IN SERVICE: 10-8 A PEER READ PUBLICATION A newsletter devoted to operational police officers in Canada. BC CORONER RELEASES LATEST ILLICIT DRUG OVERDOSE STATS In a recently released report, the Office of BC’s Chief Coroner announced that there were 128 illicit drug overdose deaths in November 2016 alone. This is the highest number of recorded overdose deaths in a single month in BC bringing the yearly total of overdose deaths to 755, more than a 70% increase over the same period in 2015. Moreover, the report attributes fentanyl laced drugs as accounting for the increase in overdose deaths. According to preliminary data for January to October 2016, the proportion of overdose deaths for which fentanyl was Jan-Nov 2016 detected - alone or in combination with other drugs - increased Deaths by Location of Injury to about 60%, up from 30% in 2015. People aged 30-39 have been the hardest hit so far in 2016 with 214 illicit drug overdose deaths followed by 40-49 year-olds at 177 deaths and 19-29 year-olds at 172 deaths. Vancouver had the most deaths at 164 followed by Surrey (92), Victoria (60), Kelowna (40), and Abbotsford and Kamloops each with 32. 7 84 Outside The data also indicates that most illicit drug overdoses occur inside (87%) while 11% occurred outside including vehicles, streets, sidewalks, parking lots, parks, wooded areas and campgrounds. For the remaining 7 deaths, the place of death was unknown. 664 Inside See page 30 for more stats Vancouver 164 Surrey 92 Victoria 60 Kelowna 40 Abbotsford 32 Kamloops 32 Burnaby 29 Nanaimo 25 Maple Ridge 25 Langley 24 0 Illicit Drug Overdose Deaths by Township Jan-Nov 2016 50 100 150 200 Many police departments are trying to message to various segments of the population in different ways. Above is one such messaging example provided by the Abbotsford Police Department. (Source Abbotsford Police) Be Smart & Stay Safe Volume 16 Issue 6 Volume 16 Issue 6 - November/December 2016 Reasonable Suspicion Involves Possibilities, Not Probabilities 5 Supreme Court Split In Upholding Grounds For Arrest 6 Statistical Evidence Not Required For Reasonable Suspicion 8 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. Homicide By The Numbers 10 Upcoming Courses Reviewing Judge Not To Substitute Their Opinion On Whether Warrant Should Have Been Issued 15 Advanced Police Training ITO Based On More Than Bare Conclusory Statement: RGB Satisfied 18 Breath Tech’s Demand At Police Station Made ‘As Soon As Practicable’ 21 Roadside Sample Taken Forthwith Despite Public Safety Delay 24 Dual Purpose Did Not Render Random Stop Unlawful 26 Highlights In This Issue NEW JIBC Graduate Certificate in Public Safety Leadership National Library of Canada Cataloguing in Publication Data Advanced training provides opportunities for skill development and career enhancement for police officers. Training is offered in the areas of investigation, patrol operations and leadership for in-service municipal and RCMP police officers. JIBC Police Academy See Course List here. Leadership Through Crisis Westin Bayshore, Vancouver, BC See page 17 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 Note-able Quote “Opportunity is missed by most people because it is dressed in overalls and looks like work.” - Thomas A. Edison 1. Police - British Columbia - Periodicals. 2. Police - Legal status, laws, etc. - Canada Cases - Periodicals. I. Justice Institute of British Columbia. Police Academy. II. Title: In service, 10-8. III. Title: In service, ten-eight. PAGE 2 Graduate Certificates Intelligence Analysis or Tactical Criminal Analysis www.jibc.ca see pages 31-32 Volume 16 Issue 6 - November/December 2016 Enterprise risk management: a common framework for the entire organization. Philip E.J. Green, editor. Amsterdam, NL: Butterworth-Heinemann, 2016. HD 61 E58 2016 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. A field guide to lies: critical thinking in the information age. Daniel J. Levitin. Toronto, ON: Allen Lane, 2016. HA 29 L49 2016 Active shooter: preparing for and responding to a growing threat. Kevin T. Doss, C. David Shepherd. Oxford, UK: Elsevier/Butterworth-Heinemann 2015. HF 5549.5 E43 D67 2015 In this together: fifteen stories of truth & reconciliation. edited by Danielle Metcalfe-Chenail. Victoria, BC: Brindle & Glass, 2016. E 78 C2 I595 2016 Anabolic steroid abuse in public safety personnel: a forensic manual. The language of emotions: what your feelings are trying to tell you. Karla McLaren. Boulder, CO: Sounds True, 2010. BF 531 M357 2010 Brent E. Turvey, Stan Crowder. Amsterdam, NL: Elsevier Academic Press, 2015. HV 4999 T87 2015 More harm than good: drug policy in Canada. Susan Boyd, Connie I. Carter & Donald MacPherson. Halifax, NS: Fernwood Publishing, 2016. The awakened family: a revolution in parenting. Shefali Tsabary, Ph. D. New York, NY: Viking, 2016. HQ 755.8 T816 2016 The brain's way of healing: remarkable discoveries and recoveries from the frontiers of neuroplasticity. Norman Doidge, M.D. New York, NY: Penguin Books, an imprint of Penguin Random House LLC, 2016. QP 363.3 D66 2015 Culture and online learning: global perspectives and research. Edited by Insung Jung and Charlotte Gunawardena. Sterling, VA: Stylus, 2014. LC 5803 C65 C85 2014 Doing respectful research: power, privilege and passion. Susan A. Tilley. Black Point, NS: Fernwood Publishing, 2016. GN 345 T54 2016 Pressed for time: the acceleration of life in digital capitalism. Judy Wajcman. Chicago, IL: The University of Chicago Press, 2015. HM 656 W35 2015 Storytelling with data: a data visualization guide for business professionals Cole Nussbaumer Knaflic. Hoboken, NJ: Wiley, 2015. QA 76.9 I52 K64 2015 The thoughtful leader: a model of integrative leadership. Jim Fisher. Toronto, ON; Buffalo, NY; London, UK: University of Toronto Press, 2016. BF 637 L4 F55 2016 PAGE 3 Volume 16 Issue 6 - November/December 2016 IACP OFFERS APOLOGY FOR HISTORICAL INJUSTICES The president of the International Association of Chiefs of Police, Terrence M. Cunningham, made the following statement on October 17, 2016 during the 2016 IACP Annual Conference and Exposition in San Diego, California: “I would like to take a moment to address a significant and fundamental issue confronting our profession, particularly within the United States. Clearly, this is a challenging time for policing. Events over the past several years have caused many to question the actions of our officers and has tragically undermined the trust that the public must and should have in their police departments. At times such as this, it is our role as leaders to assess the situation and take the steps necessary to move forward. society have required police officers to perform many unpalatable tasks, such as ensuring legalized discrimination or even denying the basic rights of citizenship to many of our fellow Americans. While this is no longer the case, this dark side of our shared history has created a multigenerational —almost inherited—mistrust between many communities of color and their law enforcement agencies. “For our part, the first step in this process is for law enforcement and the IACP to acknowledge and apologize for the actions of the past and the role that our profession has played in society’s historical mistreatment of communities of color.” This morning, I would like to address one issue that I believe will help both our profession and our communities. The his tor y of the law enforcement profession is replete with examples of bravery, self-sacrifice, and service to the community. At its core, policing is a noble profession made up of women and men who have sworn to place themselves between the innocent and those who seek to do them harm. Many officers who do not share this common heritage often struggle to comprehend the reasons behind this historic mistrust. As a result, they are often unable to bridge this gap and connect with some segments of their communities. While we obviously cannot change the past, it is clear that we must change the future. We must move forward together to build a shared understanding. We must forge a path that allows us to move beyond our history and identify common solutions to better protect our communities. For our part, the first step in this process is for law enforcement and the IACP to acknowledge and apologize for the actions of the past and the role that our profession has played in society’s historical mistreatment of communities of color. At the same time, those who denounce the police must also acknowledge that today’s officers are not to blame for the injustices of the past. If either side in this debate fails to acknowledge these fundamental truths, we will be unlikely to move past them. Over the years, thousands of police officers have laid down their lives for their fellow citizens while hundreds of thousands more have been injured while protecting their communities. The nation owes all of those officers, as well as those who are still on patrol today, an enormous debt of gratitude. Overcoming this historic mistrust requires that we must move forward together in an atmosphere of mutual respect. All members of our society must realize that we have a mutual obligation to work together to ensure fairness, dignity, security, and justice. At the same time, it is also clear that the history of policing has also had darker periods. There have been times when law enforcement officers, because of the laws enacted by federal, state, and local governments, have been the face of oppression for far too many of our fellow citizens. In the past, the laws adopted by our It is my hope that, by working together, we can break this historic cycle of mistrust and build a better and safer future for us all.” PAGE 4 Volume 16 Issue 6 - November/December 2016 REASONABLE SUSPICION INVOLVES POSSIBILITIES, NOT PROBABILITIES the officer lacked the necessary suspicion, the roadside test breached the accused’s rights under s. 8 of the Charter (search or seizure) and his breath sample was excluded as evidence. The accused was acquitted. R. v. Schouten, 2016 ONCA 872 The accused was stopped during a R.I.D.E. program set up to deter and detect impaired driving. There were no signs of impaired driving noted when the officer motioned for the accused’s truck to stop. When the officer approached the truck, he immediately detected an odour of alcohol on the accused’s breath and told him so. The accused indicated that he had his last drink about 10 hours earlier but did not know how much or what he drank. A roadside breath demand followed and the accused failed the test. He was arrested for driving over 80mg% and taken to the police station where he provided two samples over the legal limit – 120mg% and 109mg%. He was charged accordingly. Ontario Superior Court of Justice Ontario Court of Justice Ontario Court of Appeal The officer testified that he formed a suspicion that the accused had alcohol in his body based on the odour of alcohol on his breath and his answers to questions, even though he displayed no signs of impairment. The officer also said that he knew, from his training as a breath technician, that alcohol would be eliminated from a person’s body in four to five hours if they had “a drink”. The officer also stated that, even when an odour of alcohol is detected, alcohol consumed 10 hours earlier “may have been eliminated” and it could not be said “with any certainty” that there would still be alcohol in the person’s body. The Crown then initiated a further appeal. In the Crown’s view, the facts as found by the trial judge did amount to reasonable grounds to suspect that the accused had alcohol in his body and the absence of impairment did not render the officer’s suspicion unreasonable. Justice Simmons, speaking for the Court of Appeal, agreed with the Crown. “It is not necessary that a person show signs of impairment to found a basis for making a roadside breath demand. Nor is it necessary that a police officer suspect the person is committing a crime,” said Simmons. “All that is Taking into account all of the circumstances, the judge found that the police