IN SERVICE: 10-8 !"#$%&'(%()&*+ ,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB !"#$%&'!(%)*+,- A PEER READ PUBLICATION A PEER READ A newsletter devoted to PUBLICATION operational police officers in Canada. IN MEMORIAM $8'*&*"O$(# !""%$ !""% * !"#$%&'()*9&(),3)*:31#&- * * !"#$%&'()*<3"#30)*5"6#$%"# # # # # ./# 01234# 56# 5++7# 85,9:12,;<=# # # On November 29, ;D#2013 36-year-old York A:3:I@:2#*86#5++U (;/>?1@<:# A1/B:<# C:>>B:2# ?4:# E1F1<# # # E1F1<#G;# Service Michael G;4;?# * * =K2B/L#1#=2KL#@K>?#B/#M2;>>12=6#NK:@:3O# Pegg died as the result of complications from a !"#$%&'()*7#%6"#;*:",0"# # # 01234#W6#5++U PB># H12?/:2# (;/>?1@<:# $?:H41/:# training accident he was involved in on &(0G#Z<@:2?1 # # Q;2@:>#J1>#J;K/=:=#B/#?4:#12IO # November 12th, 2013. # (;/>?1@<:>#C:>>B:2#1/=#Q;2@:>#41=# # # 01234#W6#5++U @::/# H12?# ;D# 1# <12L:# >BIK# Constable Pegg was at the agency's training# facility in &(0G#Z<@:2?1 # 3213R=;J/# ;/# 1# =2KL,=:1:1234# J1221/?># ;K?# the injury but remained hospitalized # # 01234#W6#5++U D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=# # # &(0G#Z<@:2?1 until succumbing to his injuries. ?J;#B/#M2;>>12=O (;/>?1@<:# C:>>B:2# 41=# @::/# Constable Pegg had served with the 1>>BL/:=#?;#?4:#I;21TK1=#;/<9#;/:#J::R# York Regional Police Service for 10 @:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;O and was assigned to the Air years Support Unit(;/>?1@<:# as a tactical flight officer. C:>>B:2# B># >K2FBF:=# @9# 4B># JBD:6# J4;# 1<>;# >:2F:># 1># 1# H;?1@<:6# 1/=# ?J;# 9;K/L# =1KL4?:2># 1L:>#*+#1/=#*5O VB?4# ?4:# =:1?4# ;D# (;/>?1@<:# C:>>B:26# 1# ?;?1<# ;D# *W# H;#41F:#<;>?#?4:B2##?;#LK/DB2:#;F:2#?4:# H1>?#*+#9:12>O#.?4:2#;DDB3:2>#RB<<:=#@9#LK/DB2:#B/3R1?34:J1/ * * # # # # XK<9#*U6#5++Y# &(0G#$1>R1?34:J1/ !"#$%&'()*2"'3#*!&4),"# # # # # # # !"#$%&'()*5"6#*7%83#$"# * !"#$%&'()*=)%),*>-63)4&## 01234#W6#5++U &(0G#Z<@:2?1 !""&$ !""& * # # * !",?",&(*5&4)$*:&(("@&; # # Q:@2K129#5-6#5++8 &(0G#Z<@:2?1 E6);*&,)*"/,*6),")$F*G)*$6&((*#"%*H",1)%*%6)4F ('>49;54<<41'346C<43'E5'DC52/4'CFF2/41;'E/1C;;'012<2;G'%C5H=I2E7 !""!$ !""! On December 2, 2013 34-year-old Toronto Police Service *Constable * !"#$%&'()*.)#"3%*%,"#1D/3(( collision, his vehicle struck a tree and he was # ejected. # #HeA:3:I@:2#5*6#5++*# was transported to a local # # # &(0G#01/B?;@1 hospital where he remained until # passing # away. # !"#$%&'()*5/,1)#*>))@&(0 # # # # # # 01234#U6#5++* &(0G#"K/1FK? Constable Zivcic had served with the Toronto Police six 161+2172&( years. 18( !"#$%&'( )**+%&$( ,"-.(Service /&0"$+12(for 314&5( 019#U6#5++Y ---9":0;9"$4<%1.1:1 He is survived by his mother, brother, VB/=>;2#G;3'J*1?=0@=A7 !"#$!!%&'("$)*+#, “[A] judge is entitled to consider a police officer’s ! training and experience in determining objective 23 reasonableness. What may appear to be innocent 7 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ objects to the general public may have a very different “Officer training and experience can 4# '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ meaning to an officer experienced in drug operations.” play an important role in assessing 9' %9+ /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ $).-+ - Alberta8%"41+ Court of Appeal in R. v. Rajaratnam, 2006 ABCA 333 at para. 25. whether the reasonable suspicion ... @0,"$:9#56+3'$+5$A05#4$3'$0$,0 ... ... 6&)*#-1+#$-+)"#$%&'()#'%*<+ standard has been met. Police “Being ‘placed in the position of the officer’ does not just (##$80/#$BB$=3)$6"#$0'5>#)5? officers are trained to3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ detect criminal activity. That is mean making the same observations as the officer, as their job. They do it every day. And because of that, “a to many lay people such observations would be #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ C?$D11$3,,980'65$3=$0$*#"+,1#$0) fact or consideration which might have no significance meaningless. Included in the >"#'$6"#$*#"+,1#$+5$56388#4 assessment of whether %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'##-1>+)*1+ to a lay person can sometimes be quite consequential the grounds%9+for#$)#+ arrest are$ reasonable is the officer’s #$)#+ #$-+ )"#$%&'()#'%*+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8-+ F0G$!)9# in the hands of the police”. - Supreme Court of Canada in R. v. experience, training and knowledge.” - British Columbia Court of %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# McKenzie, 2013 SCC 50 at para. 62 Appeal in R. v. Luong, 2010 BCCA 158 at para. 19. ... ... ... %9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/<+ 3$-+ ... $... ... [T]his Court has consistently held that an arresting “[N]otwithstanding that each of those factors standing I?$D5J+'/$0$4)+*#)$63$A13>$+'63 @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ officer’s personal experience is relevant to whether the alone can be consistent with89)835#$ non-criminal 3=$activity, 4#6#)7+'+'/$ 6" /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+to 8%"41+ #$-+ officer’s subjective belief in grounds arrest is$).-+their6&)*#-1+ combined effect, when viewed through the lens 3439)$+5$0$8#)7+55+A1#$5,)# )"#$%&'()#'%*<+ objectively justified.” - British Columbia Court of Appeal in R. v. Wilson, of a police officer’s experience, cannot be ignored.” '36$#'/0/#$6"#$)+/"6$63$,39 2012 BCCA 517 at para. 21, leave to appeal ref’d [2013] SCCA No. 71 . British Columbia Court of Appeal in R. v. Ashby, 2013 BCCA 334 at para. 57 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()#'%*+'9+7)#'79'-1+ M"0)6#)? %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B#$-+#%#)4'#A+ $ F0G$!)9# CRV. The second computer (a laptop) was actively WARRANT MUST SPECIFICALLY %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ FAG$H015# running MSN Messenger$ (an on-line chat) and had AUTHORIZE COMPUTER SEARCH )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C7+9"*8#'%*+'7+ $ Facebook (a social networking service) open, both v. Vu, 2013 SCC 60 using)*1+ the name of the accused. Using8)3*+',#$ the laptop’s"04$ 6"#$ 7 B?$ N"+,"$ #%+ -D);'*-+R.#$-+ 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ *%#+ #%+ search tools, police located a resumé under the (98)#7#$M39)6$3=$M0'040$+' 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+GHH!+ KLLM+GHH!+ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# diverted and not paid for, police believed to be the accused, was found in it. Both KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q obtained a warrant under s. 487 of computers and the cellular telephone were seized, the Criminal Code. The warrant $ F,G$R'60)+3Q removed from the residence and examined authorized the police to search not only for further. The accused was$charged with production of www.10-8.ca F4G$S9#A#,? equipment used to divert electricity but also for LEGALLY SPEAKING: !"#$%&'()#'%*+,-.'-/+0#)*1)&1 The Experience Factor marihuana, possession for the purpose of trafficking “documentation identifying ownership and/or and theft of electricity. T?$!"#$+'=3)706+3'01$496<$+78 occupancy” relevant to the investigation of the electricity theft. When the police executed the British Columbia Supreme Court 5?CLFAG$3=$6"#$ M"0)6#)$+5$63 warrant they found a marihuana grow-operation in '36+,#$ 3=$ 6"#+)$ )+/"65U$ '3 the basement and an electrical bypass. They also The judge held that the ITO did not found two computers and a cellular telephone in the support reasonable grounds to believe #V#),+5#$6"#7?$ living room. One computer (a desk top) was that documentation showing ownership $ F0G$!)9# connected to a security video camera monitoring and/or occupancy of the residence would and recording the front of the residence. Footage in $ FAG$H015# be found inside the premises. The officer did not say this computer showed a black Honda CRV in the he believed this to be so nor were there any facts to !"#$ (#*#'6"$ M3'=#)#',#$ 3'$ ("0J#'$ driveway; the accusedZ3)6"$ owned aD7#)+,0'$ 2007 black Honda '-$)"+&.$.%&'%+/012"& 3$.4'*5"&-"$/&60$42$7& 81+9"0"+8" 1:;<=>?&@ABC&DEEF P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$PAGE ^0',39*#)U$ P)+6+5"$ 18 M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#)65$ >+11$ A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$56)3'/$ W?$D$831+,#$3==+,#)$'##4$'36$7 M34#$ 088)3*#4$ 5,)##' +'560'60'#3951<$983'$4+5,3* 01,3"31$ +'$ 6"#+)$ A34*1?=0@=A7@0>B7C0D=?$ %9+ /$'8$+ 8%"41+ $).-+ @0,"$:9#56+3'$+5$A05#4$3'$0$,05#$=#069)#4$+'$6"+5$+559#?$ 6&)*#-1+#$-+)"#$%&'()#'%*<+ unlawful purpose. Section 21(2) states: After calling for an ambulance, (##$80/#$BB$=3)$6"#$0'5>#)5? s. 21(2) Criminal Code !"#$%&'()#'%*+,-.'-/+0#)*1)&1 NO DETENTION the 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ accused arrived at a large, low Where two or more persons form an intention in common to carry outC?