POLICE ACADEMY 715 McBride Blvd. New Westminster B.C. V3L 5T4 IN SERVICE:10-8 A PEER READ PUBLICATION A newsletter devoted to operational police officers across British Columbia. BY THE BOOK: New - s. 231.1 B.C.’s Motor Vehicle Act: Banning Smoking When Children Present On April 7, 2009, British Columbia’s Motor Vehicle Act was amended by adding a section that now bans smoking in a motor vehicle when children are present. April 7 is also World Health Day. The new section reads: Smoking in motor vehicle prohibited - s. 231.1 (1) In this section, "tobacco" means tobacco leaves or products produced from tobacco in any form or for any use. Alexa’s Team - see page 4 Volume 9 Issue 2 March/April 2009 (2) A person must not smoke tobacco, or hold lighted tobacco, in a motor vehicle that is occupied by a person under the age of 16 years, whether or not any window, sunroof, car-top, door or other feature of the vehicle is open. (3) A person who contravenes subsection (2) commits an offence. The Lieutenant Governor in Council may make regulations exempting any person or class of persons from the requirements of this section and prescribing conditions for those exemptions. Upcoming Events:  Strategic Crisis Leadership - p. 5  2009 World Police & Fire Games - p. 16-17  Counterfeiting & Trade Mark Infringement Offences - p. 23  The Mega Trial Phenomenon - p. 24 Be Smart and Stay Safe HIGHLIGHTS IN THIS ISSUE Pg Inventory Search Not Limited To Itemizing ‘Visible Contents’ 6 ‘Sexual Purpose’ Of Child Photos Determined Objectively 10 Safety Search Justified In Circumstances Of Warrant Execution 12 Arrest Standard Does Not Require Prima Facie Case For Conviction 13 Judge Not Required To Endorse Dynamic CDSA Search 14 Dual Purpose Incidental Search Lawful So Long As One Purpose Reasonable 20 Guns, Bail & Jail: Bill C-2 Review 26 Supreme Court Hearings Rise 28 Arresting Officer Relying On More Than Investigator’s Broad Opinion 36 Unless otherwise noted, all articles are authored by Sgt. Mike Novakowski, MA (Abbotsford Police). 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 are not necessarily the opinions of the Justice Institute of British Columbia. “In Service: 10-8” welcomes your comments on or contributions to this newsletter. If you would like to be added to our electronic distribution list e-mail Mike Novakowski at mnovakowski@jibc.ca POLICE LEADERSHIP APRIL 10-13, 2011 Mark your calendars!!! The British Columbia Association of Chiefs of Police, the Ministry of Public Safety and Solicitor General, and the Justice Institute of British Columbia, Police Academy are hosting the Police Leadership 2011 Conference in Vancouver, British Columbia. This is Canada's largest police leadership conference and will provide an opportunity for delegates to discuss leadership topics presented by world-renowned speakers. www.policeleadershipconference.com SUPPORT THE BADGE: RELATIONAL SURVIVAL FOR POLICE FAMILIES “The true weight of the badge is not overcome by muscle, not found in the gym, not measured on a scale. This weight requires a strength and conditioning for which few officers are trained. The badge is not just pinned on a chest, it is pinned on a lifestyle.” - Police Officer National Library of Canada Cataloguing in Publication Data Main entry under title: In service:10-8. -- Vol. 1, no. 1 (June 2001)Monthly. Title from caption. "A newsletter devoted to operational police officers across British Columbia." ISSN 1705-5717 = In service, 10-8 1. Police - British Columbia - Periodicals. 2. Police – Legal status, laws, etc. – Canada – Cases – Periodicals. I. Justice Institute of British Columbia. Police Academy. II. Title: In service, 10-8. III. Title: In service, ten - eight. 2 www.supportthebadge.ca www.10-8.ca Volume 9 Issue 2 March/April 2009 ‘IN SERVICE: 10-8’ e-LETTERS TO THE EDITOR “One of my co-workers receives your newsletter and often forwards it on to me. I find the review of current issues and case law very beneficial. I'd like to be on the mailing list to receive this newsletter regularly.” Police Constable, Ontario ********* “I was sent several copies of 10-8 by another officer and would like to be added to the mailing list. Our department doesn’t do a good job on keeping us up to date with Canadian case laws and I find your publication very helpful.” - Conservation Officer ********* “I would like to commend you folks on this great publication, I have been a loyal reader for some time now. I am writing to see if you could please add me on the email list so I may share it with my fellow officers ... Thank you and keep up the good work..” - Police Constable, Ontario ********* “I was wondering if you can add me to your e-mail list for the a/n publication. I have found many of the articles to be of great interest and would enjoy being able to continue to read them as their are published.” - RCMP Corporal, Saskatchewan ********* “Keep up the excellent work...it is surely valued by us law enforcement folks.” - Government Employee, British Columbia POLICE & PEACE OFFICERS’ NATIONAL MEMORIAL DAY Sunday September 27, 2009 Police and Peace Officers' National Memorial Day provides Canadians with an opportunity to acknowledge the dedication of police and peace officers who have died in the line of duty. Volume 9 Issue 2 March/April 2009 IN-SERVICE LEGAL ROAD TEST The “In Service” Legal Road Test is a simple multiple choice quiz designed to challenge your understanding of the law. Each question is based on a case featured in this issue. See page 42 for the answers. 1. When obtaining a search warrant under s.11 of the Controlled Drugs and Substances Act a judge is required to endorse any dynamic (no-knock) entry. (a) True; (b) False. 2. Flight from a crime scene can be considered by an officer in deciding whether there are reasonable grounds to arrest. (a) True; (b) False. 3. A search incidental to lawful arrest will not become unreasonable if the police have more than one purpose in mind as long as one of the purposes is legitimate as an incident to the arrest. (a) True (b) False 4. What percentage of the Canada’s Supreme Court decisions were unanimous in 2008? (a) 24%; (b) 55%; (c) 76%; (d) 87%; (e) 92%. 5. The police are not required to hold off questioning a detainee who has exercised their right to counsel and asks to speak to a lawyer again. (a) True (b) False 6. For a police officer to be qualified as an expert in drug investigations the officer must have acquired their special knowledge through formal study. (a) True (b) False www.10-8.ca www.10-8.ca 3 TOP IMPAIRED DRIVING INVESTIGATORS RECOGNIZED BY BCAA TRAFFIC SAFETY FOUNDATION On Thursday February 26th the British Columbia Automobile Association (BCAA) Traffic Safety Foundation publicly recognized 26 R.C.M.P. and Municipal Police Department officers for their exemplary efforts to remove impaired drivers from the roadways in the Lower Mainland of British Columbia. The 26 police officers were recognized at a reception at the BCAA offices in Burnaby where they were inducted into “Alexa’s Team” in honour of four year old Alexa Middelaer who was killed on May 17, 2008 in Delta as the result of the actions of an alleged impaired driver. Alexa’s Parents, Laurel and Michael Middelaer presented certificates and a personal letter to each of the officers. Vancouver Police • Cst. John Bercic West Vancouver Police The police officers recognized were: Abbotsford Police • Cst. Leisa Shea - Fraser Valley Integrated Road Safety Unit New Westminster Police • Cst. Josh Hooker Port Moody Police • S/Sgt. Manj Kaila - NCO i/c Greater Vancouver Integrated Road Safety Unit • Cst. Victoria Heller R.C.M.P. • Cst. John Fenety - Greater Vancouver Integrated Road Safety Unit 4 • Cst. Alice Fox - Greater Vancouver Integrated Road Safety Unit • S/Sgt. Dave Peat - NCO i/c Surrey Detachment Traffic • Cpl. Lorne Lecker - Surrey Detachment Traffic • Cst. Tom Meleady - Surrey Detachment Traffic • Cst. Duane Hillier - Fraser Valley Integrated Road Safety Unit • Cst. Trevor Vokins - Langley Detachment Traffic • Cst. Jason Bayer - Langley Detachment Traffic • Cst. Terry Gillespie - Sea-To-Sky Traffic Services • Cst. Steve Small - Fraser Valley Traffic Services • Cst. Glen Porter - Ridge Meadows Detachment (formerly Deas Island Traffic Services) • Cst. Mark Booth - Deas Island Traffic Services • Cst. Alan Windover - Port Mann Traffic Services • Cst. Mark Cumbers - Port Mann Traffic Services • Cst. Dustin Young - Surrey Detachment (formerly Port Mann Traffic Services) • Cst. Joshua Becker - Port Mann Traffic Services • Cpl. Richard O’Rourke - Coquitlam Detachment Traffic • Cst. Michael Halewood - Coquitlam Detachment Traffic • Cst. Steve McCuaig - Greater Vancouver Integrated Road Safety Unit • Cst. Eric Melim • Cst. Dave Noon These 26 police officers were collectively responsible for investigating 389 impaired drivers who were recommended for criminal charges. They also issued 188 90-day Administrative Driving Prohibitions and 1,140 24-Hour Driving Prohibitions. In 2008 these police officers removed a total of 1,717 drinking drivers from Lower Mainland roads. In 2009, “Alexa’s Team” will be expanded to recognize outstanding impaired driving investigators from throughout British Columbia, both R.C.M.P. and municipal police departments. Source: S/Sgt. I.E. (Ted) Emanuels, Traffic Operations Officer, R.C.M.P. Lower Mainland District www.10-8.ca Volume 9 Issue 2 March/April 2009 Volume 9 Issue 2 March/April 2009 www.10-8.ca 5 INVENTORY SEARCH NOT LIMITED TO ITEMIZING ‘VISIBLE CONTENTS’ R. v. Wint, 2009 ONCA 52, The accused was stopped for “stunt driving” after he nearly sideswiped an unmarked police vehicle and then drove for eight kilometres along a highway at a speed of 170 km/h. Stunting is an offence under s.172(1) of Ontario’s Highway Traffic Act (HTA) and one for which the vehicle may be impounded. While radioing for assistance the officer saw the accused place a number of music CDs into a small black drawstring bag on the back seat of his vehicle. Two backup officers soon arrived and the accused was placed in a cruiser. The two back-up officers then conducted an inventory search of the vehicle. A black bag found on the floor behind the passenger seat was opened and a small black nylon CD case was seen inside it. The case felt heavy and, based on information received from the dispatcher, the officer was concerned that it might contain a gun. No gun was found but an ounce of crack cocaine was, along with about two ounces of marijuana, three cell phones, a blackberry and a digital weigh scale. In addition to being charged with stunt driving, the accused was also charged with possessing cocaine and possessing marijuana for the purpose of trafficking. The accused appealed to the Ontario Court of Appeal arguing the trial judge erred in his analysis, both factually and legally. Factually, he submitted that the trial judge should have rejected police evidence that they were doing an inventory search, but instead were really searching for a gun. Legally, he contended that the police must limit their inventory search to itemizing only visible property of apparent value— opening the bag could not be justified and the police could do no more than note its presence. Thus, in the accused’s view, the police were not entitled to search the black bag and CD case and the fruits of their search should have been excluded under s.24(2) of the Charter. The Ontario Court of Appeal rejected both of the accused’s arguments. First, the trial judge found the police were in fact conducting an inventory search. The search was not a sham nor conducted for an improper or ulterior purpose. Just because the police may have also been looking for a gun did not render the inventory search unlawful. Second, inventorying visible property is not restricted to itemizing objects found in a car, but can include itemizing an object’s contents. The rationale for an inventory search — documenting contents of apparent value — serves the person’s property interest by safeguarding it while it is in police custody. In this case, the Court stated: Given the underlying rationale of inventory searches, to proceed [by only itemizing objects At trial in the Ontario Court of Justice the judge found in a car, but not their contents] would render concluded that the police did not breach the accused’s these searches virtually meaningless. Thus, if the s.8 rights because he found the police were entitled police found a purse and could not look inside it, they under s.172 of the HTA to do an inventory search of would have no way of knowing whether it contained the car. The black bag was plainly visible in the car’s pennies or thousands of dollars and if the latter, what steps should be taken to safeguard the large interior and the police were conducting a lawful sum of money. That, in our view, would defeat the inventory search when they found it. The trial judge purpose of the exercise. In also ruled that even if the accused’s s.8 Charter rights “[The police] must be able to search and short, if inventory searches are to be meaningful and were breached the evidence itemize the contents of objects such as serve the purpose for which was nonetheless admissible purses, wallets and bags ... to determine their they are intended, the police under s.24(2). The evidence contents. Of course, any inventory search cannot be hobbled as the was real, the breach technical, would suggest. must be executed in a reasonable manner [accused] and the officers were acting in They must be able to search and as is the case with other warrantless and itemize the contents of good faith. The accused was convicted of simple marihuana searches, reasonableness of police conduct objects such as purses, wallets and bags like the one possession and possessing will be judged against the totality of the observed in this case, to cocaine for the purpose of circumstances revealed in each case.” trafficking. 6 www.10-8.ca Volume 9 Issue 2 March/April 2009 determine their contents. Of course, any inventory search must be executed in a reasonable manner and as is the case with other warrantless searches, reasonableness of police conduct will be judged against the totality of the circumstances revealed in each case. The search of the black bag and its contents, as well as the search of the CD case and its contents, was entirely reasonable and justified. Indeed, the police would have been derelict in their duties had they not carried out the searches. [paras. 15-16] Thus, the search of the bag and CD case was lawful and did not breach the accused’s s.8 Charter rights. And furthermore, the Court of Appeal saw no error with the trial judge’s s.24(2) analysis. The evidence was admissible and the accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca FLIGHT FROM CRIME SCENE IMPORTANT IN ASSESSING GROUNDS her view, the descriptive factors were generic, applied to thousands of people, and, because there was a weight discrepancy between the suspect description and the accused, the officer should have entered the gas station to confirm that the robber was no longer there. The trial judge held the admission of the drugs would bring the administration of justice into disrepute and the accused was acquitted of possessing cocaine for the purpose of trafficking. The Crown appealed to the Ontario Court of Appeal arguing the trial judge erred in finding Charter breaches when she concluded the officer’s grounds to arrest the accused were not objectively reasonable. In the Crown’s opinion, there were ample grounds to justify the accused’s arrest and the search that followed was incidental thereto. The Ontario Court of Appeal agreed with the Crown, holding the totality of the circumstances test formed the basis for the objective assessment of the grounds proffered for the arrest. The Court stated: In this case, the totality of the circumstances strongly supports the officer’s decision to detain R. v. Williams, 2009 ONCA 35 and arrest the [accused]. The officer was told that there was a robbery in progress at the gas A police officer on patrol received a station. Within about a minute, he was at the site radio call of a robbery in progress at a and saw a person, running away from the gas station, which was just around the station. When the officer first observed the corner. The officer responded with runner, he was about 20-25 metres from the lights and siren and, within the moments he needed to station. The description he had been given was: arrive, the radio dispatcher provided a description of male, black, wearing a blue hat and blue jeans, 39-40 the robber. The officer saw the accused, who shared years old, 5’ 7” tall and 240 pounds. The person he most of the robber’s distinguishing traits, running spotted running away from the gas station was: male, black, wearing a black baseball cap, blue jeans away from the scene. There was nobody else on the and a black leather jacket, 38 years street and the officer believed he had found the robber. After a “The determination of whether the old, 5’ 9” tall and 160 pounds. Of these six factors, five are either short pursuit, the accused was officer had reasonable grounds identical or very similar and one arrested, searched, and 34 grams must be made in the context of (weight) is spectacularly different. of crack cocaine was found in his the circumstances presented to In our view, in “the totality of the pocket. circumstances”, including a robbery the officer. In this case, the scenario, a man running from the At trial in the Ontario Superior circumstances included a fleeing scene, and elapsed time of about a Court of Justice, the trial judge minute, the single significant suspect.” excluded the crack cocaine under difference between the radioed s.24(2) of the Charter after description of the potential robber and the finding the officer breached the accused’s ss.8 and 9 description of the man [the officer] saw running from the scene is not enough to render the Charter rights. She ruled the officer lacked the detention and arrest objectively unreasonable. objective grounds for the detention and search. In ……… Volume 9 Issue 2 March/April 2009 www.10-8.ca 7 … It is true that the five identical or similar factors are generic in the sense that they apply to many people. However, in this case the potential application of these factors is hugely reduced – to be precise, to one – by the singular fact that there was only one person the officer saw when he arrived at the scene and that person was running away from an alleged robbery site. Nor do we think that the weight discrepancy required [the officer] to stop his chase and enter the gas station to ascertain if the robber was still there. In light of the timing (about a minute) and the situation (a man running from the scene), the officer was entitled to continue the chase of the suspect he saw in front of him. The determination of whether the officer had reasonable grounds must be made in the context of the circumstances presented to the officer. In this case, the circumstances included a fleeing suspect. [paras. 