officer lacked reasonable grounds to suspect the accused had alcohol in his body despite smelling alcohol on his breath. The accused’s statement that he consumed alcohol some 10 hours earlier would explain the odour on his breath but, without more, did not mean there was still alcohol in his body at the time of the stop. Since A Crown appeal was unsuccessful. Although the appeal judge agreed an odour of breath alcohol alone could found a reasonable suspicion in the presence of alcohol, he concluded that the officer’s evidence included more than just an odour of alcohol. Rather, there were no signs of impairment, the accused was polite and cooperative, he followed all of the officer’s directions without difficulty and said he had consumed alcohol 10 hours earlier. As well, the officer, a trained breath technician, could not say with certainty that a person who stopped drinking 10 hours earlier would still have alcohol in their body. The accused’s acquittal was upheld. “All that is required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body. … Moreover, the standard of ‘reasonable grounds to suspect’ involves possibilities, not probabilities.” PAGE 5 Volume 16 Issue 6 - November/December 2016 required is that the police officer making the demand has reasonable grounds to suspect that a person has alcohol in their body. … Moreover, the standard of ‘reasonable grounds to suspect’ involves possibilities, not probabilities.” She continued: SUPREME COURT SPLIT IN UPHOLDING GROUNDS FOR ARREST The absence of the indicia of impairment even when combined with the fact that the [accused] claimed to have consumed his last drink 10 hours earlier did not negate the possibility that the [accused] had alcohol in his system, which was raised by the presence of an odour of alcohol on his breath and his admission of consumption. A police officer stopped a pick-up truck at 12:55 am on a remote road for travelling 80 km/h in a 50 zone. He radioed in the licence number and was advised to be cautious because the registered owner had earlier been arrested for drugs and possessed a scanner and knife at that time. As the officer approached the vehicle, he saw a police scanner above the driver-side window visor. When the accused leaned over to check his glove box for the registration document, the officer saw some money he had been sitting on. The officer then shone his flashlight on "an unsheathed hunting type knife” within the accused’s reach in the driver-side door pouch. The [accused] could not tell the officer how much or what he had had to drink. Even if the officer believed the [accused’s] statement about when he had his last drink, the fact that his last drink was 10 hours earlier – even when combined with the absence of indicia of impairment – did not negative the possibility that he still had alcohol in his body. Accordingly, the fact that, on the [accused’s] version of the timing of his alcohol consumption, the alcohol may have been eliminated from his body did not negate the reasonableness of the officer’s grounds for suspecting the presence of alcohol – the odour of alcohol and the admission of consumption. [paras. 29-30] As for the officer’s evidence about elimination rates providing an alternative explanation for the presence of the alcohol breath odour, the officer agreed at trial that alcohol may have been eliminated, not would have been eliminated. This evidence did not exclude the possibility that the accused had alcohol in his body and therefore did not negate the reasonableness of the officer’s grounds for suspecting the presence of alcohol. The Crown’s appeal was allowed, the accused’s acquittal was set aside and a new trial was ordered. Complete case available at www.ontariocourts.on.ca Note-able Quote “Success is going from failure to failure without losing your enthusiasm.” - Sir Winston Churchill R. v. Diamond, 2016 SCC 46 The accused was arrested for possessing a weapon dangerous to the public peace, placed in handcuffs and patted-down at the roadside. A small bag of cocaine fell from his clothing. The accused was advised of his right to counsel, which he declined, and was given the standard police caution. Another 28 small bags totaling 12 grams of cocaine was discovered during a subsequent stripsearch at the police station. The accused was charged with possessing cocaine for the purpose of trafficking and possessing a weapon dangerous to the public peace. Newfoundland Provincial Court The accused argued that his rights under ss. 8 and 9 of the Charter were breached. In his view, among other things, the officer lacked the necessary grounds upon which to justify the arrest for possessing the weapon for a dangerous purpose. However, the judge found the officer had the necessary reasonable grounds under s. 495(1) of the Criminal Code for the offence of possessing a weapon for a purpose dangerous to the public peace. The searches that uncovered the cocaine were therefore reasonable. The accused was convicted of both charges. PAGE 6 Volume 16 Issue 6 - November/December 2016 Newfoundland Court of Appeal The accused again contended, in part, that the discovery of the knife alone was insufficient to justify his initial arrest. He submitted that the pat-down and strip searches which revealed the cocaine were therefore unreasonable. In his opinion, all of the evidence should have been excluded under s. 24(2) of the Charter. Justice Harrington, speaking for a two-member majority of the Court of Appeal, agreed with the trial judge that the accused’s arrest was lawful. Not only did the officer have the required subjective belief (as the accused conceded), the belief was also objectively reasonable in all the circumstances. Although Justice Harrington cautioned that not every instance of an unsheathed knife located in a door pocket beside the driver of a vehicle would properly found a basis for arrest, the totality of the circumstances in this case not only included the presence of the knife but also the following: (i) The knife was located on the driver's side, where it would be most easily accessible; (ii) It was unsheathed. If the knife was related to illegal drug activity, it would be advantageous to have it unsheathed for quicker access; (iii) Involvement in the drug trade can be a motive to carry a weapon for a purpose dangerous to the public; (iv) The officer knew the [accused] had previously been arrested for possession of drugs; (v) The [accused] was carrying a machete type knife when he was last arrested for possession of drugs; (vi) The [accused's] vehicle was carrying a police scanner. That is a known drug-trafficking accessory; and (vii) The [accused] was carrying a police scanner the last time he was arrested for possession of drugs [para. 25]. Since the arrest for possessing a weapon dangerous to the public peace was lawful, the seizure of the cocaine was justifiable incidental to the accused’s arrest. The accused’s appeal was dismissed and his convictions were upheld. Justice White, in a dissenting opinion, concluded that the accused’s arrest was unlawful because the officer did not objectively have reasonable grounds. This rendered his arrest a breach under s. 9 of the Charter and the searches incidental to it were unreasonable under s. 8. Justice White would have excluded all of the evidence under s. 24(2) and entered acquittals on the charges. Supreme Court of Canada Th e a c c u s e d a r g u e d , among other things, that the Court of Appeal erred in determining that his arrest for possessing the knife was lawful. However, in a short judgment, his appeal was dismissed by a 3:2 margin. Justice Karakatsanis, speaking for herself and two other justices, agreed substantially with Justice Harrington’s reasons of the Newfoundland Court of Appeal in upholding the accused’s arrest. Justice Gascon and Côté, in dissent, would have allowed the accused’s appeal for the reasons of Justice White. Editor’s Note: Case facts taken from R. v. Diamond, 2015 NLCA 60.  LEGALLY SPEAKING:  Resisting Arrest “In order to prove a charge of  resisting arrest, the actions of the    accused must  constitute ‘active    resistance’ and not ‘passive resistance’. ... [T]the offence of resisting a peace officer requires more than being uncooperative: it  requires active physical resistance.” - Ontario Court  of Appeal R. v. Kennedy, 2016 ONCA 879 at paras. 36.   in   31 and   PAGE 7                Volume 16 Issue 6 - November/December 2016 STATISTICAL EVIDENCE NOT REQUIRED FOR REASONABLE SUSPICION R. v. Franc, 2016 SKCA 129 Believing there was a sufficient basis to suspect that trafficking was occurring at a bar, the police set up an undercover operation. While in the bar, two undercover officers met the accused and eventually discussed smoking marihuana on the patio. During this conversation, the accused offered the officers a marijuana pipe. The officers declined but hinted they wanted another type of narcotic. By the end of their conversation, the accused said he would supply two grams of cocaine at the price of $100 per gram. When the accused told the officers the cocaine had arrived, the three left the tavern. The accused introduced the officers to another man who was sitting in the front passenger seat of a car. The officers and the accused got into the car and sat in the back. The other man gave each of the officers a gram of cocaine and took $200. Then, before departing, all parties exchanged phone numbers. The accused was subsequently charged with cocaine trafficking. Saskatchewan Provincial Court The judge found the accused guilty of the charge but entered a stay of proceedings on the basis that the accused had been entrapped. The Crown had tried to rely on the following evidence to establish a reasonable suspicion sufficient to offer the accused an opportunity to commit the offence: • Police testimony that the bar was a “known” location where drug trafficking takes place; • Convicted drug dealers had been seen at the bar (although only one could be named); • Information had been received from “proven reliable confidential informants”, who had stated there was drug trafficking occurring at the bar although no further detail was provided; • People had been personally observed by one of the officers who he knew to be involved in the drug trade and to have been charged with offences – but no names were given; • A cell phone had been seized during a previous drug investigation at the bar and a caller indicated that a delivery would be made at that location; and • An officer had made one cocaine purchase at the bar two days earlier. In the judge’s view, the evidence did “not establish a reasonable suspicion that this physical location was one where the activity in question is likely occurring”. The police testimony only referenced “one particular instance” of cocaine trafficking at the bar and the information was of a general nature. There was no specific information or details on previous convictions for trafficking arising from investigations at the bar. Saskatchewan Court of Appeal The Crown argued, among other things, that the trial judge applied the wrong standard to determine whether the accused had been entrapped and improperly assessed the relevant evidence on the issue. Entrapment Entrapment can occur when the police present an opportunity for a person to commit an offence without a reasonable suspicion (i) the person is already engaged in the particular criminal activity or (ii) the physical location with which the person is associated is a place where the particular criminal activity is likely occurring. In this case, the police did not have a reasonable suspicion the accused was already engaged in trafficking cocaine. However, the police had an objectively supportable subjective suspicion that the bar was a place where trafficking was occurring. This was so even though police lacked specific knowledge that convictions had been obtained as a result of police investigations at the bar and they only made generalized statements regarding what was occurring at the bar. PAGE 8 Volume 16 Issue 6 - November/December 2016 “The individual