$D11$3,,980'65$3=$0$*#"+,1#$0)#$8)#59786+*#1<$4#60+'#4$ an unlawful #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ income, social housing complex and purpose and to assist each other therein and any one of them, in carrying out the %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;'##-1>+)*1+ >"#'$6"#$*#"+,1#$+5$56388#4$=3)$0$6)0==+,$*+3106+3'E let paramedics into his apartment. #$)#+ #$-+ )"#$%&'()#'%*+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8-+ %9+ #$)#+ $ F0G$!)9# common purpose, commits an offence, each of them who knew or ought to have %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ They found a woman. She appeared $ FAG$H015# known that the commission of the offence would be a probable consequence of %9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ #$-+ &-.'-/<+ 3$-+ $ to be severely beaten and unconscious. Six police carrying out the common purpose is a party to that offence. I?$D5J+'/$0$4)+*#)$63$A13>$+'63$0'$3==+,#)K5$=0,#$=3)$6"#$ @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ 89)835#$ 3=$ 4#6#)7+'+'/$ 6"#$ 539),#$ 3=$ 0'$ 01,3"31$ officers subsequently attended. They found the /$'8$+ #$-+ )"#$%&'('*6+ 5"16-+ 8%"41+ $).-+ 6&)*#-1+ #$-+ This subsection “applies where one person commits an offence3439)$+5$0$8#)7+55+A1#$5,)##'+'/$6#,"'+:9#$0'4$43#5$ beyond )"#$%&'()#'%*<+ woman being treated in the apartment hallway and '36$#'/0/#$6"#$)+/"6$63$,39'5#1$9'4#)$5?CLFAG$3=$6"#$$ the one with which the parties had originally planned to assist one the accused inside his apartment with an ambulance 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()#'%*+'9+7)#'79'-1+ M"0)6#)? another,” said the Ontario Court of Appeal in R. v. Cadeddu,$ 2013 ONCA %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B#$-+#%#)4'#A+ supervisor. An officer asked the accused to leave his F0G$!)9# %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ 729. “It imposes liability on the other person if that person knew or $ FAG$H015# apartment and speak with him. At the officer’s )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C7+9"*8#'%*+'7+ $ ought to have known that the offence committed would be a probable request, the 088#015$ accused provided his name and birth "04$ 6"#$ 7356$ A#=3)#$ 6"#$ #%+ -D);'*-+ #$-+ 7"==%&#'*6+ )99'1).'#+ )7+ )+ /$%4->+ )*1+ *%#+ #%+ B?$ N"+,"$ 8)3*+',#$ consequence of carrying out the original common unlawful purpose.” (98)#7#$M39)6$3=$M0'040$+'$ILLOE$$ 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# KLLM+GHH!+ $ F0G$P)+6+5"$M3197A+0Q$ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# There are three elements to!"#$"#%&&#'()#*'+,#KLLM+GHH!+ this mode of liability: questions and repeatedly said he had three medical KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ $ FAG$D1A#)60Q degrees and two law degrees, and that the judiciary would have to be involved as well as internal affairs. party (or parties) to carry out an unlawful purpose. The unlawful purpose The officer attempted to speak calmly and focus the T?$!"#$+'=3)706+3'01$496<$+7835#4$3'$6"#$831+,#$9'4#)$ '-$)"+&.$.%&'%+/012"& must be shared by all parties and must be different from the offence 5?CLFAG$3=$6"#$M"0)6#)$ +5$63$/+*#$6"#$4#60+'#4$8#)53'$ accused’s attention on the events of the evening. The ultimately committed. A party to an offence under s. 21(2) does not need to 3$.4'*5"&-"$/&60$42$7& '36+,#$ 3=$ 6"#+)$ )+/"65U$ '36$ 63$ 6#11$ 6"#7$ "3>$ 63$ accused was very loud, angry and agitated. He share the same81+9"0"+8" motives or desires as the principal, but only need to have #V#),+5#$6"#7?$ in mind the same unlawful goal. Moreover, the agreement $orF0G$!)9# common spoke rapidly and in a grandiose manner. At one 1:;<=>?&@ABC&DEEF intention does not need to be formed in advance; it can arise$ atFAG$H015# the time point, a second officer intervened and had a heated !"#$the (#*#'6"$ D7#)+,0'$ M3'=#)#',#$ 3'$ ("0J#'$ offence isZ3)6"$ being committed. verbal exchange with the accused. He took the W?$D$831+,#$3==+,#)$'##4$'36$70J#$0$5?IWTFIG$ M)+7+'01$ P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ M34#$ 088)3*#4$ 5,)##'+'/$ 4#*+,#$ 4#70'4$ accused by the shoulders and “forcibly removed” R,63A#)$ W\OU$ ILL]$ +'$ of A#096+=91$ ^0',39*#)U$ P)+6+5"$ (2) offence : commission an incidental and different crime by+'560'60'#3951<$983'$4+5,3*#)+'/$6"06$6"#$4)+*#)$"05$ another M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#)65$ >+11$ from the elevator landing where EHS was 01,3"31$ A343)14U$+',194+'/$0$56)3'/$ working on the woman. During further conversation, 0=6#)$6"#$)#:9+5+6#$5958+,+3'$+5$=3)7#4?$ original agreement did not set out to commit, but one that took place in 1#/01$6)0,J?$ $ F0G$!)9# the accused said that he saw “Phyllis” in the the course of carrying out their original agreement or plan. Thus, one EEF?0 >/2GH/I92EE$_)#*#'6$ ("0J#'$ P0A<$ (<'4)37#$ PM$ $ FAG$H015# courtyard earlier in the day. She was wobbly and he to the common unlawful must=3)$ commit "05$party 0))0'/#4$ 0$ /)398$ )06#$ purpose )#49,6+3'$ 011$ an PM$offence that was X?$ N"+,"$ 3=$ 6"#$ =3113>+'/$ her >05$ up 6"#$ to 7356$ brought his=)#:9#'6$ apartment. Eventually she lost not the offence by !"#$ the parties, is nonetheless 8)3=#55+3'015$ 0'4$intended 80)#'65?$ /)398$but )06#$ =3)$ PM$ related to the 3==#',#$+'$04916$,)+7+'01$,39)6$+'$ILLXYILLOE 066#'4##5$+5$3'1<$`CWL$a(b$=3)$6"#$=911$6")##$40<5$3=$ original unlawful purpose. The ultimate offence can, however, be very consciousness and blood was leaking out of her ear. $$$$F0G$+780+)#4$4)+*+'/Q$ 6)0+'+'/?$$N"#'$)#/+56#)+'/U$9'4#)$c)398$M34#$#'6#)$PM$ closely related to the common intent. For example, the common purpose He thought “Phyllis” had a head injury from falling. $ FAG$6"#=6Q c)398$206#$63$)#,#+*#$6"#$4+5,39'6#4$)06#?$ can be assault and the ultimate offence can be aggravated$ assault. In F,G$=)094Q The apartment was “locked down” and an officer $ in F4G$A)#0,"$3=$8)3A06+3'Q H3)$ 73)#$ 81#05#$ addition, once there+'=3)706+3'$ is evidence that two or*+5+6$ more accused acted concert, guarded the door. $ F#G$4)9/$8355#55+3'? s.GGGHIH?>J:>DEEF 21(2) can apply even if it is unclear which of the accused actually committed the offence (i.e. which was the principal). *+,-./0&0122-/03 !!!"#$%&"'( Police decided to take the accused to the police $ F,G$R'60)+3Q (1)www.10-8.ca agreement: there must be an agreement between a principal and a $ F4G$S9#A#,? ) 4-,567-8-290:$$& (3) knowledge: foreseeability of the likelihood of the incidental crime being committed. Generally, a person will be liable under s. 21(2) if they knew or ought to have known that the offence committed by the principal was a probable consequence of their unlawful agreement. In determining what the person actually knew about the likelihood of another participant in the original unlawful plan committing the offence, the words, and conduct before, at the time and after the offence, is relevant. When assessing foreseeability, the standard is that of a reasonable person in the same circumstances. station so he could be spoken to in a different setting. He was not arrested nor was he a suspect. He was viewed as someone who had information about how the woman was injured. When asked if he would go to the police station, he replied, “no problem”. He was not told that he did not have to accompany the police nor was he told he was free to go at any time. He was not placed in handcuffs and PAGE 36 Volume 13 Issue 6 - November/December 2013 he walked, unassisted, beside the officers to the police cruiser. During the ride to the police station, he was quiet and peaceful. He was taken to the “soft” interview room and given coffee. He was relaxed and calm but refused to write anything down when asked questions. After consulting with his supervisors, the officer arrested the accused for assault causing bodily harm and advised him of his right to counsel. He spoke to Legal Aid. About two months later the victim died from her injuries and the accused was charged with second degree murder. British Columbia Supreme Court The judge found that the accused was not detained at the scene, nor did a detention crystallize when he was taken from his apartment complex to the “soft” interview room at police headquarters a few blocks away. “There was clearly no physical restraint or legal obligation,” said the judge. “The situation, at least initially, was one in which the police were acting in a non-adversarial role. … In the circumstances, I am of the view that a reasonable person in [the accused’s] position would conclude that the actions of the police in questioning him, including [the officer’s] intervention, were not intended to restrain his liberty, but rather were aimed at facilitating the provision of emergency services, and furthering the sort of police investigation that a reasonable person would expect to be conducted in the circumstances. [The accused] was not in fact facing jeopardy, nor, in my view, had he passed into the police's effective control.” Nor did the change in venue create a detention. A reasonable person would not conclude that the change of location to the police station from