5-8] The Crown’s appeal was allowed and a new trial ordered. Complete case available at www.ontariocourts.on.ca BY THE BOOK: Division 9.01 B.C.’S Motor Vehicle Act Regs. Duty to report bullet marks or blood stains R. v. Carson, 2009 ONCA 157 The accused was convicted of driving over 80mg% in the Ontario Court of Justice. The trial judge concluded that the officer had reasonable grounds to make a roadside breath demand under s.254(2) of the Criminal Code. The accused’s appeal to the Ontario Superior Court of Justice was successful. The appeal judge ruled that the investigating officer could not conclude that the driver had alcohol in his body based on the smell of alcohol on his breath. His conviction was overturned. The Crown then appealed to the Ontario Court of Appeal, which restored the conviction after finding the appeal judge erred. In relying on an earlier decision (R. v. Lindsay (1999), 134 C.C.C. 463 (Ont.C.A.)) the appeal judges held that the smell of alcohol on a person’s breath can provide the necessary grounds to demand a roadside sample. Plus, in this case, the officer had more than the odour of alcohol. The accused also denied he had drank any alcohol. These two factors, taken together, provided the necessary grounds for the demand. Complete case available at www.ontariocourts.on.ca “The owner or manager of every motor vehicle repair shop or garage shall keep a record in writing of all repairs made therein to the body, hood, radiator, fenders, running board or wheels of any motor vehicle, showing the make and style of the motor vehicle, its licence number, the name of the person procuring the repairs to be made, the nature of the repairs and the date on which the repairs are made, and shall, upon the request of any peace officer, furnish to the peace officer complete information respecting the repairs so made; and in the case of any motor vehicle on which marks are found which have the appearance of or in any way resemble bullet marks or blood stains, stains, the owner or manager shall immediately notify the officer in charge of the nearest Provincial or municipal police office respecting the same.“ [emphasis added] 8 SMELL OF ALCOHOL ON BREATH PROVIDES ENOUGH FOR ROADSIDE DEMAND LEGALLY SPEAKING: Reasonable suspicion - odour of alcohol “An officer may make an ALERT demand where she reasonably suspects that a person who is operating a motor vehicle has alcohol in his or her body (s.254(2) (s.254(2) of the Criminal Code). Code). There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime. .... The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section.” - Ontario Court of Appeal, R. v. Lindsay, Lindsay, (1999),134 C.C.C. 463 (Ont.C.A.) . www.10-8.ca Volume 9 Issue 2 March/April 2009 UTTERING FALSE LENS RESULTS IN CONVICTION R. v. Baptista, 2008 BCPC 388 A police officer who received a LENS (Law Enforcement Notification) to attend as a witness at a trial did not show up. When confronted by his superior, the officer said he had been denotified and produced a copy of the denotification bearing a denotification stamp. The document, however, was a false document constructed and altered from a denotification given to another police officer in another case. The accused police officer was charged with making a false document and with uttering it. At his trial in British Columbia Provincial Court the Crown argued that the accused was the only person with a motive to produce the false document — to avoid the negative consequence of failing to attend court. The accused, on the other hand, submitted that another officer could simply have been playing a prank on him, given that some officers are prone to playing jokes. Judge MacArthur rejected the officer’s claim and convicted him of uttering a false document. He stated: ... In my view, the evidence that the accused presented the forged document when asked to account for his non-attendance creates an overwhelming inference that he either authored the false document himself or uttered it, knowing it to be false. Although there is some evidence that police officers, perhaps like members of any organization, may essentially from time to time play harmless pranks on one another particularly on young members, ... in my opinion in this case it would be speculative to say that this would have occurred or could have occurred such as to create a reasonable doubt. It seems to me what occurred would have been beyond the purview of a prank or a joke which would normally be harmless. The court must decide the case on the evidence before it, and here there is simply no evidence of any potential mischief of such magnitude. The evidence is that when asked for an explanation as to why he did not attend court as required, the Volume 9 Issue 2 March/April 2009 accused produced a false document which would absolve him. In the absence of any other evidence a conclusion is inescapable in my opinion as to his culpability. [paras. 7-11] Complete case available at www.provincialcourt.bc.ca DID YOU KNOW... ...that under TITLE 18, PART I, CHAPTER 44, § 931 of the United States Code there is a federal prohibition on the purchase, ownership, or possession of body armor by violent felons. The section reads: § 931 (a) In General.— Except as provided in subsection (b), it shall be unlawful for a person to purchase, own, or possess body armor, if that person has been convicted of a felony that is— (1) a crime of violence (as defined in section 16); or (2) an offense under State law that would constitute a crime of violence under paragraph (1) if it occurred within the special maritime and territorial jurisdiction of the United States. (b) Affirmative Defense.— (1) In general.— It shall be an affirmative defense under this section that— (A) the defendant obtained prior written certification from his or her employer that the defendant’s purchase, use, or possession of body armor was necessary for the safe performance of lawful business activity; and (B) the use and possession by the defendant were limited to the course of such performance. (2) Employer.— In this subsection, the term “employer” means any other individual employed by the defendant’s business that supervises defendant’s activity. If that defendant has no supervisor, prior written certification is acceptable from any other employee of the business. § 16 of CHAPTER 1 defines a crime of violence as meaning “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. As for punishment, § 924(7) of CHAPTER 44 provides that “Whoever knowingly violates section 931 shall be fined under this title, imprisoned not more than 3 years, or both.” www.10-8.ca 9 INFERENCE OF POSSESSION REASONABLE & COMMONSENSICAL R. v. Chu, 2009 ONCA 121 The Ontario Court of Appeal upheld an inference of possessing marihuana plants — knowledge and control — in the absence of evidence from the accused. The inference was based on the following: (1) the house was being used only to cultivate marijuana and it was virtually uninhabitable because of the temperature and smell; (2) the accused was in the house for at least thirteen minutes; and (3) the accused had a key to the front door. The operation in the house was of a size and nature that required human “attention” and care. This was a common sense observation by the judge and the accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca LOST NIGHTSTICK DID NOT RENDER TRIAL UNFAIR R. v. Serre, 2009 ONCA 108 A man, who had a nightstick in his hand, broke into the home of a woman who was sleeping. The man said he was looking for someone and he left, saying he would come back. The woman looked outside the window, saw the intruder get into a vehicle occupied by two others, and then called police. A couple of hours later the vehicle returned and the woman immediately called 911. When the police attended, they found three people at the car including the accused, who was sitting in the front passenger seat. They also found a black nightstick poking out from underneath the front passenger seat. The nightstick was entered as evidence at the preliminary inquiry and the victim was shown a nightstick that was the same as the one the intruder had held during the first confrontation. She described it as about 12 inches long and black. After the preliminary inquiry, however, the nightstick went missing. At trial, the officer described the missing nightstick as black and about a foot-and-a-half long, with etching by the grip. The accused was convicted 10 of break and enter of a dwelling house with intent to commit an indictable offence, uttering a threat to cause bodily harm and possession of a weapon for a purpose dangerous to the public peace and sentenced to four years in prison. The accused appealed his convictions to the Ontario Court of Appeal arguing, among other grounds, that his defence was prejudiced and he was denied a fair trial because the alleged weapon, a nightstick, was lost and unavailable at trial. He submitted that if the nightstick had not been lost he would have been able to show that the complainant’s description of the nightstick was different from its actual appearance. The Ontario Court of Appeal rejected the accused’s argument. “The nightstick was available at the preliminary inquiry and defence counsel asked no questions of the complainant about it at that time,” said the Court. “At the trial, the police officer who found the nightstick described it and the discrepancy between that description and the description given by the complainant was before the trial judge. We can see no way in which the [accused’s] case was compromised because the actual nightstick was not available at the trial.” The accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca ‘SEXUAL PURPOSE’ OF CHILD PHOTOS DETERMINED OBJECTIVELY R. v. Grant, 2009 BCCA 72 The accused was convicted in British Columbia Supreme Court on one count of making child pornography and one count of possessing child pornography. A cleaning person had found eight Polaroid photographs hidden in the floor vent of an apartment where the accused had lived. The photographs depicted the anal and vaginal areas of a four year old girl who was completely naked in six of the eight photographs. The photographs were all taken at close range and the girl was posed in positions designed to maximize exposure of her private parts. The police also took a tape recorded statement from the accused where he admitted taking the photographs, did not deny hiding them, and told police what he had done was wrong. www.10-8.ca Volume 9 Issue 2 March/April 2009 The accused appealed his conviction to the British Columbia Court of Appeal arguing, in part, that the evidence fell short of establishing that the photographs were taken for a “sexual purpose”, within the meaning of s. 163.1 of the Criminal Code. In his view, his state of mind could not be inferred from the photographs, which were equally consistent with the “cute” behaviour of a child “playing freely”. DELAY IN TAKING BREATH SAMPLES EXPLAINED R. v. Burbidge, 2008 ONCA 765 After being stopped for speeding the accused failed an approved screening device (ASD) and he was read his rights to counsel, cautioned about his right to remain silent, and a breathalyzer demand was given. Chief Justice Finch, delivering the decision of the He said he wished to speak to duty counsel and was unanimous court, rejected the accused’s argument. transported to the police station Section 163.1(1)(a)(ii) of the where he was afforded his right Criminal Code defines “It is settled law that whether the materials have as their “dominant characteristic” a to counsel in private. He provided “child pornography” as “a two breath samples, both more “sexual purpose” is to be determined photographic, film, video or than double the legal limit. other visual representation, objectively. The question is whether a However, there was another whether or not it was made reasonable viewer, looking at the pictures driver at the station who was also by electronic or mechanical objectively and in context, would see their required to provide breath means … the dominant dominant characteristic as the depiction for samples. This required the characteristic of which is accused to be taken back and the depiction, for a sexual a sexual purpose of a sexual organ or the anal region of a person under the age of forth to cells between the taking purpose, of a sexual organ or of each sample. The accused was eighteen.” the anal region of a person convicted at trial in the Ontario under the age of eighteen Superior Court of Justice for years.” over 80mg%, sentenced to 3 ½ years in jail, and given a lifetime driving prohibition. He had thirteen prior “It is settled law that whether the materials have as drinking and driving related offences on his record. their ‘dominant characteristic’ a ‘sexual purpose’ is to be determined objectively,” said Chief Justice Finch. “The question is whether a reasonable viewer, looking at the pictures objectively and in context, would see their dominant characteristic as the depiction for a sexual purpose of a sexual organ or the anal region of a person under the age of eighteen.” He continued: The accused then appealed to the Ontario Court of Appeal arguing the 37 minute time interval between speaking to his lawyer and the taking of the second breath sample rendered the sample not being taken as soon as practicable. In my opinion, the evidence in this case amply demonstrates that, viewed objectively and in context, the photographs’ dominant characteristic is the depiction of their subject matter for a sexual purpose. The photographs themselves, together with the fact they were hidden, and the [accused’s] admission that he had done wrong, can lead only to the conclusion that there was no innocent purpose in their taking. ... [para. 16] Noting that the Criminal Code requires at least a 15 minute interval between the first and second breath samples, the Court of Appeal recognized that the phrase “as soon as practicable” means the tests must be taken within a reasonable prompt time under the circumstances. In this case, the accused had to alternate his turn on the breathalyzer with the other driver and his samples were taken as soon as practicable. The accused’s appeal was dismissed. The accused’s appeal was dismissed. Complete case available at www.ontariocourts.ca Complete case available at www.courts.gov.bc.ca Note-able Quote Note-able Quote "To see what is right, and not to do it, is want of courage or of principle." - Lisa Alther Volume 9 Issue 2 March/April 2009 "A man will fight harder for his interests than for his rights." - Napoleon Bonaparte www.10-8.ca 11 SAFETY SEARCH JUSTIFIED IN CIRCUMSTANCES OF WARRANT EXECUTION R. v. Osanyinlusi, 2008 ONCA 805 Police attended a house to execute a search warrant for evidence related to a series of robberies. Under the warrant police were seeking several items, including articles of clothing and things used by the person suspected of the robbery. As police were about to enter or were entering the house, the accused, who was not the robbery suspect but who rented a room at the home, attempted to obstruct their entry. He was apprehended by the officers and handcuffed. An obvious bulge was noted in one of the accused’s front pants pockets and a search revealed a cell phone and some crack cocaine in individually wrapped pieces. In another pocket he had a roll of cash. Officers also found a small unlocked safe sitting in plain view on a chair in an upstairs bedroom containing a set of scales, two clear baggies with crack cocaine, a set of car keys that fit a motor vehicle belonging to the accused in the driveway, and an Ohio driver’s licence in the accused’s name. At trial in the Ontario Superior Court of Justice the judge upheld the search warrant and found the search of the accused lawful. The trial judge stated: the accused in the execution of a search warrant. First, by immediately closing the door when informed of the search warrant, and secondly, by alerting others in the house to the police presence. This conduct understandably made the officer concerned about being able to safely execute the warrant. The situation required an immediate response. He handcuffed [the accused] to subdue him, and noticed a bulge in his right pocket. In the circumstances this reasonably alerted him to a possible risk of harm. [The officer] knew that several other officers were behind him entering, or about to enter, the house. Based on the information he received on the briefing he was aware of the probability of weapons such as knives or meat cleavers being in the house. At that point he did not know who else was in the house, but would have logically assumed the presence of others due to the accused calling out to inform them of the police presence. At that critical moment, and after noting the bulge, reaching into the pocket of the accused was a reasonably necessary interference with his privacy right in order to responsibly perform his police officer duty. Though searching pockets is in many circumstances considered an intrusive invasion, in these circumstances it was an intrusiveness that was necessary and minimal for the intended purpose of ensuring safety in the execution of the search warrant. Accordingly, I find there was a constellation of objectively discernable facts which give rise to articulable cause for [the officer] to detain [the It is a well-recognized principle that a search accused]. The search that followed was reasonably warrant generally authorizes the search of the necessary both on a subjective and on an objective property specified in the warrant. A search warrant view of all the circumstances. There was a perceived does not authorize the search of persons found on and objective risk to officer safety in the context the specified premises or property… The search of of the spontaneous and forceful conduct of [the [the accused’s] person, therefore, was a accused] in obstructing the officers in the lawful warrantless search. As such the Crown bears the execution of the search warrant. The search was onus of justifying the search of the accused and the brief and conducted in a reasonable seizure of items in his pockets. “[T]he officers who attended the … manner. [paras. 