statements would not have been sufficient, but taking all of the factors together, objectively speaking, they are sufficient to have allowed the police to engage [the accused] in a discussion about buying cocaine.” Justice Jackson, speaking for the Court of Appeal, found the trial judge applied too high of a standard for reasonable suspicion. The test does not require that the Crown prove a probability that drug trafficking was taking place at the bar. Rather, the test is whether the evidence established that the police had a reasonable suspicion trafficking was occurring at that location. Statistical evidence is not required to establish a reasonable suspicion that a location is one where it is reasonably suspected that certain criminal activity is occurring: In my respectful view, the trial judge was overly concerned about the fact that none of the officers knew exactly how many of the arrests that had been made at Rogues Tavern had resulted in convictions. On three occasions the trial judge refers to the officers’ inability to provide statistics regarding convictions of drug trafficking in support of his finding that the officers had no specific evidence that drug trafficking was taking place at Rogues Tavern. However, the officers were not required to offer statistical evidence to establish a reasonable suspicion. This sets the bar too high. [para. 34] The Court of Appeal then set out a number of general principles arising from the case of R. v. Chehil, 2013 SCC 49 that apply to the assessment of whether the police have a reasonable suspicion that trafficking is occurring in a designated location: (a) “[r]easonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect”; (b) the constellation of factors will not ground reasonable suspicion where they merely amount to a “‘generalized’ suspicion” (c) factors that may “go both ways” by themselves may not support reasonable suspicion, but do not preclude reasonable suspicion arising when they form part of the constellation of factors; (d) “reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors”; (e) “[e]xculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors”; (f) the “obligation of the police to take all factors into account” does not require the police to further investigate or seek exculpatory factors or rule out possible innocent explanations; and (g) when conducting an “inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of execution of the search”. [page numbers omitted, para. 36] Here, the constellation of factors reviewed by the trial judge satisfied the reasonable suspicion threshold. “In my respectful view, considering all of these factors, they are sufficient to ground a reasonable suspicion that drug trafficking was occurring at Rogues Tavern, and it was an error of law for the trial judge to find otherwise,” said Justice Jackson. “The individual statements would not have been sufficient, but taking all of the factors together, objectively speaking, they are sufficient to have allowed the police to engage [the accused] in a discussion about buying cocaine.” The trial judge erred in law by reaching the contrary conclusion. The accused had not been entrapped. The Crown’s appeal was allowed, the stay of proceedings was set aside, a conviction was entered and the matter was remitted back to the trial judge for sentencing. Complete case available at www.canlii.org PAGE 9 Volume 16 Issue 6 - November/December 2016 HOMICIDE BY THE NUMBERS Homicides by Province/Territory According to a recently released Statistics Canada report, “Homicide in Canada, 2015” , there were 83 more homicides in 2015 than the year before (2014). This accounts for a 15% increase in the homicide rate and marks the highest homicide rate since 2011. Only three provinces/territories reported a decrease in the number of homicides (Prince Edward Island, Yukon and Nunavut) while all others saw an increase. Alberta had the largest increase in homicides, with 27 more homicides in 2015 than in 2014. Ontario had the most homicides with 174 while Prince Edward Island and the Yukon only had one each. Guns & Gangs Of the 178 homicides involving firearms, the weapon of choice was a handgun. The Montreal Census Metropolitan Area had the highest percentage of gang-related homicides (43%) followed by Abbotsford-Mission (33%), Calgary (32%), and London, Ottawa, and Hamilton, each at 29%. Sixteen percent (16%) of homicides were gang related. Area Homicides Change Over 2015 Rate per 100,000 British Columbia 95 +6 2.03 Alberta 133 +27 3.17 Saskatchewan 43 +19 3.79 Manitoba 47 +2 3.63 Ontario 174 +18 1.26 Quebec 77 +7 0.93 Newfoundland 3 +1 0.57 Nova Scotia 12 +6 1.27 New Brunswick 11 +1 1.46 Prince Edward Island 1 -2 0.68 Yukon 1 -2 2.67 North West Territories 5 +2 11.34 Nunavut 2 -2 5.42 Canada 604 +83 1.68 Source: Statistics Canada, 2016, “Homicide in Canada, 2015”, catalogue no. 85-002-X, November 23, 2016. 98 Rate increase of attempted murders. Number of gang related homicides. There were 144 more attempted murders in 2015 compared to 2014. Alberta had 28 gang-related homicides with 68% occurring in the CMAs of Calgary and Edmonton. 75% 95% of homicide incidents involved a single victim. There were 21 incidents (4%) involving two victims and 5 incidents involving 3 or 4 victims (<1%). Percentage of homicides solved. Police reported solving 451 of Canada’s 604 homicides in 2015. There were 525 accused persons identified in these incidents. 39% Alberta homicides by shooting. Alberta had the highest provincial percentage of homicide victims by shooting, followed by Quebec (36%), Newfoundland (33%) and BC (30%). There were 39 homicides in each of Edmonton and Calgary. 22% Number of homicides involving a single victim. 572 Most commonly used firearm. There were 178 firearm-related homicides. Of those, 101 involved a handgun. 37 a shotgun or rifle, 23 a sawed-off shotgun or rifle and 17 another firearm type. Handgun PAGE 10 In 2015, there were 604 VICTIMS of homicide in Canada, 83 more than in 2014. The homicide rate in 2015 INCREASED BY 15% from the previous year, but is still 2% lower than the average rate from 2005 to 2014. 2.0 1.9 1.8 1.7 1.6 Average rate from 2005 to 2014 1.5 1.4 1.3 1.2 1.1 1.0 2005 2007 2009 2011 2013 604 VICTIMS 2015 Rate per 100,000 population 2015 HOMICIDE IN CANADA WwW.STATCAN.GC.CA In 2015, 87% OF VICTIMS KNEW THE ACCUSED. The reported relationships between victims and accused were: Aboriginal people represented about 5% of Canada’s total population in 2015 yet ACCOUNTED FOR A HIGHER PERCENTAGE OF HOMICIDE VICTIMS AND ACCUSED PERSONS. 1% 12% CRIMINAL PARTNER 2% 25% 33% ABORIGINAL 4% OTHER INTIMATE PARTNER (excludes spouse) 14% SPOUSE 35% ACQUAINTANCE 13% STRANGER NON-ABORIGINAL UNKNOWN 74% 66% VICTIMS ACcUSED 22% OTHER FAMILY MEMBER In 2015, the MAJORITY OF HOMICIDE VICTIMS were MALE. The homicide rate in 2015 was higher outside census metropolitan areas (CMAs). AMONG CMAs, THE FIVE HIGHEST HOMICIDE RATES WERE REPORTED IN: 3.30 REGINA TOTAL NON-CMAs TOTAL CMAs 3.22 SASKATOON 2.87 EDMONTON 2.03 1.54 2.72 2.70 WINNIPEG CALGARY MALE VICTIMS FEMALE VICTIMS 71% Rate per 100,000 population THE MOST COMMON METHODS OF HOMICIDE in 2015 were: 37% STABBING 30% SHOOTING 23% BEATING 10% OTHER METHODS (suffocation, motor vehicle impact, fire, poisoning, etc.) Source: Statistics Canada, Canadian Centre for Justice Statistics, Homicide Survey. 29% Volume 16 Issue 6 - November/December 2016 MINOR DIFFERENCES IN INFORMER DESCRIPTIONS MAY ENHANCE CREDIBILITY R. v. Parsley, 2016 NLCA 51 Source A Date Received: April 28, 2014 Two confidential informers provided information to the police independent of each other. The police also took steps to independently corroborate the information. They checked records and found that Stephen Parsley of 509 Empire Ave. in Newfoundland had been searched on a previous occasion and was found to possess marihuana in New Brunswick in 2013. He was charged that time but Crown withdrew the charge because the search took place prior to lawful arrest. The police also drove by 509 Empire Ave. and noted the house was blue with a black door, the number 509 was affixed to the left of the door, it was the second house in from the intersection of Empire Ave. and Columbus Dr., there were two outbuildings at its rear and there was security system signage in the window of the house. As well, the home was registered to Paul and Yvonne Parsley. Based on this information, the police obtained a search warrant for the home and found drugs. The accused was charged with possessing and trafficking in cocaine and marihuana, and possessing ecstasy. Newfoundland Provincial Court The Source Info ➡ Snips’ real name is Stephen Parsley of Mundy Pond area; ➡ Snips has two garages one he does coke deals out of and the other has two cars one of which is a corvette that is brown or copper where he hides cash; ➡ Snips has a large amount of coke in his garage; ➡ Snips is moving a lot of weight with [a named individual]; ➡ Snips’ coke can be cut three times. ➡ “SNIPS” has cameras in his house that send footage to his cell phone and he uses his cell phone to arrange drug deals. Date Received: May 1, 2014: ➡ Stephen Parsley AKA “Snips” has a lot of good quality coke; ➡ Stephen Parsley lives at 509 Empire Avenue; ➡ Stephen Parsley has weed in his garage; and ➡ Stephen Parsley keeps the cash from his drug sales in his house. Source B Date Received: April 30, 2014 ➡ Steve Parsley, “Snips”, lives on Empire Avenue in the second house in from Columbus Drive. He is really big into cocaine and always has it on hand. He keeps it in his shed and also uses his uncle’s shed next door. He deals in kilos but will sell in ounces; and The accused challenged the validity of ➡ He sells mostly cocaine and weed. the warrant on the basis that the grounds set out in the ITO were Newfoundland Court of Appeal insufficient. The judge agreed, holding that the ITO did not satisfy the “credibly based The Crown asserted that probability” threshold. The the trial judge erred in judge noted that Source A “The search and finding the ITO contained had provided information to insufficient reliable seizure of evidence the police on numerous information such the warrant could not be pursuant to an invalid occasions but only a few issued. In the Crown’s view, the trial judge arrests resulted. Therefore, or illegally obtained failed to apply the correct standard and took a the search warrant should piecemeal approach to the evidence in the ITO warrant amounts to a not have been issued and the rather than considering the totality of the violation of an search became warrantless. circumstances. The accused, on the other hand, The evidence was excluded submitted the information in the ITO was not accused’s section 8 under s. 24(2) and the compelling because it was not sufficiently Charter right.” accused was acquitted. detailed. PAGE 12 Volume 16 Issue 6 - November/December 2016 “[T]here is no legal requirement that confidential source information be independently corroborated in whole or in part. Where the informant is a confidential source of ‘known identity’ and ‘proven reliability’, the need for independent corroboration of the information is less important and not required as a rule of law.” Search Warrants Under the law, a “search and seizure of evidence pursuant to an invalid or illegally obtained warrant amounts to a violation of an accused’s section 8 Charter right.” One way a warrant may later be determined to be invalid is if it was issued on insufficient grounds. Respecting the reasonable grounds standard, Justice Hoegg wrote: microscopic perspective’ which deconstructs the ITO and inspects each piece of information in it.” Using Informer Information When the grounds in an ITO include or are substantially based on confidential source information three factors will be considered: • Was the information predicting the commission of a criminal offence compelling? • Where that information was based on a ‘tip’ originating from a source outside the police, was the source credible? • Was the information corroborated by police investigation