   A PEER READ PUBLICATION IN SERVICE: 10-8 PUBLICATION  A PEER READ                                 IN MEMORIAM On July 2, 2021, 55-year-old  r o  n t o Po l i c e S e r v i c e    To  Constable Jeffrey Northrup     was killed while      responding to a call in the very early  hours.      Constable Northrup and his  partner were conducting an  investigation in response to a call in an                           Constable   Northrup proudly served the Toronto Police Service for 31 and a half years. He    started his career with Court Services, was      to 11 assigned Division when he became a police officer in 1999, and had been a    member of 52 Division since 2008. He was    also a  proud member of the Chief’s  Ceremonial Unit.               underground parking lot. During the course of this event, Constable Northrup struck by   was   a    tobe  vehicle in what is believed an    intentional, deliberate act. He was attended to by other first  responders, rushed to hospital and pronounced dead shortly after. A male           suspect has been charged with first degree  murder.                                                              Constable is survived by his wife,   Northrup  ~ Constable Jeffrey Northrup ~  three children and his mother.    “[A] man who dedicated his life to the things that matter most – his community and his family.” Toronto Police Service Chief James Ramer Be Smart & Stay Safe Volume 21 Issue 4 Volume 21 Issue 4~July/August 2021 Highlights In This Issue Bachelor Of Law Enforcement Studies 4 Matching Description To Police Bulletin Justified Detention 7 ‘Holding’ Cell Phone Not Limited To Using One’s Hands 9 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. Law Enforcement Studies Diploma Cops Top Judges, Lawyers & Lawmakers For Respect 12 Canadian Police & Peace Officer Memorial Service 13 2020 Police Reported Crime 19 Alberta Jordan Applications 23 National DNA Data Bank 24 Success Rate Of Appeals Rise In BC’s Highest Court 25 Evidence Of Prior Uncharged Criminal Activity OK in ITO 27 Assault PO Forms Unlawful Act Of Unlawfully Causing Bodily Harm 29 ‘Motor Assisted Cycle’: Motor Must Be Capable Of Supplementing Human Propulsion 31 Be the one making a difference and keeping communities safe. If you want to gain the applied skills to be a sought-after graduate pursuing a rewarding career in law enforcement and public safety, then this program is for you. Click Here Law Enforcement Studies Degree If you have a relevant diploma, and are interested in obtaining an applied degree to pursue a law enforcement or public safety career, then this program is for you. This program builds on previous relevant studies with an applied degree, and is designed to increase your chances of success. Click Here Post-Baccalaureate Diploma in Disaster Management National Library of Canada Cataloguing in Publication Data 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. Be the one in a dynamic and growing field keeping communities safe. If you have a bachelor's degree and are interested in pursuing and advancing your career in the fields of disaster and emergency management, this program is for you. Click Here Certificate in Emergency Management Be the one advancing your career. If you are interested in a career in emergency management, currently work as an emergency manager, or are a first responder or public safety professional looking to move into an emergency management role, this program is for you. Click Here PAGE 2 Volume 21 Issue 4~July/August 2021 Mastering facilitation: a guide for assisting teams and achieving great outcomes. Morgan L. Jones. Boca Raton, FL: Routledge, 2021. HM 751 J66 2021 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. Big data surveillance and security intelligence: the Canadian case. edited by David Lyon & David Murakami Wood. Vancouver, BC; Toronto, ON: UBC Press, 2021. JL 86 I58 B54 2021 Also available in eBook format (JIBC login required) The Canadian justice system: an overview. Paul Atkinson & Daniel Atkinson. Markham, ON: LexisNexis Butterworths, 2020. KE 444 A85 2020 Creating effective teams: a guide for members and leaders. Susan A. Wheelan, Maria Åkerlund & Christian Jacobsson. Thousand Oaks, CA: SAGE Publications, Inc, 2021. HD 66 W485 2021 Effective interviewing and interrogation techniques. Nathan J. Gordon & William L. Fleisher. London; San Diego, CA: Academic Press, an imprint of Elsevier, 2019. HV 8073 G64 2019 Effective treatments for PTSD: practice guidelines from the International Society for Traumatic Stress Studies. edited by David Forbes, Jonathan I. Bisson, Candice M. Monson & Lucy Berliner. New York, NY: The Guilford Press, 2020. RC 552 P67 E35 2020 Also available in eBook format (JIBC login required) Mistakes were made (but not by me): why we justify foolish beliefs, bad decisions, and hurtful acts. Carol Tavris & Elliot Aronson. Boston, MA: Mariner Books, Houghton Mifflin Harcourt, 2020. BF 337 C63 T38 2020 Neuroscience for organizational change: an evidence-based practical guide to managing change. Hilary Scarlett. New York, NY: Kogan Page Ltd, 2019. HD 58.8 S294 2019 Stop avoiding stuff: 25 microskills to face your fears & do it anyway. Matthew S. Boone, Jennifer Gregg, & Lisa W. Coyne. Oakland, CA: New Harbinger Publications, 2020. BF 575 F2 B66 2020 Sudden death: intervention skills for the emergency services. edited by Tricia Scott. Cham: Springer, 2020. RB 150 S84 S84 2020 Also available in eBook format (JIBC login required) Violence against children in the criminal justice system: global perspectives on prevention. edited by Wendy O'Brien and Cédric Foussard. New York, NY: Routledge, 2020. Available in eBook format only (JIBC login required) What's wrong with leadership?: improving leadership research and practice edited by Ronald E. Riggio. New York, NY: Routledge, 2019. HD 57.7 W456 2019 Also available in eBook format (JIBC login required) PAGE 3 SCHOOL OF CRIMINAL JUSTICE & SECURITY JUSTICE & PUBLIC SAFETY DIVISION BACHELOR OF LAW ENFORCEMENT STUDIES (BLES) Get Ahead of the Competition Today’s law enforcement and public safety environment is complex. Employees in public and private organizations are increasingly being called upon to perform inspections, investigations, security supervision, enforcement and regulatory compliance functions. The Bachelor of Law Enforcement Studies (BLES) provides expanded opportunities in the study of law enforcement and public safety and will position you to be a sought-after candidate in a highly competitive recruiting environment. Our education program will prepare you for success by developing your leadership skills, and enhancing your interpersonal communications, critical thinking and ethical decision making. WHAT WILL I LEARN? This comprehensive program will prepare you to contribute to a just and fair society as a member within a variety of criminal justice and public safety professions. Graduates will obtain: • An in-depth knowledge of the Canadian criminal justice system. • Analysis and reasoning skills informed by theory and research. • Skills required to effectively work within a law enforcement agency. WHO SHOULD TAKE THIS PROGRAM • Graduates of JIBC’s two-year Law Enforcement Studies Diploma (LESD) or applicants a diploma or associate degree in a related field can begin in the third year of the Bachelor of Law Enforcement Studies program. • Applicants who have completed a peace officer training program with a minimum of three years full-time service in a recognized public safety agency with a Prior Learning Assessment that would allow for 60 credits to be granted towards completion of the degree program. CAREER FLEXIBILITY The program will provide you with the in-depth knowledge, expanded skills and competencies to seek employment in a wide range of law enforcement, public safety, regulatory, and compliance fields offering you more career flexibility and professional development. Examples of potential roles include: • • • • police officer conservation officer animal cruelty officer border services agency official • fraud investigator • by-law enforcement officer • regulatory enforcement officer • gaming investigator • • • • correctional officer deputy sheriff intelligence services officer probation officer BACHELOR OF LAW ENFORCEMENT STUDIES (BLES) CURRICULUM AT A GLANCE Courses in years one and two are offered through the Law Enforcement Studies Diploma. Years three and four build on these courses to complete the degree. Students can pursue their third and fourth year studies full-time or part-time to complete the final 60 credits. Year 3 Year 4 • • • • • • • • • • • • • Criminal & Deviant Behaviour Comparative Criminal Justice Leadership in a Law Enforcement Environment Search & Seizure Law in Canada Organizational Behaviour Investigations & Forensic Evidence Restorative Justice Project Management Data & Research Management • • • • • • Aboriginal People and Policy Multiculturalism, Conflict and Social Justice Administrative and Labour Law in Canada Applied Research in Public Safety and Law Enforcement Professional Practice in Justice and Public Safety Crisis Intervention Research Project Governance and Accountability in Law Enforcement Terrorism and Society Organized Crime and Society PROGRAM FORMAT Students can pursue their studies full-time at the New Westminster campus or online. The fulltime on-campus format consists of 60 credits completed over two years with courses over the fall and winter semesters (five courses per semester). The online format consists of 60 credits that must be completed within five years with the flexibility to take courses in the fall, winter and spring-summer semesters. 715 McBride Boulevard New Westminster, BC V3L 5T4 Canada Justice Institute of British Columbia (JIBC) is Canada’s leading public safety educator recognized nationally and internationally for innovative education in justice, public safety and social services. HOW TO APPLY? Credit for the first two years of BLES will be granted to students who meet the program’s admission requirements. For details on admission requirements and application deadlines please visit our website at jibc.ca/bles. FOR MORE INFORMATION: STAY CONNECTED: jibc.ca/bles JIBC: Justice Institute of British Columbia bles@jibc.ca 604-528-5778 @JIBCnews 20-230 Volume 21 Issue 4~July/August 2021 “The principle of judicial immunity is not a perk for judges. Rather it is an essential element of the independence of the judiciary. An independent judiciary is the right of every Canadian and constitutes a fundamental pillar of the rule of law in a free and democratic society.” JUDGE ENJOYS ABSOLUTE IMMUNITY FROM CIVIL LIABILITY WHILE ACTING IN OFFICIAL CAPACITY Prince Edward Island Court of Appeal Taha v. Clements, 2021 PECA 5 The plaintiff commenced civil actions against a bank and its lawyer. In his action against the bank he sought general damages in the amount of $100 million and punitive and exemplary damages in the amount of $246 billion. He also claimed an additional $1 million in general, punitive and exemplary damages in his action against the bank’s lawyer. When the matters came before the Chief Justice of the Supreme Court of Prince Edward Island, she dismissed the actions on the basis that they were frivolous, vexatious or otherwise an abuse of process. The plaintiff then sued the Chief Justice who dismissed his claim seeking punitive and exemplary damages in the amount of $1 million. The plaintiff challenged the dismissal of his claim. But the lower court’s ruling was upheld because (1) the Chief Justice was immune from civil suit and (2) the plaintiff’s action was “frivolous and vexatious” and “entirely devoid of merit”. Judicial Immunity “The immunity of judges from civil liability for acts done in the performance of their judicial functions is an ancient and well-established principle of law inherited from the English Common law,” said Justice Mitchell for the Court of Appeal. He continued: Prince Edward Island Supreme Court The claim against the Chief Justice was dismissed in its entirety as being frivolous, vexatious and/or an abuse of process. The motions judge found no reasonable cause of action was disclosed anywhere in the entire statement of claim and, on its face, the plaintiff’s claim was without merit or substance. Further, dissatisfaction with a judicial decision taken in good faith did not constitute grounds for an action against the decision-making judge and, therefore, the proceeding was an abuse of process. PAGE 6 The principle of judicial immunity is not a perk for judges. Rather it is an essential element of the independence of the judiciary. An independent judiciary is the right of every Canadian and constitutes a fundamental pillar of the rule of law in a free and democratic society. A judge must be, and must be seen to be, free to decide honestly and impartially on the basis of the law without external pressure or influence and without fear of reprisal of litigation by those who might feel wronged by their decision. Should a litigant feel that a judge has erred in law, a litigant is free to appeal the decision to a higher court. Should the litigant feel the Supreme Court judge engaged in inappropriate conduct or comments, the litigant may file a complaint with the Canadian Judicial Council. A litigant cannot, however, sue a judge as superior court judges have absolute immunity from civil liability for acts done in their capacity as judges. Provincial Court judges Volume 21 Issue 4~July/August 2021 MATCHING DESCRIPTION TO POLICE BULLETIN JUSTIFIED DETENTION have the same immunity by virtue of s.11(2) of the Provincial Court Act, R.S.P.E.I. 1988, Cap. P-25. [references omitted, paras. 