47-49, see R. v. The Crown is required to demonstrate on the balance of residence were lawfully present in the Osanyinlusi, 2006 CanLII 21070 (ON probabilities that the search execution of a valid search warrant, S.C.) for the trial judge’s comments] and seizure were authorized which authorized the search of the The accused was convicted by a jury by law, and carried out in a entire premises. They were further of possessing cocaine for the reasonable manner. [para. 37] entitled to detain and search the purpose of trafficking and was to two years [accused] at the entrance to the sentenced imprisonment to be served in the In the case at bar [the premises as a person who appeared community. officer] was forcefully and to be obstructing the execution of the persistently obstructed by warrant.” And further: 12 www.10-8.ca Volume 9 Issue 2 March/April 2009 The accused appealed arguing, among other grounds, that the trial erred in admitting evidence obtained by a s.8 Charter breach because the warrant was invalid. The Ontario Court of Appeal upheld the warrant, thus the accused’s detention and search were lawful. The Court of Appeal stated: arrested because he was driving a black BMW with a license plate matching a vehicle believed to be involved in the shooting and there was a bullet hole in its rear window. The accused was subsequently convicted of two firearms offences arising out of the shooting. It follows that the officers who attended the … residence were lawfully present in the execution of a valid search warrant, which authorized the search of the entire premises. They were further entitled to detain and search the [accused] at the entrance to the premises as a person who appeared to be obstructing the execution of the warrant…. [para. 12] The accused appealed to the Alberta Court of Appeal suggesting, among other grounds, that the police did not have reasonable grounds to believe the driver of the BMW had committed an indictable (weapons) offence since they said they believed the BMW had also been shot at. And just because the police believed the BMW had been involved in the shooting, that potential involvement in a crime did not meet the required threshold of reasonable grounds to arrest the driver. The arrest, he contended, was therefore unlawful and the search for gun residue as an incident to arrest was illegal and thus unreasonable under s.8 of the Charter. The accused’s appeal was dismissed. Complete case available at www.ontariocourts.ca ARREST STANDARD DOES NOT REQUIRE PRIMA FACIE CASE FOR CONVICTION R. v. Nguyen, 2009 ABCA 38 The Court, however, rejected the accused’s argument. “In order to arrest without a warrant, a police officer must have reasonable and probable grounds to believe the suspect has committed an indictable offence,” said the Court. “The test has subjective and objective elements [and] police are not required to establish a prima facie case for conviction.” On this point the Court stated: Police were dispatched at about 3:00 p.m. to a firearms incident at a shopping mall. Shots had reportedly been fired and two vehicles occupied by younger Asian males, including a newer black BMW, were said to be involved. The BMW’s license plate number It is both subjectively and objectively reasonable matched that of the accused’s. About twenty minutes and probable that the young Asian male driver of a later police conducted a high risk vehicle stop on the vehicle with a bullet hole in the back windshield, accused’s BMW. Once he exited his vehicle, he was which has a license plate and characteristics handcuffed, placed in a police car, advised he was matching those of a vehicle involved in a under arrest for weapons 20 minutes prior, committed a “In order to arrest without a warrant, a shooting offences and was weapons offence. That the BMW was police officer must have reasonable likely shot at does not in anyway diminish Chartered and cautioned. The accused’s person and and probable grounds to believe the the probability that someone in the BMW clothing were swabbed for suspect has committed an indictable was also a shooter, given the information evidence of gunshot offence. ... Police are not required to available to the police. It must be remembered that eye-witnesses to the residue, as was his BMW establish a prima facie case for shooting indicated that the shooter and a pair of fingerless conviction, only reasonable and associated with the BMW fired multiple gloves found in the trunk. shots at those associated with the probable grounds for the arrest.” Gunshot residue was found Honda. [para. 33] on the accused’s right hand Since the accused’s arrest was lawful the trial judge and right side of his face, on the gloves, on both the properly found that the search for gun residue was interior and exterior of the driver’s side door, as well properly conducted as incident to arrest. as on the driver’s seat. At trial in the Alberta Court of Queen’s Bench police testified the vehicle was stopped and the accused was Volume 9 Issue 2 March/April 2009 Complete case available at www.albertacourts.ab.ca www.10-8.ca 13 JUDGE NOT REQUIRED TO ENDORSE DYNAMIC CDSA SEARCH R. v. Perry & Richard, 2009 NBCA 12 The Crown appealed to the New Brunswick Court of Appeal arguing the trial judge erred in holding that a no knock endorsement by a judge was required and in excluding relevant evidence offered for the purpose of explaining the need for a no knock entry in this case. The police received reliable information Before rendering its opinion, the Appeal Court made that the accused was trafficking in it clear that this was a search for items that could be cocaine and was in unlawful possession of easily destroyed or hidden and one of the items, the a handgun. They conducted surveillance handgun, could create a on him and swore an information “It does not take much imagination to think of potential danger to police. to obtain a search warrant under situations where circumstances change after This was not a warrantless the Controlled Drugs and Substances Act (CDSA) to the issuance of a warrant, which either residential search, did not search his home. The eliminate the need for a "no knock" entry or involve a search for a marihuana grow operation, information to obtain read, in require one which was previously thought nor was it a search part, that a rapid and effective unnecessary. Following the issuance of the warrant to which special entry of the residence without warrant, police officers and judges should not rules applied, such as a announcement was needed to be required to meet again to address the lawyers office or media secure the evidence and for officer safety, but an appropriate mode of entry. To impose such a outlet. Rather, this was endorsement for the no-knock requirement upon police and the judiciary the type of search that was not specifically requested would result in the micro-management of obligated compliance with statutory requirements nor obtained. Police met to plan police investigations.” and proper announcement the warrant’s execution and a prior to entry, except in exigent circumstances. battering ram was used to force entry. Officers “Included within the definition of exigent entered, guns drawn, and yelled “police.” The accuseds circumstances are the need to prevent the Perry and Richard, the only two occupants of the destruction of evidence and considerations of officer house, were arrested. They both were charged with safety and the safety of persons within the several drug, firearm, and other offences. premises,” said Justice Bell, authoring the unanimous At trial in New Brunswick Provincial Court the judge judgment. “If evidence is led that an announcement by ruled the evidence was obtained in the course of an the police, prior to entry, might result in the unreasonable search, contrary to s.8 of the Charter. destruction of evidence, risks to officer safety, or In her view, the "no knock" entry was unreasonable risk to the safety of someone on the premises, then because the issuing judge had not endorsed the no notice is necessary. The reasonableness of the warrant to authorize such an entry. She concluded manner in which the search is conducted can only be that in the absence of exigent circumstances a measured by an assessment of the circumstances "dynamic" or "no knock" entry within the knowledge of “Included within the definition of exigent the police prior to, and must be endorsed by the issuing circumstances are the need to prevent the during the course of the judge before one is permitted. As well, the trial judge refused to destruction of evidence and considerations of search.” allow the Crown to lead evidence, officer safety and the safety of persons within The Court concluded other than what was explained in the premises. If evidence is led that an that prior authorization the information to obtain, to announcement by the police, prior to entry, (endorsement) was not justify the "no knock" entry. The might result in the destruction of evidence, required for a dynamic evidence was excluded the risks to officer safety, or risk to the safety of or "no knock" search. evidence under s.24(2) of the Justice Bell stated: Charter and the Perry and someone on the premises, then no notice is Richard were acquitted. necessary” 14 www.10-8.ca Volume 9 Issue 2 March/April 2009 [T]here is no legislative provision which requires or CDSA. The common law continues to occupy the field permits such an endorsement. No doubt for good in these situations. And the reasonableness of a "no reason. It does not take much imagination to think knock" entry, like the reasonableness of the search of situations where circumstances change after the itself, is subject to scrutiny in the “manner” the issuance of a warrant, which either eliminate the search was carried out. “This reality obviates the need for a "no knock" entry or require one which need for prior judicial authorization for a no knock was previously thought unnecessary. Following the entry,” said Justice Bell. “Trial judges are required issuance of the warrant, police officers and judges to assess the allegation of unreasonableness, should not be required to meet again to address the appropriate mode of entry. To impose such a including the method of entry, based upon all of the requirement upon police and the judiciary would evidence available. In determining the result in the micro-management of police reasonableness of a search, trial investigations. The development “I can find no authority for the judges are not limited to the of the law should not sanction the information available to the management of police operations proposition, in either the statute law issuing judge but must consider all by the judiciary except where or at common law, that an issuing evidence available to the police at necessary in the course of judge has the authority to determine, the relevant time(s).” fulfilling judicial functions. I do not consider the pre- a priori, whether a "no knock" entry In this case the trial judge was determination of the method by will be permitted in cases involving a unable to fully assess the which police are to exercise their reasonableness of the "no knock" search with warrant of a suspect's discretion and respond to search because she limited the premises or residence.” changing circumstances in police testimony on the voir dire. executing the search of a In allowing the appeal and ordering a new trial Justice suspect's premises to constitute part of the Bell stated: judicial function. [at para. 6] I am of the opinion trial judges are required to consider all of the circumstances surrounding the search in order to determine whether exigent I can find no authority for the proposition, in either circumstances exist for a "no knock" entry and the statute law or at common law, that an issuing whether the search (including the entry) was judge has the authority to determine, a priori, conducted in an unreasonable manner. Police are to whether a "no knock" entry will be permitted in be given full opportunity to explain their actions. In cases involving a search with warrant of a suspect's assessing whether exigent circumstances exist to premises or residence. In the present case, justify a "no-knock" entry, the Court must not limit information on oath was laid before a judge setting the testimony of police officers, or anyone else for out the suspect's alleged implication in serious that matter, to the evidence contained in the criminal conduct. Such alleged criminal conduct, information to obtain. The whole of the supported by oath, was not a feature in any of the circumstances within the knowledge of the police media and law firm cases to which reference has must be available to the trial judge. I am of the view been made. The alleged criminal conduct involved the trial judge erred in limiting the police officer's possession of contraband that could be easily testimony. As a result of that error, she could not disposed of and one item, a handgun, that presented make an informed decision on whether or not a potential danger to police officers. [para. 17] exigent circumstances existed, The Court ruled that, unlike the “Police are to be given full opportunity and furthermore, whether the accused had succeeded in meeting provisions Parliament enacted to explain their actions. In assessing the onus upon them to following the Supreme Court’s whether exigent circumstances exist to demonstrate that the search was Feeney decision now requiring justify a "no-knock" entry, the Court conducted in an unreasonable prior judicial authorization for manner. [para. 28] And further: unannounced entries to arrest (s.529.4 Criminal Code), there is no similar requirement in relation to the execution of a search warrant under the Volume 9 Issue 2 March/April 2009 must not limit the testimony of police officers, or anyone else for that matter, to the evidence contained in the information to obtain.” www.10-8.ca Complete case available at www.canlii.org 15 JJP OBLIGED TO REFUSE TELEWARRANT IF IN-PERSON APPLICATION CAN BE MADE R. v. Nguyen et al., 2009 BCCA 89 The accuseds then appealed to the British Columbia Court of Appeal arguing, among other grounds, that the telewarrant should not have been issued because the officer did not enquire if he could appear in person before the JJP. As a result, the accuseds submitted their s.8 Charter rights were breached and the evidence should have been excluded under s.24(2). Police investigated a tip of a marihuana grow operation at a residence with the Justice Kirkpatrick, delivering the judgment of the aim of obtaining a search warrant. During unanimous British Columbia Court of Appeal, the investigation a B.C. Hydro security disagreed with the accuseds: officer advised the police about theft of electricity at the same address. On a Sunday, an information to In my opinion, there is no merit in the [accuseds’] obtain a search warrant was sworn by way of argument that the trial judge erred in this respect. telecommunications under s.487.1 of the Criminal Since the onus is on the person bringing a Charter challenge to prove a violation of his rights Code. In the grounds portion “It is reasonable to infer from the on a balance of probabilities, the onus was of the information the evidence that the Centre would on the [accuseds] to demonstrate that the officer swore he believed the Provincial Courthouse advise a constable if a justice of standard of impracticability was not met. I am not persuaded that the trial judge was closed and that he was the peace was available. erred in failing to set aside the unable to access the Furthermore, the Judicial Justice of telewarrant on the basis that [the police services of a Provincial officer] did not ask the Centre if a Judicial the Peace who signed the Court Judge or Judicial of the Peace was available. The telewarrant would be aware of the Justice Justice of the Peace. [accuseds] tendered no evidence to statutory preconditions of demonstrate that a Judicial Justice of the Section 487.1 allows search warrants to be issued by telewarrants and would be obliged Peace was available to receive in-person telecommunication where it to refuse the application if a justice applications. The trial judge accepted the police officer’s evidence that he called the is “impracticable” for the of the peace had in fact been Centre and was told to fax the informant to appear in available.” materials. It is reasonable to infer from person before a Provincial the evidence that the Centre would advise Court Judge or Judicial Justice of the Peace. A a constable if a justice of the peace was available. search warrant was granted and police executed it, Furthermore, the Judicial Justice of the Peace who finding 426 plants in various stages of growth. The signed the telewarrant would be aware of the statutory preconditions of telewarrants and would accuseds were charged with production of marijuana, be obliged to refuse the application if a justice of possession for the purpose of trafficking marijuana, the peace had in fact been available. [references and theft of electricity. omitted, para. 18] During a voir dire in British Columbia Provincial Court the judge had to determine, among other things, whether the search warrant was valid. The officer testified he knew the courthouse was closed and explained that when he telephoned the Judicial Justice of the Peace Centre (“JJP Centre”) he was told to send his request by fax. The trial judge concluded that the officer acted reasonably in the circumstances. The warrant application was made on a Sunday and he was told by the JJP Centre to fax the materials in; it was reasonable for the officer to follow this procedure. The trial judge refused to quash the warrant and convictions were entered on all charges. 