ABCA 93 BY THE BOOK: s. 166 Alberta’s Traffic Safety Act An Alberta police officer pulled the accused’s vehicle over after noting it had tinted windows and its licence plate was not visible. He told the accused the reasons for the stop and entered into a two minute and 38 second conversation with him. The officer asked the accused who owned the vehicle, where he was coming from and going to, how long he had lived in Vancouver, and, toward the end of his inquiry, asked if the accused was “okay” since he appeared nervous and was visibly shaking. The officer also observed various food wrappers in the vehicle, along with a toolbox and suitcase in the back. Stopping for Peace Officer s. 166 (1) For the purposes of administering and enforcing this Act or a bylaw, a peace officer may (a) with respect to a vehicle, (i) signal or direct a driver of a vehicle to stop the vehicle, and (ii) request information from the driver of the vehicle and any passengers in the vehicle, and (b) with respect to a pedestrian using or located on a highway, request information from that pedestrian. (2) When signalled or directed to stop by a peace officer who is readily identifiable as a peace officer, a driver of a vehicle After the conversation, the officer then went back to his police vehicle with the accused’s BC driver’s license and the registration of his mother’s vehicle from Saskatchewan. A criminal records check indicated only previous convictions for impaired driving and for aggravated assault. The officer also searched a police data base that contained an entry concerning the accused from two weeks earlier. shall This entry referred to a vehicle stop before midnight between a police officer and the accused in Saskatoon, Saskatchewan. The accused had been stopped for speeding, was evasive, and enroute in his mom’s vehicle from Vancouver to Moose Jaw. The officer at that time noted the route didn’t make sense but there was insufficient grounds to pipeline him. There was no backup available otherwise the officer would have tried to use a detector dog. as a peace officer, a passenger in a vehicle who is acting in a (a) forthwith bring the vehicle to a stop, (b) forthwith furnish to the peace officer any information respecting the driver or the vehicle that the peace officer requires, and (c) remain stopped until permitted by the peace officer to leave. (3) At the request of a peace officer who is readily identifiable manner that is contrary to this Act or a bylaw shall forthwith furnish to the peace officer the passenger’s name and address. (4) At the request of a peace officer who is readily identifiable as a peace officer, a pedestrian using or located on a highway in a manner contrary to this Act or a bylaw shall forthwith furnish to the peace officer the pedestrian’s name and address. The officer called backup to the stop, including one officer with a drug detector dog. The officer returned to the accused’s vehicle, asked him to step out of it and place his hands on the hood of the vehicle. The officer then told the accused that he was under detention for a drug investigation and was advised of his right to contact a lawyer, but he declined. The accused was patted down and placed inside a police car. The police dog conducted a “free air sniff” around the accused’s vehicle resulting in numerous positive responses for drugs. The accused was then advised that he was under arrest for possessing a controlled substance and was again advised of his right to contact counsel. At that point, the accused indicated that he wished to speak to counsel and to exercise his right to remain silent. The accused’s vehicle was then searched PAGE 16 Volume 19 Issue 2 ~ March/April 2019 “[F]or at least two hundred years it has been accepted that police might extend their investigations opportunistically while exercising an initial lawful authority provided the extension is reasonable. Resort, therefore, to other statutory or common law authorities should not be automatically presumed to be pre-textual. Such authorities do not automatically vanish simply because the police happen to have -- or happen to develop -- during their dealings with the subject a basis for additional authorities of a different sort. incidental to the arrest. A Beretta handgun was located in the toolbox in the backseat along with an ounce of methamphetamine and five ounces of cocaine. The accused was permitted to contact a lawyer at the police station and he was subsequently charged with weapons offences, and possessing cocaine and methamphetamine for the purpose of trafficking. Alberta Court of Queen’s Bench The officer testified that the Saskatoon police entry was “a game changer” during the interaction. In his view, the entry elevated the circumstances to a reasonable suspicion sufficient to justify placing the accused under investigative detention. The judge found the officer’s questioning of the accused as to his travels were not outside the parameters of a traffic stop and therefore not in excess of his duties. Even if there was a very narrow window of