prior to making the decision to conduct the search? That standard composes both a subjective prong and an objective prong. In practice, that means that the officer swearing the ITO must have a subjective belief that on the basis of the stated grounds, the search requested will yield evidence respecting the commission of an offence and also that objective assessment of the grounds justifies issuance of the warrant. The test is the same for determining grounds for arrest, although the objective component has been applied in a less exacting manner in reviewing grounds for arrest than in reviewing the issuance of an ITO. [para. 10] Each of these factors does not constitute a separate test. Rather, weaknesses in one area may be compensated by strengths in the other two. As for corroboration, Justice Hoegg stated: As for the objective prong of the test, the Court of Appeal noted it has been described in various ways by other courts including the following descriptions: • “reasonable probability” rather than “proof beyond a reasonable doubt” or “prima facie case”; • “some evidence that might reasonably be believed on the basis of which the authorization could have issued”; • “whether there was sufficient credible and reliable evidence” to permit a finding of reasonable and probable grounds to issue the warrant; • “whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could issue”. Furthermore, “in applying the standard, the reviewing judge must consider ‘the totality of the circumstances’ set out in the ITO, and approach the task from a ‘holistic perspective rather than a As well, it is worth restating that there is no legal requirement that confidential source information be independently corroborated in whole or in part. Where the informant is a confidential source of “known identity” and “proven reliability”, the need for independent corroboration of the information is less important and not required as a rule of law. [para. 17] In this case, there was no issue with the swearing officer’s subjective belief. As for the objective assessment, there was sufficient credible and reliable evidence set out in the ITO for the warrant to be issued. The Court of Appeal found the trial judge committed several errors in evaluating the grounds set out in the ITO such as: • Assessing Source A’s and Source B’s reliability, and in focusing on the inconsequential PAGE 13 Volume 16 Issue 6 - November/December 2016 differences between the information provided by them; • Focusing on what the police were unable to corroborate as opposed to what they were able to corroborate and by concentrating on information that he thought ought to have been included in the ITO; • Determining that some of the evidence in the ITO was irrelevant when it was not; and • Focusing on the extraneous information in the ITO rather than on the information that was in the ITO that could support its issuance. Differences in the Informer Info The Judge’s focus on finding differences in the ways that Sources A and B described information is not the task of a reviewing Judge. Minor differences in descriptions are to be expected when information comes from different people. In fact, such minor differences may enhance the credibility of the information. Two people seldom use the same words to describe the same event. By focusing on minor differences in descriptions and the inclusion of extraneous information, the Judge failed to take a holistic Source A ➡ identified the accused by name and by nickname, ➡ reported that Mr. Parsley had cocaine and marihuana in garages at the rear of 509 Empire Avenue. ➡ described the quantity of cocaine as “a large amount” and “a lot” and its quality as “can be cut three times” and “good”. ➡ indicated that Mr. Parsley had a security system which enabled him to monitor the property and arrange deals from his cell phone. Source B ➡ identified Mr. Parsley by name and nickname, The trial judge focused on the differences between the information from Source A and Source B, but differences are to be expected: Th e i n f o r m a t i o n p r ov i d e d by t h e t wo independent informants was not contradictory. Describing the location of the drugs in a shed as opposed to a garage or an outbuilding is not, in the context of this case, a meaningful difference. Neither does information from Source A that “Snips has a large amount of coke in his garage” and “Snips has a lot of good quality coke” contradict information from Source B that Snips is “really big into cocaine” and “always got it on hand” in the context of this case. Degree of Detail ➡ advised that he had cocaine and weed stored in a shed behind his house on Empire Avenue which was the second one in from Columbus Drive. ➡ said that the first house on Empire in from Columbus Drive was owned by a relative of Mr. Parsley who permitted the accused to store drugs in a shed on that property. ➡ Previous informer information, given to police by Source B in 2013, was also reviewed. It related that Source B had told his handler that drugs seized in a search in 2013 belonged to Snips and another named individual. approach to the totality of the circumstances. His microscopic approach diverted him from considering the considerable remaining and detailed information in the totality of the circumstances. Moreover, and very significantly, two confidential informants provided similar information to their handlers independently of each other and within a day of each other. The Judge failed to consider this fact in his analysis, and his failure to do so was an error. [para. 32-33] Focusing Only on Successful Arrests or Prosecutions The trial judge considered the fact that the information previously provided by the informers’ resulted in only a few arrests. “While a ‘successful’ “While a ‘successful’ arrest or prosecution can be evidence of reliability, it does not follow that because there was no ‘successful arrest or prosecution’ the information is unreliable. Many factors go into a police decision to seek a search warrant or to arrest someone, and because they do not choose to do so every time they are provided with information does not mean the information is not reliable.” PAGE 14 Volume 16 Issue 6 - November/December 2016 A Slightly Different Opinion Reliability of Informers ➡ The indicia of reliability of Sources A and B was set out in the ITO. ➡ Both sources were believed to be highly credible and to have provided reliable information on which successful police investigations and prosecutions had been based over significant periods of time ➡ The ITO set out the history of both sources’ proven reliability with respect to information provided to their respective handler/s over the years. The fact the word “reliable” was not used in the ITO did not matter as the ITO clearly speaks to the reliability of Sources A and B.. arrest or prosecution can be evidence of reliability, it does not follow that because there was no ‘successful arrest or prosecution’ the information is unreliable,” said Justice Hoegg. “Many factors go into a police decision to seek a search warrant or to arrest someone, and because they do not choose to do so every time they are provided with information does not mean the information is not reliable.” Relying on the Traffic Stop Info Justice Rowe, although in agreement with the result and generally with the majority’s line of reasoning, put matters in a more simple way. “The trial judge in reviewing the ITO substituted his view for that of the issuing judge; that is not his role,” he said. “It is, rather, to determine whether there was a proper basis on which the issuing judge could have authorized the search warrant.” However, he would place no reliance on the 2013 New Brunswick arrest and questioned the propriety of including it in the ITO. Complete case available at www.canlii.org REVIEWING JUDGE NOT TO SUBSTITUTE THEIR OPINION ON WHETHER WARRANT SHOULD HAVE BEEN ISSUED R. v. Roach, 2016 NBCA 61 The trial judge found that the information relating to the traffic stop incident in New Brunswick in 2013 could not be relied upon to support reasonable grounds even though it could connect Stephen Parsley of 509 Empire Ave. in to an illegal drug – one of the same drugs involved in this matter. The Court of Appeal, noting that the information was dated and of slight weight, found such information was not i r r e l e va n t . “ I n t h e a b s e n c e o f a j u d i c i a l determination that the evidence was obtained in breach of [the accused’s] Charter rights, it was not open to the Judge to exclude this information from consideration,” said the Court of Appeal. After the extraneous information was excised from the ITO, the Court of Appeal ruled that “there is sufficient detailed information provided by two reliable informers independently of each other and some other information in the ITO on which the search warrant was lawfully issued.” Since the grounds in the ITO were sufficient, the warrant was valid, there was no s. 8 breach and no need to resort to s. 24(2). The Crown’s Appeal was allowed, the accused’s acquittal set aside and a new trial was ordered. The police obtained a search warrant under s. 11 of the Controlled Drugs and Substances Act based upon information provided by five confidential informers, surveillance of the accused’s apartment, surveillance of persons visiting his apartment and garbage bags retrieved from the curb outside his residence. Within the garbage bags police found a restaurant delivery receipt with his surname written upon it and six small plastic bags containing a residue which “fieldtests showed positive for cocaine”. The warrant authorized the search of the accused’s apartment and his vehicle for evidence related to trafficking a controlled substance and possession for the purpose of trafficking. When police executed the warrant they found the accused’s door unlocked and no one in the apartment. A small bag of marihuana, a bag containing 5.87 grams of cocaine, empty bags containing a residue which tested positive for cocaine, a digital scale, two score sheets, and a money counting machine were located inside. A vehicle search uncovered two bags containing 1.96 and 1.02 grams of cocaine and $2,950 in cash PAGE 15 Volume 16 Issue 6 - November/December 2016 hidden in a hockey skate. He was charged with drug related offences. New Brunswick Provincial Court The accused attacked the issuance of the search warrant making several assertions that it was invalid. These included such things as: • The reliability of the informants - the information wa s u n c o n f i r m e d a n d wa s s t a l e a n d / o r uncorroborated; • Certain aspects of the surveillance notes did not correspond to wording used in the ITO; • The identification of the owner of the trash taken in the “garbage grab” conducted by the police; • The affiant failed to disclose in the ITO that he had requested a fingerprint analysis on the trash taken; • The affiant depended on the uncorroborated statement of a source that the accused travelled to Toronto to purchase drugs; and • The lack of information to establish drugs would be located in the accused’s vehicle. The trial judge, in reviewing the warrant, considered these issues, disposed of each and upheld the warrant. The judge found the ITO did not contain instances of fraud, non-disclosure or misleading evidence. “Although each of the parts are not in and of themselves enough to provide the reasonable grounds for the issuance of a search warrant, the court must view the entire ITO, its weaknesses and strengths and whether one part reinforces another part,” said the judge. “Taken as a whole there is adequate information provided from sources and surveillance and real evidence found in the garbage grab for the issuing Judge to decide, that there was a credibly based probability that an offence had been committed and that there would be evidence of it to be found in the residence and the vehicle.” The evidence was admissible and the accused was convicted. New Brunswick Court of Appeal The accused contended, in part, that the trial judge erred in concluding that