9-11] Frivolous & Vexatious R. v. Linklater, 2021 MBCA 65 In agreeing that the action was frivolous and vexatious, and entirely devoid of merit, Justice Mitchell stated: The focus of the proceeding is acknowledgment and correction of a perceived government shortcoming as opposed to any rights recognized by law. There are no stated legal or evidentiary grounds upon which to entertain or allow the appeal. There is nothing in the [plaintiff’s] notice of appeal or submissions that points to any legal error made by the Rule 2.1 motions judge. Hence, the matter is frivolous. The claim contains entirely unfounded and unwarranted inappropriate and scandalous allegations and aspersions regarding the person of the defendant judge. There is nothing on the face of the proceeding or in the appeal record to support [the plaintiff’] various bare allegations of bad faith made outside the defendant judge’s jurisdiction. Hence the matter is vexatious. In these circumstances, it was appropriate for the motions judge to find, as he did, that the proceeding was frivolous, vexatious, and an abuse of process. [para. 12] The plaintiff’s appeal was dismissed. Complete case available at www.canlii.org Editor’s Note: Additional facts taken from Taha v. Clements, 2019 PESC 23 “A judge must be, and must be seen to be, free to decide honestly and impartially on the basis of the law without external pressure or influence and without fear of reprisal of litigation by those who might feel wronged by their decision.” At about 3:34 a.m., paramedics responded to a neighbour’s 911 call about a fire at a residence. On arrival, firefighters found heavy smoke inside but no active fire. A man’s body was also found slumped in a chair. There was blood on the body, the floor and the chair. No one else was in the residence. An autopsy determined that the victim died prior to the fire as a result of significant blood loss due to his injuries, which included 33 sharp-force wounds to his face, back and arms (slashes or stabs caused by a knife). As part of their investigation, police located surveillance videos of the victim prior to his death from various locations. These videos showed the victim with a man and a woman at a hotel approximately two to three hours prior to the 911 call. The surveillance videos also showed these same two individuals in the vicinity of the victim’s residence after the 911 call. In an effort to identify the people in the surveillance videos, the police issued three bulletins. The bulletins included a brief description of the man and the woman and photographs taken from the surveillance videos. One of the bulletins also included a video clip from taken the surveillance videos. A few days later, two police officers who had seen the bulletins and attended shift briefings where the bulletins were discussed, recognized the accused walking down the street with the woman. They were immediately detained as persons of interest for a “murder investigation”. They were provided with their s. 10(b) Charter rights and given the police caution. The accused was placed in the back of a police car and back-up was requested to assist with the woman. PAGE 7 Volume 21 Issue 4~July/August 2021 While the accused was detained, the police obtained his name, date of birth and address. A supervisor attended and contacted the homicide supervisor who instructed the officers to arrest the accused and his female companion. The arrest for second degree murder occurred 25-minutes after the initial detention. Using the address the accused provided, the police obtained a search warrant for his residence where they discovered and seized evidence, including a plaid shirt and a baseball cap. The accused, along with the woman, were jointly charged with second degree murder. Manitoba Court of Queen’s Bench Among other things, the accused argued that his address, the plaid shirt and the baseball cap were obtained in violation of his ss. 8, 9, 10(a) and 10(b) Charter rights. He contended the police obtained his address during an unlawful detention and in response to questions asked before he had the opportunity to speak to a lawyer. He then submitted that the search warrant would not have issued without his address and, without the search warrant, the seizure of the plaid shirt and baseball cap were unlawful. arrest were not arbitrary and, therefore, compliant with s. 9 of the Charter. He submitted that the police did not have the necessary grounds to detain or arrest him, and it was unlawful for the police to detain him with the intention of ascertaining his identity. Investigative Detention Justice leMaistre, delivering the opinion of the Court of Appeal, noted Supreme Court of Canada jurisprudence holding that the police have the power to “detain an individual for investigative purposes where, in the totality of circumstances, there are reasonable grounds to suspect a clear nexus between the individual and a recent or still unfolding crime.” In upholding the trial judge’s finding that the police acted lawfully, she stated: The judge concluded that the accused’s detention and arrest were lawful and therefore did not breach s. 9 (arbitrary detention). He also found no breaches of s. 8 (search or seizure), nor of s. 10(a) (to be informed promptly of the reason for arrest or detention) or s. 10(b) (right to counsel).The accused was subsequently convicted by a jury of second degree murder and sentenced to life imprisonment with a 12-year period of parole ineligibility. His coaccused, on the other hand, was acquitted. Manitoba Court of Appeal The accused argued, in part, that the trial judge improperly applied the law to the facts in finding that his detention and ... The trial judge carefully reviewed the information known to the officers when they recognized the accused from the bulletins and briefings, as well as their personal observations and reasons for detaining him. He also considered whether the officers’ suspicions that the accused was one of the individuals sought in connection with the murder investigation were objectively reasonable. The trial judge concluded that the officers had “more than a reasonable suspicion that [the accused and the woman] matched the information which had been given to them in the bulletins and at police briefings” and that “their detention of them was fully justified.” In my view, the detention prior to the accused’s arrest was justified in the context of an investigation into a recent murder and the accused’s resemblance to a person of interest in the investigation. The police were investigating a serious offence. The bulletins and briefings were clear that the police were attempting to identify the male and female who were with the victim in the surveillance videos and that they were “persons of interest in relation to the murder”. Anyone with information about the “[T]he detention prior to the accused’s arrest was justified in the context of an investigation into a recent murder and the accused’s resemblance to a person of interest in the investigation.” PAGE 8 Volume 21 Issue 4~July/August 2021 “persons of interest” was to notify the homicide unit. British Columbia Provincial Court The accused disputed the ticket before a Judicial Justice. The accused agreed he had been looking down when the officer first saw him, but testified that the cell phone was wedged between his right thigh and the car seat, facing up. As a result of the bulletins and briefings, two police officers recognized these “persons of interest” as they were walking down the street. The officers detained them on site for a relatively short duration until they determined that there were grounds for an arrest. This is how police investigations are done. There was nothing unusual let alone inappropriate or unjustified with the detention and arrest. There is no merit to the accused’s argument that the police did not have the necessary grounds to detain or arrest him. The Judicial Justice upheld the ticket. In his view, the precise location of the cell phone made no difference since the phone was a potential distraction and was in use because it was being charged. The accused’s address used by police in their information to obtain the search warrant was provided by the accused after he was lawfully detained, but before he was arrested. In this scenario, I fail to see the relevance of the lawfulness of the arrest to the admissibility of the items seized pursuant to the search warrant. [paras. 26-29] British Columbia Supreme Court Since the detention was lawful, there was no need to conduct a s. 24(2) Charter analysis. The accused’s appeal against his conviction was dismissed. Complete case available at www.canlii.org ‘HOLDING’ CELL PHONE NOT LIMITED TO USING ONE’S HANDS R. v. Rajani, 2021 BCCA 292 A police officer saw the accused looking down while driving. The officer approached the car and saw a cell phone connected to a cord faceup in the accused’s lap. The officer could see a glassy surface but could not say whether the cell phone was lit. The officer issued the accused a violation ticket for using an electronic device while driving, contrary to s. 214.2(1) of BC’s Motor Vehicle Act (MVA). The accused argued the Judicial Justice erred in his ruling. The Crown conceded that the Judicial Justice’s interpretation of the MVA was in error when he found it prohibited (1) the touch-free charging of a cell phone in a vehicle and (2) the presence of an electronic device anywhere in a vehicle because it could possibly be distracting. In this case, however, the accused was “holding” the phone in a position in which it could be used. In the appeal judge’s view, the phone was being supported in a way that permitted its use and she rejected the accused’s suggestion that “holding” was restricted to an action done with one’s hands. Regardless of whether the accused had the cell phone on his lap or wedged between his thigh and the seat, with the screen facing up, he was holding it in a position in which it could be used. “To interpret ‘holding’ as being restricted to an action done with one’s hands is not in harmony with the scheme of the distracted driving provisions of the MVA,” said the appeal judge. “Such an interpretation would allow drivers to operate their vehicles with electronic devices in their laps, between their thighs, tucked under their arms or chins, or supported by other parts of their bodies.” The curative proviso in s. 686(1)(b)(iii) of the Criminal Code was applied and the accused’s conviction was upheld. PAGE 9 Volume 21 Issue 4~July/August 2021 “‘Holding’ in s. 214.1(a) means physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used.” proviso applied and the accused’s appeal was dismissed. British Columbia Court of Appeal The accused contended that the prohibition in s. 214.2(1) of the MVA did not apply to a cell phone wedged between a driver’s leg and the seat when the screen was not illuminated. In his view, the “ordinary meaning” of the words “use” and “hold”, as well as the description of the bill when it was introduced in the Legislature, did not render his conduct unlawful. Complete case available at www.courts.gov.bc.ca BY THE BOOK: BC’s Motor Vehicle Act Definitions “Holding” 214.1 In this Part: Section 214.2(1) of the MVA prohibits using an electric device while driving. “Use” includes “holding the device in a position in which it may be used”. Justice Fenlon, writing the Court of Appeal decision, concluded “holding” was not restricted to using one’s hands: "electronic device" means (a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function, (b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other textbased messages, or “Holding” in s. 214.1(a) means physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used. [para. 15] (c) a prescribed class or type of electronic device; "use", in relation to an electronic device, means one or more of the following actions: In coming to this conclusion, Justice Fenton noted (1) “the definition of ‘electronic device’ in s. 214.1 includes a large number of devices, not only handheld devices but also global positioning systems and televisions”; (2) a “broad interpretation of ‘holding’ best aligns with the Legislature’s object of preventing death and injuries associated with distracted driving because it captures more potentially distracting conduct than the narrow interpretation urged by the [accused]”; and (3) a “broader interpretation accords with the ordinary grammatical meaning of ‘hold.’” (The Oxford English, Merriam-Webster and Cambridge dictionaries were cited). In this case, the accused was holding the phone by physically supporting it with a part of his body in a position in which it could be used. The curative (a) holding the device in a position in which it may be used; (b) operating one or more of the device's functions; (c) communicating orally by means of the device with another person or another device; (d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device. Prohibition against use of electronic device while driving s. 214.2 (1) A person must not use an electronic device while driving or operating a motor vehicle on a highway. (2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other textbased message. PAGE 10 Volume 21 Issue 4~July/August 2021 “To interpret ‘holding’ as being restricted to an action done with one’s hands is not in harmony with the scheme of the distracted driving provisions of the MVA. Such an interpretation would allow drivers to operate their vehicles with electronic devices in their laps, between their thighs, tucked under their arms or chins, or supported by other parts of their bodies.” R. v. Rajani, 2020 BCSC 779 at para. 27, appeal dismissed 2021 BCCA 292. PAGE 11 Volume 21 Issue 4~July/August 2021 COPS TOP JUDGES, LAWYERS & LAWMAKERS FOR RESPECT In a recent Maru Public Opinion survey — “Canada’s Most Respected Occupations 2021” — it was revealed that Canadians have more respect for the police than they do for judges, lawyers or lawmakers (elected Members of Parliament). While 37% of the Canadian public said they respected the police very much, only 27% said they had such respect for judges followed by lawyers at 12% and elected Members of Parliament at 9%. Most Respected Occupations Of the 28 occupations identified in the survey, Firefighters were found to be the most respected occupation with a weighted Respect Score of 92.5 while Owners of Social Media Platforms were respected the least (38.5). Occupation Respect Score (out of 100) Firefighters 92.5 Nurses 92.3 Farmers 90.7 Medical Doctors 89.6 Pharmacists 86.9 Scientists 86.6 Armed Forces Members 83.5 Grocery Store Owners/Clerks 82.7 Airline Pilots 82.3 Teachers 81.6 Transit Workers 81.5 Veternarians 81.3 Engineers 80.5 Police Officers 72.4 Judges 69.2 Private Sector LTC Home Operators 60.5 Journalists 59.1 Laywers 57.1 Bankers 55.7 Radio/TV Talk Show Hosts 54.8 Clergy 54.0 Professional Sports Players 52.9 Business Executives 50.3 Union Leaders 48.7 Elected Members of Parliament 47.3 Advertising Practitioners 42.7 Car Salespeople 42.0 Owners of Social Media Platforms 38.5 Respect Very Much 40% 37% 32% 27% 24% 16% 12% 9% 8% 0% Police Lawyers Judges Members of Parliament The survey also reported the percentage of respondents who did not respect these occupations at all. Respect Not At All 20% 17% 16% 12% 8% 4% 0% 8% 5% 4% PAGE 12 Volume 21 Issue 4~July/August 2021 CANADIAN POLICE & PEACE OFFICER MEMORIAL SERVICE Sunday, September 26, 2021 Parliament Hill More info Ottawa, Ontario Join the service virtually this year. BC LAW ENFORCEMENT MEMORIAL SERVICE Sunday, September 26, 2021 BC Legislature More info Victoria, BC PAGE 13 Volume 21 Issue 4~July/August 2021 BC IIO NOTIFICATIONS UP FROM THE PREVIOUS YEAR investigations are completed in as transparent a manner as practicable under the circumstances, wh i l e r e s p e c t i n g t h e i n t e g r i t y o f t h e investigation and the privacy interests of those involved. The IIO conducts all investigations to a criminal law standard. In its Annual Report 2020-2021, the IIO described itself as follows: The IIO is a civilian-led oversight law enforcement agency which was created in 2012. It is headed by the Chief Civilian Director (CCD) who, per the Police Act, is not permitted to have ever been a police officer. The IIO is mandated to conduct investigations into incidents involving death or serious harm that may have been the result of the actions or inactions of a police officer, whether on- or offduty. According to its Annual Report, the IIO received 339 incident notifications that potentially involved serious harm or death arising from the action or inaction of police for the fiscal period from April 1, 2020 to March 31, 2021. Of these 339 notifications, 106 were categorized as advice files while 232 were investigated. During the 2020-2021 fiscal year, 104 cases were concluded: 53 cases were closed with a public report and 44 cases were concluded with a media release. Eight (8) cases were referred to Crown Counsel while 52 cases