legitimate inquiry by a police officer during a traffic stop, asking about the distance travelled over a time period and under what circumstances could be relevant to the police officer’s determining if the driver was fatigued or confused. The content of the conversation in this case did not exceed the authority of s. 166 of Alberta’s Traffic Safety Act. “Each question was reasonably and logically connected to information [the accused] provided as required by the Traffic Safety Act ..., s. 166, or flowed logically from information [the accused] had previously provided voluntarily, or arose out of [the officer’s] observation of [the accused’s] physical condition,” said the judge. “The conversation was appropriate routine police interaction with a driver during a traffic stop. It was short in duration, required the production of only a few documents, and inconvenienced [the accused] minimally.” There was no s. 8 Charter breach when the officer engaged the accused in the conversation. As for the investigative detention which began when the accused was instructed to step out of his vehicle, none of the circumstances on their own would have provided the officer with a reasonable suspicion. However, their totality met the reasonable suspicion threshold. The accused’s detention did not breach s. 9 and he was advised of the reason for his detention and of his right to counsel as required by s. 10. The pat-down search and use of the sniffer dog was also justified. Moreover, once the dog indicated the presence of drugs, the officer had reasonable grounds to arrest the accused and search his vehicle incidental to arrest. There were no Charter breaches, the evidence was admissible and the accused was convicted of possessing methamphetamine and cocaine for the purpose of trafficking and illegal possession of a handgun with ammunition. Furthermore, even if the Charter was breached, the evidence was nonetheless admissible under s. 24(2). Alberta Court of Appeal The accused argued that the officer’s contact with him was pretextual - an unfounded general inquisition aimed at drug interdiction at the start or very early in the interaction. He submitted that the police officer’s dominant objective rendered the stop an arbitrary detention almost immediately. He said the officer’s PAGE 17 Volume 19 Issue 2 ~ March/April 2019 “A police officer is not required to apply a reasonable doubt standard to each indicium of suspicious conduct. It is a totality of circumstances.” mind must have formed a reasonable suspicion for investigative detention beyond the traffic stop and that state of mind engaged police duties under ss. 10(a) and 10(b). The improper questioning was thus contrary to s. 10, and unreasonable searches resulted from the dog sniff and pat-down search. In the accused’s opinion, the evidence of the drugs and gun with ammunition ought to have been excluded. The Crown, on the other hand, suggested that the officer made a traffic stop which evolved into a drug investigation without any Charter violations. Statutory Authority The Court of Appeal first acknowledged the reality that even criminals are subject to Alberta’s Traffic Safety Act and other legal authorities. In its review of this topic, the Appeal Court’s comments included the following: [F]or at least two hundred years it has been accepted that police might extend their i nve s t i g a t i o n s o p p o r t u n i s t i c a l l y wh i l e exercising an initial lawful authority provided the extension is reasonable. Resort, therefore, to other statutory or common law authorities should not be automatically presumed to be pre-textual. Such authorities do not automatically vanish simply because the police happen to have -- or happen to develop -during their dealings with the subject a basis for additional authorities of a different sort. [references omitted, para. 36] [I]t is hard to discern how the law could provide bright line guidance for police officers engaged in highway patrol vigils about the internal semantical contours of any short conversations they might have or any questioning they might pose. … [A]nalytical purity is not to be expected during roadside dynamics. At a certain stage, to be sure, a conversation might clearly become an unrelated interrogation and thus require some new foundation in law and fact. But it is not clear how the police could be guided within Charter compliance by courts engaging in an after the fact editing function towards the natural flow of a short and video recorded roadside conversation. [reference omitted, para. 42] In any instances of exercise of legal authority, of course, the police must conduct themselves within the scope of any authority thus given. [reference omitted, para 43] Initial Questioning The Court of Appeal agreed with the trial judge that the substance of the officer’s questioning was consistent with a traffic stop purpose and did not result in an investigative detention for drugs until the accused was directed to step from the vehicle. Up until that point, any non-communicated intention by the officer was