IN SERVICE: 10-8 !"#$%&'(%()&*+ ,-.'*/01234'05637'849':4;<=2>;<41'07%7'?@#'.AB !"#$%&'!(%)*+,- A PEER READ PUBLICATION A newsletterAdevoted to operational police officers in Canada. PEER READ PUBLICATION IN MEMORIAL $8'*&*"O$(# !""%$ !""% * !"#$%&'()*9&(),3)*:31#&- ./# 01234# 56# 5++7# 85,9:12,;<=# # # On September 7, 2009 (;/>?1@<:# A1/B:<# C:>>B:2# ;D# 21-year ?4:# E1F1<#old #Service# de Police de laJ1># Ville de >4;?# Levis, Quebec G;?#B/#M2;>>12=6#NK:@:3O# # to an# PB># H12?/:2#accident (;/>?1@<:# $?:H41/:# automobile while responding # # Q;2@:>#J1>#J;K/=:=#B/#?4:#12IO A:3:I@:2#*86#5++U E1F1<#G;?1@<:>#C:>>B:2#1/=#Q;2@:>#41=# # # @::/# H12?# ;D# 1# <12L:# Her vehicle went out>BIK# of control and struck a bridge support. # # 3213R=;J/# ;/# traveling 1# =2KL,=:1:1234# J1221/?># ;K?# a large cloud of dust. no longerJB?4# following and observed He # # D;2#:BL4?#<;31?B;/>6#>BS#B/#E1F1<#1/=# immediately turned around and located the crash. # # ?J;#B/#M2;>>12=O (;/>?1@<:# C:>>B:2# 41=# She was transported to @::/# a local 1>>BL/:=#?;#?4:#I;21TK1=#;/<9#;/:#J::R# hospital where she succumbed to @:D;2:#4B>#=:1?4O#P:#41=#@::/#1#H;O served with the agency for only three months.(;/>?1@<:# C:>>B:2# B># >K2FBF:=# @9# 4B># 01234#W6#5++U &(0G#Z<@:2?1 !"#$%&'()*.,"-8*+;,"( 01234#W6#5++U &(0G#Z<@:2?1 * # # !"#$%&'()*=)%),*>-63)4&## # # 01234#W6#5++U &(0G#Z<@:2?1 !""&$ !""& * * # # JBD:6# J4;# 1<>;# >:2F:># 1># 1# H;?1@<:6# 1/=# ?J;# 9;K/L# =1KL4?:2># Source: Officer 1L:>#*+#1/=#*5O Down Memorial Page available at www.odmp.org/canada !""!$ !""! VB?4# ?4:# =:1?4# ;D# (;/>?1@<:# C:>>B:26# 1# ?;?1<# ;D# *W# H;#41F:#<;>?#?4:B2##?;#LK/DB2:#;F:2#?4:# H1>?#*+#9:12>O#.?4:2#;DDB3:2>#RB<<:=#@9#LK/DB2:#B/349;54<<41'346C<43'E5'DC52/4'CFF2/41;'E/1C;;'012<2;G'%C5H=I2E7 On Sunday September 27, 2009 hundreds of law *enforcement officers from Canada and the United States * * !"#$%&'()*C)##3$*>%,"#1D/3(( # # !"#$%&'()*+&,-*."/,0&1)$ attended a memorial service at Stanley Park to honour fallen peace officers. # # # A:3:I@:2#5*6#5++*# # # # # XK<9#*Y6#5++Y# &(0G#$1>R1?34:J1/ * * # # # # XK<9#*U6#5++Y# &(0G#$1>R1?34:J1/ # # # # # # 019#U6#5++Y VB/=>;2#G;))@&(0 !"#$%&'( )**+%&$( ,"-.( /&0"$+12( 314&5( 161+2172&( 18( ---9":0;9"$4<%1.1:1 04'J=E1<'E>3'J?02@0>;2?02??AB Reasonable Notice in Serving Drug Certificate Depends on Circumstances 18 !" !"#$"%&'()*$+',-).&%)/010%$2)3&)!%$1040"5) New Crimes Against Cops Added to Criminal 670809:$);&"%$"%8< = 6*$>?+:)@?'A&8$<)BC);-0:2)@-&%&8)D$%$'10"$2) Subjective Belief For Arrest Can Be Inferred From B9E$,%0#$:( Evidence FG 21 *+C$%()*$+',-)H?8%0C0$2)!");0',?18%+",$8)BC) ‘Finds Committing’ Means ‘Apparently Finds Committing’ I+''+"%)J>$,?%0&" FK 22 19 Code L''$8%)*%+"2+'2)D&$8).&%)M$N?0'$)@'01+)O+,0$) FP ;+8$)O&');&"#0,%0&" National Library of Canada H?25$).&%)M$N?0'$2)3&)J"2&'8$)D("+10,) Cataloguing in Publication ;D*L) *$+',Data FQ D?+:)@?'A&8$)!",02$"%+:)*$+',-)/+RC?:)*&) Main entry under title: KG /&"5)L8)B"$)@?'A&8$)M$+8&"+9:$ In service: 10-8. -- Vol. 1, no. 1 (June 2001) Monthly S?"8T)U+0:)V)H+0:W)U0::);XK)M$#0$R K= Title from caption. *?A'$1$);&?'