remained under active investigation. The IIO’s jurisdiction extends to all police officers operating in B.C. This includes 11 municipal agencies, the Royal Mounted Canadian Police (RCMP), the South Coast BC Transportation Authority Police Service (Metro Vancouver Transit Police), and the Stl’atl’imx Tribal Police Service. In addition, officers appointed as special provincial constables and municipal constables are also subject to oversight by the IIO. The IIO does not have jurisdiction over correctional officers in municipal, provincial, or federal correctional facilities, or civilian jail guards. Of the 232 investigations opened: • 169 originated from an RCMP detachment, 61 from a municipal police agency, two (2) from the Metro Vancouver Transit Police and one (1) involved a Health Authority Special Constable. • 172 notifications to the IIO occurred within 24 hours of the incident taking place. Of these notifications, 32 were made within one hour of the incident. The remaining 60 notifications occurred after 24 hours. ... An IIO investigation occurs whenever it is determined that there has been serious harm or death; no allegations of wrongdoing on the part of the involved officers is required. All AFFECTED PERSONS Individuals who died or suffered serious injuries as a result of an interaction with BC police. Age Range 09 1014 15- 20- 25- 30- 35- 40- 45- 50- 55- 60- 65- 70- 75- 80- 85- 90- 9519 24 29 34 39 44 49 54 59 64 69 74 79 84 89 94 100 Total Male 0 0 5 13 25 29 32 23 15 21 12 8 6 2 2 0 0 0 0 193 Female 1 0 4 4 4 9 4 6 1 3 0 2 0 2 1 0 0 0 1 42 Total 1 0 9 17 29 38 36 29 16 24 12 10 6 4 3 0 0 0 1 235 PAGE 14 Volume 21 Issue 4~July/August 2021 250 FILES BY CLASSIFICATION Death Serious Harm Total CEW (Conducted Energy Weapon) 0 3 3 Firearm 3 3 6 Medical 10 4 14 MVI (Motor Vehicle Incident) 5 13 18 PSD (Police Service Dog) 0 16 16 Self-Inflicted 46 30 76 Use of Force 2 61 63 Other 15 21 36 Total 81 151 232 Classification “Serious harm” is defined “as injury that may result in death, may cause serious disfigurement, or may cause substantial loss or impairment of mobility of the body as a whole or of the function of any limb or organ.” The “medical” classification “includes instances where the primary reason for the death or serious harm of the affected person is attributed to a health condition confirmed by a medical professional during the course of an IIO investigation.” The “other” classification “involve circumstances that are not well-aligned with the broader classification groups identified or may include elements that fit under multiple categories.” The “self-inflicted” classification includes serious harm or death that “occur as a result of some action on the part of the affected person. For example, an individual who sustains a serious injury when they fell while running from police would be classified as self-inflicted.” In this report, “the IIO has eliminated the in-custody category because being in custody is not a mechanism of harm, although serious harm and death may occur there.” The IIO has decided that “these files are more appropriately classified by the condition which caused or Serious Harm Death 200 151 134 150 86 100 90 81 50 59 33 0 2017 37 2 2 2 -201 018-201 019-202 020-202 8 9 0 1 contributed to the serious harm or death, such as medical, use of force, etc.” Crown Counsel Referrals Of the eight (8) cases referred to Crown Counsel in fiscal 2020-2021, charges were approved in only one (1) case, no charges were approved in two (2) cases and the remaining five (5) cases were pending charge assessment. IIO Notifications Notifications to the IIO were up 40% over the previous fiscal year, but investigations rose only 20%. 350 280 IIO Notifications 210 339 242 140 177 70 127 193 232 INVESTIGATIONS INVESTIGATIONS INVESTIGATIONS 2018-2019 2019-2020 2020-2021 PAGE 15 0 IIO STATS POLICE FORCE Abbotsford Investigations By Agency Volume 21 Issue 4~July/August 2021 9 Central Saanich 1 Delta 4 New Westminster 2 Oak Bay 2 Saanich 1 Vancouver 32 Victoria 8 West Vancouver 2 Municipal Total 61 RCMP 169 Metro Vancouver Transit Police 2 Health Authority 1 Total* Includes one investigation into a Nova Scotia wrongful conviction matter. 233 INVESTIGATIONS BY RCMP DETACHMENT 100 Mile House 2 Nanaimo 6 Anahim Lake 2 Nelson 1 Bella Coola 1 North Cowichan/Duncan 6 Burnaby 3 North Okanagan/Vernon 10 Burns Lake 3 North Vancouver 7 Campbell River 1 Oceanside 1 Castlegar 2 Penticton 3 Chase 2 Port Alberni 2 Chemanius 1 Port Mann Freeway Patrol 1 Chetwynd 1 Powell River 1 Chilliwack 8 Prince George 7 Clearwater 1 Prince Reupert 6 Comox Valley 2 Princeton 1 Coquitlam 1 Richmond 4 Cranbrook 1 Ridge Meadows 5 Creston 1 Salmon Arm 1 Dawson Creek 1 Shawnigan Lake 1 Forst St. John 1 Sicamous 1 Grand Forks 1 Sidney/North Saanich 1 Kamloops 10 Smithers 1 Kelowna 5 Sooke 1 Kitimat 1 Squamish 3 Ladysmith 2 Surrey 15 Lake Country 3 Terrace 2 Langley 4 Tofino 3 Limis/Nass Valley 1 Tsay Keh Dene 1 Lytton 2 Vanderhoof 2 Masset 2 West Kelowna 1 Merritt 3 West Shore 1 Midway 1 Whistler 1 Mission 1 Williams Lake 3 TOTAL PAGE 16 169 Volume 21 Issue 4~July/August 2021 IIO DEATH FILE CLASSIFICATIONS 50 46 40 30 27 20 18 15 10 10 5 0 1 0 0 0 2 3 3 7 4.5 4 5 5 1 0 CEW Firearm 2017-2018 Medical 0 0 MVI Self-Inflicted 2018-2019 3 2 0 0 Use of Force 2019-2020 3 2 Other 2020-2021 Ethnicity - Affected Persons In fiscal 2020-2021, the IIO began collecting ethnicity data of affected persons. This information was provided on a voluntary basis. 55 White 25 Indigenous 6 Asian European 2 Latin, Central or South American 2 145 Did Not Self-Identify 0 25 PAGE 17 50 75 100 125 150 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 21 Issue 4~July/August 2021 2020 POLICE REPORTED CRIME In July 2021, Statistics Canada released its “Police-reported crime statistics in Canada, 2020” report. Highlights of this recent collection of crime data include: • There were 2,014,779 crimes (excluding traffic) reported to Canadian police in 2020; this represents a decrease of 195,015 crimes reported when compared to 2019. • The total crime rate decreased -10%. This includes a violent crime rate decrease of -2% and a property crime rate decrease of -13%. Source: Statistics Canada, 2021, “Police-reported crime statistics in Canada, 2020, Catalogue no. 85-002-X, released on July 27, 2021. Police-Reported Crime Severity Indexes T=Total Crime Severity Index V=Violent Crime Severity Index NV=Non-Violent Crime Severity Index YK T-214.5 V-254.2 NV-199.7 Police-Reported Homicide Offences Province Rate Homicides Rate change (2019 to 2020) NWT 13.29 6 - NU 7.62 3 - SK 5.09 60 +9% MB 4.50 62 -14% NS 3.57 35 +478% AB 3.14 139 +37% BC 1.90 98 +8% NB 1.79 14 -18% ON 1.59 234 -9% QC 1.01 87 +12% NF 0.77 4 - PEI 0.63 1 - YK 0.00 0 - Canada 1.95 743 +7% NWT NU T-414.5 V-517.1 NV-376.6 T-368.4 V-632.7 NV-272.5 BC AB SK MB T-95.7 V-89.5 NV-97.7 T-107.4 V-107.1 NV-107.2 T-141.1 V-174.9 NV-128.6 T-125.2 V-169.5 NV-109.0 NF T-68.9 V-80.7 NV-64.5 QC ON PEI T-51.6 V-74.5 NV-43.3 T-57.2 V-56.1 NV-57.5 T-55.7 V-69.5 NV-50.6 NS NB The Crime Severity Index (CSI) is another measure of police-reported crime. Each offence is assigned a weight, derived from sentences handed down by criminal courts. The more serious the average sentence, the higher the offence is weighted. The weighted offences are then summed and divided by the population. An overall CSI has been created as well as a violent CSI and non-violent CSI. PAGE 19 T-82.8 V-83.7 NV-82.3 T-71.7 V-98.1 NV-62.0 Volume 21 Issue 4~July/August 2021 Police-Reported Crime Rates per 100,000 population YK 22,912 -2% NWT 56,361 +10% NU 51,010 +8% NF 5,995 +1% Canada 5,301 -10% BC 7,614 -12% AB 8,095 -13% SK 11,050 -7% MB 9,469 -8% ON 3,734 -12% QC 3,053 -7% NB 5,985 -1% Homicide There were 743 homicides reported, 56 more than the previous year. Ontario had the most homicides at 234, followed by Alberta (139), British Columbia (98) and Quebec (87). Nova Scotia had 35 homicides, including 22 deaths resulting form a mass shooting. As for provincial homicide rates, Saskatchewan had the highest rate (5.09 per 100,000 population) followed by Manitoba (4.50), Nova Scotia (3.57), and Alberta (3.14). As for Census Metropolitan Areas (CMA’s), Thunder Bay, ON had the highest homicide rate at 6.35. The Canadian homicide rate was 1.95. Top CMA Homicide Rates per 100,000 PEI 4,623 -14% NS 5,256 0% Canada’s Top Ten Reported Crimes Offence Number Theft of $5,000 or less (non-motor vehicle) 343,521 Mischief 297,185 Administration of Justice Violations 201,462 Assault-level 1 177,580 Fraud 138,011 Break and Enter 137,516 CMA Rate CMA Rate Thunder Bay, ON 6.35 Greater Sudbury, ON 2.96 Winnipeg, MB 4.93 Brantford, ON 2.62 Disturb the Peace 107,258 Regina, SK 4.54 Calgary, AB 2.53 Shoplifting Under $5,000 90,904 Saskatoon, SK 4.10 Hamilton, ON 2.32 Uttering Threats 84,171 Edmonton, AB 3.19 Peterborough, ON 2.32 Theft of Motor Vehicle 78,155 PAGE 20 Volume 21 Issue 4~July/August 2021 Robbery Top Ten CMA Robbery Rates per 100,000 In 2020 there were 19,268 robberies reported, resulting in a national rate of 51 robberies per 100,000 population. Manitoba had the highest robbery rate followed by Saskatchewan and the Northwest Territories. Police-Reported Robberies Province/ Territory Rate Robberies Rate change 2019 to 2020 MB 162 2,240 -17% SK 80 946 -16% NWT 75 34 -6% AB 66 2,926 -21% ON 48 7,117 -21% BC 52 2,674 -8% NF 24 127 -23% QC 32 2,761 -20% YK 55 23 NU 28 NS CMA Rate CMA Rate Winnipeg, MB 228 Calgary, AB 66 Thunder Bay, ON 107 Brantford, ON 65 Regina, SK 107 Windsor, ON 62 Saskatoon, SK 96 Vancouver, BC 62 Edmonton, AB 86 Toronto, ON 60 Break and Enter In 2020 there were 137,516 breakins reported to police. The national break-in rate was 362 break-ins per 100,000 people. The Northwest Territories had the highest break-in rate (819) followed by Nunavut (765). Police-Reported Break-ins Province/ Territory Rate Break-ins Rate change 2019 to 2020 +3% NU 765 301 -33% 11 -28% NWT 819 370 -22% 27 267 +11% SK 729 8,592 -15% NB 17 134 -21% MB 625 8,627 -23% PEI 5 8 -67% AB 663 29,316 -13% CANADA 51 19,268 -18% BC 480 24,704 -15% YK 478 201 -24% NB 399 3,115 -16% NF 291 1,521 -24% ON 267 39,382 -14% QC 218 18,674 -21% NS 243 2,375 -11% PEI 212 338 -29% CANADA 362 137,516 -16% • Winnipeg, MB had the highest CMA rate for robbery in Canada (228), down -18% from 2019 rate. Saguenay, QC & Quebec City, QC both had the lowest rate (12). Peterborough, ON reported a jump of 45% in its robbery rate. Guelph, ON (+36%), Kingston, ON (+33%), and Saint John, NB (+31%) also saw high double digit increases. • Five CMAs reported declines of robbery of more than 30%: Belleville, ON (-49%) Saguenay, QC, (-46%), Moncton, NB (-41%), Quebec City, QC (-36%), Barrie, ON (-36%), and Ottawa, ON (-31%). PAGE 21 POLICE-REPORTED Volume 18 Issue 3 - May/June 2018 CRIME CRIMES AFFECTING THE CHANGE IN CSI BECAUSE OF THEIR VOLUME AND SEVERITY BREAKING AND ENTERING THEFT UNDER $5,000 2006 -16% 2020 1 Non-violent CSI. 95.3 90.6 87.8 82.9 77.6 75.5 68.9 66.9 70.4 72.0 73.6 75.6 79.8 73.4 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Index base year RATE 2007 2008 2009 IN 2020, MOST PROVINCES AND ONE TERRITORY REPORTED DECREASES IN THEIR CSI. 214.5 -20% 368.4 414.5 +1% N.W.T. -18% -11% 141.1 -8% -6% Alta. SHOPLIFTING UNDER $5,000 -4% -17% 51.6 125.2 -7% -10% 55.7 57.2 Que. -9% Sask. P.E.I. N.B. 2,669 HATE CRIME INCIDENTS 82.8 +3% 37% 20 OF HOMICIDE IN CANADA, 56 MORE THAN IN 2019. 16.50 15 10 163 victims 3.76 5 0 Victims of homicide 2 Indigenous male victims The rate of police reported opioid offences (excluding heroin) 2.14 0.69 38 victims 382 victims 125 victims Indigenous female victims Non-Indigenous male victims Non-Indigenous female victims 3 remained stable for the first increased 34% in 2020. Of all specific drug offences reported The rate of total fraud in 2020, opioid offences were the only ones to have and identity fraud (+12%) increased. increased from the previous year. 5 LARGEST INCREASES AND DECREASES IN CSI AMONG CENSUS METROPOLITAN AREAS 71.7 +8% The number of police-reported hate crimes increased to 2,669 incidents. Hate crimes targeting the Black population, East or Southeast Asian population, Indigenous population, and South Asian population accounted for most of the national change. Homicide rate per 100,000 population -9% -11% Ont. N.S. 743 VICTIMS SEXUAL ASSAULT (LEVEL1) N.L. -36% ADMINISTRATION OF JUSTICE VIOLATIONS Change in CSI, 2019 to 2020 68.9 Man. B.C. CSI value, 2020 -8% Nvt. 107.4 95.7 73.4 Canada -1% +6% Y.T. ROBBERY POLICE THE CRIME SEVERITY INDEX (CSI) was 8% lower than in 2019, the first decrease after 5 years of increases. In the first year of the pandemic, the Violent CSI decreased 4%, while the Non-violent CSI decreased 10%. This was the largest year-over-year change recorded for the 100.0 TYPE OF OFFENCE IN CANADA, time in 9 years; however, rates of identity theft (+52%) Top 5 increases by CMA Peterborough Greater Sudbury Kingston Victoria Halifax Change in CSI, 2019 to 2020 +14% +7% +4% +3% +2% -20% -17% -16% -16% -15% Top 5 decreases by CMA Regina Calgary Ottawa Barrie Toronto 1. While the crime rate measures the volume of crime, the Crime Severity Index (CSI) measures both the volume and severity of crime. To determine severity, all crimes are assigned a weight based on actual sentences handed down by courts in all provinces and territories. More serious crimes are assigned higher weights, while less serious crimes are assigned lower weights. As a result, more serious offences have a greater impact on changes in the index. 