not reflected in his conduct. “Criminal law detention does not commence the moment an officer forms a noncommunicated intention to detain let alone by her merely forming an opinion that might justify detention,” said the Appeal Court. “Until the [accused] was instructed to step out of the vehicle, the nature of his waiting there had not become a criminal law detention, in this case, for drugs.” The questions and answers therefore did not breach s. 10(a) or (b) of the Charter. Reasonable Suspicion In this case, the trial judge ruled the officer had the necessary reasonable suspicion to detain the accused for a drug investigation and to use the sniffer dog. Although the accused tried to isolate each item of fact and suggest each was not much, such a piecemeal approach was not appropriate when considering factors leading to suspicion. The information from the earlier police encounter added to what the officer knew. “It represented something of a pattern in relation to drug courier type activity,” said the Court of Appeal. “The information acquired in the first contact was not out of bounds in terms of providing [the officer] PAGE 18 Volume 19 Issue 2 ~ March/April 2019 with a reasonable suspicion on the second contact even if in one sense they were similar. The behaviour of the [accused] on both occasions gave rise in the police-experienced mind of [the officer] to such suspicion when added to present facts, and the trial judge considered that suspicion to be reasonable. … [S]uspicion is concerned with possibilities, not probabilities.” Moreover, “a police officer is not required to apply a reasonable doubt standard to each indicium of suspicious conduct. It is a totality of circumstances.” NATIONAL PEACE OFFICERS’ MEMORIAL DAY SERVICE Tuesday, May 15, 2019 U.S. Capitol Washington, D.C. Arrest The dog sniff provided the police with reasonable grounds to believe there were drugs in the vehicle. That justified the arrest and the search of the vehicle incident to arrest. CANADIAN POLICE & PEACE OFFICER MEMORIAL SERVICE The accused’s appeal was dismissed. Complete case available at www.canlii.org NO CHARTER BREACH IN POSING AS FICTITIOUS 14YEAR-OLD GIRL ONLINE Sunday, September 29, 2019 Parliament Hill Ottawa, Ontario R. v. Mills, 2019 SCC 22 A police officer created a Hotmail email account for a fictitious 14-yearold girl named “Leann”, together with a Facebook page and profile containing background information. This included information that she was a high school student along with a photo from the internet. About a month later, the officer received a Facebook message from the accused (a 32-year-old man at the time). Over a period of about two months, there was an exchange of emails, including a photo of his penis. The officer used screen shot software called “Snagit” to capture all the information on his computer screen during each communication with the accused. A meeting at a park was arranged with “Leann” and, when the accused showed up, he was arrested and subsequently charged with communicating via a computer system for the purposes of committing sexual offences (child luring under s. 172.1 Criminal Code). Newfoundland & Labrador Provincial Court The police were able to identify the documents produced by the “Snagit” screen captures and testified that they were accurate. The judge, however, went on to find the messages were “private communications” and concluded that the accused’s s. 8 Charter right to be secure against unreasonable search or seizure had been breached because the police failed to meet the requirements under Part VI o f t h e C r i m i n a l C o d e by n o t o b t a i n i n g authorizations to intercept the electronic communications. In the judge’s view, the police were required to obtain an authorization under s. 184.2 of the Criminal Code to use Snagit. The judge, nevertheless, admitted the evidence under s. 24(2). PAGE 19 Volume 19 Issue 2 ~ March/April 2019 Supreme Court of Canada The accused appealed to the Supreme Court of Canada arguing the investigative technique employed by the undercover police officer was a search or seizure of his online communications and the that this intercept required prior judicial authorization. The Supreme Court rejected the accused’s appeal, with justices rendering four separate opinions. Say Three The accused was convicted of communicating by means of a computer with a person believed to be under the age of sixteen years for a sexual purpose. He was sentenced to 14 months imprisonment, which was reduced by two months to compensate for the Charter violation. He was also sentenced to one-year probation and ordered to provide a sample of his DNA. Newfoundland Court of Appeal Justice Welsh, delivering the Court of Appeal’s opinion, concluded the accused did not have an objectively reasonable expectation of privacy in his communications with “Leann.” Further, ss. 184 and 184.2 of the Criminal Code only apply where there is an “intercept”. In this case, Justice Welsh concluded there was no interception and therefore no authorization under Part VI