the housing complex was a detention. Accordingly, the accused was not detained until he was arrested. His statements to police prior to his arrest were admissible. A jury returned a verdict of guilty on the second degree murder charge. British Columbia Court of Appeal including the brief physical restraint by the officer at his apartment plus his statement that he did not want to answer any questions, created a detention. Therefore, he was entitled to be advised of his right to counsel under s. 10(b). Justice Bennett, writing the Appeal Court’s decision, found the trial judge did not err. The police arrived in response to a 911 call and had an emergency on their hands. They attempted to speak to the accused - the 911 caller - and the most obvious source of potentially helpful information to further their investigation. The encounter between the intervening officer and the accused did not result in detention: [The intervening officer’s] brief contact with [the accused] was designed to prevent him from interfering with the paramedics’ ability to work. To find that a detention crystallized with this momentary contact would be to ignore the circumstances that immediately preceded and ensued. The physical contact followed a verbal confrontation in which each party was an equal belligerent. After moving [the accused] away from the paramedics, [the intervening officer] retreated and [the investigating officer] continued his attempts to calmly and quietly interview [the accused]. It cannot be said that [the accused] submitted or acquiesced in the deprivation of liberty and reasonably believed that the choice to do otherwise did not exist. [reference omitted, para. 57] As for the change of venue, the accused was asked if he would accompany the officers to the police station. This request was found by the trial judge to be an invitation, not a demand. The accused had not demonstrated to the trial judge that he was detained on a balance of probabilities. Justice Bennett concluded that the “the trial judge considered all of the circumstances and the correct legal principles” in holding that the accused was not detained until the point of arrest. The accused’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca The accused argued that the trial judge erred in finding that he was not detained prior to his arrest. He submitted that the circumstances, Editor’s note: Leave to appeal this case to the Supreme Court of Canada was refused, [2012] SCCA No 408. PAGE 37 Volume 13 Issue 6 - November/December 2013 GRADUAL REVEAL OF EVIDENCE DID NOT RE-TRIGGER s. 10(b) R. v. Richard, 2013 MBCA 105 Following a murder in which the deceased was found severely beaten, the accused was arrested and advised of his right to counsel and police caution. He requested to speak with counsel and police facilitated him with an opportunity to do so. Then, during an interview, the investigator progressively revealed evidence that police had gathered which implicated him in the murder. The evidence included intercepted conversations between the accused and his cousin where he admitted to the murder. As well, the investigator told him that his common-law wife had provided a statement to the police detailing his confessions to her about the murder. The following day, at the commencement of a second interview, he was told his cousin had provided a police statement respecting the murder. The accused then immediately agreed to speak with police about the incident and confessed. Manitoba Court of Queen’s Bench Th e a c c u s e d s u b m i t t e d t h a t t h e progressive revelation of evidence constituted a “change in circumstances” such that he should have been re-advised of his right to counsel and provided a further opportunity to speak with a lawyer before his second interview. The judge found there was no s. 10(b) violation. In her view, progressively revealing information implicating the accused in this case did not constitute a change in circumstances obligating the police to provide him with another opportunity to speak with a lawyer. Canada in R. v. Sinclair, 2010 SCC 35 such that, despite already exercising his right to counsel, he should have been allowed a further reasonable opportunity to consult counsel. The Crown agreed that police revealed evidence in their possession during the interviews. However, the Crown submitted that this tactic did not amount to a material change in jeopardy such that a renewed right to consult a lawyer arose. Justice Cameron, authoring the Court of Appeal’s opinion, concluded the trial judge correctly found that the common police tactic of gradually revealing evidence, without more, did not engage a change in circumstances such that the accused was entitled to another opportunity to consult counsel. The purpose of s. 10(b) is to provide a detainee with legal advice respecting their rights, such as the right to decide whether or not to cooperate with police. There are, however, noted exceptions requiring the police to provide a detainee with an additional opportunity to consult counsel. These include (1) investigations where new or non-routine procedures involving the detainee are to be used, (2) an investigation that takes a new and more serious turn as events unfold which may make the initial advice no longer adequate, such as when the nature of the charges change and (3) situations where there is evidence to indicate that a detainee who previously waived his right to counsel may not have understood the right. But none of these applied in this case. The Court of Appeal stated: The jeopardy that [the accused] was facing remained the same throughout the entire interview process. He was charged with conspiracy to commit first degree murder and first degree murder. [The accused] clearly understood his right to remain silent throughout the entire interview process, thereby evidencing fulfillment of the purpose of s. 10(b) of the Charter. Quite simply, the facts of this case do not fall within any exceptions or new categories that would trigger a further opportunity to consult with counsel. [reference omitted, para. 58] Manitoba Court of Appeal The accused again argued that he should have been re-advised of and provided another opportunity to exercise his s. 10(b) right. In his view, the progressive unveiling of evidence constituted an objectively observable change of circumstance as described by the Supreme Court of The police complied with s. 10(b) and the accused’s appeal was dismissed. Complete case available at www.canlii.org PAGE 38 Volume 13 Issue 6 - November/December 2013 THREAT NEED NOT BE CONVEYED TO INTENDED RECIPIENT Quebec Court of Appeal R. v. McRae, 2013 SCC 68 The accused was in a detention centre awaiting trial on several charges related to drug trafficking. While in custody he conspired with another inmate to attack the Crown prosecutor, a police officer and four witnesses. After finding out about this plan, investigators decided to place a listening device on another inmate. He told one inmate that he would rearrange the face of the Crown prosecutor and one of the witnesses because he thought that he was the one who snitched on him. He told another inmate that he had hired a private detective to find the Crown prosecutor’s address and that once his trial was over he would kill the witnesses who had informed against him. He also asked this inmate to do what was necessary to find the address of the police officer involved in his case. As a result, he was charged under s. 264.1(1) (a) with several counts of knowingly conveying threats to cause death or bodily harm against the Crown prosecutor, the police officer and four witnesses. Court of Quebec The judge held that the fault element (mens rea) of the threatening offences had not been established. The words were not spoken by the accused with the intent that they would be conveyed to the subjects of the threats in an attempt to influence their actions. In his view, “the evidence d[id] not establish that the words used by the accused when addressing [the inmates] were intended to reach the ears of the possible or potential witnesses.” Instead, the judge found the accused had intended to seek revenge once the trial was done and that he had uttered the words out of anger and frustration. He was acquitted. The Crown's appeal was dismissed. The Court of Appeal agreed with the trial judge that the fault element had not been established. It also concluded that the prohibited act (actus reus) had not been proven because the words were uttered in a “closed circle” with an expectation of confidentiality and thus they could not instill fear in the subjects of the threats. Rather than intending to intimidate, the accused acted out of frustration and an intention to seek revenge. The words used were not a threat because they were not conveyed to their intended recipients nor did they cause anyone to be fearful or intimidated. The accused’s acquittals were upheld. Supreme Court of Canada A further Crown