%)Y$+'0"58)M08$ KZ “A newsletter devoted to operational police officers across British L''$8%0"5) BCC0,$') M$:(0"5) B") [&'$)Columbia.” 3-+") P= ISSN 1705-5717 = In service, 10-8 !"#$8%05+%&'<8)U'&+2)BA0"0&") Unless otherwise noted all articles are authored by Mike Novakowski, MA. The articles contained herein are provided for information purposes only and are not to be construed as legal or other professional advice. The opinions expressed herein are not necessarily the opinions of the Justice Institute of British Columbia. “In Service: 10-8” welcomes your comments or contributions to this newsletter. If you would like to be added to our electronic distribution list e-mail Mike Novakowski at mnovakowski@jibc.ca. POLICE LEADERSHIP !"#$%&'#&()&*+,$!' (!*$#'-./-01'2.-APRIL 10-13, 2011 Mark&'(#% your)"*+,-"#.///% calendars.01+% !"#$% The British Columbia 2#343.1% 5'*(673"% 8..')3"43',% Association of Chiefs '9% 513+9.% '9% :'*3)+;%of 41+% Police, the Ministry of !3,3.4#&%'9%:(7*3)%<"9+4&%",-% Public Safety and <'*3)34'#% =+,+#"*;% ",-% 41+% Solicitor General, and >(.43)+% ?,.434(4+% '9% 2#343.1% the Justice Institute of 5'*(673";%:'*3)+%8)"-+6&%"#+% British Columbia Police 1'.43,@% 5',9+#+,)+% Academy41+% are:'*3)+% hostingA+"-+#.13B% the Police CDEE% Leadership 2011 3,% F",)'(G+#;% 5'*(673"H% 013.% 3.% 5","-"I.%This *"#@+.4% Conference2#343.1% in Vancouver, British Columbia. B'*3)+% *+"-+#.13B% )',9+#+,)+% ",-% J3**% B#'G3-+% is Canada’s largest police leadership conference ",% 'BB'#4(,34&%9'#%-+*+@"4+.%4'%-3.)(..%*+"-+#.13B%4'B3).% and will provide an opportunity for delegates to B#+.+,4+-%7&%J'#*-K#+,'J,+-%.B+"$+#.H% discuss leadership topics presented by world renowned speakers. 333456789:7:;<:=>?8596@A:=:@9:496B www.policeleadershipconference.com +C!!"*D'D,&'E()F&G *&#(D$"H(#' +C*I$I(#' J"*'!"#$%&'J(K$#$&+ !"#$%%& '()$*+,%$& "'($-.& /##& /*(,0#$%& /*$& /1()'*$-& 23& 45(6& 1. Police - British Columbia - Periodicals. 2. !"#$%&'($%)$*+#&%,-%&#$%./0+$%*1%2,&%,3$'4,5$%.6% 7,8$& 9':/8'+%8,.& 7;& <;22'(%='*-& >'#,0$?6& @)$& /*(,0#$%& Police - Legal status, laws, etc. - Canada 0'"(/,"$-&)$*$,"&/*$&A*':,-$-&='*&,"='*B/(,'"&A1*A'%$%&'"#3& 5(147$8%2,&%-,(20%*2%&#$%+658%2,&%5$/1('$0%,2%/% Cases - Periodicals. I. Justice Institute of /"-&/*$&"'(&('&2$&0'"%(*1$-&/%&#$5/#&'*&'()$*&A*'=$%%,'"/#& 14/7$9% "#*1% )$*+#&% '$:(*'$1% /% 1&'$2+&#% /20% British Columbia. Police Academy. II. Title: /-:,0$6& @)$& 'A,",'"%& $CA*$%%$-& /*$& "'(& "$0$%%/*,#3& ()$& 4,20*&*,2*2+%-,'%)#*4#%-$)%,--*4$'1%/'$%&'/*2$09%"#$% In service, 10-8. III. Title: In service, ten'A,",'"%& '=& ()$& D1%(,0$& E"%(,(1($& '=& F*,(,%)& G'#1B2,/6& H#$% eight.