2. Total homicide victims excludes persons where the Indigenous identity or gender identity was reported as unknown by police (5% of victims in 2020). Rates are calculated per 100,000 Indigenous population by sex, and per 100,000 non-Indigenous population by sex. 3. Total fraud includes general fraud, identity theft and identity fraud. Source: Statistics Canada, Canadian Centre for Justice and Community Safety Statistics, Uniform Crime Reporting Survey. “Police-reported crime statistics in Canada, 2020.” Juristat. Statistics Canada Catalogue no. 85-002-X. PAGE 23 www.statcan.gc.ca Catalogue number: 11-627-M | ISBN: 978-0-660-39073-4 © Her Majesty the Queen in Right of Canada, as represented by the Minister of Industry, 2021 Volume 21 Issue 4~July/August 2021 Charter of Rights s. 11 Any person charged with an offence has the right: ... b. to be tried within a reasonable time; ... • 101 dismissed by the Court; • 37 granted (two being appealed by Crown); • 59 abandoned by defence • 52 proactively stayed by the Crown (on the basis that they would not have survived a Jordan application); and • 69 were resolved (unrelated to Jordan). ALBERTA JORDAN APPLICATIONS In 2016, the Supreme Court of Canada established a new framework for applying s. 11(b) of the Charter — the right to be tried within a reasonable time — R. v. Jordan, 2016 SCC 27. A majority of the Supreme Court created a presumptive ceiling on the time it should take to bring an accused person to trial: • 18 months for cases going to trial in the provincial court; and • 30 months for cases going to trial in the superior court. In October 2016, Alberta’s Justice and Solicitor General began tracking defence applications to dismiss cases based on the Jordan timelines. Between October 25, 2016 and March 31, 2021, there were 332 Jordan applications filed in Alberta courts. Source: Jordan Applications 110 101 LEGALLY SPEAKING: • “Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.” • “Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.” Justices Moldaver, Karakatsanis and Brown in R. v. Jordan, 2016 SCC 27 at para. 105. Dispositions of Alberta Jordan Applications 88 59 66 0 69 52 37 44 22 Of the 332 applications, they were disposed of in the following manner: • 14 pending; 14 Pen ding Dism isse d Gran ted PAGE 23 Aba ndo ned Crow n stay ed Res olve d Volume 21 Issue 4~July/August 2021 NATIONAL DNA DATA BANK The National DNA Data Bank (NDDB) was created by an Act of Parliament which came into force in 2000. The NDDB maintains several indices including the Convicted Offenders Index (COI), the Crime Scene Index (CSI) and the Victims Index (VI). As at June 30, 2021 there were 415,450 DNA profiles contained in the COI. The NDDB receives 400 to 500 convicted offender samples per week. There was also 187,499 DNA profiles contained in the CSI. Index Total DNA Profiles Convicted Offender (COI) 415,450 Crime Scene (CSI) 187,499 Victims Index (VI) 63 Total DNA Profiles 603,012 As of June 30, 2021 there were 67,765 offender hits (CSI > COI). As of March 31, 2021 offender hits related to the following case types: Offence Total Offender Hits Murder 4,287 Sexual Assault 6,947 Attempted Murder 1,288 Armed Robbery 7,258 Break & Enter 29,477 Assault 5,225 Other 12,057 Total 66,539 Convicted Offender Biological Samples Received Blood 98.60% Buccal 1.30% Hair 0.10% Forensic Hits Comparisons Assistance is sometimes provided to criminal investigation through the following comparisons: Offender Hits • CSI > COI: Comparing DNA profiles found at Crime Scenes (CSI Index) to the DNA profiles of Convicted Offenders (COI Index). This can help identify a suspect and is known as an “offender hit”. This process can assist in eliminating a suspect if no match is made. • CSI > CSI: Comparing DNA profiles found at different Crime Scenes (CSI Index to CSI Index). This can help identify links between crime scenes and is known as a “forensic hit”. This process can assist in determining whether a serial offender is involved in a number of crimes. As at June 30, 2021 there were 7,362 forensic hits (CSI > CSI). Source: National DNA Data Bank Statistics [accessed August 11, 2021] PAGE 24 Volume 21 Issue 4~July/August 2021 SUCCESS RATE OF APPEALS RISES IN BC’s HIGHEST COURT Criminal Appeals Filed According to the BC Court of Appeal’s 2020 Annual Report, the success rate for challenges to a lower court ruling was the highest in the last five years. Of the 110 criminal appeal dispositions in 2020, 49 were allowed. This represented a 45% success rate. That means 45% of the time a lower court judge got it wrong or, in the language of the courts, erred. Remember, an appellant, whether Crown or the accused, must prove that the decision made by the lower court was incorrect because the judge made a mistake in understanding the facts (error of fact) or in applying the law (error in law). An appeal is not a new trial. Criminal Court Dispositions Year 2016 2017 2018 2019 2020 Appeals Allowed 32 42 30 50 49 Percent (%) Allowed 22% 34% 27% 32% 45% Appeals Dismissed 114 82 83 104 61 Percent (%) Dismissed 78% 66% Total 146 Year 2016 2017 2018 2019 2020 Appeals Filed 209 246 258 219 129 Sentence 85 97 107 90 49 Conviction 82 95 118 92 56 Summary Conviction 11 11 10 11 12 Acquittal & Other 31 43 23 26 12 Reasons an accused may appeal a sentence include (1) it is excessive (too harsh), (2) it is illegal (not authorized by statute), or (3) the sentencing judge erred in applying one of more principles of sentencing (ignored or overemphasized them) and this error impacted the sentence. Reasons an accused may appeal a conviction include (1) the verdict was unreasonable or couldn’t be supported by the evidence, (2) the judge made an error of law, or (3) there was a miscarriage of justice. The success rate for civil appeals had a similar fate. A slightly higher percentage (46%) were successful in 2020. 73% 68% 55% Civil Court Dispositions 124 113 154 110 Year There are no witnesses testifying during an appeal nor is there a jury. In addition, even if the judge erred, it must also be proven that the mistake significantly affected the outcome of the case. • In 2020 there were a total of 129 criminal appeals filed. This was down 41% from 2019. • Usually an appeal is heard by a panel of three (3) judges, but sometimes more will sit. In 2020 there was only one criminal appeal heard by a panel of five (5) judges. 2016 2017 2018 2019 2020 Appeals Allowed 117 112 104 97 87 Percent (%) Allowed 41% 40% 40% 42% 46% Appeals Dismissed 169 168 155 134 102 Percent (%) 59% 60% 60% 58% Dismissed 54% Total 189 PAGE 25 286 280 259 231 Volume 21 Issue 4~July/August 2021 PRODUCTION ORDER ITO NEED NOT ESTABLISH ITS EXECUTION WILL AFFORD EVIDENCE AGAINST ACCUSED BY THE BOOK: s. 487.014 Criminal Code The Ontario Court of Appeal has held that the issuance of a production order does not require reasonable grounds to believe that its execution could provide evidence against a particular accused. In R. v. Mawick, 2021 ONCA 177 the accused argued that an Information to Obtain (ITO) used to obtain a production order for a money service business (“Cash House”) did not establish a basis to believe it could provide any evidence that he had committed a fraud. Therefore, the warrant should not have been issued. In rejecting this ground of appeal, Justice Rouleau, for a unanimous Court of Appeal, found the affiant to the ITO need not satisfy the issuing justice that there are reasonable grounds to believe that the record holder has documents that will afford evidence against the accused: General production order s. 487.014 (1) Subject to sections 487.015 to 487.018, on ex parte application made by a peace officer or public officer, a justice or judge may order a person to produce a document that is a copy of a document that is in their possession or control when they receive the order, or to prepare and produce a document containing data that is in their possession or control at that time. Conditions for making order (2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.004 that there are reasonable grounds to believe that (a) an offence has been or will be committed under this or any other Act of Parliament; and • “Production orders are presumed valid and properly issued. When the validity of the order is confirmed by a reviewing judge, that ruling is entitled to deference on appeal.” [references omitted, para. 36] • “In order to issue a production order under s. 487.014(2) of the Criminal Code, the judge or justice making the production order against a person must be satisfied that there are reasonable grounds to believe: (a) an offence has been or will be committed, and (b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.” [para. 7] (b) the document or data is in the person’s possession • “Section 487.014(2)(b) only requires the affiant to show reasonable grounds to believe that a production order will afford evidence “respecting the commission of an offence”. ... Put simply, there was no requirement to establish that the Cash House production order would afford evidence against the [accused] directly.” [references omitted, para. 40] “Section 487.014(2)(b) only requires the affiant to show reasonable grounds to believe that a production order will afford evidence ‘respecting the commission of an offence’.” Complete case available at www.ontariocourts.on.ca PAGE 26 or control and will afford evidence respecting the commission of the offence. Form (3) The order is to be in Form 5.005. Limitation (4) A person who is under investigation for the offence referred to in subsection (2) may not be made subject to an order. Volume 21 Issue 4~July/August 2021 EVIDENCE OF PRIOR UNCHARGED CRIMINAL ACTIVITY OK IN ITO prior activity was of a type that is relevant to the investigation, and as long as the prior suspected activity did not result in charges that were dismissed.” He continued: The British Columbia Court of Appeal says police can use prior uncharged criminal activity in an ITO to establish reasonable grounds for a search warrant. In R. v. Le, 2021 BCCA 52, police in BC used the accused’s dated criminal record for possessing a narcotic and possessing drugs for the purposes of trafficking in an ITO to obtain a search warrant. The ITO also included information connecting the accused to more recent large, outdoor illicit marihuana grow operations in Ontario where police saw him on two properties where marihuana was being cultivated. He had also purchased an industrial water pump that was installed at one of the grow operations. Subsequent authority also appears to confirm that the approach taken in Loewen is the correct one. In R. v. Li, 2020 SCC 12, the issue was entrapment. The question for the Court was whether the police had “reasonable suspicion” that a specific phone number was being used in a dial-a-dope operation before they called the number and arranged to purchase drugs. The anonymous tip provided to the police referred to a specific vehicle that was allegedly used in the operation. The police determined that the vehicle belonged to an individual “with an extensive and recent history of suspected dial-a-dope drug dealings”, though he had not been charged. The Court found that evidence to be important in supporting a reasonable suspicion. At trial in BC Provincial Court, the judge found the accused’s drug related convictions were relevant but dated, and it was unclear whether the circumstances related to those offences bore any similarity to the current case. As for including the information about the Ontario investigation in which the accused was a person of interest, the trial judge noted there was divergent case law on the issue that needed to be reconciled. In terms of the weight to be given to the evidence of suspected criminal activity, it is important to recognize that the judicial justice of the peace was obliged to consider all of the information in the ITO together, not to reach separate conclusions as to the cogency of each piece of relevant evidence. ... [para. 82-8] Prior Uncharged Criminal Activity Justice Groberman, speaking for the Court of Appeal, found earlier BC cases (R. v. Loewen, 2016 BCCA 351; R v. Della Penna, 2012 BCCA 3; and R. v. Hutchings, (1996) 111 C.C.C. (3d) 215 (BCCA), leave to appeal ref’d, [1997] S.C.C.A. No. 21) “stand for the proposition that reference t o p r i o r s u s p e c t e d c r i m i n a l a c t iv i t y i s appropriately included in an ITO, as long as the Insufficient Investigation The trial judge also suggested that additional investigation was necessary before the information in the ITO could be considered. In deciding whether a warrant could be quashed because an investigation was insufficiently thorough, Justice Groberman stated: It is important, for both the issuing justice and the reviewing judge to recognize that it is for the investigating authorities to decide how to conduct their investigations and how deeply to “[R]eference to prior suspected criminal activity is appropriately included in an ITO, as long as the prior activity was of a type that is relevant to the investigation, and as long as the prior suspected activity did not result in charges that were dismissed.” PAGE 27 Volume 21 Issue 4~July/August 2021 “The requirement that an ITO include all information that ‘ought to be known’, then, does not go so far as to impose on the police a legal obligation to conduct a ‘thorough’ or ‘diligent’ investigation, as desirable as such an investigation may be.” While [R. v. Morelli, 2010 SCC 8] does ... speak of “police diligence” when applying for search warrants, it is referring to diligence in preparing the affidavit material, and not diligence in the underlying investigations. delve into particular questions. The mere fact that further inquiries could have been conducted will not mean that a search warrant cannot issue. ... I would make two observations that, in minor respects, may be seen as qualifications to the general proposition that investigations that might have been undertaken, but were not, are not to be considered in assessing whether a search warrant should have issued. First, perfunctory investigations will typically fail to provide a sufficient factual foundation to establish a credibly-based probability that a search will uncover evidence of a crime. A justice of the peace examining an ITO is entitled to consider the significance of evidentiary gaps in it. Where obvious inquiries have not been undertaken, the credibility of any suspicion will be impacted, and may well be undermined. Where the ITO does not provide evidence sufficient to meet the “credibly-based probability” threshold, no search warrant can issue. The question for the judge in this case, therefore, was not whether the police investigation was sufficiently thorough, but rather whether the nature and result of the investigations were adequately described in the ITO, and whether the investigations gave rise to a credibly-based probability that an illegal marihuana production operation was taking place on the property. [references omitted, paras. 