appeal was successful. It was not necessary for the Crown to prove that the accused’s threats were conveyed to their targets or that anyone was actually intimidated by them. Rather, the elements of the offence are: (1) the utterance or conveyance of a threat to cause death or bodily harm; and (2) an intent to threaten. Uttering Threats: Actus Reus (Prohibited Act) Justices Cromwell and Karakatsanis, speaking for the seven member unanimous Court, described the actus reus this way: The prohibited act of the offence is “the uttering of threats of death or serious bodily harm”. The threats can be uttered, conveyed, or in any way caused to be received by any person. The question of whether words constitute a threat is a question of law to be decided on an objective standard. ... The starting point of the analysis should always be the plain and ordinary meaning of the words uttered. Where the words clearly constitute a threat and there is no reason to believe that they “[T]he fault element of [uttering threats] is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. PAGE 39 Volume 13 Issue 6 - November/December 2013 had a secondary or less obvious meaning, the analysis is complete. However, in some cases, the context reveals that words that would on their face appear threatening may not constitute threats within the meaning of s. 264.1(1)(a). In other cases, contextual factors might have the effect of elevating to the level of threats words that would, on their face, appear relatively innocent. [references omitted, paras. 10-11] is disjunctive: it can be established by showing either that the accused intended to intimidate or intended that the threats be taken seriously. The fault element here is subjective; what matters is what the accused actually intended. However, as is generally the case, the decision about what the accused actually intended may depend on inferences drawn from all of the circumstances. Drawing these inferences is not a departure from the subjective standard of fault. [references omitted, paras. 18-19] And further: Thus, the legal question of whether the accused uttered a threat of death or bodily harm turns solely on the meaning that a reasonable person would attach to the words viewed in the circumstances in which they were uttered or conveyed. The Crown need not prove that the intended recipient of the threat was made aware of it, or if aware of it, that he or she was intimidated by it or took it seriously. Further, the words do not have to be directed towards a specific person; a threat against an ascertained group of people is sufficient [for example, threats against “police officers” generally, threats against “members of the black race” generally.] ... ... ... To sum up, the fault element of the offence is made out if the accused intended the words uttered or conveyed to intimidate or to be taken seriously. It is not necessary to prove an intent that the words be conveyed to the subject of the threat. A subjective standard of fault applies. However, in order to determine what was in the accused’s mind, a court will often have to draw reasonable inferences from the words and the circumstances, including how the words were perceived by those hearing them. [para. 23] The reasonable person standard must be applied in light of the particular circumstances of a case. [references omitted, paras. 13-14] The test, then, is not whether people actually felt threatened. Nor is it necessary to prove the threats were conveyed to their intended recipients or that anyone was in fact intimidated or made fearful. Instead, “the prohibited act of the offence of uttering threats will be made out if a reasonable person fully aware of the circumstances in which the words were uttered or conveyed would have perceived them to be a threat of death or bodily harm.” Uttering Threats: Mens Rea (Fault Element) As for the mean rea, it is made out if “it is shown that threatening words uttered or conveyed ‘were meant to intimidate or to be taken seriously’.” The Court stated: It is not necessary to prove that the threat was uttered with the intent that it be conveyed to its intended recipient or that the accused intended to carry out the threat . Further, the fault element Even though the threats were conveyed in a socalled “closed circle,” their confidential nature did not preclude a finding that both the actus reus and mens rea had been proven. It was not necessary to prove as part of the actus reus (prohibited act) that the threats were conveyed to their intended recipients or that anyone was actually intimidated by the threats. Nor is it necessary as part of the mens rea (fault element) to prove that the accused intended the threats to be conveyed to their intended recipients or that the accused specifically intended to intimidate anyone. “Threats are tools of intimidation and violence,” said the Supreme Court. “As such, in any circumstance where threats are spoken with the intent that they be taken seriously, even to third parties, the elements of the offence will be made out.” Both the trial judge and the Court of Appeal made legal errors. The Crown’s appeal was allowed, the accused’s acquittals were set aside and a new trial was ordered. Complete case available at www.scc-csc.gc.ca PAGE 40 Volume 13 Issue 6 - November/December 2013 BRITISH COLUMBIA: CANADAʼS MOST EXPLOSIVE PROVINCE Attempted Bombings – An explosion where one or more IEDs failed to function because of an unintentional defect in design or assembly. According to data released by the Canadian Data Centre in 2013, Canada had a total of 185 explosive incidents in 2012. British Columbia ranked first among incidents, bombings, attempted bombings, improvised explosive device recoveries, hoax devices and explosives thefts.There were four deaths reported, two in British Columbia and two in Ontario. Hoax Devices – A device constructed from inert or non-explosive components intended to resemble actual bombs. Improvised Explosive Device (IED) – A bomb created for non-authorized use. Recovered IEDs – Number of IEDs, that were recovered by Explosives Disposal Units. At one incident, one or more IEDs can be recovered. The following definitions will help explain the incidents reported in the table below. Explosive Thefts – Incidents that involved reporting stolen explosives materials. Incidents – The number of times Explosives Disposal Units were called to scenes involving the possible use of explosives. Explosive Recoveries – Recovered explosive materials that were armed, dumped, stolen or suspected to be connected with unlawful activities. Bombings – Explosions of devices created for nonauthorized or criminal use. Source: http://www.rcmp-grc.gc.ca/tops-opst/cbdc-ccdb/crim-use-usage-explo-eng.htm Incidents Bombings Attempted Bombings Hoax Devices Recovered IEDs Explosive Thefts Explosive Recoveries Accidental Explosion British Columbia 62 9 1 17 15 1 19 - Alberta 18 2 - 1 3 - 12 - Saskatchewan 20 3 - 2 2 - 12 1 Manitoba - - - - - - - - Ontario 18 3 1 3 5 - 6 - Quebec 37 1 - 6 4 - 26 - New Brunswick 17 1 - 7 - - 9 - Nova Scotia 2 - - 1 - - 1 - Prince Edward Island - - - - - - - - Newfoundland 6 - - - - - 5 1 North West Territories 1 - - - - - 1 - Yukon 4 - - - - - 4 - Nunavut - - - - - - - - Canada 185 19 2 37 29 1 95 2 Region PAGE 41 Volume 13 Issue 6 - November/December 2013 DNA DATA BANK Types of bodily substances collected from convicted offenders and analyzed by the NDDB: Did you know as at November 30, 2013 there • Blood - using a sterile Lancet to prick the fingertip - 304,354 samples were ... ... 372,070 DNA profiles contained in the National DNA Data Bank (NDDB) of Canada. This includes DNA profiles from the Convicted Offenders Index and the Crime Scene Index. • Buccal - rubbing a foam applicator inside the mouth to obtain skin cells - 3,725 samples • Hair - pulling out six to eight hairs with the root sheath attached - 291 samples ... 281,364 DNA profiles contained in the Convicted Offenders Index. These biological samples are collected from convicted offenders. 0.1% Blood Buccal Hair ... 90,706 DNA profiles contained in the Crime Scene Index. These samples are collected from crime scene exhibits containing biological evidence. ... 28,619 Offender Hits. This is a DNA Profile developed from Crime Scene evidence matching a DNA profile in the Convicted Offender Index. These cases include: Offences Break and Enter Total 10,849 1.2% 98.7% The breakdown of convicted offender samples includes adult offenders ( 255,375 ), young offenders (36,098) and military offenders (66). 0.02% Sexual Assault 3,513 Robbery (armed) 3,254 Assault 2,219 Murder 2,018 Attempted Murder 639 Other 6,127 In 2012/2013 there were 395 Forensic Hits. Adult Young Military 87.60% ... 