18 Complete case available at www.courts.gov.bc.ca Note-able Quotes "When I found the skull in the woods, the first thing I did was call the police. But then I got curious about it. I picked it up, and started wondering who this person was, and why he had deer horns." - Jack Handy (Deep Thoughts) www.10-8.ca www.10-8.ca Volume 9 Issue 2 March/April 2009 911 CALL ADMISSIBLE AS EVIDENCE R. v. Liang, 2009 ABCA 2 The complainant and her current boyfriend were at home when they heard noises outside a basement window. The complainant went upstairs to investigate and saw someone running from the window while her current boyfriend hid in the bathroom. The complainant phoned 911 and asked for the police to come. On the 911 tape the caller gave her name and address and said she was “having problems with her ex”, who she identified as the accused. The caller said the accused was knocking at the door and screaming and banging noises were heard on the tape. The complainant saw the intruder, thought it was her ex-boyfriend, the accused, but was not certain of this. From the bathroom, her current boyfriend heard screaming and the door being kicked. The attending police officer saw footprints on a door to the home and stab marks on the bathroom door. At trial in the Alberta Court of Queen’s Bench a voir dire was held to determine the admissibility of a tape recording of the 911 call. The complainant could not confirm that it was her voice on the tape nor did the Crown call a witness to authenticate the tape or to confirm when it was recorded. The trial judge found that the circumstances of the call were not conducive to fabrication or concoction and held it was the complainant who made the call and it was made on the night in question. The trial judge ruled that she was unable to accept the unsworn tape “in favour of sworn testimony at trial...to the extent that there may be a conflict” but that she had to look at all of the evidence, and the tape was a piece of evidence that she could consider (together with all of the evidence). Relying primarily on the complainant’s testimony at trial, which was completely consistent with the statements and sounds on the 911 tape, the trial judge was satisfied on the totality of the evidence that it was the accused who broke into the home. He was convicted of being unlawfully in a dwelling house with intent to commit an indictable offence contrary to s.349(1) of the Criminal Code and mischief. Volume 9 Issue 2 March/April 2009 The accused appealed to the Alberta Court of Appeal arguing, among other grounds, that the trial judge erred in admitting the 911 tape without evidence of the substantial accuracy of it. He contended that the tape should not have been admitted without evidence from the maker of the tape as to its accuracy. Justice Costigan, delivering the opinion of the Court of Appeal, rejected the accused’s submission. “It is not necessary to establish either the integrity of a tape or a speaker’s identity before a tape can be admitted,” he said. “A video tape is admissible once it is established the tape was not altered or changed and it depicts the scene of the crime.” Here, the contents of the tape were consistent with the complainant’s testimony at trial as well as that of her current boyfriend and the investigating police officer. As well, the trial judge found that the complainant was the caller on the tape and it was open to her to conclude on all of the evidence that the tape was admissible. The accused’s appeal was dismissed. Complete case available at www.albertacourts.ab.ca INTERACTION NON-COERCIVE: CHARTER RIGHTS RESPECTED R. v. Jeanes, 2009 ONCA 96 Following a series of break and enters an off-duty police officer observed a distinctive boot tread on the accused’s shoe that linked him to the break ins. In a friendly and conversational tone the officer said to the accused, "I would like to see the bottom of your boot". At trial in the Ontario Superior Court of Justice the police officer testified that he had not arrested or restrained the accused and no evidence was offered to challenge the police officer's evidence or to support the contention that the accused had been subject to a physical or psychological restraint. The trial judge found that the police officer "calmly approached [the accused], identified himself by name as a police officer and asked if he could see the tread pattern. He did not order [the accused] to show it to him. [The accused] voluntarily complied not once but twice with this request." The accused’s appeal to the Ontario Court of Appeal submitting that his Charter rights were breached, however, was rejected. “On the evidence, it was open www.10-8.ca 19 to the trial judge to make these findings and to conclude that the [accused] had voluntarily complied with a non-coercive request and that he had not been subject to any significant physical or psychological restraint nor had there been any violation of his bodily integrity or reasonable expectation of privacy,” said the Court. “Those findings are fatal to the [accused’s] contention that the rights guaranteed by ss.8, 9 and 10 of the Charter were violated.” The accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca DUAL PURPOSE INCIDENTAL SEARCH LAWFUL SO LONG AS ONE PURPOSE REASONABLE R. v. Chubak, 2009 ABCA 8 door was found with crack cocaine in it. Police continued their search and a white envelope containing more crack cocaine and a digital scale was found behind a loose ash tray and stereo compartment. The accused was subsequently charged with possessing a controlled substance, unlawfully possessing property, possessing a prohibited weapon x 2, and possessing a weapon for a purpose dangerous to the public peace. At trial in Alberta Provincial Court the officer testified that, after finding the large sum of money and the ringing cell phones, he determined that they may be dealing with “individuals that are dealing drugs and are arming themselves with weapons.” As a result he expanded his search of the vehicle. The trial judge concluded that the search of the accused’s person was lawful as incident to the arrests for possession of a prohibited weapon and possession of a weapon dangerous to the public peace, and for security purposes. The police had been called in relation to the stabbing so it was reasonable for them to also be concerned about potential weapons in the vehicle. Thus, the search for further weapons in the vehicle was also lawful as an incident to arrest. However, the trial judge ruled that opening the small blue container was a general search, which was not sanctioned by law and breached the accused’s s.8 Charter right. The drug evidence was excluded. The Crown offered no further evidence and suggested all charges be dismissed. Hence, the accused was acquitted. Two officers responded to an area where a young man had been beaten and stabbed and saw a group of young people gathered in the vicinity. As the patrol car turned around, a white Honda Prelude, driven by the accused, pulled up to the group. The officers parked their vehicle near the group facing the Prelude, exited the vehicle, and approached. The accused was seen to grab something that was black with an orange top from the backseat of the Prelude. An officer then approached the Prelude and observed the item, a large can of bear spray, between the accused’s legs. He was attempting to remove it from The Crown appealed the accused’s acquittals to the its black case. The accused was removed from the Alberta Court of Appeal which was tasked with vehicle and arrested for possession of a prohibited determining whether the police breached s.8 of the weapon while the passenger was arrested for Charter. Section 8, possession of a weapon for a which provides that purpose dangerous to the “When police search a person as part of a search “everyone has the right public peace. incident to arrest, they are not precluded from to be secure against The accused was searched looking at, and taking into their control and unreasonable search and and police found a wallet custody, anything they find on the arrested seizure,” will not be containing $1,090 as well as a person, so long as the search is for a reason violated if a search is folding knife. The accused’s by a related to the arrest. ... The same principles apply authorized vehicle was then searched reasonable law and is for other weapons and a to searches conducted incident to arrest that are not of the arrested person, but of the arrested carried out in a collapsible baton and another reasonable manner. And person’s immediate surroundings, including the although a warrantless knife were found. A number of ringing cell phones were automobile that the arrested person was extracted search is prima facie located and a small blue from at the time of the arrest.” unreasonable, a search container on the driver’s side 20 www.10-8.ca Volume 9 Issue 2 March/April 2009 incidental to arrest at common law qualifies as an exception to the rule, with some limitations. There are three justifiable reasons for conducting a search incidental to arrest: ensuring police and public safety; protecting evidence from destruction; and discovery of evidence to be used at trial. In this case the accused conceded that the arrest was lawful and that the search for weapons incidental to arrest was also lawful, but complained that the search exceeded the scope of the common law once it expanded to include a search for drugs and involved the small blue container. In his view, once the search expanded to include a search for drugs, it no longer qualified as a lawful search incidental to arrest, violating his s.8 Charter right against unreasonable search and seizure. The Crown, on the other hand, submitted that the officers were not restricted to searching for weapons but were entitled to search for anything that would explain the accused’s possession of bear spray, such as evidence of a drug operation. evidence as to the officer’s subjective belief that it could not have possibly contained evidence in support of the weapons charge. “Therefore, the entire fruit of the constables’ dual purpose search in this case is admissible, even in the absence of [the officer] articulating a subjective reason that would justify the search,” said Justice Ritter. He continued: Moreover, what was being searched was the car, as part of the immediate surroundings of an arrested person. When police search a person as part of a search incident to arrest, they are not precluded from looking at, and taking into their control and custody, anything they find on the arrested person, so long as the search is for a reason related to the arrest. For example, police may find a piece of paper on the arrested person. That piece of paper may be totally innocuous, or it may disclose that the arrested person just purchased a knife or firearm which has not yet surfaced in the search. It may also disclose that the arrested person was involved in a crime unrelated to the search. If it does, and even if the police were beginning to suspect that the arrested person was involved in such a crime, the piece of paper is admissible in evidence as a fruit of a search incident to arrest. In determining whether a search is truly incidental to an arrest a subjective and objective analysis is required. Subjectively the officer must have one of the purposes for a valid search incident to arrest in The same principles apply to searches conducted mind when the search is conducted. And objectively incident to arrest that are not of the arrested person, but of the arrested person’s the officer’s belief that this purpose “When persons are lawfully immediate surroundings, including the will be served by the search must be reasonable. “Therefore, in order for arrested, their expectation of automobile that the arrested person was extracted from at the time of the search in this case to be lawful, privacy is reduced so that a the arrest. This is particularly the the officers must have been search of their immediate case when weapons have already been searching for purposes of safety, to found as part of that search. surroundings conducted preserve evidence, or to find contemporaneously with the Given the circumstances in this case, evidence to support the arresting charge,” said Justice Ritter for the arrest is to be expected, so long in combination with [the officer’s] majority. “If their search was for as the search has a purpose evidence, to find that the subjective reasons for searching changed in any one of those reasons, it must have related to the arrest. subjective tangible way over the course of the also been objectively reasonable.” element.” constables’ search would impose a And a search will still be lawful if conceptual and temporal disconnect “searching officers … subjectively have more than one that did not exist. The law must not become so reason for the search, so long as one of the reasons complex that it prevents police officers from administering their duties. When persons are is objectively justified as incidental to arrest, … the lawfully arrested, their expectation of privacy is entirety of the search can be connected to that reduced so that a search of their immediate reason.” In this case the officer said police were looking for weapons and drugs after discovering the money and cell phones. He testified that he believed the blue container did not contain a weapon, but there was no Volume 9 Issue 2 March/April 2009 surroundings conducted contemporaneously with the arrest is to be expected, so long as the search has a purpose related to the arrest. Here, that purpose existed, both subjectively and objectively. That the search included the small blue container does not www.10-8.ca 21 negate its legitimacy. [paras. 1921] The majority also recognized that pretextual searches will not meet the requisite subjective or the objective elements of the test. But this search was not based on pretext. “The circumstances of the arrest give credence to concerns regarding weapons and officer safety,” said Justice Ritter. “This was not a traffic stop that cloaked the true motivation for the search”: The trial judge appears to have recognized that both a subjective and objective basis for a search was required. However, he failed to apply the law that says a dual purpose search meets the subjective part of the test, so long as one of the purposes - here the instigating and ongoing purpose - meets the subjective element. Had he done so, he would have found the search to be lawful and would have admitted the fruit of that search. [para. 23] The Crown’s appeal was allowed and a new trial was ordered on the controlled substance charges and unlawful possession of property. A Different View Justice Berger disagreed with the majority. In his view, “the dual purpose foundation relied upon is … an inadequate basis upon which to render lawful the warrantless search for drugs in the small blue candy container” and he did not agree that “a lawful search incidental to arrest invariably immunizes a temporally concurrent separate and distinct search carried out for a different purpose.” Nothing about the blue container suggested “anything weapon like.” The search had been expanded to a drug search with a deliberate and precise purpose in mind unrelated to the search for weapons incidental to arrest. Justice Berger stated: If an officer’s sole purpose is to search for weapons incidental to arrest (including a search of the arrested person’s immediate surroundings) and s/he comes upon drugs, the contraband is not rendered inadmissible at a subsequent trial on a charge of possession or trafficking. But if the officer embarks upon a search for drugs unrelated to the reason for the arrest, this second separate and distinct purpose will not serve to justify the warrantless search. In the case at bar, the search of the small 22 blue candy container cannot be said to have served the officer’s purpose in searching for weapons nor, given his testimony, would it be reasonable for him to entertain such a belief. He opened the container to search for drugs without any reasonable prospect of securing evidence of the offence for which the accused had been arrested. At that point, the search for weapons had been suspended, albeit temporarily. It follows that an infringement of s. 8 of the Charter, in my opinion, is made out. ……… In the instant case, there is no suggestion whatsoever in the evidence that the police could not effectively and safely apply the law by seeking a telewarrant to search the vehicle for drugs. [paras. 32-34] “[A] dual purpose search meets the subjective part of the test, so long as one of the purposes here the instigating and ongoing purpose - meets the subjective element.” However, Justice Berger would admit the evidence under s.24(2). The drugs found in the vehicle were real and non-conscriptive and admissibility would not impact trial fairness. There is a lesser expectation of privacy in a vehicle than in a home or office and the search was not especially obtrusive. As well, “the police were dealing with a potentially volatile situation while investigating a serious crime of violence in the presence of a large group of individuals in the early morning hours. Furthermore, the accused “was armed with bear spray and it was necessary for the police to respond immediately without much opportunity to reflect upon the legality of the search.” And finally, the evidence was crucial to the Crown’s case. In holding that the administration of justice would not be brought into disrepute, Justice Berger said: [T]he search for firearms had been suspended, albeit temporarily, when the officer came upon the blue container. In my view, the search for weapons was renewed immediately after the contraband was discovered in that container. The additional contraband later found incidental to that resumed search, in my opinion, was the product of a lawful search incidental to arrest. After all, one could reasonably anticipate that the search for weapons would have extended to a search of the ashtray and stereo compartment whether or not drugs had been discovered in the blue container. [para. 40] Having found the evidence admissible, Justice Berger agreed that a new trial should be ordered Complete case available at www.albertacourts.ab.ca www.10-8.ca Volume 9 Issue 2 March/April 2009 Volume 9 Issue 2 March/April 2009 www.10-8.ca 23 24 www.10-8.ca Volume 9 Issue 2 March/April 2009 had been mistaken for him in the past when they were all at school. The accused, however, did not testify. His mother’s evidence did not sufficiently undermine the officer’s on scene identification, which had been reinforced or confirmed by the photograph. And R. v. Bob, 2008 BCCA 485 although he acknowledged the need to be cautious On the same day a red mountain bike was about in-court identification evidence, the judge stolen from a residence a police officer observed that the officer knew the accused prior to responding to an unrelated call saw a the offence and had “very substantial prior dealings” man on a red bicycle. As the officer was with him. The officer not only recognized the accused going to approach the man to speak with him he was as the person with the bicycle, but also in the about “90 to 95 percent sure” it courtroom and from prior was the accused, who was wanted “There is a significant difference between dealings. The trial judge was on an outstanding warrant. The the officer’s cases in which a witness is asked to satisfied officer said he was 10 to 15 feet identification was reliable and identify a stranger never seen by him offered proof beyond a from the man when he first saw him, and had him in view for five before the offence, and cases in which a reasonable doubt that that to ten seconds before the man witness recognizes a person previously person on the bicycle was the began to ride away on the bicycle. known to her. While caution must still be accused. The accused was The officer yelled for him to taken to ensure that the evidence is convicted of possessing stolen stop but the man kept riding, sufficient to prove identity, recognition property under $5,000. followed by the officer in his evidence is generally considered to be The accused then appealed to police car. The man eventually dropped the bike and fled on more reliable and to carry more weight the British Columbia Court of Appeal based on the frailties of than identification evidence.” foot, but the officer could not eyewitness identification. He catch him. The officer was able submitted the trial judge misapprehended the to give a limited description of the man. He had officer’s evidence in his identification of the accused pronounced lips and cheek bones and was wearing a riding the bicycle. He also argued the judge failed to baseball cap, sunglasses, a hooded top with the hood apprehend the defective nature of the evidence in down, and dark pants. The bicycle was seized and the confirming identification by viewing a single officer returned to the police station where he looked photograph of him and incorrectly placed too much at a police photo of the accused on the computer to weight on the in-court identification. confirm that the man he saw on the bicycle was indeed SINGLE PHOTO VIEWING BY OFFICER OK IN RECOGNITION CASE the accused. The photo