was required. Justice Brown, speaking for himself and two other justices, agreed with the Court of Appeal that the accused did not have a reasonable expectation of privacy. Although he had a subjective expectation of privacy in his electronic communications in the Facebook chat and email messages, his subjective expectation of privacy was not objectively reasonable in the totality of the circumstances, including: • Nature of the Privacy Interest ➡ The accused was communicating with someone he believed was a child and stranger to him—“adults cannot reasonably expect privacy online with children they do not know.” ➡ “That the communication occurs online does not add a layer of privacy, but rather a layer of unpredictability.” The Crown’s appeal was allowed, the two month sentence reduction was set aside and the sentence of 14 months imprisonment was affirmed. However, the additional two months imprisonment was stayed as requested by Crown. “The police were using an investigative technique allowing it to know from the outset that the adult was conversing with a child who was a stranger.” ➡ “The police were using an investigative technique allowing it to know from the outset that the adult was conversing with a child who was a stranger.” • Nature of the Investigative Technique PAGE 20 ➡ The police created the fictitious child and knew from the outset that the relationship was fictitious, therefore there was no risk of a potential privacy breach. Volume 19 Issue 2 ~ March/April 2019 Part VI of the Criminal Code also did not apply because the communications in this case were not “private communications” as defined in s. 183. “A communication made under circumstances in which there is no reasonable expectation of privacy cannot constitute a ‘private communication’ for the purpose of s. 183,” said Justice Brown. Since the accused failed to establish a reasonable expectation of privacy in his conversations with “Leann”, his appeal was dismissed. search or seizure — the police did not take anything from the accused or intrude on a private conversation; the undercover officers simply received messages sent directly to them.” Here, the officer posed as a young girl and conversed with the accused through Faceboook messenger and email. This was not a search or seizure: Here, the police did not interfere with a private conversation between other individuals; they directly participated in it. Because the conversation occurred via email and Facebook messenger, it necessarily took place in a written form. The screenshots from the computer program “Snagit” are simply a copy of the preexisting written record and not a separate surreptitious permanent record created by the state. [para. 37] Say Two Justice Karakatsanis, with Chief Ju s t i c e Wa g n e r c o n c u r r i n g , concluded that an undercover officer communicating in writing with an individual does not commit a search or seizure within the meaning of s. 8. “It is not reasonable to expect that your messages will be kept private from the intended recipient (even if the intended recipient is an undercover officer),” she said. “Further, the police conduct does not amount to a And further: … s. 8 of the Charter is not engaged merely because an undercover officer converses electronically with an individual. This is because (1) it is not reasonable for the sender “A communication made under circumstances in which there is no reasonable expectation of privacy cannot constitute a ‘private communication’ for the purpose of s. 183.” PAGE 21 Volume 19 Issue 2 ~ March/April 2019 “… s. 8 of the Charter is not engaged merely because an undercover officer converses electronically with an individual. This is because (1) it is not reasonable for the sender to expect that the messages will be kept private from the intended recipient (even if the recipient is an undercover officer); and (2) the police conduct of communicating with an individual does not amount to a search or seizure. Either way, the outcome is the same — s. 8 is not violated when police simply communicate with an individual.” Nevertheless, Justice Martin would have admitted the evidence of the communications under s. 24(2) of the Charter. to expect that the messages will be kept private from the intended recipient (even if the recipient is an undercover officer); and (2) the police conduct of communicating with an individual does not amount to a search or seizure. Either way, the outcome is the same — s. 8 is not violated when police simply communicate with an individual. [para. 51] Complete case available at www.canlii.org Editor’s Note: Additional facts taken from R. v. Mills, 2017 NLCA 12. Justice Karakatsanis also found the use of screenshot technology (Snagit) did not constitute a search or seizure requiring some form of judicial authorization. “The ‘Snagit’ screenshots are just a copy of the written messages,” she said. ”This use of technology is not intrusive or surreptitious state conduct.” Since s. 8 was not engaged, it was unnecessary to determine where there was an intercept as defined in Part VI. Say