3,384 Forensic Hits. This is a DNA Profile developed from a crime scene matching another Crime Scene DNA profile in the Crime Scene Index. In 2012/2013 there were 3,387 Offender Hits. 12.38% The NDDB receives 500 to 600 samples per week. Sources: Statistics for National DNA Data Bank available at: www.rcmp-grc.gc.ca/nddb-bndg/stats-eng.htm National DNA Data Bank of Canada - Annual Report 2012/2013 - Measuring Success available at: www.rcmp-grc.gc.ca/pubs/nddb-bndg/ann-12-13/ann-12-13-eng.pdf PAGE 42 Volume 13 Issue 6 - November/December 2013 Convicted Offender Samples Received By Province/Territory as at November 30, 2013 YK 499 NWT 1,783 NU 1,589 Canada 308,370 BC 36,823 AB 32,809 SK 13,127 MB 18,488 NF 4,487 QC 50,073 PEI 757 ON 135,945 NB 3,896 NS 8,094 Source: http://www.rcmp-grc.gc.ca/nddb-bndg/stats-eng.htm SEARCH WARRANT AMPLIFICATION EVIDENCE HAS LIMITS R. v. Voong, 2013 BCCA 527 As a result of a drug investigation, a police officer prepared an Information to Obtain (ITO) a warrant to search a residence for an active indoor marihuana growing operation. The grounds were based on the odour of vegetative marihuana coming from the target residence, recent power consumption four and a half times higher than the average BC Hydro customer in the area, windows at the front of the residence were covered to prevent the escape of high intensity lights and there were previous Controlled Drugs and Substances Act investigations relating to the target residence, including a faint odour of marihuana smelled near the property three months earlier. A telewarrant was obtained and executed the following day by way of a hard entry. Officers found 582 marihuana plants, high-wattage lights and paraphernalia associated with growing marihuana. The accused was the registered owner of the house and only person present when the police arrived. He was charged. British Columbia Provincial Court The accused argued the search warrant’s ITO, as amplified on review, did not provide sufficient reliable information to support its issuance. In his view, the information respecting the odour detected, power consumption comparison, window coverings and statements about previous investigations was either unreliable, erroneous, misleading, wrong or breached the duty of full, fair and frank disclosure. He suggested this information, when expunged from the ITO, rendered it deficient. Since the search was unlawful and breached s. 8 of the Charter, he wanted the plants and cultivation equipment seized by police excluded as evidence under s. 24(2). PAGE 43 Volume 13 Issue 6 - November/December 2013 The investigator, his supervisor, an expert (called by the defence) and a police expert (called by the Crown) testified in the voir dire. The judge only excised the BC Hydro reference and information about the specifics of the window coverings. However, he upheld the warrant on the basis of the remaining record as amplified on review. The faint odour of marihuana, efforts to conceal the escape of light from the basement windows (consistent with a grow operation), the earlier detection of marihuana odour and evidence of the hydro consumption was sufficient to support reasonable grounds. The accused was convicted of producing marihuana and possessing it for the purpose of trafficking. British Columbia Court of Appeal The accused appealed, submitting the search warrant should not have been upheld and the evidence ruled inadmissible under s. 24(2). The Crown, on the other hand, suggested that when the totality of the circumstances set out in the ITO, as amplified on review, was considered with common sense, there was sufficient information to establish a reasonable belief that went beyond mere suspicion. What is Amplification? When a reviewing Court assesses the sufficiency of a warrant application, it does not decide whether it would have issued the warrant, but must determine whether there was sufficient credible and reliable evidence to permit a justice of the peace to find reasonable grounds to believe that an offence had been committed and that evidence of that offence would be found at the specified time and place. In doing so, the reviewing court does not only review the ITO that was presented to the justice of the peace but may also hear “amplification”, or additional evidence, presented at the voir dire to correct minor errors in the ITO. Erroneous information included in the original ITO will be excluded. Amplification evidence may correct good faith police errors in preparing the ITO and some minor, technical errors in drafting the affidavit, but not deliberate attempts to mislead the authorizing justice. Amplification evidence, however, cannot be adduced as a means for police to retroactively authorize a search warrant that was not initially supported by reasonable grounds. x Power Consumption Comparison – The power consumption document for an average dwelling in the area that was used to compare with the accused’s residence was unreliable. The officer did not say anything about its reliability The Court of Appeal first recognized the test for in the ITO and testified he took it from another determining whether a search warrant was properly member, “kind of a boilerplate.” issued. “The test on review is “The test on review is whether a The document referenced was whether a justice of the peace, not published by BC Hydro as assessing all the facts on a justice of the peace, assessing all stated in the ITO and the officer practical, non-technical and knew nothing about it, except the facts on a practical, noncommon sense basis, could have what it said. Furthermore, the technical and common sense been satisfied there were “amplification” evidence reasonable grounds to believe basis, could have been satisfied provided by the police expert marihuana would be found went beyond the permissible there were reasonable grounds inside the residence,” said boundaries of such evidence. to believe marihuana would be Justice MacKenzie. In this case, “Amplification is not a means to the Court of Appeal found the adduce additional information found inside the residence. trial judge was correct in some so as to retroactively authorize a aspects but made errors in search that was not initially others: supported by reasonable grounds,” said Justice MacKenzie. Rather than the Crown reOdour – The trial judge’s finding that the examining an informant on matters arising in investigator detected the odour of vegetative cross-examination, the Crown offered rebuttal marihuana as he walked past the driveway at evidence by a different witness. Plus, even had the accused’s 2.09 acre rural property was not this evidence been elicited from the investigator unreasonable and open to her to make. PAGE 44 Volume 13 Issue 6 - November/December 2013 in either cross-examination or re-examination, it would have exceeded proper amplification. x Window Covering Facts and Opinion – In the ITO the investigator said that all eight of the windows facing the road were covered from inside the residence. However, at trial he admitted that he had an incomplete view as he was 75 metres away, seated in his police vehicle, using binoculars and looking through trees. He said he did not include this in the ITO but should have. He also agreed he did not notice two other large windows and one beside the door which were not covered (no coverings were found on them). When police executed the warrant they found some of the upper windows open and uncovered. The Court of Appeal found the information about all the windows being covered was misleading: it suggested a total blackout when that was not the case. The reference to the coverings of the eight windows at the front of the house to prevent the escape of light was removed from the ITO, along with the opinion attaching to it. x Information on Past Investigations – This information, including the prior smell of marihuana, did not contribute to reasonable grounds in the ITO. It was essentially disclosure. Was the Search Warrant Valid? With the power consumption comparison and window covering facts and opinion excised, and the information on past investigations amounting only to disclosure, all that remained was the “faint but definite smell of vegetative marihuana.” It was transient and brief, described by Crown as a “whiff.” When taken alone, a “whiff” of marihuana would not be sufficient to sustain the search warrant. The search was therefore unlawful and breached s. 8 of the Charter. When considering s. 24(2), the Court of Appeal excluded the evidence. Although the offences were serious and the evidence reliable and crucial to the Crown’s case, the Charter-infringing police conduct amounted to a serious intrusion. It involved a “hard entry” to a residence, a battering ram to “breach” the back door and an arrest at gunpoint. The evidence was excluded. The accused’s appeal was allowed, his convictions were set aside and acquittals were entered. Complete case available at www.courts.gov.bc.ca Hearsay and Reasonable Grounds In Voong, the British Columbia Court of Appeal commented on the use of hearsay in an officer’s reasonable grounds assessment. It said this: It is quite true, as the Crown says, that hearsay evidence communicated from one officer to another may contribute to establishing reasonable grounds. The fact evidence is hearsay does not bar its use to form grounds for a search. The question is whether the hearsay has been shown to be reliable, considering whether it is compelling, the source of the hearsay credible, and whether the information was corroborated. These factors do not form separate tests, but the “totality of the circumstances” must meet the standard of reasonableness. But it is not enough that the information, although it may be reliable hearsay, is “available” to the police generally as a corporate body. Rather, the information must be within the knowledge of the Informant himself when he obtains the warrant. In this case, it was not. ... “[T]he police officer who must have reasonable and probable grounds for believing a suspect is in possession of a controlled drug is the one who decides the suspect should be searched. That officer may or may not perform the actual search. If another officer conducts the search, he or she is entitled to assume that the officer who ordered the search had reasonable and probable grounds for doing so....”