made up his mind and he was at that point “completely satisfied” that it was the accused on the bicycle. At trial in British Columbia Provincial Court the officer identified the accused as the man he saw on the bicycle. The officer said that he had dealt with the accused on four or five occasions when he had been arrested by other officers. The accused’s mother testified that the accused had three relatives who resembled him, and who Volume 9 Issue 2 March/April 2009 Justice Neilson, delivering the opinion for the Appeal Court, noted that this was not a case of identification but rather a case of recognition. “There is a significant difference between “[I]t is well known that an identification cases in which a witness is procedure that singles out the accused as a asked to identify a stranger never seen by him before the suspect is problematic. This is why an offence, and cases in which a identification arising from showing a witness witness recognizes a person one photograph, instead of conducting a previously known to her,” she proper photo lineup, is considered said. “While caution must still prejudicial and given little weight. However, be taken to ensure that the this concern does not arise to the same evidence is sufficient to prove extent when the person identified is already identity, recognition evidence is generally considered to be more known to the witness.” www.10-8.ca 25 reliable and to carry more weight than identification evidence.” She continued: Here, the trial judge was clearly aware of that distinction, and viewed this as a case of recognition. There was evidence to support that approach. There was no suggestion at the trial that [the officer] was not a credible witness. He had had previous dealings with [the accused]. He had an adequate chance to observe him with the bike, and he was 90-95 percent sure that he was the man he saw. He knew that there was a warrant out for [the accused’s], and was sure enough of his identity that he tried to stop him on that basis. He was able to describe [the accused’s] unique facial features, based on his previous dealings. [para. 14] In this case, the officer had not conclusively identified the accused when he saw him with the bike. Rather, this was a sequential identification, with a qualified positive identification at the scene and confirmed later by the photograph. In rejecting the view that the trial judge erred in accepting identification evidence that was based in part on viewing a single photograph, Justice Neilson stated: [I]t is well known that an identification procedure that singles out the accused as a suspect is problematic. This is why an identification arising from showing a witness one photograph, instead of conducting a proper photo lineup, is considered prejudicial and given little weight. However, this concern does not arise to the same extent when the person identified is already known to the witness. In this case, [the officer] had a high level of certainty that the man he saw was [the accused]. He only needed to look at [the accused’s] photo to raise this to absolute certainty. The danger of implicitly suggesting to a witness that the person in the photo was the suspect did not arise. There was no point in conducting a lineup. [paras. 16-17] And although identification of a stranger by a witness for the first time is given little weight at trial, the considerations are different when the accused is previously known to the witness. The trial judge was aware of the need to be cautious in relying on in-court identification and understood the identification was significantly reinforced by the officer’s previous dealings with the accused. The accused’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca 26 GUNS, BAIL & JAIL: BILL C-2 REVIEW With the recent gang and gun violence in the Metro Vancouver area some discussion has arisen over firearm offences and the applicable bail and jail consequences. Last year in May 2008, Bill C-2’s provisions came into effect. This Bill, cited as the “Tackling Violent Crime Act”, amended the Criminal Code in various areas including firearms offences. As a result of Bill C-2, several offences involving the use of restricted or prohibited firearms saw minimum penalties increased to five years (for a first offence) and seven years (for second and subsequent offences). An earlier offence, however, will not be taken into account for the purpose of second and subsequent offences if 10 years has elapsed between the day of earlier conviction and the new conviction. Bail hearings for offences involving firearms or other weapons now restrict the release of charged persons. Where a person is held and brought before a justice for one of the applicable firearms or weapons offences, the onus shifts to the accused to justify release and why they should not be detained. Generally speaking, judges must release an accused person at a bail hearing (on conditions if necessary) unless the prosecutor provides justification, or shows cause, why the accused should be kept in custody pending trial. A reverse onus provision, like the ones now related to specific firearms offences, shifts the burden from the prosecutor (to justify detention) to the accused (to justify release). In proving whether detention/release is justified, criteria a court will consider relate to court appearance, protection and safety of the public, and maintaining confidence in the administration of justice, including the strength of the Crown’s case, the gravity of the offence, the circumstances of the offence (such as whether a firearm was used) and , if a firearm was used, whether a minimum punishment of three years or more attaches (s.515(10) Criminal Code). Where the reverse onus provisions apply and an accused is released, the judge must include in the record a statement of the reasons for making the order. www.10-8.ca Volume 9 Issue 2 March/April 2009 FIREARMS OFFENCE SENTENCING GRID Section Offence Old Punishment New Punishment Bail - Reverse Onus? s.95 Possess loaded prohibited or restricted firearm or with readily accessible ammunition Dual offence By indictment • minimum 1 yr • maximum 10 yrs Summarily • maximum 1 yr Dual offence By indictment • first offence • minimum 3 yrs • maximum 10 yrs • second and subsequent offences • minimum 5 yrs • maximum 10 yrs Summarily • maximum 1 yr No-Reverse onus does not apply unless accused charged by indictment and was under a firearms/weapons prohibition order at the time. Trafficking in firearms, prohibited devices, ammunition, or prohibited ammunition. Possessing firearms, prohibited devices, ammunition, or prohibited ammunition for the purpose of trafficking. Unauthorized importation or exportation of a firearm, prohibited device, or prohibited ammunition. Strictly indictable offence By indictment • minimum 1 yr • maximum 10 yrs Strictly indictable offence • first offence • minimum 3 yrs • maximum 10 yrs • second and subsequent offences • minimum 5 yrs • maximum 10 yrs Yes-Reverse onus applies. Discharging a restricted or prohibited firearm with intent Strictly indictable offence By indictment • minimum 4 yrs • maximum life Strictly indictable offence • first offence • minimum 5 yrs • maximum 14 yrs • second and subsequent offences • minimum 7 yrs • maximum 10 yrs Yes-Reverse onus applies. Sexual assault with restricted or prohibited firearm Strictly indictable offence By indictment • minimum 4 yrs • maximum 14 yrs Strictly indictable offence • first offence • minimum 5 yrs • maximum 14 yrs • second and subsequent offences • minimum 7 yrs • maximum 10 yrs Yes-Reverse onus applies. Attempted murder with restricted or prohibited firearm Aggravated sexual assault with a restricted or prohibited firearm Kidnapping with a restricted or prohibited firearm Hostage taking with a restricted or prohibited firearm Robbery with a restricted or prohibited firearm Extortion using a restricted or prohibited firearm Strictly indictable offence By indictment • minimum 4 yrs • maximum life Strictly indictable offence • first offence • minimum 5 yrs • maximum life • second and subsequent offences • minimum 7 yrs • maximum life Yes-Reverse onus applies. s.99 s.100 s.103 s.244 s.272 s.239 s.273 s.279(1.1) s.279.1 s.344 s.346(1.1) Volume 9 Issue 2 March/April 2009 www.10-8.ca (s.515(6)(viii) C.C.) (s.515(6)(vi) C.C.) (s.515(6)(vii) C.C.) (s.515(6)(vii) C.C.) (s.515(6)(vii) C.C.) 27 SUPREME COURT HEARINGS RISE In its Bulletin of Proceedings: Special Edition, “Statistics 1998 to 2008”, the workload of the Supreme Court of Canada has been outlined. In 2008, the Supreme Court heard 82 appeals, up from 53 in 2007. Case Life Span Sixteen of the appeals heard in 2008 were as of right. This source of appeal includes cases where there is a dissent on a point of law in a provincial court of appeal. The remaining 66 cases had leave to appeal granted. This is where a three judge panel gives permission to the applicant for the appeal to be heard. Appeal Judgments The time it takes to render a judgment from the date of hearing is lower than the previous year. In 2008 it took 4.8 months for the Court to render a decision, down from 6.6 months in 2007. Overall, it takes an average of 16.9 months for the Court to render an opinion from the time an application for leave to hear a case is filed. This is 2.2 months shorter than it took in the preceding year (2007). Appeals Heard Of the 82 cases heard in 2008, British Columbia is once again the origin of the most appeals of any province at 20 (up from 13 last year), followed by Quebec (17), the Federal Court of Appeal (12), and Ontario (11). No appeals originated from the Northwest Territories, Nunavut, Prince Edward Island, or Newfoundland. 28 Of all the appeals heard in 2008, 54% were civil while the remaining 46% were criminal. Seven percent of those dealt with Charter criminal cases. There were 74 appeal judgments released in 2008, up from 58 in 2007. Five of the 74 decisions last year were delivered from the bench while 69 were delivered after being reserved. As well, 25 of the appeals were allowed while 19 were dismissed. A further 38 of the appeals heard were under reserve as of December 31, 2008. And the court was more unanimous than previous years. In 2008 76% of the judgments were unanimous. This is up from 62% unanimity in 2007. Source: www.scc-csc.gc.ca/stat/pdf/doc-eng.pdf www.10-8.ca Volume 9 Issue 2 March/April 2009 POLICE NEED NOT HOLD OFF AFTER DETAINEE EXERCISES RIGHT TO COUNSEL R. v. McCrimmon, 2008 BCCA 487 The accused was arrested at his home on a Saturday morning for sexual assault, administering a noxious substance, and a number of similar offences. He was advised of the reasons for his arrest and was informed of his right to retain and instruct counsel. He was told he could call any lawyer he wanted, that he had the right to contact a legal aid lawyer, and that there was a 24-hour legal aid telephone service available. The accused said that he wished to call a lawyer. he did not want to discuss them until he had spoken with his lawyer. However, he also said that he did not mind speaking with the officer. Ten minutes later, the accused again stated that he wished to speak with a lawyer before answering any further questions. His request to be taken back to his cell was declined and the investigator engaged him in further conversation. As the interview continued, the investigator attempted to persuade the accused to discuss the incidents under investigation. Several themes were repeated by the investigator, such as the police only know one side of the story and there is likely another side, and perceptions can change once people have an explanation for why someone has committed a crime. The officer interspersed his remarks with references to what the police knew about the incidents and showed the accused pictures of some of the women who had been assaulted. He was taken to the police detachment where he gave the officer the name of his lawyer. The officer A little more than two hours after the start of the looked-up the lawyer’s telephone number and called interview and after he had been shown photographs his office, leaving a message on the from a store security camera, the accused answering machine. But no attempt “[T]he police are not began to admit his involvement in the to find the lawyer’s home required ‘hold off’ when a offences under investigation. During the telephone number was made, nor detainee who has exercised next hour the accused made a number of did the accused request this be his or her right to counsel statements that implicated him in the two done. Asked if he would like to call incidents. Later, in the cell area, the the legal aid number, the accused asks to speak with a lawyer accused asked if the lawyer he wanted had again” said that he would, although his called back. The officer said that he did preference was to speak with his not think so. The accused stated that he own lawyer. The officer called legal aid and the had retained that lawyer only once before in accused spoke in private with a lawyer for connection with an impaired driving charge. approximately five minutes. He said he was satisfied At trial in British Columbia Provincial Court the judge with having spoken to legal aid and understood the found there were no promises or threats made, there advice he had received. He also said he did not know was no atmosphere of oppression (the interview was if his lawyer would call back. not grilling and the investigator used a calm tone of A member of the Major Crime Interview Team, with voice and was not aggressive) and throughout the specialized training in interrogation techniques, took interview the accused was aware of, and understood, the accused to an interview room and spoke with him his right to remain silent. His statements were the for approximately three hours and twenty minutes. product of an operating mind and the police treated At the beginning of the interview the accused him with courtesy and respect. As a result, the trial confirmed that he had spoken with a legal aid lawyer judge found the Crown had proven the voluntariness and said the lawyer had advised him not to say of the accused’s statements beyond a reasonable anything. The investigator told the accused that he doubt and they were therefore admissible under the did not have to say anything, but that anything he did common law confessions rule. As well, since the say may be used in evidence. statements were voluntary the accused’s s.7 Charter right to silence was not breached. And finally, the When the investigator broached the subject of the trial judge also rejected the accused’s contention incidents under investigation the accused stated that Volume 9 Issue 2 March/April 2009 www.10-8.ca 29 that his rights under s.10(b) of the Charter were violated when he was denied an opportunity to speak with the lawyer of his choice and when questioning was continued after he had indicated he wished to speak with a lawyer. The accused was convicted on two charges of sexual assault and two related charges of administering a noxious substance. And finally, as for the police continuing to question the accused after he asked to further speak with a lawyer, “the police are not required ‘hold off’ when a detainee who has exercised his or her right to counsel asks to speak with a lawyer again.” There was no error in admitting the accused’s statements and his appeal was dismissed. The accused appealed his convictions to the British Columbia Court of Appeal arguing his statements were inadmissible. He contended police continued to question him despite his requests to speak with a lawyer, to remain silent, and to be taken back to his cell. As well, he submitted that he was not able to speak with counsel of his choice and that there was an atmosphere of oppression that rendered his statement involuntary. Complete case available at www.couts.gov.bc.ca Justice Frankel, delivering the opinion of the Appeal Court, rejected the accused’s challenges. First, the trial judge did not err in concluding the statements were voluntary. He considered all the relevant circumstances, was alive to the pertinent legal principles, and applied them to the facts. The accused understood that he did not have to speak with the police and that the investigator’s persuasive efforts to encourage the accused to speak did not deprive him of the ability to make an informed choice to do so. And since the statements were admissible under the confessions rule there can be no finding of a Charter violation of the right to silence in respect of the same statement. As for the accused’s s.10(b) Charter rights, Justice Frankel stated: With regard to s. 10(b) of the Charter, I would reject [the accused’s] argument that he had a right to speak with the lawyer of his choice before being interviewed by [the investigator]. … “[T]he right to counsel is intended to ensure that detainees receive immediate legal advice so that they will be able make informed choices in their dealings with the police”. Here [the accused] exercised his right to counsel before the interview, and expressed satisfaction with the legal advice he had received. There is no evidence here that that advice was inadequate… Indeed, on several occasions during the interview, [the accused] indicated an awareness of his rights. In these circumstances, it cannot be said that there was a denial of the right to counsel. [references omitted, paras. 