One Justice Moldaver was of the view that the reasons of Justice Brown and Justice Karakatsanis were both “sound in law” and each formed a proper basis for dismissing the accused’s appeal. A Different View Justice Martin opined that the accused did have a reasonable expectation of privacy in his communications with “Leann” and the police surveillance of these private communications amounted to an unreasonable search. She also found the use of “Snagit” to record the communications in real-time required prior judicial authorization under s. 184.2. BY THE BOOK: s. 183 Criminal Code private communication means any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it. PAGE 22 Volume 19 Issue 1 ~ January/February 2019 National Cannabis Survey 4th quarter, 2018 Statistics Canada is conducting the National Cannabis Survey, every three months throughout 2018 and into 2019. These data are about Canadians, 15 and older, and reflect their cannabis use and related behaviours in the past three months. higher than the rest of Canada Cannabis use by province – 4 quarter, 2018 same as the rest of Canada th data not available 19% N.L. 15% National 15% B.C. 16% 16% Alta. Sask. 15% Man. 15% Ont. 14% 18% Que. P.E.I. Percentage of Canadians 15 years and older who have consumed cannabis in the past three months. N.S. N.B. Frequency of cannabis use by Canadians in the past 3 months Leading purchasing considerations by cannabis users when selecting a source Former - One time 9% 22% 19% Quality and safety 76% Former - More than one time 22% 38% (e.g. free from mold) Lowest price Current - Once or Twice 5% Never Accessibile when I want 33% Current - Monthly 55% 1% Current - Weekly 4% Current - Daily or almost daily 5% (e.g. open evenings or weekends) 28% Location 28% Sell preferred THC or CBD potencies or formulations* (e.g. close to home) *Definition: delta-9-tetrahydrocannabinol (THC) and Cannabidiol (CBD). Non-medical and medical Non-medical users more likely to choose smoking as method for using cannabis than medical users Vaped or consumed in food or drink Smoked 1 in 2 cannabis users Other used cannabis for non-medical reasons only 16% 1 in 4 cannabis users used cannabis for medical reasons only (with or without a medical document) 19% 14% 43% 83% 58% 37% 3 in 10 cannabis users Non-medical used for both medical and non-medical reasons Medical with a medical document 25% Medical without a medical document 73% Both medical and non-medical Due to data suppression, some bars do not add to 100%. Catalogue number: 11-627-M | ISBN: 978-0-660-29479-7 For more information, please check out the Daily article: www150.statcan.gc.ca/n1/daily-quotidien/190207/dq190207b-eng.htm PAGE 15 Also visit: www.canada.ca/en/services/health/campaigns/cannabis.html www.statcan.gc.ca Volume 19 Issue 2 ~ March/April 2019 ILLICT DRUG OVERDOSE DEATHS IN 2019 In 2018, there were a total of 1,510 suspected drug overdose deaths. This is an increase of 24) deaths over the 2017 numbers (1,486). The Office of BC’s Chief Coroner has released statistics for illicit drug overdose deaths in the province from January 1, 2009 to January 31, 2019. In January 2019 there were 90 suspected drug overdose deaths. This represents a -31% decrease over the number of deaths occurring in January 2018 and a -22% decrease over December 2018. 140 128 130 116 -31% illicit Drug Overdose Deaths 1,525 1,500 +24 1,475 1,486 1,510 1,450 Jan-Dec 2017 Jan-Dec 2018 104 Overall, the 2018 statistics amount to about 4 people dying every day of the year. 92 The 1,510 overdose deaths last year amounted to more than a 353% increase over 2013. The report also attributed fentanyl laced drugs as accounting for the increase in deaths. 90 80 Jan 2018 Jan 2019 120 110 116 100 90 People aged 30-39 were the hardest hit in January 2019 with 26 illicit drug overdose deaths followed by 50-59 year-olds at 23 deaths. People aged 40-49 years-old accounted for 19 deaths while those aged 19-29 had 11 deaths. Vancouver had the most deaths at 24 followed by Surrey (8), Victoria (5), Chilliwack (4), Langley (4), Kelowna (3), Maple Ridge (3) and Vernon (3). -22% Deaths by gender 90 Males continue to die at almost a 4:1 ratio compared to females. In January 2019, 75 males had died while there were 25 female deaths. 80 Dec 2018 Males Females Jan 2019 PAGE 24 17% 83% Volume 19 Issue 2 ~ March/April 2019 Monthly Average DEATHS SINCE PUBLIC HEALTH EMERGENCY 150 123.8 125.8 120 90.0 82.6 90 Jan 60 44.2 30 22.5 0 2012 3,900 27.8 30.7 2013 2014 In April 2016, BC’s provincial health officer declared a public health emergency in response to the rise in drug overdoses and deaths. The number of overdose deaths in the 34 months preceding the declaration (Jun 2013-Mar 2016) totaled 1,317. The number of deaths in the 34 months following the declaration (Apr 2016-Jan 2019) totaled 3,858. This is an increase of 193%. 