. Thus, the grounds to search must be held by the officer who makes the decision to search. By analogy in this case, the grounds to search had to be held by [affiant], who swore the ITO setting out his grounds and obtained the warrant. [references omitted, paras. 61–64] PAGE 45 Volume 13 Issue 6 - November/December 2013 OFFICERʼS DOUBT ABOUT IMPAIRMENT DID NOT UNDERMINE CONVICTION R. v. Wilson, 2013 SKCA 128 A citizen observed a truck being driven erratically. He called police, followed it and reported its progress. The vehicle eventually pulled into a parking lot and stopped. The citizen continued down the street, made a U-turn but lost sight of the truck for a moment. When the police arrived shortly thereafter, they found the accused behind the wheel of the truck, seat belt fastened, brake lights on and engine running. The officer woke the accused, asked him to shut off the engine, step out and accompany her to the patrol car. His walk was slow and deliberate and he had difficulty with his coordination. When asked for his licence, the accused searched for his wallet but could not find it. The officer, however, could see a wallet in his pocket, removed it and retrieved the licence. She also smelled a “faint odour” of alcohol from the accused. He was arrested for impaired care and control, given his rights and a breath demand was made. During questioning the accused said he had a couple cans of beer earlier at his sister’s, a block away. But he denied driving. He said he came out to the vehicle to listen to music, being tired and under stress from work. The officer, began to doubt whether alcohol caused her concerns about the accused’s driving, so he made an approved screening device demand. The accused blew a “fail.” This confirmed the officer’s earlier opinion and she followed through with the investigation, transporting the accused to the police station where he provided breath samples over the legal limit. As a result, charges of impaired operation and over 80mg% were laid. Saskatchewan Provincial Court The judge found the officer had reasonable grounds for the arrest and d e m a n d – b o t h s u b j e c t ive l y a n d objectively. However, the ASD demand was not made forthwith. It was done after the accused had already been arrested. The ASD test was excluded. As for the breathalyzer tests, they were not taken as soon as practicable. The judge found there was an unexplained inordinate delay. The certificate of analysis was also excluded. Thus, the accused was found not guilty on the over 80mg% charge. As for the impaired driving offence, the accused was convicted. The judge was satisfied that the evidence of the citizen combined with the arresting officer’s evidence (absent the test results) was sufficient to prove guilt beyond a reasonable doubt. He was fined $1,000 with a $150 victim surcharge and suspended from driving for one year. Saskatchewan Court of Queen’s Bench The accused argued, among other grounds, that the trial judge failed to address evidence that was inconsistent with impairment. In his view, the arresting officer’s doubts about his impairment – which she addressed with the ASD – should have raised a reasonable doubt in the judge’s mind as to his guilt. But the appeal judge disagreed stating, “The fact that [the officer] had a doubt does not necessarily translate into a doubt within the judicial mind.” The trial judge had properly considered the evidence – the nature of the accused’s driving, the physical indicia of impairment and the admission of alcohol consumption – in convicting. The accused’s appeal was dismissed. Saskatchewan Court of Appeal The accused appealed again submitting, in part, that the trial judge erred by not having a reasonable doubt as to his impairment. He emphasized the fact that, after the arrest, the officer doubted her own assessment of his impairment by alcohol so much so that she made an illegal ASD demand upon him. Since the officer herself had a reasonable doubt about his impairment before she obtained the ASD results or the results of the breath tests at the police station, the trial judge should have had a reasonable doubt as well (since he was not allowed to consider those results). In was his contention that the trial judge erred by shifting the burden of proof to him to establish his innocence. PAGE 46 Volume 13 Issue 6 - November/December 2013 Justice Caldwell rejected the accused’s argument. “What [the accused’s] submission fails to recognise, however, is that his conviction on the impaired driving charge pivots not on the judgment of the arresting officer but rather on the weight of the whole body of evidence before the trial judge, which cogently supports the conclusion that he operated a motor vehicle while his ability to do so was impaired by alcohol,” he said. “The trial judge was the trier of fact in this case and the views of the arresting officer as to what part of the evidence indicated did not preclude the trial judge from making findings of fact and drawing inferences of fact on the basis of the whole of the evidence which was before him. That is to say, I find no compelling reason to why the arresting officer’s doubt in [the accused’s] impairment by alcohol at the time of arrest should require the trial judge to have doubt in [the accused’s] impairment by alcohol after he has heard all of the evidence of impairment and alcohol consumption adduced at trial.” The evidence of the concerned motorist and the arresting officer, even without the ASD or Breathalyzer results, was sufficient. Justice Caldwell continued: A conviction for impaired driving will lie where there is sufficient evidence to conclude beyond a reasonable doubt that an accused has driven while his or her ability to operate a motor vehicle was impaired by alcohol or a drug. Here, the Crown had proven that [the accused] had admitted to having consumed alcohol, had driven aberrantly, and had exhibited deteriorated judgment or attention and a loss of motor coordination or control. All of this rationally supports a finding that [the accused’s] ability to operate a motor vehicle was impaired by alcohol. [para. 41] www.10-8.ca R. v. Manchulenko, 2013 ONCA 543 After pulling a vehicle over shortly before 4:00 am, a police officer formed the opinion the accused’s ability to operate the vehicle was impaired by alcohol. He was arrested for impaired driving, advised of his right to counsel and a formal demand for a breath sample was made. The accused confirmed he understood what the officer had told him and declined to invoke his right to counsel. He accompanied the officer to the police station where he declined to call a lawyer when asked by the officer in charge if he wished to do so. In the breathalyzer room, the qualified technician reiterated the accused’s right to counsel. This time, the accused said he wanted to call a lawyer. The qualified technician simply took the accused to the telephone room and left him there for less than a minute. The accused did not contact a lawyer, instead stating “well, let’s get this over with.” He provided his first breath sample at 4:29 am. When he asked about the breathalyzer reading and what he should do next, he was taken back to the telephone room so that he could speak with a lawyer. He was not told the reading. He spoke to a lawyer, returned to the breath room and provided a second breath sample at 4:50 am. He was charged with impaired driving and over 80 mg%. Ontario Court of Justice The trial judge considered the whole of the evidence (not including the ASD or breath tests) and did not improperly shift the burden of proof to the accused. The accused’s appeal was dismissed and his conviction was upheld. Complete case available at www.canlii.org CHARTER TAINT MAY OR MAY NOT BE CLEANSED: DEPENDS ON CIRCUMSTANCES Although the judge found there was no