47-53] A subsequent appeal to the Supreme Court of Canada was dismissed on July 15, 2021. Complete case available at www.courts.gov.bc.ca Second, an ITO will be found to be misleading where investigators have failed to disclose information that was known or ought to have been known to them. ... The requirement that an ITO include all information that “ought to be known”, then, does not go so far as to impose on the police a legal obligation to conduct a “thorough” or “diligent” investigation, as desirable as such an investigation may be. “It is important, for both the issuing justice and the reviewing judge to recognize that it is for the investigating authorities to decide how to conduct their investigations and how deeply to delve into particular questions. The mere fact that further inquiries could have been conducted will not mean that a search warrant cannot issue.” PAGE 28 Volume 21 Issue 4~July/August 2021 ASSAULT PO FORMS UNLAWFUL ACT FOR UNLAWFULLY CAUSING BODILY HARM R. v. Eddison, 2021 BCCA 168 BY THE BOOK: s. 269 Criminal Code Two uniformed officers working night shift sat in their unmarked police car at about 1:35 a.m. They were parked in an entertainment area. The accused, who was siting on a nearby bench, mouthed words and gestured at police. He then unsteadily walked towards the police car and spoke to the passenger officer. He appeared to be frustrated and angry, and smelled of a strong odour of alcohol. He asked the officer for a for a cigarette. The officer driving the police car moved it a short distance to get away from the accused, but he followed and continued to ask the passenger officer for a cigarette. Although the officer told the accused he did not have a cigarette, the accused repeated his demand and said, “Give me the fucking cigarette or else I’ll fucking kill you”. The passenger officer got out of the police car to arrest the accused for uttering a threat. The accused backed away and took a fighting stance, telling the officer, “Watch out, or I will fuck you up.” The officer told the accused he was under arrest. The accused replied, “No, I’m fucking not”. The officer moved forward about two meters and took hold of the accused’s right arm. The accused grabbed the officer and pushed him back towards the police car. The officer regained some control and swept the accused’s leg, taking him to the ground. During the takedown, the other officer, who had also got out of the police car to assist, suffered a serious injury to her leg. She felt a bone protruding from her skin and her foot appeared to be bent backwards. She had suffered an open fracture to her left tibia and fibula The accused was charged with uttering a threat and assaulting a police officer in the execution of his duty with respect to the arresting officer, and aggravated assault, assaulting a police officer causing bodily harm, aggravated assault of a police officer, and unlawfully causing bodily harm with respect to the injured officer. Unlawfully causing bodily harm Every one who unlawfully causes bodily harm to any person is guilty of (a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) an offence punishable on summary conviction. s. 2 Definitions “bodily harm means 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”. British Columbia Provincial Court The accused was convicted of both charges related to the arresting officer. He was acquitted, however, of the charges related to the officer suffering the fracture to her leg. The trial judge had difficulty determining how the officer actually sustained her injury. He said the officer’s injury could have occurred in two plausible ways: (1) she was intentionally kicked by the accused, or (2) the accused fell backwards onto her while resisting arrest and assaulting the arresting officer. Because he could not resolve what caused the injury, the judge found the Crown had failed to meet its burden in proving any of the charges involving the injured officer beyond a reasonable doubt. British Columbia Court Appeal The Crown argued, among other things, that the trial judge erred in acquitting the accused in relation to the unlawfully causing bodily harm charge. In the Crown’s view, although it could not prove the accused intended PAGE 29 Volume 21 Issue 4~July/August 2021 “Under s. 269 of the Code, it is an offence to unlawfully cause bodily harm to any person. The elements of the offence are not controversial. The Crown must prove the following elements beyond a reasonable doubt: that the accused committed an underlying unlawful act; the objective foreseeability of non-trivial bodily harm; and that bodily harm resulted from the unlawful act. The mental element of the offence thus has two components: objective foreseeability of non-trivial bodily harm; and the mental element required for the underlying offence or unlawful act.” and did in fact kick the officer, either of the two plausible versions of events accepted by the trial judge were sufficient to prove the unlawfully causing bodily harm offence. Unlawful Cause Bodily Harm Justice Butler, delivering the decision of the Court of Appeal, noted the elements of s. 269 of the Criminal Code: Under s. 269 of the Code, it is an offence to unlawfully cause bodily harm to any person. The elements of the offence are not controversial. The Crown must prove the following elements beyond a reasonable doubt: that the accused committed an underlying unlawful act; the objective foreseeability of non-trivial bodily harm; and that bodily harm resulted from the unlawful act. The mental element of the offence thus has two components: objective foreseeability of nontrivial bodily harm; and the mental element required for the underlying offence or unlawful act. [reference omitted, para. 38] As for the mental element, an inability to prove the necessary intent for assault was not fatal to proving the intent for the distinct charge of unlawfully causing bodily harm. In this case, the mental element required for the underlying unlawful act — assaulting the arresting officer — had been proven. And, the defence had conceded that, if the accused was guilty of resisting arrest, it was reasonably foreseeable that some harm could occur. In light of this concession, the Crown had proven that harm was reasonably foreseeable. It was not necessary for the Crown to establish the specific harm caused — the leg fracture — was foreseeable. “[The accused] threatened [an officer], resisted arrest and fought against the lawful attempt to take him into custody,” said Justice Butler. “[The accused’s] unlawful actions were a cause of the injury to [the other officer], whether he directly kicked her or she was injured when he fell backwards into her and the police car door. While h e m ay n o t h av e f o r e s e e n t h e p r e c i s e consequences of his conduct, it was objectively foreseeable that his altercation with [the arresting officer] could lead to an injury to him or to [the other officer] if she provided assistance.” The Crown suggested that the accused was engaged in an unlawful act — assaulting the arresting officer — and bodily harm resulted. Justice Butler agreed. Either of the two scenarios described by the trial judge — an intentional kick or falling backwards while resisting arrest — were sufficient to support the first element of s. 269 (the unlawful act). The Crown’s appeal was allowed, the accused’s acquittal on the unlawfully cause bodily harm charge was set aside, a conviction was entered, and the matter was remitted to the trial court for sentencing. Complete case available at www.court.gov.bc.ca PAGE 30 Volume 21 Issue 4~July/August 2021 ‘MOTOR ASSISTED CYCLE’: MOTOR MUST BE CAPABLE OF SUPPLEMENTING HUMAN PROPULSION R. v. Ghadban, 2021 BCCA 69 A police officer observed the accused riding a Motorino XMr scooter on a public road. His young son was also on the scooter. The officer stopped the accused and asked him to produce his driver’s licence and proof of insurance, but the accused was unable to do so. He was not licenced to drive a motor vehicle and the scooter he was riding was not insured. The accused was issued violation tickets for driving without a driver’s licence (s. 24(1)) and driving without insurance (s. 24(3)) under BC’s Motor Vehicle Act (MVA). British Columbia Provincial Court The accused disputed his violation tickets. Photographs of the scooter and an owner’s manual, which included operating instructions and specifications, were entered as exhibits. The scooter, which had a 500-watt electric direct drive motor in its rear wheel, resembled a motorcycle — handlebars, wheels, seat, suspension, frame and instrumentation — but it also had pedals attached to it. The pedals drove a chain connected to the rear wheel and could be removed without interfering with the ordinary operation of the scooter. The accused testified he had never used the pedals because he did not want to pedal the weight of the scooter, which he estimated at 300 lbs. He said the motor could not be used while pedaling and, if a rider chose to pedal the scooter, the motor was always off. He also said the scooter was incapable of exceeding 32 km/h. The Judicial Justice found the vehicle operated by the accused was not a “motor assisted cycle” as defined by s. 1 of the MVA and, therefore, was not excluded from the definition of a “motor vehicle”. The Judicial Justice addressed both the propulsion aspect of the scooter (its electric propulsion did not assist human propulsion) as well as its wheel size (it was too small). In his view, the Motorino XMr was an electric scooter capable of being pedaled rather than a cycle assisted by electric propulsion. Since the scooter primarily relied on electric propulsion it was not a motor assisted cycle within the meaning of the Motor Assisted Cycle Regulation. As a motor vehicle, its operation required a valid driver’s license and insurance. Since the accused did not have a valid driver’s license, and the vehicle was not insured, the accused was convicted of the offences alleged in the violation ticket. British Columbia Supreme Court The accused argued the Judicial Justice erred in convicting him of the offences charged. The appeal judge, however, agreed with the trial judge’s conclusion that a Motorino XMr did not comply with the intent of the legislation, which was for a motor assisted cycle to supplement or assist the human power required to pedal the vehicle. The accused’s appeal was dismissed and his convictions upheld. British Columbia Court of Appeal The accused argued, in part, that the appeal judge erred in upholding the judicial justice’s interpretation that a motor assisted cycle be primarily powered by human power, with electric power limited to a supplementary role. “Motor Vehicle” or “Motor Assisted Cycle”? Under BC’s MVA, a person requires a valid driver’s licence and insurance to operate a motor vehicle, but not to operate a motor assisted cycle. Both a motor vehicle and a motor assisted cycle are defined in s. 1 of the MVA. PAGE 31 Volume 21 Issue 4~July/August 2021 “motor vehicle” means a vehicle, not run on rails, that is designed to be self-propelled or propelled by electric power obtained from overhead trolley wires, but does not include mobile equipment or a motor assisted cycle. “motor assisted cycle” means a device (a) to which pedals or hand cranks are attached that will allow for the cycle to be propelled by human power, (b) on which a person may ride, (c) to which is attached a motor of a prescribed type that has an output not exceeding the prescribed output, and (d) that meets the other criteria prescribed under section 182.1 (3). In addition, the Motor Assisted Cycle Regulation contains a number of requirements for motor assisted cycles. For example, a motor assisted cycle must have an electric motor that does not exceed 500 watts and is not capable of propelling the cycle at a speed greater than 2 km/h on level ground, and its wheels must be 350 mm or more in diameter. Furthermore, it must be equipped with a motor shut-off: s. 3 (1) A motor assisted cycle must be equipped with a mechanism, separate from the accelerator controller, that (a) allows the driver to turn the motors on and off from a normal seated position while operating the motor assisted cycle, or (b) prevents the motors from turning on or engaging before the motor assisted cycle attains a speed of 3 km/hr. (2) The motors of a motor assisted cycle must turn off or disengage if (a) the operator stops pedaling, (b) an accelerator controller is released, or (c) a brake is applied. in each of the three situations described, and not just in at least one of the situations: It appears to me that s. 3(2) is a safety provision, designed to ensure that the motor is not providing motive force when the rider does something that shows that motive force is not required. Thus, the motor ought to disengage in each of the three situations. There would be no rationale for a regulation that required the motor to disengage in only one of the three situations. [para. 28] In this case, the accused could not stop the motor by ceasing to pedal it because the motor would not operate while it was being pedaled and would already be off when pedaling stops. But his scooter would turn off or disengage in the other two situations. When the throttle control was released the motor was turned off, and when the brakes were applied the motor stopped providing force to the wheel and was no longer powering it. Jusice Groberman also found “it is important to recognize that s. 3(2) does not require a rider to be pedaling in order to start or engage the motor; rather, it says that if a person is pedaling, and stops, the motor must stop or disengage. There is, then, no prohibition on running the electric motor without pedaling at the same time.” Thus, riders are not prohibited from using the electric motor when the cycle is not being pedaled. The legislation does not require that a motor assisted cycle be primarily propelled by human power. Rather, it must be designed to be primarily propelled by human power, with electric power supplementing or assisting. In other words, the cycle must be designed in such a way that human power is the primary force intended to be used to power it and the electric motor is a secondary source of power, to assist the rider in cycling, not to be an alternative to it. Justice Groberman stated: Justice Groberman, speaking for a two-member majority, concluded that the proper interpretation of s. 3(2) in the Regulation meant that the motor of the motor assisted cycle must turn off or disengage PAGE 32 In my view, “motor assisted cycle” should not, without good reason, be interpreted to include a device where the motor can be used only as an alternative to human power, or a device where the use of human power is impractical. Volume 21 Issue 4~July/August 2021 “[A] device cannot be a motor assisted cycle unless it is designed so that the motor is capable of being used to supplement human propulsion.” ... The Motor Vehicle Act and Motor Assisted Cycle Regulation deliberately chose to use the words “motor assisted”, and the concept should be interpreted in a way that is, as far as possible, harmonious with the words chosen. used as a motor-scooter, not a pedal powered cycle. That does not comply with the clear intention of the legislation.” 2. “[T]he evidence shows that the motor cannot operate at any time when the rider is pedaling. The motor is only an alternative to humanpowered cycling, not an assistance to it.” The regulation includes a provision in s. 3(2)(a) that specifically requires that the motor stop or disengage when the rider stops pedaling. In my view, that is telling. The drafter clearly contemplated a device that allowed the motor to be engaged while the rider was pedaling. That interpretation is consonant with the use of the term “motor assisted cycle”. As I see it, a device cannot be a motor assisted cycle unless it is designed so that the motor is capable of being used to supplement human propulsion. The appeal judge did not err in finding the accused’s scooter was not a motor assisted cycle. The accused’s appeal was dismissed and his convictions were affirmed. A Different View Justice Saunders disagreed with the majority. In her view, the accused’s scooter-like device met the first four requirements of the definition of a motor assisted cycle. It had pedals attached, it allowed for propulsion by human power, it was a device on which a person could ride, and it had a motor attached of the type prescribed in the Regulation. She also found the scooter complied with s. 3 of the Regulation, including disengagement of the motor. In saying this, I do not suggest that a motor assisted cycle cannot have the motor operating without the rider pedaling. It is quite consistent with the idea of “motor assisted cycling” that the rider can, at times, stop pedaling and rest, re-engaging the motor using the accelerator controller. It is also completely consistent with the language of the regulation. What is not consistent with the concept of a “motor assisted cycle” or with the regulation is an electric scooter where the motor is never used to assist h u m a n - p ow e r e d cy c l i n g , b u t i s u s e d exclusively as an alternative to it. [paras. 