3,858 2015 2016 2017 2018 2019 3,175 The 2019 data indicates that most illicit drug overdose deaths (87.8%) occurred inside while 11.1% occurred outside. For 1 death, the location was unknown. “Private residence” includes residences, driveways, garages, trailer homes. +190% Deaths since Public Health Emergency 2,450 Deaths by location: Jan-Feb 2018 Private Residence Other Residence Other Inside Outside Unknown 10 1 23 1,725 56 “Other residence” includes hotels, motels, rooming houses, shelters, etc. “Other inside” includes facilities, occupational sites, public buildings and businesses. “Outside” includes vehicles, streets, sidewalks, parks, wooded areas, campgrounds and parking lots. 1,000 1,317 Jun 2013-Mar 2016 Apr 2016-Jan 2019 Source: Illicit Drug Overdose Deaths in BC - January 1, 2009 to January 31, 2019. Ministry of Public Safety and Solicitor General, Coroners Service. March 19, 2019. TYPES OF DRUGS The top five detected drugs relevant to illicit drug overdose deaths from 2016 - 2018 were fentanyl, which was detected in 79.5% of deaths, cocaine (49.8%), methamphetamine/amphetamine (31.2%), ethyl alcohol (26.6%), and heroin (19.8%). PAGE 25 Volume 19 Issue 2 ~ March/April 2019 387 Vancouver 24 213 Surrey 8 96 Victoria 5 55 Kelowna 3 48 Kamloops 2018 2019 (Jan) 2 46 Burnaby 2 Illicit Drug Overdose Deaths by Township with 30 or more deaths in 2018 46 Prince George 2 40 Abbotsford 2 35 Chilliwack 4 35 New Westminster 1 34 Nanaimo 1 32 Langley 4 0 80 160 PAGE 26 240 320 400 Volume 18 Issue 3 - May/June 2018 Residential facilities for victims of abuse in Canada, 2017/2018 68,106 552 facilities annual admissions 428 short-term 124 long-term 60.3% women 0.1% men sNAPSHOT DAY 6,500 short-term beds 78% 1 36% 669 82% of short-term facilities were considered full on snapshot day. were occupied 910 in residents were there due to abuse. women were turned away, because the facility was full. Top challenges facing residents and facilities Almost 1 in 5 short-term facilities had average lengths of stay of 3 months or more. Residents 77% Facilities 46% lack of funding percent of short-term facilities with average lengths of stay of three months or more Canada 18% lack of affordable, appropriate long-term housing upon departure 50% underemployment and low incomes 39.6% children Y.T. 33% 0% N.W.T. 0% 33% Nvt. 20% N.L. 15% B.C. 22% Alta. 5% Sask. 13% Man. 28% Ont. 30% P.E.I 0% Que. 8% lack of permanent in the 38% housing community N.B. 8% 1. Snapshot day was April 18, 2018, a predetermined business day meant to represent a typical day of operations. Note: Short-term facilities include those with an expected length of stay of less than three months. Long-term facilities include those with an expected length of stay of three months or longer. For more information, see the full Juristat article: Canadian residential facilities for victims of abuse, 2017/2018. Source: Statistics Canada, Canadian Centre for Justice Statistics, Survey of Residential Facilities for Victims of Abuse. Statistics Canada Statistique Canada www.statcan.gc.ca PAGE 23 N.S. 17% Catalogue number: 11-627-M ISBN: 978-0-660-30375-8 Volume 16 Issue 5 - September/October 2016 40.&5*.&4 5)& -*'& */ /&&% 0' 4"7*/( *4:06308/ :06 "3& /05 "-0/& 8& "3& )&3&50 )&-1:06  UFNBDB PAGE 28 Volume 19 Issue 2 ~ March/April 2019 “In Service: 10-8” This “Sign up” link will take you to the free Subscription Form that only requires an email. Sign-up Now Are you interested in regularly receiving the In Service: 10-8 newsletter by email. You can sign up by clicking here and then clicking on the “Sign up” link: PAGE 29 Volume 14 Issue 6 - November/December 2014 Be the one on the front line enforcing the law keeping communities safe BACHELOR OF LAW ENFORCEMENT STUDIES BACHELOR OF EMERGENCY & SECURITY MANAGEMENT Expand your academic credentials and enhance your career options. Gain the theoretical background, applied skills and specialized knowledge for a career in public safety. Apply today. JIBC.ca 604.528.5590 715 McBride Boulevard, New Westminster, BC register@jibc.ca 15-006 Volume 19 Issue 2 ~ March/April 2019 Upcoming Investigation & Enforcement Skills Courses To register for any of the following courses, click on the course code below or contact the JIBC Registration Office at 604.528.5590 or 1.877.528.5591 (toll free). You can check Ways to Register for other registration methods and for assistance from the registration office. View the full 2019 Course Calendar online for a full list of upcoming Investigation & Enforcement Skills courses in 2019. 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Many people who have completed the requirements for the certificate have gone on to a variety of rewarding careers. Apply online today. For more information, visit the Investigation & Enforcement Skills Certificate webpage. PAGE 31 Online Graduate Certificate Programs INTELLIGENCE ANALYSIS TACTICAL CRIMINAL ANALYSIS Expand your credentials and advance your career with these online graduate certificates. Learn through real world challenges, current cases, curriculum and techniques. Gain the specialized theoretical foundation and applied skills to function successfully as an analyst. 604.528.5843 JIBC.ca/graduatestudies 715 McBride Boulevard, New Westminster, BC 15-007