breach of the informational component of the Charter’s s. 10(b), he did rule there was a violation of the implementational component. Before taking the breath sample, the qualified technician failed to tell him that the police had a duty to hold off until a reasonable opportunity to exercise his right to counsel was provided. In her view, when the accused changed his mind about speaking to a lawyer, the police should have told him of his right to a reasonable opportunity to contact a lawyer and that police would not take any PAGE 47 Volume 13 Issue 6 - November/December 2013 statements or require him to participate in any potentially incriminating process until he had had that reasonable opportunity. As a result of the breach, the judge excluded the analysis of both breath samples under s. 24(2) of the Charter. Although the breath analysis was reliable and important to the Crown’s case, the breach was serious and involved an intrusion into the accused’s privacy and bodily integrity. The remaining evidence - the observations of the arresting officer, a videotape of the accused in the booking room and the observation report of the qualified technician – was insufficient to warrant a conviction. Both charges were dismissed. Ontario Superior Court of Justice The Crown challenged the trial judge’s rulings arguing she erred in finding a s. 10(b) breach and in excluding the results of both breath tests. But the appeal judge disagreed and dismissed the Crown’s appeal. He held that the police did breach s. 10(b) by failing to afford the accused a reasonable opportunity to exercise his right to counsel before administering the first breath test and by failing to hold off until the right had been exercised. As for the admissibility of the second breath sample, the appeal judge opined that the two breath samples could not be separated from each other. “Once there is a Charter breach and the accused was not afforded his s. 10(b) Charter rights, all the evidence from that point onward should be excluded,” he said. “If the fundamental right against self-incrimination is infringed, all the evidence gathered from that point onward is tainted and is subject to be excluded under a s. 24(2) Charter analysis.” independent from the first. The Crown submitted there was a “fresh start.” The accused exercised his s. 10(b) rights and received legal advice after the first sample but before the second such that the second sample was not “obtained in a manner that infringed or denied” his Charter rights. The accused, while acknowledging the trial erred in failing to rule separately on the admissibility of the second breath sample, nevertheless suggested he reached the correct conclusion. There was a temporal and contextual connection between the samples, making them part of the same transaction or course of conduct which warranted exclusion. Right to Counsel Justice Watt, writing the Court of Appeal’s decision, described the rights afforded under s. 10(b): Ontario Court of Appeal The Crown again contended that the appeal judge erred in agreeing that the results of both breath tests, especially the second one, should have been excluded. In the Crown’s view, the appeal judge failed to distinguish between the first and second samples, in light of the exercise of the right to counsel between the two, such that the second breath sample could be considered as separate or PAGE 48 The purpose of the right to counsel is to allow a detainee not only to be informed of his rights and obligations under the law but, equally, if not more importantly, to obtain advice about how to exercise those rights. S e c t i o n 1 0 ( b ) o f t h e C h a r t e r h a s t wo components. The first, the informational component, requires and ensures that the detainee is advised of his or her rights to counsel. The second, the implementational component, requires that the detainee be given a reasonable opportunity to exercise his or her right to counsel, should she or he decide to do so. Implicit in the implementational component is a duty on the police to hold off questioning or requiring the detainee to participate in investigative procedures, or eliciting evidence until the detainee has a reasonable opportunity to consult counsel. Th e d u t i e s o f t h e p o l i c e u n d e r t h e implementational component of s. 10(b), however, are not absolute. Unless the detainee invokes the right to counsel and is reasonably diligent in exercising it, the correlative duties of the police to provide a reasonable opportunity for the detainee to exercise the right, and to refrain from eliciting evidence, will either not arise in the first place or will be suspended. When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and Volume 13 Issue 6 - November/December 2013 decides not to pursue contact with a lawyer, s. 10(b) requires the police to explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning or otherwise eliciting evidence until then. What amounts to reasonable diligence in the exercise of the right to contact counsel depends on the context, and requires a fact-specific inquiry into all the circumstances. [references omitted, paras. 63-66] Fresh Start - Cleansing a Charter Taint Sometimes, when considered by itself, evidence appears to be free from any contaminants that would render it inadmissible. However, when looking at the evidence in context, it could be tainted by an earlier impediment to admissibility. For example, a confession may be sufficiently connected to an earlier involuntary confession that it too is considered involuntary. “The derived confessions rule excludes statements which, despite not being involuntary when considered alone, are sufficiently connected to an earlier involuntary confession to be rendered involuntary and hence inadmissible,” said Justice Watt. “Each subsequent confession may be involuntary if the tainting features that disqualified the first continued to be present, or if the fact the first statement was made, was a substantial factor contributing to the making of the second or subsequent statement.” In this case of s. 24(2), it only applies to evidence where there has been a proven Charter breach and the evidence sought to be admitted was “obtained in a manner” from the breach. This “nexus” between the Charter violation and the acquired evidence may be temporal, contextual, causal or a combination of these. Sometimes police will try to insulate evidence from an earlier Charter breach by intervening with Charter compliant conduct. Nevertheless, there is no per se or bright line rule that will automatically immunizes a Charter taint. Nor is there a rule that automatically mandates exclusion of all evidence that follows a Charter infringement regardless of attempts by police to cleanse the taint. Instead, a case-specific analysis is required. In this case, the appeal judge adopted a rule that all evidence obtained after the s. 10(b) infringement should be excluded. This was a mistake. He failed to undertake a case-specific analysis of all the circumstances in determining whether s. 24(2) was engaged. Further, the appeal judge did not consider whether the Charter-compliant consultation preceding the second sample was a “fresh start” thereby severing the second breath test from the earlier s. 10(b) breach and removing it from s. 24(2)’s reach. Finally, if the second sample was tainted by the earlier breach, the lower court should have conducted a discrete, case-specific s. 24(2) analysis in relation to the results of the analysis of the second sample. Justice Watt concluded several errors were made respecting s. 24(2). The Crown’s appeal was allowed, the accused’s acquittals were set aside and a new trial was ordered. Complete case available at www.ontariocourts.on.ca JUDGE USED WRONG LENS TO VIEW POLICE CONDUCT: EVIDENCE EXCLUDED R. v. Huynh, 2013 ABCA 416 A police officer saw a purple Dodge Dakota pick-up truck enter an out of the way and quiet parking lot, perform a “button hook turn” and park. The accused was driving and there was a female passenger seated behind the main bench seat. In less than three minutes, a male wearing a dark hoody and jeans entered the passenger side of the truck, remained for less than a minute, got out, put his hands in the pouch of his hoody and left the scene. The officer, an 11 year veteran at the time, had experience for several years working drug investigations, including undercover surveillance. The officer believed he had witnessed a pre-arranged drug transaction. He saw the men turn their bodies towards each other. Then, he saw them what appeared to be an exchange of some sort based on their arm and body movements while they were carrying on a short discussion. However, the PAGE 49 Volume 13 Issue 6 - November/December 2013 officer did not see their hands nor did he observe any actual transfer of any item. After the vehicle went mobile, a uniformed officer in a marked police vehicle was directed to stop the truck and arrest its occupants. A