reasonable grounds existed for the issuance of the search warrant. But the Court of Appeal BY THE BOOK: Search Warrant: Controlled Drugs & Substances Act s. 11 (1) A justice who, on ex parte application, is satisfied by information on oath that there are reasonable grounds to believe that (a) a controlled substance or precursor in respect of which this Act has been contravened, (b) any thing in which a controlled substance or precursor referred to in paragraph (a) is contained or concealed, (c) offence-related property, or (d) any thing that will afford evidence in respect of an offence under this Act or an offence, in whole or in part in relation to a contravention of this Act, under section 354 or 462.31 of the Criminal Code is in a place may, at any time, issue a warrant authorizing a peace officer, at any time, to search the place for any such controlled substance, precursor, property or thing and to seize it. disagreed. In its view, the trial judge properly considered the totality of the information while interpreting its constituent parts in context. A judge reviewing a search warrant is not to substitute their view for that of the judge issuing it. Instead, if the information before the issuing judge is such that the warrant could have been issued then the reviewing judge should not interfere with the warrant. In this case, the Court of Appeal was not to engage in a review of the issuing judge’s decision in granting the search warrant and the trial judge did not err in upholding its validity. There was no s. 8 Charter breach and therefore s. 24(2) did not apply. The accused’s appeal was dismissed. Complete case available at www.canlii.org Note-able Quote “You can easily judge the character of a man by how he treats those who can do nothing for him.” Malcolm S. Forbes PAGE 16 Volume 16 Issue 5 - September/October 2016 Leadership Through Crisis The Westin Bayshore | Vancouver, BC ConferenCe and Theme The British Columbia Association of Chiefs of Police in partnership with the Canadian Association of Chiefs of Police are hosting the Police Leadership Conference in Vancouver, LoCaTion of ConferenCe / aCCommodaTions The Westin Bayshore 1601 Bayshore Drive, Vancouver, BC British Columbia. This is Canada’s largest police leadership conference. This Police Leadership Conference will provide an opportunity for delegates to hear leadership topics discussed by world-renowned speakers. The 2017 conference theme is “Leadership Through Crisis”. As members of the policing community our responsibility and 2017 Police Leadership Conference Rate: $195 plus taxes per night Call: 1-800-WESTIN-1 or 604-682-3377 Email: bayshore.reservations@westin.com Guestrooms held until March 7, 2017 (prices are not guaranteed after this date) obligation, regardless of position or rank, is to lead through crisis, large or small. Crisis in policing is unavoidable and it is the regisTraTion fee time when leadership is needed the most. This conference will $450 + GST ($472.50) Prior to January 1, 2017 provide delegates from the police community with insights into what is necessary to navigate through crisis and succeed. The $475 + GST ($498.75) January 1, 2017 – Conference start Police Leadership Conference will bring together experts who will provide real-life accounts of the crisis they encountered and their path to leadership through dark, urgent or intensely difficult times. The carefully chosen list of keynote speakers will provide a first class opportunity at a first class venue to hear how they decided to take action, one step at a time and do what For more information regarding programming, registration or accommodations please visit the Canadian Association of Chiefs of Police website at www.cacp.ca. For those without internet access please call (613) 595-1101 for further assistance. was right and not necessarily easiest. PAGE 28 @CaCp_aCCp Volume 16 Issue 6 - November/December 2016 ITO BASED ON MORE THAN BARE CONCLUSORY STATEMENT: RGB SATISFIED The Source Info About the Accused Date Received: July 22, 2015 ➡ he lived at 24 Indian Gardens Trailer Court; R. v. Wallace, 2016 NSCA 79 ➡ he was doing needles and selling “hydromorphs” and dilaudid (4 mg), and did not have a prescription for them. The police obtained a warrant on August 23, 2015 to search the accused’s mobile home. The home was described as being blue and wh i t e i n c o l o u r w i t h a n a i rconditioning unit in the front window and a red baby barn at the rear. A police officer had spoken to a confidential informer three times over a one month period. The officer had known the source for eight months. This source had provided information previously used to obtain two search warrants which led to the seizure of controlled substances and drug paraphernalia, and resulted in charges. As well, this source had provided information found to be consistent with information provided by other confidential informants. The source was financially motivated to provide information and had been paid for it in the past. The informer had a criminal record, but not for misleading the police or the courts, and the information provided was based on the their firsthand conversations or observations. ➡ he had “bud” and ounces of coke. The officer was familiar with the property and confirmed some of its description. A check of police databases did not show the address as being associated with the accused. However, one database entry disclosed that the accused had been arrested on August 6, 2015 and charged with four counts under the CDSA for possession of Hydromorph, Dilaudid, Codeine and Morphine. When police executed the warrant they found the accused in the bathroom and his partner in the kitchen. Drugs and other paraphernalia were discovered inside the home. The accused was charged with drug and breach of probation offences. • the information provided in two prior cases could not support reliability as the search warrants in those cases had not yet been tested in court; and Nova Scotia Provincial Court The accused, among other things, challenged the validity of the search warrant on the basis that the ITO contained insufficient evidence to establish that reasonable grounds existed to authorize the warrant. He submitted that: Date Received: August 19, 2015 ➡ he is moving a lot of coke; ➡ he is using and selling; ➡ the previous week he had an ounce of coke. ➡ he had told the source he has a .22 in the house. ➡ details of the house were given. Date Received: August 23, 2015 ➡ He has coke for sale and is selling it out of his residence of 24 Indian Gardens; ➡ specifically, that within the last 24 hours, he had a half ounce of coke; ➡ he sells it for $80 to $200 a gram or $500 for a half ounce; ➡ he also sells 4 mg Dilaudid for $15, 6 mg Hydromorph for $15, and 12 mg for $25. • the informer’s details were not sufficient to establish reliability; • he was only known for eight months and he was being paid; • the police had not confirmed through investigation any of the details—in fact the police databases showed he was not associated with the named address at all. Despite these assertions, the warrant was upheld by the judge and the accused was convicted of possessing cocaine for the purpose of trafficking, possessing methadone and two counts of breaching a probation order. He was sentenced to two years’ incarceration less time served. Nova Scotia Court of Appeal The accused argued that the trial judge articulated the correct legal test for reviewing a search warrant but failed to apply it correctly. PAGE 18 Volume 16 Issue 6 - November/December 2016 “The ITO need not demonstrate a prima facie case against a named person. But something more is required than suspicion, or the mere possibility, that relevant evidence of a crime may be found at a place. Reasonable grounds can only be said to exist where suspicion is replaced by credibly based probability.” Justice Beveridge, for the unanimous Court of Appeal, first outlined a number of points for reviewing an ITO used in support of a search warrant: • The reviewing judge or court does not determine whether the justice of the peace should have been satisfied on the evidence presented to him, but rather could he have been satisfied on the evidence set out in the ITO that there were reasonable and probable grounds for believing that the articles sought would be of assistance in establishing the commission of an offence and would be found in the premises sought to be searched. [para. 25] support the warrant. Although a mere conclusory statement by an informer, without more, cannot satisfy the reasonable grounds threshold, Justice Beveridge noted there was more than a bare conclusory statement unsupported by details, demonstrated reliability, or other police work. Rather, there were other factors to consider such as the degree of detail, source of knowledge, prior reliability, and police confirmation of some part of the information. The Court of Appeal found the trial judge properly cautioned herself that she was not to substitute her opinion for that of the issuing justice, but to determine only if the issuing justice could have granted the authorization. The judge considered the detail of the tip and the informer’s reliability. Justice Beveridge stated: The affiant’s description of the information from the informer belies the notion that the warrant was based on a mere conclusionary statement. The trial judge rightly looked at the details provided by the informer. The affiant deposed that the informer’s information was based on his or her firsthand observations. This led the trial judge to conclude that the informer had been in the residence and was knowledgeable about the type and quantities of drugs being sold by the [accused]. • The ITO need not demonstrate a prima facie case against a named person. But something more is required than suspicion, or the mere possibility, that relevant evidence of a crime may be found at a place. Reasonable grounds can only be said to exist where suspicion is replaced by credibly based probability. [para. 29] • The affiant of an ITO must set out evidence under oath affirming his or her subjective belief, supported by objective criteria, that an offence has been committed (or is being committed), and that the things to be searched for will be found at the place specified. The reasonable belief does not have to be based on personal knowledge, but, if based on information from a police informer, the reliability of the information must be apparent. [para. 30] The accused submitted that because evidence of a tip from an informer, by itself, is insufficient to establish reasonable grounds, the information provided by the source in this case could not Further, the affiant set out details that supported the reliability of the informer; he or she had provided information on two prior occasions that led to search warrants and consequent seizures of controlled substances and drug paraphernalia. It is the totality of the circumstances set out in the ITO that determines if mere suspicion is displaced by credibly based probability. The trial judge was right to conclude the test was met. [46-48] The accused’s appeal was dismissed. Complete case available at www.canlii.org Note-able Quote “It is a terrible thing to see and have no vision.” Helen Keller PAGE 19 Volume 16 Issue 5 - September/October 2016 40.&5*.