20] 30 QUESTIONS OUTSIDE LEGITIMATE PURPOSE OF TRAFFIC STOP FIRST STEP IN UNREASONABLE SEARCH R. v. Nguyen, Nguyen, & Reith, 2008 SKCA 160 A police officer on highway patrol in Saskatchewan observed the accuseds vehicle travelling at a fairly high rate of speed on the TransCanada Highway. This area on the TransCanada Highway had been the location of numerous drug courier arrests of people bringing substantial quantities of marihuana from British Columbia to Ontario and the officer had frequently been involved in these investigations. The vehicle was clocked on radar at a speed of 107 km/h in a 100 km/h zone. It was snowing at the time and the officer belived the driver was driving too fast for road conditions. He pulled the vehicle over. D. Nguyen, the driver, appeared nervous as did Reith, the front passenger. H. Nguyen was lying down in the back seat and appeared to be sleeping. The officer detected a heavy smell of cologne, but no smell of marihuana. The officer became aware the vehicle was rented and obtained the rental agreement together with D. Nguyen’s Ontario driver’s licence. The officer learned the driver was not a party to the rental agreement, but it was in the name of the passenger, H. Nguyen, who was licensed in British Columbia. D. Nguyen stated that all three accused were acquainted with each other as they had played basketball together even though there was a five year discrepancy in their ages. The officer checked CPIC and none of the accused had a criminal record. The officer gave D. Nguyen a warning ticket for travelling www.10-8.ca Volume 9 Issue 2 March/April 2009 too fast for road conditions, but was suspicious the men were drug traffickers. “Investigative detention will not avoid Charter challenge if its purpose is to determine whether a crime has been or is being committed as opposed to determining whether the detainee is linked to a recent or on-going crime.” D. Nguyen was the first to be detained for the drug investigation. He was provided with his rights to counsel and the standard police warning, but said he did not wish to contact counsel at that time. He said that they were going to Toronto from Calgary to visit relatives, but that he did not know when or how they were going to get home. When asked if he was transporting drugs he said he was not transporting anything right now. The officer then detained H. Nguyen for investigation. He did not appear surprised or shocked, but was extremely nervous—his voice was shaking and he had a dry mouth. He was advised of his rights and said he did not wish to call a lawyer. The officer then asked him a few questions and was told all three men began their trip together in Vancouver and were going to check out Toronto. When asked whether there were drugs in the vehicle he responded, “I don’t know”. At this point the officer believed he had reasonable grounds to arrest all three men for trafficking in marihuana because of the inconsistent statements provided by the Nguyens as to their travel history, the use of a rental car, the nervous behaviour of all three men, and the powerful smell of cologne, often used to mask the odour of marihuana. He arrested H. Nguyen first for trafficking in a controlled substance and then Reith. Reith was read his rights but did not request to contact a lawyer. When asked whether there were any drugs in the vehicle, he said there were lots that belonged to all three men. The officer then returned to his vehicle and arrested D. Nguyen. The vehicle was taken to the police detachment were it was searched. Nineteen pounds of marihuana was seized from four suitcases found in the vehicle. At trial in the Saskatchewan Court of Queen’s Bench the Crown submitted that the warrantless search was lawful as an incident to arrest. The trial judge did not determine whether the officer had the authority to detain either D. of H. Nguyen for investigative purposes or to question them. Instead, he found the Crown failed to prove the officer had reasonable Volume 9 Issue 2 March/April 2009 grounds to arrest any of the occupants. Although the officer may have subjectively believed reasonable grounds existed, that was not enough. The officer lacked objective reasonable grounds. “There was no smell of marihuana, the accused had no previous record, the fact that they were nervous and their story as to the reason for their journey does not, by itself, establish that reasonable and probable grounds existed,” he said. The arrest was unlawful and breached s.9 of the Charter. The searches that followed were also unreasonable and a breach of s.8 and the evidence was excluded under s.24(2). The marihuana was conscriptive evidence and its admission would negatively impact trial fairness. The Charter breach was also serious. The officer was not acting in good faith. He did not have reasonable grounds to conduct a search nor did he attempt to obtain a search warrant after the vehicle was seized. The trial judge characterized the officer as being overzealous in his pursuit of drivers on the TransCanada highway where the only initial indicia that lead to detention and arrest was the pervasive smell of cologne, nervousness, and a car rental agreement. In his view the admission of the drugs seized, obtained by the illegal search of the vehicle, would bring the administration of justice into disrepute. The three men were acquitted of possessing marihuana for the purposes of trafficking. The Crown appealed to the Saskatchewan Court of Appeal arguing the trial judge erred in excluding the discovery of the marihuana in the vehicle. The Crown submitted that the accuseds Charter rights had not been violated and the marihuana was admissible. In particular, the Crown contended that the trial judge failed to consider whether Reith’s confession, after the arrest of H. Nguyen and Reith, but prior to the arrest of D. Nguyen, gave the officer reasonable and probable grounds, at the very least, for that last arrest. The Crown therefore argues that the trial judge erred in finding that the accused’s rights pursuant to either ss.8 or 9 of the Charter had been breached. It also argued that, in any case, the judge erred in excluding the evidence under s. 24(2). As an alternative ground, if the Charter was infringed the www.10-8.ca 31 evidence should not have been excluded under to s. 24(2). Justice Jackson, writing the majority opinion of the Saskatchewan Court of Appeal, found an investigative detention in the circumstances of this case could not be justified. She described the requirements for a lawful investigative detention this way: The Court in Mann carefully placed strict limits on the use of investigative detention. There must be: (i) “a recent or on-going criminal offence”; and (ii) a “clear nexus” between the detainee and that offence. Having satisfied these two criterion, the decision to detain must be “further assessed” against all of the circumstances to ensure that the detention was reasonably necessary. Investigative detention will not avoid Charter challenge if its purpose is to determine whether a crime has been or is being committed as opposed to determining whether the detainee is linked to a recent or ongoing crime. … Before a police officer can detain a person for investigative purposes, there must be some aspect of the circumstances, relied upon by the officer, to permit a future judicial assessment as to whether a crime has been or is being committed or is about to be committed, as a first step in the Mann analysis. … An ongoing police investigation, a reported crime, or an odour of contraband of sufficient strength, as examples, might lead a judge to conclude in assessing police conduct after the fact that, at the point of detention, a crime has been or is being committed or is about to be committed. None of these indicia of a recent or on-going criminal offence are present in this case. [paras. 13-14] Here, however, D. Nguyen was initially detained for exceeding the speed limit for road conditions, an offence in Saskatchewan under The Traffic Safety Act. A police officer may stop a person in relation to such an infraction under s.209.1 of The Traffic Safety Act. But the police officer, in effecting the stop, was not entitled to do what he did in this case. Questioning, which goes beyond the legitimate purpose of an initial stop, constitutes a new inquiry and, absent reasonable grounds, may be the first step of an unreasonable search or unreasonable detention. When the vehicle was first stopped the only activity under investigation was that of travelling too fast for road conditions. And when D. 32 BY THE BOOK: s.209.1 of Saskatchewan’s Highway Traffic Safety Act - Authority of peace officer to stop and request information (1) A peace officer may require the person in charge of or operating a motor vehicle to stop that vehicle if the peace officer: (a) is readily identifiable as a peace officer; and (b) is in the lawful execution of his or her duties and responsibilities. (2) A peace officer may, at any time when a driver is stopped pursuant to subsection (1): (a) require the driver to give his or her name, date of birth and address; (b) request information from the driver about whether and to what extent the driver consumed, before or while driving, alcohol or any drug or other substance that causes the driver to be unable to safely operate a vehicle; and (c) if the peace officer has reasonable grounds to believe that the driver has consumed alcohol or a drug or another substance that causes the driver to be unable to safely operate a vehicle, require the driver to undergo a field sobriety test. (3) No person in charge of or operating a motor vehicle shall, when signalled or requested to stop by a peace officer pursuant to subsection (1), fail to immediately bring the vehicle to a safe stop. (4) No person in charge of or operating a motor vehicle shall fail, when requested by a peace officer, to comply with the requests of a peace officer pursuant to subsection (2). Nguyen was subsequently placed under investigative detention for a crime in relation to drugs, the only indicia of criminal activity beyond the speeding infraction was excessive nervousness, a strong odour of cologne, and a rented car. These factors, in Justice Jackson’s view, were nebulous and ambiguous factors and even when taken together did not meet the criteria to establish the existence of a recent or on-going criminal offence. When the officer questioned D. Nguyen whether there were any drugs in the vehicle he embarked on a www.10-8.ca Volume 9 Issue 2 March/April 2009 warrantless search that the “Before a police officer can detain a person for judge, the confession is not mentioned as a basis for Crown had not established investigative purposes, there must be some the arrest, but is used only was authorized by law. As the aspect of the circumstances, relied upon by the to avoid suppression of the driver of the car, he had a evidence obtained contrary certain expectation of officer, to permit a future judicial assessment as to the Charter. We should to whether a crime has been or is being privacy and his rights under not use the Court’s s.8 of the Charter had been committed or is about to be committed… An authority to set aside violated. H. Nguyen was a ongoing police investigation, a reported crime, acquittals and order a new passenger in the car and he or an odour of contraband of sufficient strength, trial on the basis that the trial judge committed an had not been stopped for as examples, might lead a judge to conclude in error of law in such speeding. But he was placed in assessing police conduct after the fact that, at circumstances. [para. 42] a police car and advised that the point of detention, a crime has been or is he was under investigative The majority sustained the detention. There was no being committed or is about to be committed.” trial judge’s analysis of police authority for this. He s.24(2) in excluding the too was questioned and asked about drugs in the marihuana and the Crown’s appeal was dismissed. vehicle and, as the renter of the car, he would have also had some expectation of privacy. Thus, when he Another Opinion was questioned about the presence of drugs in the Justice Smith disagreed with her colleagues. In a vehicle, he was subject to a warrantless search for dissenting judgment she noted the onus is on an drugs contrary to s.8 of the Charter. accused to prove their detention was arbitrary and Reith was not placed under investigative detention, breached s.9 of the Charter. But here, since the but was effectively detained without authority when search of the vehicle was warrantless, it was prima he was placed in a separate police car. He was not facie unreasonable and the onus therefore fell on the asked any questions, but was instead arrested without Crown to demonstrate that the search was reasonable reasonable grounds, contravening s.9 of the Charter. and did not infringe s. 8. A search will be reasonable After Reith said were lots of the drugs in the vehicle if it is authorized by law, the law is reasonable, and and that they belonged to all three men the officer the search was conducted in a reasonable manner. In arrested D. Nguyen and searched the vehicle. But this case, the Crown said the search was justified as Crown did not refer to the Reith statement to a search incident to a lawful arrest. “This common law augment the officer’s reasonable grounds to arrest D. right authorizes the warrantless search of a vehicle Nguyen. It was Crown that made the considered incident to a lawful arrest, noting that automobiles choice not to use the Reith statement to support the attract no heightened expectation of privacy that arrest. “A trial judge should not be found to have would justify an exemption from the usual common law committed an error of law for having failed to principles,” said Justice Smith. “The purpose of the consider a means of convicting the accused, which was search must be for a valid objective in the pursuit of effectively taken off the trial judge’s plate by Crown criminal justice. Such objectives include ensuring the counsel,” said Justice Jackson. “There is no obligation safety of the police and the public and the discovery on a trial judge to make a better case for the Crown of evidence that can be used at the trial of the person than that which was presented.” And she continued: arrested.” On appeal, the confession is used for the first time to support the arrest of the third individual, and thereby confer the authority to search as an incident to arrest with consequences for all three accused. Upon a review of the transcript, it is apparent that the police officer was asked no questions about the confession in this context. When Crown counsel made submissions to the trial Volume 9 Issue 2 March/April 2009 In this case, there was no question that the purpose of the search was to obtain evidence of the presence of a controlled drug and that the search was conducted in a reasonable manner. The only issue left to be resolved, in Justice Smith’s view, was whether any of the arrests were lawful. If so, a warrant was not required for the search. In her analysis she ruled www.10-8.ca 33 the initial stop of the vehicle was not arbitrary—it was “perfectly legal”—as the trial judge said—for highway traffic purposes. And although the trial judge failed to distinguish the grounds available or required for an investigative detention, Justice Smith found the test for a valid investigative detention had been met. She stated: It is now well established that the police are entitled to detain individuals for investigation even where they lack reasonable grounds to arrest, provided they have what used to be called “articulable cause”, “reasonable suspicion”, or “reasonable cause to suspect”, and now is referred to “reasonable grounds to detain”. … While the judgment in Mann refers to suspicion of a “clear nexus between the individual to be detained and a recent or on-going criminal offence”, recent case law has applied the doctrine to cases where on-going criminal activity is, itself, only suspected. … There must be more than a “hunch” to support reasonable suspicion, which must be reasonably founded in a constellation of facts known to the police officer. In addition, the detention must be brief and limited. In my view, although the trial judge did not address the issue, that test was met on the circumstances of this case. The police officer indicated a number of circumstances that made him suspicious that the respondents were presently engaged in transporting drugs and specifically marijuana. Some of these were what has been referred to as “red flags”, or circumstances that, while often associated with drug trafficking, are not necessarily so and are, individually, innocuous, i.e., equally consistent with perfectly innocent activity. Examples of such innocuous indicators include traveling in a rented vehicle, traveling east from British Columbia, and evidence of making a long trip without overnight stops. Such circumstances, although legitimately considered in the total context of circumstances, cannot, in themselves or cumulatively, constitute “suspicious circumstances” since they are equally consistent with innocent activity. However, some of the circumstances relied upon by the officer in this case rise above the level of innocuousness. The overpowering smell of cologne or air freshener permeating the vehicle, known to the police officer to be commonly used to mask the odour of marihuana, is, in my view, such a circumstance. While an innocent explanation is, of course, possible, it is considerably more likely to be 34 associated with nefarious conduct. Nervousness of the vehicle’s driver and passenger could be seen as intermediate circumstances. Common sense tells us that most people stopped by the police for a traffic infraction will display nervousness. In this case, the officer testified that the nervousness was extreme on the part of both the driver and the front seat passenger. These circumstances combined with the other factors that [the officer] said made him suspicious: renting a car to drive to Toronto from Calgary but making the return trip by air, and vagueness about travel plans, meet the test, in my view, of a “constellation” of factors that raised a reasonable suspicion justifying the investigative detention. The fact that there was no detectable odour of marihuana or evidence of drug paraphernalia is irrelevant to this issue, for such evidence would likely have provided reasonable and probable grounds for arrest. [references omitted, paras. 