47-50] And further: I do not suggest that a motor assisted cycle must be incapable of being operated when the rider is not pedaling. I say only that the design must contemplate human power being a primary means of propulsion, and must allow for a person to pedal at the same time as the motor is providing assistance. [para. 53] In this case, the accused’s scooter was not a “motor assisted cycle” for two reasons: 1. “[T]he scooter is too heavy to be practical as a human-powered device. It is designed to be Th e o n l y i s s u e wh i ch required further exploration was the wheel size. H o w e v e r, t h e t e r m “wheel” was not defined. If the “wheel” was measured from rim edge to rim edge it was likely too small, but if it was measured from tire edge to tire edge it was likely large enough. Since the wheel size was not properly addressed at trial, Justice Saunders would allow the appeal, set aside the convictions and remit the charges back to Provincial Court for a fresh determination on the matter. Complete case available at www.courts.gov.bc.ca PAGE 33 Volume 21 Issue 4~July/August 2021 9/11: A SOMBER REMINDER OF THE ULTIMATE SACRIFICE Arlington County Police Department, VA • Corporal Harvey Snook, III According to the Officer Down Memorial Page, the terrorist attacks on September 11, 2001 caused more law enforcement line of duty deaths than any other single incident in U.S. history. One officer, who had tried to gain control from the hijackers, was killed when United Flight 93 crashed in Shanksville, Pennsylvania. Another 71 officers were killed when the two World Trade Center buildings collapsed in New York City. And, as of August 27, 2021 the Memorial Page identified more than 300 officers who died from a 9/11 related illness. Cayuga County Sheriff's Office, NY • Undersheriff Stephen B. McLoud HONOUR ROLL Harrison Police Department, NY • Police Officer Walter L. Mallinson American Society for the Prevention of Cruelty to Animals Humane Law Enforcement, NY • Special Investigator Diane DiGiacomo City University of New York Department of Public Safety, NY • Deputy Chief John P. McKee Connecticut State Police, CT • Trooper First Class Eugene Kenneth Baron, Jr. • Trooper First Class Walter Greene, Jr. Montclair State University Police Department, NJ • Sergeant Christopher A. Vidro PAGE 34 Volume 21 Issue 4~July/August 2021 Nassau County Police Department, NY • Police Officer Brian R. Abbondandelo • Police Officer Charles Dennis Cole, Jr. • Police Officer Peter Francis Curran • Police Officer Peter Martino • Police Officer Paul J. McCabe • Police Officer James V. Quinn • Lieutenant Michael P. Shea New Jersey State Police, NJ • Lieutenant William George Fearon • Staff Sergeant Bryan U. McCoy • Trooper Robert Emmet Nagle New Rochelle Police Department, NY • Detective Mark S. Gado • Police Officer Kathleen O'Connor-Funigiello New York City Fire Department - Bureau of Fire Investigation, NY • Fire Marshal Ronald P. Bucca New York City Police Department, NY • Detective Sandra Y. Adrian • Detective I Gerard A. Ahearn • Detective James John Albanese • Chief of Detectives William H. Allee • Detective Sixto Almonte • Detective Luis Gustavo Alvarez • Sergeant Alex W. Baez • Police Officer Curtis Joseph Bako • Police Officer Karen E. Barnes • Detective Thomas J. Barnitt • Police Officer Ronald G. Becker, Jr. • Detective Aslyn A. Beckles • Police Officer James A. Betso • Sergeant Gerard Thomas Beyrodt • Police Officer Derrick Bishop • Police Officer Scott R. Blackshaw • Police Officer Frank M. Bolusi • Deputy Chief Steven Joseph Bonano • Sergeant Patrick J. Boyle • Sergeant William Brautigam • Police Officer Thomas Gerard Brophy • Lieutenant Rebecca A. Buck • Police Officer James M. Burke • Captain Carmine C. Cantalino • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • PAGE 35 Police Officer Audrey P. Capra Police Officer Madeline Carlo Detective Megan K. Carr-Wilks Detective Joseph A. Cavitolo Police Officer Yolanda Cawley Sergeant Christopher M. Christodoulou Police Officer Peter D. Ciaccio Lieutenant Steven L. Cioffi Sergeant Charles J. Clark Police Officer Daniel Charles Conroy Sergeant John Gerard Coughlin Sergeant Patrick T. Coyne Detective Christopher Edward Cranston Detective Angel Antonio Creagh Sergeant Michael Sean Curtin Detective Kevin Anthony Czartoryski Police Officer John D'Allara Police Officer Anthony D'Erasmo Detective Annetta G. Daniels Police Officer Vincent G. Danz Sergeant Garrett S. Danza Detective Michael Kenneth Davis Police Officer Anthony DeJesus Deputy Chief Vincent A. DeMarino Police Officer Michael O. Diamond Detective Corey J. Diaz Detective Leroy Dixon Police Officer Kenneth Xavier Domenech Police Officer Jerome Mark Patrick Dominguez Police Officer Stephen Patrick Driscoll Police Officer Renee Dunbar Police Officer Robert M. Ehmer Police Officer Mark Joseph Ellis Police Officer Otto R. Espinoza Detective Pedro Esponda, Jr. Police Officer William P. Farley Police Officer Robert Fazio, Jr. Detective Luis G. Fernandez Sergeant Paul Michael Ferrara Police Officer Keith A. Ferrara Police Officer John P. Ferrari Police Officer Edward M. Ferraro Inspector Donald G. Feser Detective Carmen M. Figueroa Police Officer Alexander Figueroa Police Officer Nicholas G. Finelli Volume 21 Issue 4~July/August 2021 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Detective Stuart F. Fishkin Police Officer Edward J. Fitzgerald Lieutenant Jeffrey W. Francis Sergeant Gary M. Franklin Detective Sean Patrick Franklin Police Officer Frank L. Gagliano Police Officer Scott N. Gaines Captain Barry Galfano Police Officer Thomas J. Gallagher Sergeant Michael J. Galvin Police Officer Deborah A. Garbutt-Jeff Police Officer Matthew J. Gay Police Officer Judy Ann Ghany-Barounis Police Officer Anthony C. Giambra, Jr. Detective Peter "Pietro" Gianfrancesco Detective James Thomas Giery Sergeant Rodney C. Gillis Captain Edward Charles Gilpin Detective Charles Gilbert Gittens, Jr. Detective Michael E. Glazer Police Officer James Junior Godbee Detective John E. Goggin Police Officer Michael H. Grannis Police Officer Robert C. Grossman Police Officer Dave E. Guevara Inspector James Guida Sergeant Charles R. Gunzelman Police Officer Diane F. Halbran Police Officer Michael J. Hance Police Officer Anthony R. Hanlon Sergeant Claire T. Hanrahan Police Officer Raymond Harris Detective Kevin George Hawkins Police Officer Joseph F. Heid Police Officer Robert Bernard Helmke Detective Michael R. Henry Detective Alick W. Herrmann Detective William J. Holfester Police Officer Richard G. Holland Detective Nathaniel Holland, Jr. Detective Steven Hom Police Officer Demetrias Hopkins Detective Charles James Humphry Sergeant Michael Vincent Incontrera Sergeant Wayne A. Jackson Police Officer Richard Jakubowsky • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • PAGE 36 Police Officer Cheryl D. Johnson Police Officer Paul J. Johnson Police Officer Louise M. Johnston Sergeant Scott Johnston Police Officer Robert W. Kaminski Police Officer Charles M. Karen Detective William D. Kinane Police Officer William J. King Police Officer Ronald Philip Kloepfer Police Officer Gary Lee Koch Police Officer Kelly Christine Korchak Police Officer Fred J. Krines Detective John F. Kristoffersen Detective Stephen T. Kubinski Police Officer Thomas Michael Langone Detective Robert F. Larke Sergeant Mark Lawler Police Officer James Patrick Leahy Detective Michael Lawrence Ledek Detective Jeffrey A. Lee Inspector Justin C. Lenz Police Officer Andrew J. Lewis Detective Christian R. Lindsay Lieutenant Luis A. Lopez Police Officer Richard Lopez Detective Thomas J. Lyons Police Officer Frank Gerard Macri Police Officer David Mahmoud Police Officer Shaun M. Mahoney Detective John J. Marshall Sergeant Robert P. Masci Police Officer Vito S. Mauro Police Officer Gary Gerald Mausberg Lieutenant Jacqueline McCarthy Police Officer Brian Grady McDonnell Police Officer Patrick Thomas McGovern Sergeant Colleen A. McGowan Captain Edward Joseph McGreal Sergeant Michael J. McHugh Police Officer Denis Reid McLarney Police Officer Christopher Shawn McMurry Lieutenant Jennifer Meehan Police Officer Gregory V. Melita Detective Tommy L. Merriweather Detective Mark Mkwanazi Lieutenant Brian S. Mohamed Volume 21 Issue 4~July/August 2021 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Deputy Chief James Gerard Molloy Detective James W. Monahan Detective Robert A. Montanez Detective Michael P. Morales Captain Dennis Morales Detective John K. Muller Sergeant Patrick P. Murphy Lieutenant Paul Murphy Sergeant Edmund P. Murray Sergeant Anthony Napolitano Police Officer Mark J. Natale Police Officer Robert J. Nicosia Detective Maureen M. O'Flaherty Sergeant Terrence Scott O'Hara Sergeant Donald J. O'Leary, Jr. Lieutenant Carlos J. Ocasio Police Officer Jason Howard Offner Detective Edwin Ortiz Police Officer Robert Ortiz Police Officer Robert V. Oswain, Jr. Police Officer Joseph Cavanaugh Pagnani Police Officer Allison Marie Palmer Lieutenant Phillip E. Panzarella Detective Joseph Paolillo Police Officer William G. Parker Police Officer Marie Ann Patterson-Bohanan Captain Ronald G. Peifer, Sr. Police Officer Angelo Peluso, Jr. Police Officer John William Perry Detective Philip T. Perry Police Officer Glen Kerrin Pettit Detective Joseph L. Pidoto Sergeant Louis R. Pioli Captain Peter L. Pischera Police Officer Francis Thomas Pitone Police Officer Frank J. Pizzo Police Officer Nancy A. Puca Lieutenant Christopher M. Pupo Assistant Chief Michael V. Quinn Detective Andrea Renee Jacqueline Rainer Police Officer Moira Ann Reddy-Smith Police Officer Christine Anne Reilly Detective George Clay Remouns, Jr. Lieutenant Gerald Rex Lieutenant Robert Daniel Rice Detective Claude Daniel Richards • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • PAGE 37 Detective Ronald A. Richards Detective Roberto L. Rivera Police Officer Lawrence J. Rivera Police Officer Peter O. Rodriguez Detective Joseph M. Roman Lieutenant Kenneth W. Rosello Lieutenant John Charles Rowland Sergeant Timothy Alan Roy, Sr. Lieutenant James D. Russell Detective John A. Russo Sergeant Michael W. Ryan Lieutenant James E. Ryan Police Officer Patrice Marie Ryan-Ott Detective Thomas Santoro Sergeant Stephen P. Scalza Sergeant Jacqueline C. Schaefer Detective James A. Schiavone, Jr. Detective Joseph Edward Seabrook Police Officer Peter M. Sheridan, Jr. Lieutenant Marci Simms Detective Basilio A. Simons Detective Andrew L. Siroka Sergeant Harold John Smith Captain Scott V. Stelmok Detective Christopher Strucker Police Officer Ramon Suarez Sergeant Barbara J. Sullivan Police Officer Robert S. Summers Detective Traci L. Tack-Czajkowski Police Officer Paul Talty Police Officer Richard E. Taylor Sergeant Edward Doyle "Ned" Thompson Detective Sally A. Thompson Detective William B. Titus, Jr. Police Officer Martin Tom Police Officer Reginald Umpthery, Sr. Police Officer Santos Valentin, Jr. Detective Harry Valentin Police Officer Manuel Vargas, Jr. Detective Dennis J. Vickery Police Officer John F. Vierling, Jr. Detective Joseph Vincent Vigiano Police Officer Perry T. Villani Police Officer Matthew S. von Seydewitz Sergeant Michael B. Wagner Police Officer William T. Walsh Volume 21 Issue 4~July/August 2021 • • • • • • • • • • • • • • • Lieutenant William H. Wanser, III Detective Thomas P. Ward Police Officer Walter Edward Weaver Detective Thomas Francis Weiner, Jr. Police Officer Ronald Evan Weintraub Detective Richard H. Wentz Detective Jennifer A. Williams Police Officer Wade Jason Williams Detective Robert W. Williamson Inspector Richard Daniel Winter Police Officer Kenneth W. Wolf Police Officer George Mon Cheng Wong Detective John T. Young Detective James Zadroga Police Officer Robert A. Zane, Jr. New York County District Attorney's Office, NY • Senior Investigator Fred Ghussin New York State Environmental Conservation Police, NY • Conservation Officer Stephen Lawrence Raymond New York State Office of Court Administration, NY • Senior Court Officer Thomas Jurgens • Captain William Thompson • Senior Court Officer Mitchel Scott Wallace New York State Office of Tax Enforcement Petroleum, Alcohol and Tobacco Bureau, NY • Bureau Chief Charles Mills New York State Office of Tax Enforcement Revenue Crimes Bureau, NY • Investigator Clyde Frazier • Investigator Richard Moore • Investigator Salvatore Papasso • Assistant Deputy Commissioner William Pohlmann New York State Police, NY • Trooper Michael J. Anson • Trooper Darryl J. Burroughs, Sr. • Sergeant Jeffrey M. Cicora • Trooper Jennifer M. Czarnecki • Trooper Brian S. Falb • Investigator Ryan D. Fortini • Senior Investigator Thomas G. Moran, Jr. • Trooper Covel Chase Pierce • Sergeant Charles Robert Salaway • Investigator Paul R. Stuewer Newtown Police Department, CT • Police Officer Stephen A. Ketchum Paterson Police Department, NJ • Detective Anthony Jospeh Lucanto Peekskill Police Department, NY • Detective Charles John Wassil, Jr. Port Authority of New York and New Jersey Police Department, NY • Police Officer Christopher Amoroso • Police Officer Maurice Barry • Police Officer Charles Barzydlo • Lieutenant John J. Brant • Police Officer Liam Callahan • Lieutenant Robert Cirri • Police Officer John Mark Cortazzo • Police Officer Clinton Davis • Lieutenant William E. Doubraski • Police Officer Donald Foreman • Police Officer Gregg Froehner • Police Officer Thomas Gorman • Sergeant Lawrence A. Guarnieri • Police Officer Uhuru Gonja Houston • Police Officer George Howard • Police Officer Stephen Huczko, Jr. • Inspector Anthony Infante • Detective Thomas M. Inman • Police Officer Paul Jurgens • Sergeant Robert Kaulfers • Police Officer James W. Kennelly • Police Officer Paul Laszczynski • Police Officer William James Leahy • Police Officer David P. LeMagne • Police Officer John Lennon • Police Officer John Levi • Police Officer James Lynch • Captain Kathy Mazza • Police Officer Donald McIntyre • Police Officer Walter McNeil • Police Officer Mark J. Meier PAGE 38 Volume 21 Issue 4~July/August 2021 • • • • • • • • • • • • • • • • • • • Director of Public Safety Fred V. Morrone Police Officer Joseph Navas Police Officer James Nelson Police Officer Alfonse Niedermeyer Sergeant Vincent Joseph Oliva Police Officer Pavlos D. Pallas Police Officer James Parham Police Officer Dominick Pezzulo Police Officer Bruce Reynolds Police Officer Antonio Rodrigues Police Officer Richard Rodriguez Chief James Romito Police Officer John Skala Police Officer Walwyn Stuart Police Officer Michael Edmund Teel Police Officer Kenneth Tietjen Police Officer Steven John Tursellino Police Officer Nathaniel Webb Police Officer Michael Wholey Suffolk County Police Department, NY • Police Officer Craig L. Capolino • Sergeant James Thomas Farrell • Detective Stephen John Mullen • Sergeant Dennis Wallace Reichardt United States Department of Homeland Security Immigration and Customs Enforcement - Homeland Security Investigations, U.S. Government • Special Agent Louis Henry Aguirre • Special Agent Dennis Patrick McCarthy • Special Agent Edward Joseph Smith • Special Agent Robert T. Williams • Special Agent Thomas Michael Wischerth • • • • • • • • • • • Special Agent Leonard Hatton Special Agent Jerry D. Jobe Special Agent Mark C. Johnston Special Agent in Charge David James LeValley Special Agent Mark Joseph Mikulski Special Agent Melissa S. Morrow Special Agent Robert Martin Roth Special Agent Gerard D. Senatore Special Agent Rex Aaron Stockham Special Agent Paul H. Wilson Special Agent Wesley J. Yoo United States Department of Justice - United