&4 5)& -*'& */ /&&% 0' 4"7*/( *4:06308/ :06 "3& /05 "-0/& 8& "3& )&3&50 )&-1:06  UFNBDB PAGE 28 Volume 16 Issue 6 - November/December 2016 BREATH TECH’s DEMAND AT POLICE STATION MADE ‘AS SOON AS PRACTICABLE’ R. v. Guenter, 2016 ONCA 572 Police attended the accident scene where the accused’s Nissan Pathfinder ran into a Hyundai Accent, injuring three of the four occupants of the Hyundai. An officer approached the Pathfinder and saw the accused standing just outside the driver’s side of the vehicle. He inquired into whether the accused was injured and asked whether he was the driver of the Pathfinder, to which the accused replied, “Yes.” He was subsequently placed under arrest for impaired driving - about four minutes after police arrival – and handcuffed. He stated, “I fucked up,” began to cry and bang his head on the hood of the cruiser, asking several times to be shot. He also said things such as he would rather be dead, asked how the babies were, and stated that he was just at a Christmas party and had a few beers. During an ensuing search incident to arrest, the accused was heard to say: “drank too much J.D.”; “I smoked weed”; “a couple of beers, it’s Christmas”. No police questions were being asked at this time. The accused was escorted to a police cruiser where he said “I lost a couple of sisters because of this.” Once he was placed in the police car, the accused was read his right to counsel and given a caution. He acknowledged that he understood and was told he could contact his lawyer once they reached the police station. He was then let out of the police vehicle to be assessed by paramedics and made the following comment, “I made a mistake. I was at a Christmas party. He shouldn’t have turned in front of me.” Then, when back in the police cruiser, he said, “Shoot me in the back of the head.” He was taken to the police station where the arresting officer read the breath demand because she forgot to do so at the scene. The accused spoke to his lawyer and was then presented to a breathalyzer technician. The breathalyzer technician was informed by the arresting officer of her grounds for arrest. These grounds included: • the accused had been involved in a traffic accident; • had an odour of alcohol on his breath; • was unsteady on his feet, had slurred speech, and he was unable to keep his head up. Based on these grounds, the breathalyzer technician again read the accused his rights, cautioned him and again gave the breath demand. Two breath tests were conducted with blood/alcohol readings of 172 mg% and 170 mg%. The accused was charged with several driving related offences. Ontario Superior Court of Justice The accused argued, among other things, that the statements he made to the police at the collision scene were inadmissible. First, his admission that he was the driver was involuntarily since he was under a legal obligation pursuant to the s. 199(1) of Ontario’s Highway Traffic Act (HTA) to report the accident and respond to the officer’s questions. Second, he said he was detained at the time he made his statements to the other officers. In his view, these statements could only be used to confirm or reject the officer’s suspicion that he might be impaired or over the legal limit but could not be used as evidence on the substantive charges against him. Finally, he suggested that the breath demands made at the police station were not made “as soon as practicable” as required by s. 254(3) of the Criminal Code. BY THE BOOK: Accident Report: Ontario’s Highway Traffic Act s. 199 (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). PAGE 21 Volume 16 Issue 6 - November/December 2016 The judge, however, rejected these claims. The test for compulsion under a statutory provision like s. 199(1) of the HTA is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. The judge found the accused’s response that he was the driver of the Pathfinder was made voluntarily and such evidence was admissible at trial to prove that he was the driver, as well as to provide reasonable and probable grounds for the arrest and demand for breath samples. As for detention, the judge found that the accused was not detained when he dealt with the first officer. However, the judge made no specific finding about whether the accused was detained during his subsequent interactions up until his arrest. In the judge’s view, the officer was focusing on the need to deal with injured persons and the initial exchange was all preliminary to any focus on possible impaired driving. Finally, the judge found that a demand made later at the police station by the breathalyzer technician satisfied the requirements of s. 254(3) of the Criminal Code that a demand be made “as soon as practicable”. Since the breathalyzer technician had made a demand as soon as practicable after he had formed proper grounds, the judge ruled that the requirements of s. 254(3) were met and the breath samples were taken lawfully. The accused was convicted on three counts of impaired driving causing bodily harm. Ontario Court Appeal The accused submitted that his statements were compelled by statute or were made while he was detained, but had not yet exercised his right to counsel under s. 10(b). In his opinion, he was detained when dealing with the officers because he was subject to a psychological detention where a reasonable person would conclude, by reason of state conduct, that he had no choice but to comply with the directions of the police. He also suggested that the statements he did make could only be used for the purpose of the officer establishing reasonable grounds and not as “A detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint.” evidence for proving the substantive offences. Finally, he contended that no breath demand was made of him at the collision scene. He suggested that the trial judge erred in finding that a demand made later at the police station by the breathalyzer technician satisfied the requirements of s. 254(3) that a demand be made “as soon as practicable”. Compulsion The Court of Appeal rejected the accused’s submission that his statement admitting to being the driver was compelled by statute. “If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant’s statements,” said Justice Brown. “The onus lies on the accused to establish, on the balance of probabilities, that the statement was compelled.” Here, there was nothing in the evidence to suggest that the accused confirmed he was the driver of the Pathfinder under any subjective belief that he was compelled to do so under the HTA. The trial judge was correct in his ruling. There was no evidence that he had an honest and reasonably held belief that he was required by law to report the accident to the officer. Detention In reviewing whether there was a detention the Court of Appeal outlined a number of principles including: • A detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention can arise: (i) where the individual has a legal obligation to comply with a restrictive request or demand; or (ii) where a reasonable person would conclude by reason of the state conduct that he had no choice but to comply. [para. 37] PAGE 22 Volume 16 Issue 6 - November/December 2016 “Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Even when an encounter clearly results in a detention, such as when a person ultimately is arrested and taken into police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction.” • Not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Even when an encounter clearly results in a detention, such as when a person ultimately is arrested and taken into police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction. [para. 40] sobriety tests and answer questions about alcohol consumption. In this case, the accused’s encounter with police took place during the initial stages of an accident investigation by officers who had just arrived on the scene and were trying to sort things out. The trial judge’s finding that the accused was not detained was supported by the evidence. “The evidence showed the [accused’s] encounter with [the first officer] occurred when the officer was attempting to orient himself to an accident scene at which he had just arrived, trying to sort things out, and was engaged in a general inquiry.” As for whether the accused was detained when he was asked to accompany an officer to a police car and produce his driving documents, it was a fluid and dynamic situation, where the events passed rapidly. The interaction was more in the nature of “preliminary questioning”, than a detention. Thus, the statements made by the accused to the other officers before his arrest were made at a time when he was not detained. Statement Use The initial statement admitting to driving took place while the officer was trying to sort things out at the accident scene and when the accused was not detained. The officer’s questions were not posed as part of any compelled direct participation in roadside testing. And the accused’s further statements were not uttered while he was detained. Therefore they could be used as evidence in proving the offences. The accused’s statements made after his arrest were also admissible. Although the accused was detained at the time he made those statements, they were spontaneous post-offence utterances. They were not made in response to inquiries or questions from a police officer. “The evidence discloses that the [accused] spoke to [the officer] because he wished to speak, not because he was asked to do so,” said Justice Brown. Breath Demand Although the trial judge found that the breath sample demand by the arresting officer was not made “as soon as practicable”, the separate demand by the breathalyzer technician satisfied the requirements of s. 254(3). The demand was “made as soon as practicable” by “a peace officer [who] has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol”: The trial judge’s admission of the accused’s statement at the collision scene on the substantive charges was upheld. In this case, the contact between the police and the accused arose during the initial stages of an accident investigation. The contact did not arise from the stop of a motorist to investigate possible impairment and a requirement that the motorist participate in a variety of roadside PAGE 23 [T]he term “peace officer” used in s. 254(3) certainly includes both an investigating/arresting officer, as well as a breathalyzer technician. On the other hand, s. 254(3)(a) requires a person to provide a breath sample as soon as practicable after a demand is made, and s. 254(3)(b) requires the person, “if necessary, to accompany the peace officer for that purpose”. That requirement Volume 16 Issue 6 - November/December 2016 “[T]he term “peace officer” used in s. 254(3) certainly includes both an investigating/arresting officer, as well as a breathalyzer technician.” BY THE BOOK: reflects the general practice that the demand for a breath sample is made at the scene of a stop or accident, and the person then accompanies the officer to the police station to provide the breath sample. [para. 87] s. 254 (3) If a peace officer has reasonable Breath Demand: Criminal Code grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the A s. 254(3) demand requires only that a peace officer form a belief that an impaired driving offence has been committed by the suspect within the past three hours and the demand must follow as soon as practicable. In this case, the demand by the breathalyzer technician satisfied the requirements of s. 254(3) as long as he formed reasonable grounds within the three-hour time limit and made the demand “as soon as practicable” thereafter. Here, he had the necessary reasonable grounds based on the briefing he had with the arresting officer and made his demand immediately following his formation of reasonable grounds. Thus, his demand was made “as soon as practicable” and the breath samples were lawfully taken. The demand made by the breath technician at the police station complied with s. 254(3). Finally, even if the breath samples were not obtained as a result of a lawful demand such that there was a s. 8 Charter breach, they were nonetheless admissible under s. 24(2). The breach was not serious, the collection of the breath samples amounted to no more than a minimal intrusion upon the accused’s privacy, bodily integrity and human dignity, and the breath sample results were reliable and highly probative evidence that were important to the prosecution’s case. The administration of justice would not be brought into disrepute by the admission of the breathalyzer evidence. Complete case available at www.ontariocourts.on.ca Note-able Quote “The only thing greater than a good loser is a humble winner.” - Unknown peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood…and (b) if necessary, to accompany the