85-88] Justice Smith also noted that the initial detention met the other criteria required of an investigative detention. It was brief—D. Nguyen and H. Nguyen were questioned for only a few minutes—and the questions focused directly on the officer’s suspicions. They were both advised of their right to remain silent and to consult a lawyer. And neither was subjected to a search of any kind at this stage of the detention. She would not interfere, however, in the trial judge’s holding that the arrests of H. Nguyen and Reith were unlawful, although she described it as a close call. But the arrest of D. Nguyen was lawful. The officer did have reasonable grounds to arrest him following Reith’s statement that there was a large quantity of marihuana in the vehicle and that it belonged to all three men. And the trial judge failed to consider this distinction between the circumstances of D. Nguyen and the other two men: … it is clear that, by the time he came to arrest Duy Nguyen, the facts known to the officer now included the overwhelmingly probative fact of David Reith’s confession. While it is clear from his testimony that the officer believed that he had reasonable and probable grounds for the arrest even before hearing that confession, and therefore did not, in one sense, “rely” on it as grounds to arrest Duy Nguyen, it would be unreasonable to assume that this crucial fact was considered irrelevant by him and that it did not contribute to his subjective belief that he had reasonable and www.10-8.ca Volume 9 Issue 2 March/April 2009 probable grounds to arrest Duy Nguyen. Objectively, of course, this fact clearly tips the balance in favour of the reasonableness, and therefore the lawfulness, of this final arrest. [para. 96] The search of the vehicle that followed was therefore a lawful search incident to the arrest of D. Nguyen and was therefore reasonable and did not breach any of the s.8 rights of any of the accuseds. And even if H. Nguyen was unlawfully arrested and the arrest breached his rights under s.9 of the Charter, the search of the vehicle was lawful and was not causally related to H. Nguyen’s arrest. Reith’s statement was also not obtained in a manner that breached the Charter, even if his arrest was unlawful (in the absence of reasonable grounds) and a s.9 breach. “The statement was not causally related to his arrest, for the same questions were posed to the other respondents prior to their arrests, and the temporal connection between the arrest and the statement was broken by the interviewing event, the police caution,” said Justice Smith. “There is no suggestion that the statement was in any way coerced or involuntary.” His confession and the marihuana evidence derived from it could therefore not be excluded under s.24(2). Since the warrantless search of the vehicle was lawful as an incident to D. Nguyen’s arrest, there were no s.8 Charter breaches in relation to any of the men. Justice Smith would have allowed the appeal, admitted the evidence, set aside the acquittals, and order a new trial. Complete case available at www.canlii.org COURT SIDE: Charter s.8: Everyone has the right to be secure against unreasonable search or seizure. R. v. Almedia, 2009 ONCA 237 After the accused provided breath samples of 102 and 92 mg% he was charged with over 80mg%. At trial in the Ontario Court of Justice he testified that he had three beers shortly before getting behind the wheel. A witness, associated to the accused, supported this evidence. An expert said that if the accused only had three beers his breathalyzer readings should have been 50mg%, well below the legal limit. The trial judge ruled that there was a reasonable doubt because the accused’s breathalyzer readings were “so close to the line”—only 12mg% over the legal limit. “I too was raised in an age where lawyers didn’t like the idea of people being convicted by machines,” said the judge. “And we used to cut a lot – cut people a lot more slack than 12 milligrams percent.” The charge was dismissed. The Crown appealed to the Ontario Court of Appeal arguing the accused was not acquitted because of a reasonable doubt based on the “evidence to the contrary”, but instead because the readings were “so close to the line”. The Appeal Court agreed, holding the trial judge made a legal error in presuming a margin of error and acquitting because of it. “The trial judge’s reasonable doubt seems based on an assumption of a margin of error in readings provided by breathalyzer machines,” said the Court. “In our view, the trial judge acquitted essentially because he was not prepared to accept, as a basis for a conviction, a reading that was within, or very close to, what the trial judge perceived to be the machine’s margin of error.” Since the trial judge did not ultimately determine whether the accused’s evidence to the contrary raised a reasonable doubt, the acquittal was quashed and a new trial was ordered. Complete case available at www.ontariocourts.on.ca Charter s.9: Everyone has the right not to be arbitrarily detained or imprisoned. Volume 9 Issue 2 March/April 2009 USING BREATHALYZER’S MARGIN OF ERROR AS ‘REASONABLE DOUBT’ WRONG Note-able Quote "This is a court of law, young man, not a court of justice." - Oliver Wendell Holmes www.10-8.ca 35 ARRESTING OFFICER RELYING ON MORE THAN INVESTIGATOR’s BROAD OPINION R. v. Le, 2009 BCCA 14 accused’s appeal. Citing an earlier judgment, the Court noted that an arrest will be lawful if there is: both a subjective and an objective basis for the reasonable grounds to arrest the suspect. The arresting officer or the officer who directs the arrest must believe that he has reasonable and probable grounds—the subjective element. Further, it must be shown that a reasonable person standing in the shoes of the officer would have believed that reasonable and probable grounds existed to make the arrest -- the objective element…. The police officer who must have reasonable and probable grounds to arrest is the one who decides that the suspect should be arrested. The officer who actually effects the arrest is entitled to rely on the request or instruction of another police officer who has the requisite reasonable and probable grounds to justify the arrest. It is not necessary that the officer who actually performs the arrest form an independent judgment that there are reasonable and probable grounds. [at para. 8] A police officer obtained a search warrant after receiving a faxed report from a person contracted by BC Hydro to detect electrical theft. When the warrant was received, the officer advised her colleague, who was keeping the house under surveillance, that anybody who exited was arrestable for theft of electricity. The surveilling officer observed the garage door open and a van come out of the residence. The accused was arrested and his keys to the vehicle and the house were seized. He was then transported to the police station by a third officer. Using the keys seized on arrest the police entered the house discovering a relatively sophisticated “The police officer who must have marihuana grow operation. reasonable and probable grounds to There were wires running in the residence, sophisticated arrest is the one who decides that the suspect should be arrested. The venting systems, and a locked or somehow barricaded door officer who actually effects the arrest to the basement that is entitled to rely on the request or protected the marihuana instruction of another police officer grow operation. Here, the investigating officer subjectively believed that anyone leaving the residence was arrestable and communicated that belief to the arresting officer. However, this broad opinion on arrest was not objectively reasonable. Although the arresting officer was entitled to rely who has the requisite reasonable and on the investigator’s subjective belief At trial in British Columbia probable grounds to justify the arrest. that is not all that he was acting on. Provincial Court the trial It is not necessary that the officer who He acquired further information—he judge found the accused’s actually performs the arrest form an saw the accused’s vehicle leaving the previously closed garage which was arrest lawful and the search independent judgment that there are inferred to show he had some control of his person and vehicle reasonable and probable grounds.” over the home. This observation valid. The trial judge found provided the objective grounds for the police had “ample reasons believing that there was an offence being committed to believe, and had reasonable grounds to believe, at the residence, and linked those grounds with the that the theft of electricity was taking place” at the accused. accused’s residence. And although the Crown conceded the information to obtain the search warrant did not support a nighttime search, the evidence was nonetheless admissible under s.24(2) of the Charter. The accused was convicted of producing marihuana, possession for the purpose of trafficking, and theft of electricity. He then appealed. Justice Levine, delivering the unanimous British Columbia Court of Appeal judgment, dismissed the 36 There was no error by the trial judge in concluding the arrest was valid. The search of his person and his vehicle, and the seizure of his house keys, following the arres and the trial judge did not err in the s.24(2) analysis. Complete case available at www.canlii.org www.10-8.ca Volume 9 Issue 2 March/April 2009 break-in. The accused was convicted of breaking and entering with intent to commit an indictable offence. NO OTHER REASONABLE INFERENCE AVAILABLE FROM FINGERPRINT The accused appealed to the British Columbia Court of Appeal arguing the trial judge erred in applying the law of circumstantial evidence in finding him guilty. He again submitted that a beer bottle is extremely portable and that it could have been brought to the trailer by the owner’s friend with whom he was associated; or the offender, other than the accused, could have brought it with him when he broke into the trailer after the bottle had been handled by the accused. R. v. Gauthier, 2009 BCCA 24 A break-in occurred at a trailer residence. Somebody had cut the screen on the back door and forced it open causing damage to it. A gun cabinet in the back bedroom was open. One gun was on the floor and another was on the bed, together with shotgun shells, a clear glass jar and a Bud Light beer bottle that was blue in colour. In the living room was another firearm Justice Low, delivering the opinion of the unanimous on the floor, as well as strewn papers and a plant that Appeal Court, disagreed. When a guilty verdict is had been knocked over. A rifle, three pairs of based on circumstantial evidence the trier of fact binoculars, some hunting knives and some clothing had must be satisfied beyond a reasonable doubt that the been stolen. The guns had been locked in a case and guilt of the accused is the only reasonable inference the key to the case had been in a dresser beside the to be drawn from the proven facts: table. When the owner left the residence a day or In my opinion, these theories do not rise above two prior to the break-in there were three red speculation. There is no Budweiser beer boxes in front of evidence that any friend of [the “In all the circumstances, the only the freezer and a blue Budweiser victim] had an association with box on top of it with some bottles reasonable inference to be drawn from the [accused] or that the in it. He did not leave the items the proven facts is that the [accused] [accused] might have innocently on the bed, including the empty was the person who broke into the handled the beer bottle at some beer bottle. The accused’s trailer and who relocated many items in other time and place. The significant facts are that the fingerprint was found on the beer it, including the beer bottle. Without beer bottle was found in the bed bottle that was on the bed in the speculation, no other conclusion with items that had been strewn master bedroom. arises.” At trial in British Columbia Supreme Court the owner of the trailer testified that when his friends visited his home they would bring a case of beer, but he did not know who bought the red Budweiser case. He said he did not know the accused nor did he leave the bottle on the bed or know how it came to be there. The trial judge concluded it was reasonable to infer that the bottle was left by the offender along with other things, such as the gun, which were moved in the course of the break-in. She rejected the defence’s speculative argument that the print may have been left on the bottle at some other time and that it may have been brought in either by the offender or by one of the owner’s friends. There was no evidence the accused was acquainted with any of the owner’s friends nor that he handled any of the bottles which may have been carried into the residence by someone else. The bottle was found on the bed beside a gun and other items moved in the Volume 9 Issue 2 March/April 2009 around by the intruder. It might or might not have come from the beer box that was on the freezer. But its position on the bed with a fingerprint on it clearly linked it to the offender and the fingerprint had been placed there by the [accused]. No other explanation for the presence of the beer bottle on the bed and the fingerprint on the bottle reasonably emerges from the evidence. In all the circumstances, the only reasonable inference to be drawn from the proven facts is that the [accused] was the person who broke into the trailer and who relocated many items in it, including the beer bottle. Without speculation, no other conclusion arises. [paras. 11-12] The accused’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca www.10-8.ca www.10-8.ca 37 WHAT MAKES YOU AN EXPERT? What exactly is required for an officer to be qualified as an expert witness so that he or she can give an opinion as to whether the facts of a case indicate drug trafficking? Must the officer show their qualifications are superior to, or more extensive or specialized than those of the average or ordinary police officer? Is formal study required? Or is it enough that the officer can provide an opinion which is outside the ordinary knowledge and experience of the judge or jury? The recent Alberta Court of Appeal case of R. v. N.O., 2009 ABCA 75, highlighted this very issue. In this case the Crown sought to have a police witness qualified as an expert so he could give an opinion on the use, packaging, and distribution of cocaine, pricing, paraphernalia, consumption patterns, jargon, common street terminology, practices and habits of cocaine traffickers, and its observable effects. The police witness was a detective with 13 years experience. His early drug-related experience was in the context of performing a broader policing mandate. And he had previously been assigned to a drugspecific unit for about 14 months. His role broadened again, until he was promoted to detective in the drug control unit. By the time of trial, he had accumulated just under two years of dedicated drug-related experience and about 11 years that included, but was not limited to, drug-related enforcement. He had made about 100 undercover drug purchases and received extensive training, some of which was specific to drugs and some of which involved drugs, e.g. undercover techniques. He also instructed courses on undercover techniques. But he had not been previously qualified as an expert witness. The trial judge focused on whether the officer’s qualifications were superior to, or more extensive or specialized than, those of an average experienced police officer. She refused to qualify the officer as an expert explaining she was given no information to rate his expertise against the average, ordinary, usual, even well-experienced police officer, let alone an expert. The officer had not been peer-reviewed or acknowledged for his expertise, and the trial judge questioned whether his time as an instructor went beyond someone sharing his experience with others. And the officer had not been previously qualified as an expert. The Crown appealed the trial judge’s finding on whether the officer was an expert. The Alberta Court of Appeal unanimously agreed that the trial judge erred by focusing on whether the officer’s qualifications were superior to or more extensive or specialized than those of the average or ordinary police officer. This was not the correct test. Instead, the trial judge was required to determine whether the officer had “the expertise to explain the vagaries of the drug trafficking milieu or the customs associated with cocaine trafficking so as to assist the trier of fact in drawing the appropriate inferences from the factual matrix.” As well, she also erred in refusing to accept the officer’s qualifications as an expert, in part, because he had never previously been qualified. The Court said: Expert evidence is admissible if it is relevant and necessary to assist the trier of fact, does not violate an exclusionary rule and the proposed witness is qualified to give it. Relevance is “a threshold requirement”. The opinion must “be necessary in the sense that it provide information ‘which is likely to be outside the experience or knowledge of’” the trier of fact. To be qualified as an expert, a proposed witness must be “shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify”. ……… It is immaterial how this “special or peculiar knowledge” or “special knowledge and experience” was acquired. It may be from study or instruction, practical experience or observation; formal study is not a requirement. There is no bar simply because a witness has not been previously qualified. Police witnesses may give expert evidence. In part, this is because the “drug trafficking milieu may in fact be the subject of a speciality” but police witnesses may also have expertise “going beyond that of the trier of fact”. [references omitted, paras. 19-22] Thus, the trial judge used the wrong test in refusing to qualify the officer as an expert witness. “It is immaterial how this ‘special or peculiar knowledge’ or ‘special knowledge and experience’ was acquired.” 38 www.10-8.ca Volume 9 Issue 2 March/April 2009 NO BREACH USING MATCH BETWEEN SCENE SAMPLES & SET ASIDE DNA ORDER R. v. Newell, 2009 NLCA 18 The accused was convicted of robbery in Newfoundland Provincial Court. He was sentenced to one year imprisonment and he was ordered to provide a DNA sample for the national DNA data bank. He then launched an appeal. During the period he was appealing his robbery conviction, biological evidence from two commercial break and enters was collected and sent for DNA profiling and inclusion in the national DNA data bank’s Crime Scene Index. Matches were made between the DNA profile generated from the biological materials from the break-ins to that of the accused. The accused’s earlier conviction for robbery was subsequently overturned on appeal and the DNA order originating from the robbery conviction was set aside. Later, an officer applied for two DNA warrants under s.487.05 of the Criminal Code to obtain a bodily substance from the accused for forensic DNA analysis in relation to each break and enter. The earlier DNA matches between the biological samples obtained from the break and enters and the accused’s known offender DNA provided the grounds for the new DNA warrants. The warrants were served on the accused and he agreed to provide the samples. These samples were forwarded for comparison with profiles in the Crime Scene Index and a positive match was made between the samples collected pursuant to the DNA warrants and the commercial break-ins. The accused was charged with two counts of break and enter under the Criminal Code, as well as two breaches of undertaking. was obtained on the basis of information (the match) which itself had been obtained pursuant to a DNA order subsequently invalidated. The accused’s DNA profile, which he was forced to supply as a result of a criminal conviction that was subsequently overturned on appeal, should not have been in the DNA data bank when the DNA warrants were issued. The evidence obtained under the DNA warrant was excluded and the accused was acquitted. The Crown challenged the trial judge’s ruling before the Newfoundland Court of Appeal. It argued that when the matches were made during the appeal period before the order had been set aside, the accused’s DNA profile was legitimately in the Convicted Offenders Index and there was therefore no reason why the matches could not provide the reasonable and probable grounds to apply for the DNA warrant. The accused, on the other hand, submitted that setting aside the DNA order revived his privacy interest in the previously obtained DNA sample and the subsequent use of the information from the sample to obtain the warrant was unreasonable. Justice Barry, writing the decision for the Court, noted that s.8 of the Charter protects everyone against unreasonable search or seizure. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried is reasonable. And DNA warrant provisions have been found to be constitutional. So the question the Appeal Court was left to answer was whether a Charter violation occurred when information derived from a DNA sample after the original DNA order had been set aside was used to support the DNA warrant. “The Charter right to privacy includes the right to informational privacy,” said Justice Barry. “Existence of a reasonable expectation of privacy is determined by a contextual approach, which examines a number of At the trial in Newfoundland Provincial Court on these factors, including: [1] the nature of the information; new charges, the accused contended that his rights [2] the nature of the relationship between the under s.8 of the Charter had been breached and the parties; [3] the place where the information was evidence obtained through the DNA warrants was obtained; [4] the manner in which the information was inadmissible under s.24(2). The trial judge found obtained; and [5] the seriousness of there had been a breach of the crime being investigated.” He also s.8 of the Charter because “Release of information regarding a noted that, as convicted offenders still the blood samples obtained match does not reveal intimate under sentence, persons targeted by pursuant to the DNA warrant details about the lifestyle and the DNA databank provisions have a constituted an unreasonable personal choices of the individual.” much reduced expectation of privacy search and seizure since it Volume 9 Issue 2 March/April 2009 www.10-8.ca 39 and, by reason of their crimes, have lost any reasonable expectation that their identity will remain secret from law enforcement authorities. After reviewing several cases, Justice Barry concluded the accused did not have a reasonable expectation of privacy in the DNA match: … [H]ere the nature of the information obtainable from the DNA sample fell within the “biological core of personal information” constitutionally protected, even though its use was restricted to the purpose of identification. However, the information used to ground the application for the DNA warrant, that resulted in the evidence which the trial judge ordered excluded, was merely the fact that there had been a match between [the accused’s] DNA profile obtained from the sample and biological evidence from two crime scenes. That information … is not of the sort which, if released, will lead to an increased risk of state abuse or undermine the dignity, integrity or autonomy of individuals… Release of information regarding a match does not reveal intimate details about the lifestyle and personal choices of the individual. Turning to … the relationship between the parties, when the match was made, [the accused] fell within the category of convicted offender with … a “much reduced expectation of privacy”. The main question for this Court is whether the privacy interests of individuals would be unduly threatened if police are permitted to use, after the initial DNA order has been set aside, information previously derived from a DNA sample. More specifically, does the setting aside of a DNA order result in the restoration of such a high level of expectation of privacy to the DNA sample and information derived from it that subsequent use of the information should be prohibited? I am not persuaded that the fundamental principles underlying the right to privacy must lead to such a result. … [T]o avoid the “system of subsequent validation for searches”, which will arise if courts engage in ex post facto analysis, it is still appropriate to note that in the present circumstances the only individuals affected by the release of information regarding a match would be those who have left biological evidence at a crime scene and whose DNA profile ends up in the national DNA databank because of a conviction. Framing the question in broad and neutral terms … in a society such as ours, would persons who leave biological evidence at a crime scene have a reasonable expectation that 40 information regarding a match with their DNA profile in the national DNA data bank would remain private because the initial DNA order has been set aside? The answer is “no”. They may have a revived or heightened expectation in the privacy of their DNA sample once the order has been finally set aside. But no threat to individual dignity, integrity or autonomy arises from permitting use of the information about the match and no significant risk of state abuse. The fact of the match is the information for which privacy is sought. But release of that information cannot threaten Charter values since there is no dissemination of a biological core of personal information. It should also be noted here, in considering the relationship between the parties, that s. 487.056(1) of the Code authorizes taking a DNA sample even though an appeal is pending. Also, s. 9(2)(a) of the DNA Identification Act provides for information in the convicted offender’s index to be permanently removed after an authorizing order has been “finally” set aside. To avoid frustrating the Crown’s right of appeal, this has to mean, in the present context, after expiration of the 60 day period for appealing the decision to set aside the DNA order. So [the accused’s] profile was lawfully in the data bank … [and he] would have no significant expectation of privacy … when the DNA warrants were issued. Considering … the place where the information was obtained, it was not obtained from the residence of a citizen but from an officially sanctioned data bank, pointing to a reduced expectation of privacy. On the fourth factor, the manner in which the information was obtained, it is significant that the information flowed from a valid court order, which led to a DNA sample and a DNA profile being recorded. Absolutely no hint of police misconduct or willful blindness arises in this case. As to the fifth factor, the seriousness of the crimes being investigated, two break and entries may not be at the most serious end of the spectrum of offences but neither should they be regarded as not serious. Significant weight must be given here to the state’s interest in effective law enforcement when performing the balancing exercise … and assessing whether the individual’s interest in being left alone must give way to this state interest. [references omitted, paras. 50-56] And further: The position [the accused] found himself in after the DNA order had been set aside is analogous to www.10-8.ca Volume 9 Issue 2 March/April 2009 that experienced by the suspects in Tessling and Plant: the information sought to be contained by a claim to privacy had already escaped the possession and control of the suspect. In Tessling heat escaping from a house could not be controlled; in Plant the electricity records were generated and controlled by a third party (the electrical company). …. Similarly, once the information about the DNA match had been conveyed to the police officers investigating the two crime scenes in a lawful manner, [the accused] could have very little expectation of privacy regarding the information. It may have been good luck for society that police obtained the DNA match during the appeal period, before this Court set aside the DNA order. But the release of this information linking him to biological evidence found at two crime scenes, like the heat emanating from Tessling’s house, meant the information was largely outside his control and available for use by the police as authorized by the DNA legislation. Plant and A.M. support the conclusion that it does not unduly diminish Charter values to interpret the legislation as contemplating use of information derived from a DNA sample, after a ruling setting aside the original DNA order, where the information has been obtained while the order was operative. [para. 59] Thus, in evaluating and applying the five informational privacy factors and properly balancing individual and state interests, Justice Barry concluded the accused’s s.8 Charter rights were not breached. Therefore, the trial judge erred in finding an unreasonable search or seizure. And since there was no Charter violation there was no need to determine whether the evidence obtained pursuant to the DNA warrants should have been excluded under s.24(2). The Crown’s appeal was allowed, the accused’s acquittal was set aside, and the matter was remitted for trial. Complete case available at www.canlii.org PROPER BREATH DEMAND INFERRED FROM CIRCUMSTANCES R. v. Truscott, 2009 BCSC 364 The accused was stopped at a Counterattack road check and admitted to having consumed “a few” alcoholic drinks. A roadside breath sample was 41 demanded into an approved screening device and the accused failed. He was arrested for impaired driving, given his Charter s.10(b) and read the breath demand. He was taken to the police detachment where efforts to obtain two samples was unsuccessful. He made five attempts at providing a breath sample but only one was successful, registering a reading of 250mg%. At trial in British Columbia Provincial Court the officer said he read the breath demand verbatim from a card, but the card was not read into the court record. The judge, although noting that it may be preferable for the officer to read into the record the exact wording of the demand, inferred a proper breath demand was nevertheless made because the officer said he had read a breath demand to the accused from a card, the accused indicated he understood, went to the detachment, and made several attempts to provide a sample of his breath. The accused was convicted of failing or refusing to provide a breath sample, contrary to s. 254(3) of the Criminal Code. The accused appealed to the British Columbia Supreme Court arguing the trial judge erred in concluding that the Crown had proved that a lawful and valid breath demand was made, an essential element of the offence of refusal to provide a breath sample. In his view, there was absolutely no evidence of the form of demand and no evidence of compliance with the provisions of the Criminal Code. The Crown, on the other hand, submitted the trial judge correctly inferred from the surrounding circumstances that the substance of the breath demand was clear. The officer said he read the breath demand verbatim and, following the accused’s arrest for impaired driving, he was taken to the detachment, introduced to the breath technician, and he purposely provided four invalid samples and one valid sample. In dismissing the accused’s appeal Justice Warren agreed with Crown that the trial judge did not err in inferring that a valid demand was made. “The trial judge then considered all of the circumstances from that moment until the [accused] was charged with refusal to provide a breath sample, and on that evidence, having heard and seen the arresting officer and the attending qualified technician, as well as the evidence given by the [accused], she rightly concluded in my view, that the police officer had made a proper breath demand,” said Justice Warren. And further: www.10-8.ca Volume 9 Issue 2 March/April 2009 The Crown submits that the following facts were capable of supporting a valid demand: • the [accused] was stopped in a Counterattack roadblock and admitted consuming “a few alcoholic drinks”; • [he] was asked to walk to the police car in order for a roadside test to be conducted; • an approved screening demand was made; • [he] provided a valid sample into the approved screening device and the result was a fail; • [he] was arrested for impaired driving; • he was taken to the police station; • a qualified technician designated by the Attorney General introduced himself; • the qualified technician demonstrated to the [accused] how to provide a valid sample; • [he] purposely provided four invalid samples; • [he] provided one sample suitable for analysis; • [he] understood what was required of him because he testified that all times he blew and he blew into the tube until he had no oxygen left in his lungs; and • [he] understood that he would be charged with a criminal offence if he did not provide valid samples. • These factual circumstances together with the police officer’s evidence at trial that he read the breath demand to the [accused] was a sufficient body of evidence from which the trial judge could conclude beyond a reasonable doubt that lawful demand had been made. [para. 20] Complete case available at www.courts.gov.bc.ca ‘IN SERVICE’ LEGAL ROAD TEST ANSWERS 1. (b) False—see R. v. Perry & Richard (at p. 14 of this publication). 2. (a) True—see R. v. Williams (at p. 7 of this publication). 3. (a) True—see R. v. Chubak (at p. 20 of this publication). 4. (c) 76%—see “Supreme Court Hearings Rise” (at p. 28 of this publication). 5. (a) True—see R. v. McCrinnon (at p. 29 of this publication). 6. (b) False—see “What Makes You an Expert?” R. v. N.O. (at p. 38 of this publication). Volume 9 Issue 2 March/April 2009 INCIDENTAL ARREST SEARCH NOT OBJECTIVELY JUSTIFIED: EVIDENCE ADMITTED ANYWAYS R. v. Wilkening, 2009 ABCA 9 Specially trained police officers, as part of a “Jetway” program, were at a bus depot looking for suspiciously behaving passengers when there attention was directed towards the accused because his luggage consisted of a large box labeled as containing a flat screen television. Officers engaged the accused in conversation and then conducted a CPIC check by telephone, which revealed that he was the subject of an outstanding warrant for violating a provision of Alberta’s Traffic Safety Act. He was arrested on the warrant and patted-down. No weapons, illicit substances, or other contraband was located. He was then placed in their police van and the box he was carrying was placed in the back of the van. It was searched and police found a flat-screen television together with several handguns. At trial in Alberta Provincial Court the officers testified they searched the box as incident to the accused’s arrest, concerned for officer safety with carrying an unsearched box in their vehicle when they transported him to lockup. The trial judge, however, determined that the warrantless search of the box breached the accused’s s.8 Charter rights. Although the subjective portion of the test for search incidental to arrest was made out, no objective reasons why officer safety was a concern, other than conjecture as to the contents of the box, were offered. He reasoned that there was nothing to suggest that the accused was violent, as he was cooperative throughout, and that a Traffic Safety Act violation hardly raised the specter of violence. Moreover, stated concerns about explosives and biohazards were belied by the manner in which the search was conducted, with absolutely no protection from any such concern. On this point the trial judge stated: The scenario then exists where two highly experienced R.C.M.P. officers choose to lift a box with unexplained contents to the rear of an unprotected van. They then, in the presence of one looking over the other’s shoulder, proceed to open and reach into the box without protection for all of www.10-8.ca 42 the safety concerns enunciated through various points in their evidence. While their actions may have been reasonable had their suspicions been limited to guns, knives or other weapons solely, they take no obvious precautions against the threat of explosion or biochemical hazard which [one officer] indicates to be constituent part of their safety concern. The box was within feet of one or all of the officers throughout the entire encounter with the Accused prior to discovering the guns. The actions taken by all three officers in the conduct of handling the Accused and his possessions were inconsistent with their own descriptions of the potential threats posed to them. [para. 76, 2007 ABPC 241] As a result, the search of the box was not reasonable as incidental to the accused’s arrest—it had nothing to do with the Traffic Safety Act arrest warrant and there was no reasonable concern for safety that might have justified a search of the box. Following a s.24(2) Charter analysis, however, the evidence was admitted and the accused was convicted. The accused appealed to the Alberta Court of Appeal arguing the trial judge erred in admitting the evidence under s.24(2). In his view, the police officers’ purpose, from the moment they observed the accused, was to search the box, which made the breach more serious than the judge considered. By engaging him in conversation and learning his name, a computer search revealed the traffic warrant, which in turn led to the accused’s arrest and provided the officers with the pretext to search the box. The Crown, on the other hand, submitted that the trial judge erred in finding a s.8 Charter breach in the first place because the search was properly conducted as an incident to arrest. The unanimous Appeal Court found it unnecessary to address the s.8 analysis because the evidence was nonetheless admissible under s.24(2). The trial judge found the officer’s subjectively believed they should and were entitled by law to search the box incident to arrest. This was not an unreasonable conclusion the Appeal Court ruled: The officers testified they were concerned about their personal safety in transporting the unsearched box with [the accused] to the police lockup. They were aware, based on their experience, that the bus terminal was used for the transit of Volume 9 Issue 2 March/April 2009 firearms and drugs, and testified that this added to their concerns about what might be in the box. [The accused] argues that the police did not need to take the box with them when they transported him to lock-up. We are not persuaded by this argument. [The accused] was arrested just outside the Calgary bus depot, traveling alone and carrying the box. Police cannot be expected to take steps to secure property carried by arrested persons, other than to place that property in police-controlled locked compounds. Nor can they be expected to simply abandon such property on the street. [para. 14] And the officers’ failure to ensure that the search was objectively incidental to arrest did not demonstrate bad faith. The evidence was real and non-conscriptive, and there was a reduced expectation of privacy in a partially open box carried through a public place: The trial judge properly considered that the box carried by [the accused] would attract a lessor degree of privacy expectation than would a home or a private vehicle. We also agree that an unlocked cardboard box is not in the same category as locked luggage or a locked trunk. In this case, the box did not even completely obscure what was in it. When someone walks through a public place with part of the contents of a container exposed, their expectation of privacy with respect to all of that container has to be less than that of another person who carefully packaged items to the point of securing the container with a lock. [para. 18] As well, the the manner of the search was not abusive—it was not a body cavity search but a search of a box carried by the accused when he was arrested. There was ample basis for the judge to conclude that the evidence should be admitted under s.24(2). The accused’s appeal was dismissed. Complete case available at www.albertacourts.ab.ca www.10-8.ca www.10-8.ca www.10-8.ca www.10-8.ca www.10-8.ca 43 44 www.10-8.ca Volume 9 Issue 2 March/April 2009