States Marshals Service, U.S. • Deputy U.S. Marshal Kenneth J. Doyle • Deputy U.S. Marshal Betty Ann Pascarella • Deputy U.S. Marshal Zacarias Toro, Jr. United States Department of the Interior - Fish and Wildlife Service - Division of Refuge Law Enforcement, U.S. • Refuge Manager Richard Jerry Guadagno United States Department of the Treasury - United States Secret Service Special Services Division, U.S. • Master Special Officer Craig J. Miller Yonkers Police Department, NY • Police Officer Anthony Maggiore • Lieutenant Roy D. McLaughlin United States Department of Justice - Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Government • Special Agent William C. Sheldon United States Department of Justice - Federal Bureau of Investigation, U.S. Government • Special Agent Dennis Bonelli • Special Agent Steven A. Carr • Special Agent William Robert Craig • Supervisory Special Agent Brian Lawrence Crews • Special Agent Laurie J. Fournier PAGE 39 Volume 21 Issue 4~July/August 2021 CUMULATIVE EFFECT, INCLUDING MARIHUANA SMELL, JUSTIFIED ARREST Ontario Court of Justice R. v. Smeltzer, 2021 ONCA 472 In 2015, experienced drug investigators were conducting surveillance in an area known for drug activity. They saw the driver of a vehicle, unrelated to their current drug trafficking investigation, behave in a suspicious manner. The driver first parked in a lot in front of an apartment building, which was one in cluster of apartment buildings. He appeared to be looking around and texting. The driver then circled around one of the buildings, exited the parking lot, and parked on a nearby public road which bordered the parking lot. The accused then approached this vehicle on foot from the direction of the parking lot of the apartment complex. The accused entered the vehicle. The vehicle then drove a short distance down the road, turned around, and then returned to the parking lot. This time it came to a stop near the front of a different apartment. This area was a more “secluded spot” than the “exposed” parking area in front of the building where the vehicle had first parked. Once the vehicle stopped, officers observed the accused passing something to the driver. Approximately 30 seconds later, the accused exited the vehicle and the vehicle left. As the accused was about to enter one of the apartment buildings, an officer, by ruse, induced the accused to approach him. As the accused got close, the officer began to smell the strong odour of marijuana “coming from the area of [the accused’s] person and the backpack”. The accused was arrested and a search of his backpack incidental to arrest revealed about 259 grams of marihuana wrapped in plastic and a “large bundle of cash”. Upon a search of the accused’s person, three cellphones were located. The judge found the police did not breach the accused’s ss. 8 (unreasonable search) or 9 (arbitrary detention) Charter r i g h t s . Th e j u d g e a c c e p t e d t h e experienced arresting officer’s evidence that marijuana has a “strong pungent” odour and that he could smell it even though it was wrapped in plastic and concealed inside a backpack. The smell of marihuana, along with the cumulative observations, provided reasonable grounds for arresting the accused and searching him. The accused was convicted of possessing marijuana for the purpose of trafficking. Ontario Court of Appeal The accused contended that the trial judge erred in finding that the arresting officer had the requisite reasonable grounds to arrest and search him. First, he submitted that the trial judge did not consider the the arresting officer’s reliance on the low-income, highcrime nature of the area, which was offered as supporting his grounds for arrest, was class-based discrimination that contaminated the officer’s subjective grounds. Second, the accused suggested that the officer’s grounds for arrest were not objectively reasonable because the observed conduct of the parties was neutral and therefore an unreliable indicator of drug trafficking activity. Finally, he argued that the arresting officer’s evidence that he had smelled marijuana coming from the accused and his backpack should not have been accepted. The Court of Appeal rejected the accused’s assertions, and concluded that the trial judge was entitled to find that the arresting officer had subjective grounds to believe there was a crediblybased probability that the accused had engaged in drug trafficking, and that this belief was objectively reasonable. PAGE 40 Volume 21 Issue 4~July/August 2021 Nature of the Neighbourhood The Court of Appeal opined that the arresting officer’s consideration of high-crime character of the area was problematic. “We agree that one’s mere presence in a high-crime area is not an objective indicium that one is involved in criminal activity,” said the Court of Appeal. “As such, the arresting officer should not have considered this factor in determining his grounds for arrest. However, as indicated, based on the remaining grounds the arresting officer considered, his conclusion that he had reasonable and probable grounds to arrest the [accused] was objectively reasonable.” It continued: We do not accept that the arresting officer’s reliance on the fact that the apparent transaction occurred on the Proudfoot Lane apartment complex constituted discrimination b a s e d o n “ p e r c e iv e d c l a s s ” , t h e r e by contaminating and undermining the arresting officer’s subjective grounds. The arresting officer found relevance in his knowledge that the Proudfoot Lane apartment complex was a high-crime area, not that it was a low-income area. He mentioned the low rents in the buildings when explaining why it is common for the apartments to be used as drug “stash houses”. We see no indication that he relied on the alleged poverty of the neighbourhood as an indicium of criminal activity. drug officers in believing that the series of events, viewed cumulatively, was consistent with a drug trafficking transaction. The relevant series of events included: • The conduct of the driver upon arrival; • The pickup of the accused on a public road rather than out front of the building he came from; • The otherwise pointless movement of the vehicle to a secluded area after the pickup; • The apparent hand-off of something within the vehicle from the accused, who was carrying a backpack; and • The short duration of the meeting. These cumulative behaviours, coupled with the smell of marijuana coming from the accused immediately after departing the vehicle, provided the necessary reasonable grounds for the arrest and search. Odour of Marijuana The trial judge did not err in accepting the arresting officer’s testimony that he had smelled marijuana coming from the accused and his backpack before he made the arrest. The trial judge considered and rejected the accused’s challenge that it was implausible for the arresting officer to smell wrapped marijuana inside a backpack. And the trial judge was not “obliged to demonstrate in his reasons that he had considered that smell evidence can be highly subjective and suspect.” There was not a case-specific reason to doubt the officer’s smell evidence. Nor did the trial judge engage in circular reasoning. When the trial judge said the arresting officer must have smelled marijuana or else he could not have arrested the accused, he was simply rejecting the suggestion that the arresting officer had not smelled the marijuana until he had already arrested and detained the accused. Rather, when the arresting officer called the accused over, he secured the grounds for the accused’s arrest – the smell – before arresting him. Had the arresting officer done so, or had he expressed suspicion of criminal activity because the area was low-income, closer consideration of the [accused’s] submission on this point may have been warranted. That submission, by analogy to this court’s racialprofiling decision in R. v. Dudhi, 2019 ONCA 665,... is that reliance on discriminatory stereotypes about poverty and crime should be treated as tainting, and therefore undermining, an officer’s subjective grounds for interfering with the liberty of a suspect. In the circumstances of this appeal, however, we need not address this matter. [paras. 24-25] Neutral Behaviours The accused’s appeal was dismissed. The Court of Appeal found the trial judge was entitled to accept the testimony of the experienced Complete case available at www.ontariocourts.on.ca PAGE 41  Volume 21 Issue 4~July/August 2021 FAIRNESS REQUIRES SUED OFFICER TO CHALLENGE ADVERSE FINDINGS IN CRIMINAL TRIAL LEGALLY SPEAKING:  Issue Estoppel Klassen v. British Columbia (Minister of Public Safety and Solicitor General), 2021 BCCA 294 The plaintiffs (husband and wife) were charged with assaulting a police officer who had attended their residence in response to a dropped 911 call. The officer alleged he witnessed the wife lunge at and push her husband. When the officer arrested the wife, she assaulted the officer and her husband threatened him. The wife denied lunging at and pushing her husband. At their criminal trial in British Columbia Provincial Court, the judge found it was not probable that the wife assaulted her husband and he rejected the officer’s evidence on this point. The officer therefore did not have the necessary grounds to arrest the wife and exceeded his authority in the melee that followed. Thus, the officer was not in the lawful execution of his duty when he attempted the arrest. Furthermore, the husband was justified in aiding his wife. The plaintiffs were acquitted of assaulting a peace officer. An appeal by the Crown from the verdict of acquittal was dismissed in the British Columbia Supreme Court. British Columbia Supreme Court The plaintiffs then sued the Province of British Columbia and the officer alleging they were both unlawfully arrested. They sought damages for the torts of assault, battery and false imprisonment. They also claimed that police intentionally inflicted emotional distress on them during and after their arrest by holding them overnight in cells, forwarding charges to the Crown for approval, and lying at trial. They sought damages for breach of their Charter rights, and wanted aggravated and punitive damages.   “Issue estoppel is concerned not with whether the cause of action in two  proceedings is the same, but with whether an issue be decided in  to   proving the current action is the same as an  issue decided in a previous proceeding. The causes of action may be (and typically are) different. Issue estoppel in Canada has  historically applied to both civil and criminal law.” - R. v. Mahalingan, 2008 SCC 63 at para. 16.   The defendants plead the officer had reasonable grounds believe the wife had committed  to   an  assault and the husband had obstructed the officer in his duties. Thus, as was asserted at the criminal  it was claimed the officer had the grounds for trial,    an arrest and was justified in arresting the plaintiffs without a warrant. The defendants denied the use of  excessive force and submitted, under s. 21 of the      Police Act, the officer was immune from personal liability because he was acting in the performance  of his duty and in the exercise of his powers as a provincial constable.  The plaintiffs sought the paragraphs in the  defendants’ response to the lawsuit, claiming the arrest was lawful, be struck. In the plaintiffs’ view,  since the arrest had already been found unlawful in the criminal trial, the doctrines of issue estoppel  and abuse of process prevented the defendants from        claiming this defence in the civil proceeding.  Even assuming that issue estoppel applied, the chambers judge exercised his discretion in not     applying it and dismissed the plaintiffs’ application out of fairness to the officer. He noted that the  plaintiffs had a number of protections in the criminal proceedings that they no longer would have in the civil proceeding. For example, in the criminal proceeding the plaintiffs had the right to remain silent, which the husband did exercise. But in the civil proceeding, the officer would have discovery rights and the husband could be forced to testify. www.10-8 PAGE 42      Volume 21 Issue 4~July/August 2021 [The officer] was not a party to the criminal proceeding; he was a witness. The Crown did not represent his personal interests in that proceeding and did not stand in his place. [The officer] may well have disagreed with the Crown’s approach to the calling of evidence, c r o s s-e x a m i n a t i o n o f w i t n e s s e s , a n d submissions. However, he was powerless to affect those things due to the independent role of the Crown prosecutor. [The officer] had no right to call witnesses or make submissions on his own behalf at the criminal trial. British Columbia Court of Appeal The plaintiffs argued that the chambers judge erred in not applying the correct legal test for the exercise of discretion related to both issue estoppel and abuse of process, and when exercising his discretion he used speculative concerns and conjecture. Issue Estoppel? Th e l aw i s w e l l-e s t a b l i s h e d t h a t t h e prosecutorial role of Crown counsel is a distinct, independent role. The Crown prosecutor does not represent the government as a whole, government employees or agents at large, victims, or the police. The Crown prosecutor must act solely in the public interest. It would be improper for a Crown prosecutor to advance the personal interests of a police officer in a proceeding. For these reasons, the third element of issue estoppel, a mutuality of interests, does not exist between the Crown prosecutor and other government actors in other roles, such as the police. [references omitted, paras. 29-31] Issue estoppel precludes an unsuccessful party from relitigating in the courts what has already been decided. In this case, since the arrest was already found to be unlawful in the criminal proceeding, the plaintiffs suggested the defendants were precluded from arguing its lawfulness in the civil proceeding. To establish issue estoppel, three preconditions must be met: 1. the same question has been decided; 2. the judicial decision which is said to create the estoppel was final; and, 3. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. And further: Even if these three requirements of issue estoppel have been met, the court retains the discretion to refuse to apply it if doing so would be unfair or work an injustice. Although the judge declined to decide whether the three preconditions of issue estoppel were met and moved directly to exercising his discretion, Justice Griffin, delivering the Court of Appeal’s decision, found the third precondition had not been satisfied: Indeed, in my view the [plaintiffs] clearly failed to establish the third element of issue estoppel, namely mutuality of interests ... . PAGE 43 The separation of the Crown prosecutorial role and the police investigational role are essential to prevent miscarriages of justice. If Crown prosecutors had to consider the risk of civil liability due to reputational harm to police officers, it would undermine and conflict with their duties to protect the integrity of the process and the rights of the accused. For these reasons, prosecutors are not accountable to the police, whose interests are adverse to the accused. [The officer] is therefore independent of the Crown prosecutor in the criminal trial. So too is the Minister, who is named in the civil lawsuit as vicariously liable under the Police Act for the damages allegedly caused by the actions of the police. Issue estoppel does not apply to these parties in this circumstance. [references omitted, paras. 