search of the truck incidental to arrest resulted in the seizure of cocaine and cash. Alberta Court of Queen’s Bench to the accused’s arrest being unlawful. Had he used the proper test, he would not have found this case to be a “close call.” Further, his reasons reflecting the seriousness of the Charter violation and its impact on the accused were limited to the police detaining him, not arresting him. “The trial judge mistakenly proceeded to consider only the law of unlawful detention when assessing the breaches under s. 24 (2),” said Chief Justice Fraser for the Court of Appeal. “In other words, the trial judge did not properly consider the seriousness of the unlawful arrest.” During a voir dire the officer said, based on his experience, that he formed the opinion that a drug transaction had taken place in the motor vehicle and that the Since the judge erred in the applicable principles or driver was in possession of narcotics for the purpose rules of law, his s. 24(2) determination, which would of trafficking. However, despite this testimony, the usually be afforded deference, was assessed anew. Crown conceded there were ss. 8 (unreasonable First, the unlawful arrest and unreasonable search search) and 9 (arbitrary detention) Charter breaches. were serious Charter breaches that favoured As for the evidence, the judge admitted it under s. exclusion. Second, the accused was not merely 24(2). He found the officer had acted in good faith. detained but was arrested and his vehicle searched. The officer held an honest subjective “He had a reasonable expectation of “He had a belief that the accused was involved in privacy in his vehicle, albeit at a reduced criminal activity. Using the investigative level from the privacy to be expected in reasonable detention criteria of a reasonable one’s home,” said Chief Justice Fraser. expectation of suspicion, the judge said it was a “close “The impact was serious and likewise call” even though the Crown conceded privacy in his militates in favour of exclusion.” Third, the breaches. “On the whole of it, the vehicle, albeit at although the evidence was reliable and impact of detaining the [accused] in the essential to the Crown’s case (which a reduced level parking lot for a very short period of time favoured admission), this should not while his motor vehicle was searched for from the privacy overwhelm the s. 24(2) analysis and the purposes of securing and preserving render the other considerations favouring to be expected evidence, did not appear all that exclusion meaningless. “Not only did the in one’s home.” egregious,” said the judge. So, although trial judge minimize the seriousness of the the breach and its impact on the accused’s Charter breaches by considering them Charter-protected interests were serious, the very only through the investigative detention lens, he also reliable evidence which was essential to the Crown’s overemphasized the only factor weighing in favour case outweighed its exclusion. The evidence was of admission.” After balancing the three s. 24(2) admitted and the accused was convicted. factors, the evidence was excluded, the accused’s appeal allowed and an acquittal entered. Alberta Court of Appeal Complete case available at www.albertacourts.ab.ca The accused successfully appealed the trial judge’s s. 24(2) decision to admit the evidence after he found ss. 8 and 9 Charter violations. The Court of Appeal held the trial judge was confused about the legal tests for detention and arrest. Rather than using the reasonable grounds test for arrest, he ultimately used reasonable suspicion as it applied to detention. Nor did his reasons contain any reference Editor’s note: Additional case facts taken from R. v. Huynh, 2012 ABQB 378. PAGE 50 Note-able Quote “Not the cry, but the flight of a wild duck, leads the flock to fly and follow.” Chinese Proverb ONLINE GRADUATE CERTIFICATE PROGRAMS INTELLIGENCE ANALYSIS | TACTICAL CRIMINAL ANALYSIS Foundational Courses: Intelligence Theories and Applications Advanced Analytical Techniques Intelligence Communications Specialized Courses: Competitive Intelligence Analyzing Financial Crimes Tactical Criminal Intelligence Analytical Methodologies for Tactical Criminal Intelligence Entrance Requirements: Proof of completion of bachelor degree; OR A minimum of two years of post secondary education plus a minimum of five years of progressive and specialized experience in working with the analysis of data and information. Applicants must also write a 500 – 1000 word essay on a related topic of their choice OR Applicants who have not completed a minimum of 2 years post-secondary education must have eight to ten years of progressive and specialized experience in working with the analysis of data and information (Dean/Director discretion). Applicants are required to write a 500-1000 word essay on a related topic of their choice. For detailed requirements please visit the JIBC Website. Justice Institute of British Columbia, Canada | www.jibc.ca |graduatestudies@jibc.ca Foundational Courses (students enrolled in either graduate certificate are required to complete the foundational courses) Intelligence Theories and Applications Intelligence Communications Advanced Analytical Techniques A survey course that introduces the student to the discipline of intelligence and provides the student with an understanding of how intelligence systems function, how they fit within the policymaking systems of free societies, and how they are managed and controlled. The course will integrate intelligence theory with the methodology and processes that evolved over time to assist the intelligence professional. The course will develop in the student a range of advanced research and thinking skills fundamental to the intelligence analysis process. The skill most appreciated by the intelligence consumer is the ability to communicate, briefly and effectively, the results of detailed analytic work. This course, through repetitive application of a focused set of skills to a body of information of constantly increasing complexity, is designed to prepare intelligence analysts to deliver a variety of intelligence products in both written and oral formats. Topics include: drug/terrorism/other intelligence issues, advanced analytic techniques (including strategic analysis, predicative intelligence etc.), collection management, intelligence sources, management theory (large organizations), attacking criminal organizations, crisis management, negotiation techniques, strategic planning, local/regional updates and briefing techniques. Specialized Courses (students enrolled in either graduate certificate are required to complete the foundational courses) Intelligence Analysis Tactical Criminal Analysis Competitive Intelligence This course explores the business processes involved in providing foreknowledge of the competitive environment; the prelude to action and decision. The course focuses on supporting decisions with predictive insights derived from intelligence gathering practices and methodologies used in the private sector. Lectures, discussions, and projects focus on the desires and expectations of business decision-makers to gain first-mover advantage and act more quickly than the competition. Tactical Criminal Intelligence This course is an introduction to law enforcement terminology, practices, concepts, analysis, and intelligence. The course will introduce the student to the discipline of crime analysis and law enforcement intelligence through the study of the intelligence cycle and the intelligence determinants. The role and responsibilities of an analyst within each sub-topic will be addressed. Additionally, the utilization of analytical software will be introduced. Analyzing Financial Crimes This course examines the nature and scope of financial crimes and many of the tools used by law enforcement in the preparation of a financial case. Included in this course is a detailed treatment of the following: laws which serve to aid in the detection and prosecution of these crimes, the types of business records available, types of bank records available, an examination of offshore business and banking operations, and the collection and analysis of this information, with emphasis placed on Net Worth and Expenditure Analysis. In addition, special treatment is given to the detection and prosecution of money laundering, various types of money laundering schemes, and the relationship of money laundering to terrorism. Analytical Methodologies for Tactical Criminal Intelligence The course reviews the key requirements for intelligence in law enforcement and homeland security. The course focuses the use of advanced analytic methodologies to analyze structured and unstructured law enforcement data produced by all source collection. Students will apply these concepts, using a variety of tools, to develop descriptive, explanatory, and estimative products and briefings for decision-makers in the field.