peace officer for that purpose. ROADSIDE SAMPLE TAKEN FORTHWITH DESPITE PUBLIC SAFETY DELAY R. v. Moussavi, 2016 ONCA 924 The accused’s BMW was involved in a collision with another vehicle. The roadway was dry and well lit, and traffic was light. The driver of the other vehicle suffered a significant laceration to his head and intracerebral bleeding. A passerby called 911. The accused indicated to the passerby, and a tow truck operator arriving on scene, that he was the driver of the BMW and that the other car hit him. When police arrived, an officer looked for the driver of the BMW and saw the accused walking towards the police car. The officer asked the accused if he was the BMW driver and he answered that he was. The accused said that the other vehicle hit him as he was driving back from downtown Toronto. At this point, the officer detected an odour of alcohol coming from the accused’s breath and asked whether he had been drinking. The accused responded that he had and the officer concluded that the accused had been consuming alcohol recently. A second officer became involved and PAGE 24 Volume 16 Issue 6 - November/December 2016 escorted the accused to a police car to determine whether he was impaired. This second officer noted the accused to be walking in a nervous fashion. When asked, the accused confirmed he was the driver of the BMW and said that the other vehicle hit him. An odour of alcohol was detected on the accused’s breath and he admitted that he had consumed three glasses of wine and two shots of Jägermeister. The officer suspected the accused had alcohol in his blood and a roadside breath sample was demanded. The accused failed the screening test, was arrested and had his rights read to him. At the police station he spoke to duty counsel and provide two breath samples to a qualified technician. It was subsequently determined that the accused was travelling between 171 and 226 km/h just after impact and would have been going faster prior to impact. A Crown toxicologist also put the accused’s blood-alcohol concentration at the time of the collision between 130mg% and 170mg%. The accused also contended that the breath demand for a roadside sample was not made forthwith under s. 254(2) of the Criminal Code because of an 11minute delay between the officer’s formulation of his suspicion and making of the breath demand. But the judge rejected this submission: While it can be argued that the demand could have been made at an earlier opportunity, I conclude the very brief time that passed from the point that the [accused] was determined to be the driver of the automobile and alcohol was detected on the [accused’s] breath to the point of the demand is justified by the exigencies inherent in this investigation. In reaching this conclusion, I note that the investigation took place in the early morning hours, on a major highway, at an accident scene that featured two badly damaged automobiles and one injured driver. The debris field resulting from the collision was strewn over three lanes of the highway for a distance of approximately 100 metres. In these circumstances, the police concern for public safety serves to justify and explain the brief period of delay in the administration of the approved screening device. Ontario Court of Justice The accused alleged several Charter breaches including a violation of his s. 7 right to silence. He argued that he provided a self-incriminatory statement to the police at the scene of the accident under statutory compulsion (s. 199 of Ontario’s Highway Traffic Act) and that his inculpatory utterance establishing his identity as the driver was inadmissible. The judge, however, found the accused’s roadside utterances were not compelled. Although the accused “had at least a generalized, non-specific, understanding of his duty to report the details of an accident under the Highway Traffic Act”, the judge found his answers to the initial police questions in identifying himself as a driver did not result from his belief that he had a lawful obligation to report his involvement in a motor vehicle accident. Rather, the evidence demonstrated his motivation to speak was self-serving. He wanted to offer an exculpatory declaration of his own involvement in the collision. “The record confirms that the [accused] approached [the officer],” said the judge. “I conclude the [accused] volunteered the information requested freely and without coercion by statute or otherwise.” The accused’s arguments were dismissed and he was convicted of dangerous operation of a motor vehicle causing bodily harm. Ontario Court of Appeal The accused argued that the trial judge erred in admitting the roadside utterances and in finding that the police were permitted to “hold off” providing rights to counsel or delay the making of the approved screening device demand over “public safety” concerns. Statutory Compulsion A person who is compelled to provide a statement to police under the statutory reporting requirements of provincial traffic laws have their Charter right to silence under s. 7 breached. In this case, however, the accused’s free will to remain silent was not overborne because he did not have an honest and reasonably held belief that he was required by law to report the accident to the officer even though the PAGE 25 Volume 16 Issue 6 - November/December 2016 “Whether a roadside statement made by an accused to a police officer after an accident is statutorily compelled is a question of fact to be determined based on the particular circumstances of each case. There will be instances where the accused will in fact be speaking based on a subjective and reasonably held belief that he or she must do so. But there will be other cases where the accused responds freely, entirely unmotivated by any statutory duty.” injuries sustained and the amount of damage to property were circumstances that required the drivers of the two vehicles to provide the police officers with information concerning the accident in accordance with s. 199(1) of the HTA: From his comments at the scene to [the passerby and tow operator], before the police arrived, it appears that the [accused] was willing to admit that he was the driver of the BMW and, importantly, that he was anxious to state his position about the collision – that is, that the other vehicle hit him. Nothing changed when the police arrived. His interaction with the police was identical to his prior interactions with [the passerby and tow operator]. Accordingly, the trial judge’s conclusion that the [accused “volunteered the information requested freely and without coercion by statute or otherwise” is entirely supportable on the record. Forthwith Although there was an 11-minute gap between forming the grounds for the demand and making the demand, the sample was taken “forthwith” as required by s. 254(2) of the Criminal Code. The collision was extremely violent and created a large debris field on a major public highway. The circumstances of this accident scene easily supported a public safety rationale for the short delay. The accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca DUAL PURPOSE DID NOT RENDER RANDOM STOP UNLAWFUL Whether a roadside statement made by an accused to a police officer after an accident is statutorily compelled is a question of fact to be determined based on the particular circumstances of each case. There will be instances where the accused will in fact be speaking based on a subjective and reasonably held belief that he or she must do so. But there will be other cases where the accused responds freely, entirely unmotivated by any statutory duty. In the latter case, the statements are not protected by the use immunity provided by s. 7 of the Charter. [para. 28-29] R. v Ali, 2016 ABCA 261 “In this case, the [accused] believed that he had to report the accident,” said Justice MacPherson for the Court of Appeal. “However, he was not influenced by this fact. The HTA did not cause him to answer the police questions. Thus, when the police asked him about whether he was the BMW driver, he gave his answer ‘freely’.” A police officer engaged in proactive policing saw a vehicle driven by the accused. Although the officer did not know the accused, he recognized his passenger (Fearon) as someone who had “been involved in a variety of criminal activity . . . within that area.” The officer also was aware, in his experience, that the particular model of vehicle being driven, a Cirrus, could be stolen very easily. The officer also knew that stolen vehicles do not always show up on the CPIC database. The accused’s pattern of driving was unremarkable and a a CPIC search of the vehicle disclosed nothing of concern. The officer then decided to stop the vehicle to “see what Mr. Fearon was up to” and to check if the vehicle was stolen. PAGE 26 Volume 16 Issue 6 - November/December 2016 “The most the law requires is that the grounds for stopping a motorist are rooted in the statute and are ‘reasonable and can be clearly expressed’.” When the accused rolled down his window, the officer smelled fresh marijuana and arrested him for possessing a controlled substance. The accused was asked to step out of the vehicle and another officer saw what appeared to be a spitball of cocaine on the driver’s seat. The accused was arrested for that as well and he was searched. Marijuana was found in his left sock and crack cocaine in his right sock. He was taken to the police station and, immediately prior to a strip search, stated, “I will make your job easier”. He then handed the officer a large plastic bag containing smaller bags. During the strip search, a similar bag was found in the accused’s anus. The accused was charged with possessing cocaine for the purpose of trafficking, possessing proceeds of crime and possessing marihuana. Alberta Court of Queen’s Bench The judge found the vehicle stop to be lawful. Although one reason for the stop was to check up on the passenger Fearon, the officer also wanted to see if the vehicle was stolen. In the judge’s view, the stop to check for ownership documents was a legitimate and lawful stop under ss. 166 and 167 of Alberta’s Traffic Safety Act and was not a ruse to carry out a criminal investigation without reasonable suspicion. As well, the trial judge did not err in concluding that an officer can stop a vehicle so long as the stop engages an objective of the Traffic Safety Act, without the need for any further analysis. “Section 166(1) of the Act allows a police officer to stop a vehicle and check documents ‘for the purposes of administering and enforcing this Act’, without any further requirement of suspicion about illegal activity,” said the Court of Appeal. “The most the law requires is that the grounds for stopping a motorist are rooted in the statute and are ‘reasonable and can be clearly expressed’.” Here, stopping the vehicle to check ownership documents was authorized by law. As well, police officers can randomly stop persons for traffic safety reasons where it is authorized by statute. There is no further requirement there be reasonable suspicion of unlawful activity. And when the “stop and search are authorized, it is not objectionable that unrelated criminal activity is discovered.” The chain of investigative activity in this case did not offend the Charter: [T]he initial stop to check for ownership documents, and the initial interaction between the [accused] and [the officer] at the driver’s door, were authorized by statute and lawful. At that point, the smell of fresh marijuana created reasonable grounds to arrest the [accused] for possession of a controlled substance, and it was the subsequent searches incidental to that arrest which uncovered the drugs. [para. 8] Alberta Court of Appeal The accused argued that the officer did not really stop him for valid traffic safety reasons. Instead, he contended that the encounter was a disguised criminal investigation unsupported by reasonable suspicion. The Court of Appeal, however, found there was evidence showing a dual purpose for the stop: 1. to check ownership; and 2. to check on the