34-35] Volume 21 Issue 4~July/August 2021 The [plaintiffs] submit that allowing the [defendants] to contest the lawfulness of the arrest would violate fundamental principles of justice underlying the community’s sense of fair play and decency. I disagree. A reasonable member of the public, properly informed, would not be offended by allowing [the officer] the opportunity to defend the allegations against him given the prospect of civil liability. Allowing the [defendants] to defend the civil c l a i m wo u l d n o t u n d e r m i n e t h e f a i r administration of justice. Indeed, the opposite is true: it would offend the community’s sense of fair play and decency to not allow [the officer] an opportunity to defend himself. [paras. 40-43] Fairness? Because issue estoppel did not arise, it was unnecessary to determine whether the chambers judge properly exercised his discretion in not applying it on the basis of it being unfair to the officer. Nevertheless, the Court of Appeal did comment on the issue. Although finality to litigation is a compelling consideration, it is not solely determinative: A number of procedural, evidentiary, and Charter safeguards exist to protect the rights of the accused in criminal proceedings, in furtherance of the principle of innocence until proven guilty beyond a reasonable doubt. Because of the procedural protections afforded to an accused in criminal proceedings, and because the case was not being advanced against him, [the officer] may not have had the opportunity to “put his best foot forward” in the criminal proceeding on issues relevant to the civil proceeding against him personally. Further, the burden in the civil proceeding shifts and falls on the [plaintiffs] to prove their claim on a balance of probabilities. The [defendants] are entitled to discovery and have the right to subpoena the [plaintiffs] to testify. A judge in the civil proceeding will be required to weigh all the evidence on the civil standard of proof, a balance of probabilities, and could well come to a different conclusion about the facts of what happened during the altercation. The [plaintiffs] submit that it is pure conjecture that the evidence obtained on discovery, or from [the husband], who did not testify in the criminal trial, would make any difference to the outcome. I do not find that submission helpful. It is always conjecture as to how the evidence at trial will unfold, as the witnesses are subject to cross-examination. The facts of what happened during the incident were witnessed by three people, and [the officer] has never had the opportunity to test the evidence of the [plaintiffs], and, if it turns out to be the case, to point out inconsistencies in the evidence of [the husband] and [the wife]. In my view it would be procedurally unfair to deny him the opportunity to defend himself by testing their evidence. Justice Griffin, citing the dissent in Ontario (Attorney General) v. Clark, 2021 SCC 18, reasoned that “a police officer witness tainted with adverse findings in a criminal trial has the right to challenge those findings in a subsequent civil lawsuit brought against the officer, and, indeed, that fairness dictates that the officer be able to do so. Further, it is open to the trial court in the civil lawsuit to make findings that are exculpatory of the police officer, contrary to the adverse findings in the criminal case.” On my reading of the judge’s reasons, he quickly and succinctly homed in on the heart of this case: the unfairness of not allowing [the officer] to challenge the allegations regarding his conduct despite the fact he now faces significant jeopardy for civil liability and in light of the fact that his interests were not represented and he had no right to challenge the findings made at the criminal trial. I agree with the judge that it would be “fundamentally unfair” not to allow [the officer] to defend himself in the civil trial, given that the very restrictions he faced in defending his actions at the criminal trial were designed to protect the interests of the [plaintiffs] as accused persons. [para. 48] The doctrine of issue estoppel did not apply in this case nor was it an abuse of process to allow the police to defend all aspects of the claims against them. The plaintiffs’ appeal was dismissed. Complete case available at ww.courts.gov.bc.ca PAGE 44 Volume 21 Issue 4~July/August 2021 IMMEDIATE ROADSIDE PROHIBITION SCHEME CAN SUSPEND CHARTER s. 10(b) Superintendent of Motor Vehicles R.B. v. British Columbia (Superintendent of Motor Vehicles), 2021 BCCA 262 Police officers responded to a report of an alleged stalking, threats and use of a firearm incident. A suspect vehicle description was provided along with a partial licence plate number. Police spotted a vehicle matching the description and stopped it at 6:36 p.m. The driver was arrested for the stalking allegations and he was h a n d c u f f e d . A f t e r c h e c k i n g t h e d r i v e r ’s identification, it was determined he was not the suspect police were looking for. However, an officer smelled a strong odour of liquor on the driver’s breath and requested an approved screening device (ASD) be brought to the stop. Within one minute, another officer arrived with an ASD. This officer approached the driver who was standing outside of his vehicle still in handcuffs. He had been asking to speak to his lawyer. The officer smelled liquor on the driver’s breath and, in response to police questioning, the driver admitted to consuming three beers and said his last drink was at 6:20 p.m. The officer demanded a breath sample but the driver refused to provide one and continued to ask to speak to his lawyer. He also requested that the police allow him an opportunity to provide a blood sample. Police explained the consequences of refusing to blow into the ASD (the seizure of his driver’s licence and service of a notice of driving prohibition). He was also advised that (1) his right to counsel under the Charter was suspended for the purpose of obtaining the breath sample, (2) he was lawfully required to provide a sample, and (3) his request to go to the police station for an “evidentiary blood test” was not an option. The driver maintained his refusal and he was issued a 90-day immediate roadside prohibition (IRP) at 6:43 p.m. The driver challenged the IRP before a delegate of the Superintendent of Motor Vehicles. He submitted that (1) he did not refuse or fail to comply with the demand and (2) he had a reasonable excuse for not complying. He said he had repeatedly asked to speak to a lawyer after being arrested for the stalking allegations. And, since the police failed in their obligation to facilitate access to legal counsel , they could not lawfully obtain a sample from him. The Adjudicator determined that the driver refused to comply with the demand and, although his requests to speak to his lawyer were denied, his right to counsel was suspended at the time of the breath demand. The police did not breach the driver’s right to counsel when they denied him access to a lawyer and, therefore, he did not have a reasonable excuse to refuse the ASD demand. The IRP was confirmed. British Columbia Supreme Court The driver (now petitioner) sought judicial review of the Adjudicator’s decision. He wanted the IRP revoked because he had a reasonable excuse for not complying with the ASD demand. He contended that when the demand for a breath sample was made, he was under arrest and in handcuffs on matters unrelated to the demand for a breath sample. This arrest triggered his rights under s. 10(b) of the Charter which could not be suspended for the purpose of obtaining a breath sample. And because he invoked his right to counsel under s. 10(b), he had a reasonable excuse for not complying with the ASD demand. After reviewing the statutory framework for IRPs, the judge concluded, among other things, that the IRP scheme can suspend (or limit) the right to counsel. The judge also found it was reasonable for the Adjudicator to hold that the driver’s s. 10(b) right had been suspended. Moreover, the petitioner’s s. 10(b) rights had been minimally impaired and he had no reasonable excuse for not complying with the ASD demand. The IRP was again upheld. PAGE 45 Volume 21 Issue 4~July/August 2021 an ASD demand within the context of the IRP regime to comply with the informational and implementation duties mandated by the right to counsel. They are not constitutionally required to facilitate access to legal counsel before obtaining a breath sample or before recording a refusal to comply with an ASD demand. British Columbia Court of Appeal The petitioner asserted that the judge erred in not finding the adjudicator’s s. 10(b) Charter analysis unreasonable. He argued that he was not stopped by police for the purposes of roadside screening and therefore the limit on his s. 10(b) right did not apply. He maintained that not having access to a lawyer excused his non-compliance with the breath demand. In other words, the petitioner relied on a deprivation of his right to counsel as his excuse for not blowing into the ASD. Gregory was binding on the Adjudicator and the judge. At law, [the petitioner] was not entitled to access a lawyer in relation to the demand that he provide a sample of his breath into an ASD. As such, the police were not obliged to wait until he did so before obtaining a sample. Moreover, in my view, it mattered not that prior to the ASD demand the police had arrested [the petitioner] for Code offences unrelated to drinking and driving. [paras. 66-69] Right to Counsel Justice DeWitt-Van Oosten, authoring the unanimous Court of Appeal opinion, ruled it was reasonable for the Adjudicator to find that the petitioner’s s. 10(b) right was not breached when he was not permitted to contact counsel before being required to provide the breath sample into the ASD at roadside: Here, the Adjudicator found that within one minute of the start of their interaction with [the petitioner], the police shifted their investigation from the Stalking Allegations to drinking and driving. After discovering that [the petitioner] was not the individual they were looking for, the police effectively abandoned that investigation and took no further related steps. Instead, they immediately turned their attention to the odour of alcohol on [the petitioner’s] breath, continued to detain him for that purpose, and made an ASD demand that the Adjudicator found met the requirements of s. 320.27 of the Code. I am of the view that in these circumstances, the s. 10(b) limit upheld in [Gregory v. British Columbia (Superintendent of Motor Vehicles), 2018 BCCA 7] did apply. Gregory affirmed that the police are not obliged for the purposes of And further: ... In my view, once [the Adjudicator] concluded that the breath demand met the requirements of s. 320.27 of the Code and was a valid ASD demand, the s. 10(b) enquiry in relation to that demand was complete. As a matter of law, [the petitioner] did not have the right to access a lawyer before blowing into the ASD or refusing to do so. It was not necessary to engage in an individualized assessment of whether the s. 10(b) limit upheld in Gregory was justified in [the petitioner’s] circumstances. [para. 77] Since s. 10(b) was not operative for purposes of an ASD demand, the police refusal to facilitate the petitioner’s access to legal counsel could not, by itself, constitute a reasonable excuse for refusing to comply with a valid demand. The Adjudicator had reasonably determined that a deprivation of the right to counsel did not provide the petitioner with a reasonable excuse for non-compliance with the ASD demand. The petitioner’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca “At law, [the petitioner] was not entitled to access a lawyer in relation to the demand that he provide a sample of his breath into an ASD. As such, the police were not obliged to wait until he did so before obtaining a sample.” PAGE 46 CHILDHOOD MALTREATMENT and the link with victimization in adulthood: Findings from the 2019 General Social Survey Measuring childhood maltreatment is a clear link between adverse childhood experiences and negative outcomes • There in adulthood, including being a victim of violence. 2019 General Social Survey on Victimization measured four types of childhood • The maltreatment: physical abuse, sexual abuse, witnessing violence in the home, and harsh parenting (e.g., emotional abuse, neglect). types of childhood maltreatment were each associated with a higher risk of • These victimization in adulthood, even when controlling for other factors. Harsh parenting was the most common form of childhood maltreatment, experienced by 6 in 10 Canadians before age 15. Sexual abuse Harsh parenting Witnessing violence Physical abuse 62% 21% 22% 6% All types of childhood maltreatment were linked to higher rates of violent victimization in adulthood. ••••••••• ••••••••• ••••••••• ••••••••• ••••••••• ••••••••• •••••• 250 Rate of violent victimization in adulthood per 1,000 population 200 Did not experience 115 100 50 0 170 163 150 238 Experienced at least once 61 57 •••••••••••••• •••••••••••••• •••••••••••••• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• • • • • • • • 30 • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• •• • • • • • • • • • • • • • • •• •• •• •• •• •• •• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Witnessing violence Harsh parenting Physical abuse 72 ••••••••••••• • •• •• •• •• •• •• •• •• •• •• •• •• •• • •• •• •• •• •• •• •• •• •• •• •• •• •• • •• •• •• •• •• •• •• •• •• •• •• •• •• • •• •• •• •• •• •• •• •• •• •• •• •• •• • •• •• •• •• •• •• •• •• •• •• •• •• •• • •• •• •• •• •• •• •• •• •• •• •• •• •• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • Sexual abuse Link between childhood maltreatment and adult victimization was more pronounced for women. In 2019, women and men who were physically or sexually abused during childhood recorded higher violent victimization rates as adults, compared with those who were not. Women who were abused as children were victimized at a rate 4 times higher than those who were not abused as children. For men, the rate was twice as high among those who were abused as children. Most childhood abuse goes unreported. More than 9 in 10 (93%) people who experienced childhood physical or sexual abuse said that it was not reported to police, child protective services, or another agency. 93% For more information, see the Juristat article “Criminal victimization in Canada, 2019.” Source: Statistics Canada, General Social Survey, 2019. © Her Majesty the Queen in Right of Canada, as represented by the Minister of Industry, 2021 Catalogue number: 11-627-M | ISBN: 978-0-660-39944-7 www.statcan.gc.ca Volume 21 Issue 4~July/August 2021 “In Service: 10-8” Sign-up Now Are you interested in regularly receiving the In Service: 10-8 newsletter by email. You can sign up by clicking here. This will take you to the free Subscription Form that only requires an email. Also visit the online archive. PAGE 48