passenger (Fearon). The trial judge was entitled to accept these motivations for the stop. The accused’s appeal was dismissed. Complete case available at www.canlii.org Note-able Quote “The mediocre teacher tells. The good teacher explains. The superior teacher demonstrates. The great teacher inspires.” - William Arthur Ward PAGE 27 Volume 16 Issue 6 - November/December 2016 NOT ALL UNJUSTIFIED STRIP SEARCHES ARE SERIOUS MISCONDUCT Green v. Toronto Police Service, 2016 ONSC 6433 In the early hours of the morning, a taxi driver drove a man to the police station because the man was intoxicated and confused about where he wanted to go. At the station two police officers approached the man. The man was being loud, belligerent and appeared intoxicated. When he began to walk away he was arrested for being intoxicated in a pubic place. He was strip searched, charged with assaulting a police officer and held in custody pending a bail hearing. The Crown subsequently withdrew the charges against the man on the basis that it was not in the public interest to proceed. The man then submitted a complaint to the Office of the Independent Police Review Director (OIPRD) making 11 allegations of misconduct against five police officers. Independent Police Review Director The OIPRD undertook an investigation of the complaint and concluded there was evidence of only one misconduct allegation within the meaning of s. 80 of Ontario’s Police Services Act (PSA). The evidence disclosed that a staff sergeant caused a strip search to be conducted when there was neither justification nor legal grounds to do so. The Director referred the matter to the Chief of police and indicated, in his opinion, that the misconduct was not of a serious nature because of the following: • The subject officer subjectively believed that the circumstances met the risk factors required for a strip search, and wanted to ensure that the man had nothing in his possession to harm himself or others, or to aid in an escape. • The strip search was done in the manner prescribed by police policies, and the man was not fully naked at any time and was not asked to display himself. Chief of Police The Chief agreed with the Director that the misconduct was not of a serious nature in the circumstances. The Chief tried to resolve the matter informally but the man would not consent to an informal resolution. The matter was then resolved without a hearing. Ontario Divisional Court The man sought judicial review of the classification of the officer’s misconduct by the Director and the Chief as being not of a serious nature. He submitted, among other things, that the decisions of both the Director and the Chief to classify the misconduct as not being of a serious nature were unreasonable. Classification Justice Dambolt, for a three member panel of Ontario’s Divisional Court, discussed why the classification of the conduct as serious or not was important. He stated: • The man had been drinking in excess. • The man acted in a manner that prompted the taxi driver to take him to the police. • The interaction between the man and the police led to the lawful arrest of the applicant for being intoxicated in a public place. • The man was uncooperative and non-compliant during his arrest and the booking process. • The police had residual concerns about the man’s identity. PAGE 28 Characterizing possible misconduct as being “not of a serious nature” is significant. By virtue of s. 68(5), a chief of police is required to hold a hearing into a matter referred to him or her under s. 68(3) unless the chief, on reviewing the Director’s report, is of the opinion that misconduct committed by the subject officer was not of a serious nature. In that case, pursuant to s. 68(6), a chief may resolve the matter informally without a hearing if the police officer and the complainant consent to the proposed resolution. Volume 16 Issue 6 - November/December 2016 But it must be remembered that characterizing misconduct as being not of a serious nature does not preclude the imposition of a serious penalty. If consent to an informal resolution is not given, a chief may, pursuant to s. 66(10), which applies in this circumstance by virtue of s. 68(7), impose a penalty on the officer without holding a hearing if the officer accepts the penalty. If the officer does not accept the penalty, the chief must hold a hearing. [paras. 8-9] a “serious infringement of privacy and personal dignity” … . Strip searches are highly intrusive, and can be humiliating, embarrassing and degrading for those who are subject to them … . No one in this case suggests otherwise. However the legislation leaves the determination of the seriousness of any particular instance of misconduct, including an unjustified strip search, to the Director and the chief of police. This is not surprising given that each type of misconduct can occur in a myriad of circumstances. Even in the case of an unjustified s t r i p s e a r ch , t h e r e a r e a g r e a t m a ny considerations that bear on the question of seriousness. For example: Did the officer who authorized the strip search know what the grounds for a lawful strip search are? Did he or she have a bona fide belief that the grounds were satisfied? Was the strip search conducted in conformity with the particular police force’s policies? Was the search carried out in privacy? Was the search conducted by officers of the same sex as the subject of the search? Was the search carried out with sensitivity? Was the subject of the search ever fully naked? Was the subject of the search required to display himself or herself? The list goes on. And further: Section 80(1) of the PSA provides that a police officer is guilty of misconduct if he or she engages in any of 11 categories of proscribed activity. The PSA does not characterize any of these categories as serious or not serious. No category of misconduct is defined as being necessarily serious. Instead the PSA contemplates that some instances of misconduct, whatever the category, will be of a serious nature, and some will not. Instances of misconduct that are not of a serious nature may be resolved informally or without a hearing if certain conditions are met; instances of misconduct of a serious nature can only be resolved by way of a hearing. The decision about seriousness is left initially to the Director, and ultimately to the chief of police of the police force to which the complaint relates. The PSA does not provide any guidance as to when a matter is or is not serious. [para. 15] Here, the man suggested it was unreasonable for a strip search conducted without justification to be characterized as anything but misconduct of a serious nature regardless of the circumstances. In this light, the man argued that the only single reasonable conclusion when a strip search is carried out in the absence of legal justification is that the misconduct must be classified as being of a serious nature. But Justice Dambrot disagreed that it would be unreasonable for the Director or a Chief not to classify a strip search as being not of a serious nature regardless of the circumstances: In rejecting the applicant’s position, I do not downplay the intrusive nature of strip searches. The Supreme Court of Canada has said that strip searches, even where conducted lawfully, “represent a significant invasion of privacy” and I see no basis to conclude that no matter what the circumstances may be, a strip search may not be classified as being misconduct not of a serious nature for the purposes of the PSA. In saying this, I bear in mind what the significance of classifying misconduct as being not of a serious nature actually is for the purposes of the PSA. The classification of misconduct as being not of a serious nature is not a determination that in any sense excuses misconduct. It simply provides the chief of police with the option to resolve the matter informally or without a hearing. And even when this option is available to a chief, there are significant constraints on informal resolutions and resolutions without a hearing. [references omitted, paras. 18-19] Furthermore, even where the Director and Chief have discretion to classify an unjustified strip search as misconduct not of a serious nature, the decision to classify the strip search in this case as not serious was nonetheless reasonable in the circumstances. The Director concluded that the strip search was not justified but took into account the following considerations: PAGE 29 Volume 16 Issue 6 - November/December 2016 • The subject officer subjectively believed that the circumstances met the risk factors required for a strip search, and wanted to ensure that the man had nothing in his possession to harm himself or others, or to aid in an escape; • The strip search was done in the manner prescribed by police policies; • The search was conducted in a private secure area of the police station not covered by surveillance cameras; • Only three male police officers were present during the search; • The man was asked to remove his clothing one item at a time; • The officers required the applicant to pull his shorts down only briefly, and he was then allowed to pull them back up; • The man was not fully naked at any time and was not asked to display himself; and • No police officer touched the man during the search. ILLICIT DRUG OVERDOSES IN BC The British Columbia Coroners Service recently released statistics for overdose deaths occurring in its province from January 1 to November 30, 2016. 755 800 The number of apparent drug overdose deaths from January-October 2016. Illicit Drug Overdoses By Year 755 600 508 400 331 The Divisional Court added: In addition, it is worth noting that less than 15 minutes after the strip search, the applicant was arrested and charged with assaulting a police officer in connection with the events outside the police station and held in custody pending a bail hearing. This arrest would have come as no surprise to [staff sergeant]. At that point in time, a strip search would have been inevitable, and would have been justified on the basis that the applicant was going to be entering the prison population. I do not suggest that this consideration can provide a post facto justification for the strip search. But it may have an impact on the seriousness of the misconduct. Having regard to all of the circumstances, it seems to me to have been entirely reasonable for the Director to form the opinion that the misconduct was not of a serious nature, with the consequence that the possibility of dismissal and demotion might be off the table. The decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. [paras. 31-32] The man’s application was dismissed. Complete case available at www.canlii.org 369 273 200 183 0 2008 605 150 2012 2013 2014 2016 Jan-Nov The number of deaths involving males, which accounted for 80% of all deaths. The number of deaths involving females. Males 80% 259 2015 Females 20% The Fraser Health Authority had the most illicit drug overdose deaths. Source: Illicit Drug Overdose Deaths in BC - January 1, 2007 - November 30, 2016. Ministry of Justice, Office of the Chief Coroner. December 8, 2016 Draft. PAGE 30 Volume 14 Issue 6 - November/December 2014 Be the one on the front line enforcing the law keeping communities safe BACHELOR OF LAW ENFORCEMENT STUDIES BACHELOR OF PUBLIC SAFETY ADMINISTRATION Expand your academic credentials and enhance your career options. Gain the theoretical background, applied skills and specialized knowledge for a career in public safety. Apply today. JIBC.ca 604.528.5590 715 McBride Boulevard, New Westminster, BC register@jibc.ca 15-006 Online Graduate Certificate Programs INTELLIGENCE ANALYSIS TACTICAL CRIMINAL ANALYSIS Expand your credentials and advance your career with these online graduate certificates. Learn through real world challenges, current cases, curriculum and techniques. Gain the specialized theoretical foundation and applied skills to function successfully as an analyst. 604.528.5843 JIBC.ca/graduatestudies 715 McBride Boulevard, New Westminster, BC 15-007