-./0I& +$#0'B$%& 3'1*& 0'BB$"(%& '"& '*& ./0+$%*1%2,&%;(1&%<*22$0%,2%/%4#$1&8%*&%*1%<*22$0%,2%/% &'()*+',% 7*-$1&67$9=%>%?,7*4$%@--*4$' 0'"(*,21(,'"%&('&(),%&"$+%#$(($*6&E=&3'1&+'1#-&#,8$&('&2$&/--$-& ('&'1*&$#$0(*'",0&-,%(*,21(,'"&#,%(&&$JB/,#&7,8$&9':/8'+%8,&/(&& PAGE 2 B"':/8'+%8,KL,2060/ See page 21 National Library of Canada Cataloguing in Publication Data Volume 9 Issue 5 - September/October 2009 ADMISSION PROVIDES RPG FOR BREATH DEMAND The accused then appealed to the Saskatchewan Court of Appeal arguing the lower courts erred in concluding that the arresting officer had reasonable R. v. Vandal, 2009 SKCA 79 and probable grounds to believe his ability to drive was impaired by alcohol. In his view, the appeal Two police officers on patrol at about judge erred in finding that the arresting officer 11:30 p.m. saw a truck with only one subjectively believed he had committed the offence headlight. They followed the truck and that the arresting officer's belief was objectively and activated the police car’s based on reasonable and probable grounds. In part, emergency lights, but the truck did the accused submitted that his admission that he not stop for some blocks until it was in a driveway. consumed more than the legal limit should not mean The police parked behind the truck and observed the he was over 80mg% because people are not likely to accused get out from the driver’s know with a degree of precision seat and walk slowly and what their blood alcohol “The test to determine if an cautiously to the back of the truck. concentration is and there was no officer has reasonable and The officer asked the accused why evidence as to what the accused he did not stop when signalled to understood was the legal limit. He probable grounds to believe do so, but received no answer. The pointed out that there were other an accused's ability to drive officer then asked the accused if he levels related to consuming alcohol had consumed any liquor that night was impaired by alcohol has under Saskatchewan’s Traffic Safety and he said "Yes, sir, I've consumed Act, such as 40mg% found in both a subjective and more - I've had more than the legal s.146(1) warranting a twenty four objective element. It was limit." The accused had glazed eyes hour prohibition. and smelled of alcohol as he necessary for the officer to walked slowly and cautiously back “The test to determine if an officer have reasonable grounds for has reasonable and probable to the police car with the officer. At the police car the accused was believing that the [accused] grounds to believe an accused's advised of his right to counsel, ability to drive was impaired by had operated his motor given the standard police warning, alcohol has both a subjective and vehicle, either while impaired objective element,” said Justice and read the breathalyzer demand. He subsequently provided a breath Lane for the unanimous Court. “It by the consumption of sample of 210mg% and was was necessary for the officer to alcohol ... or having charged with driving over 80mg%. have reasonable grounds for consumed alcohol in such a believing that the [accused] had At trial in Saskatchewan Provincial operated his motor vehicle, either quantity that the Court the judge ruled that the while impaired by the consumption concentration in his blood arresting officer had the requisite of alcohol (s.253(1)(a)), or having grounds for the demand. The exceeded the legal limit ...” consumed alcohol in such a accused’s failure to stop when the quantity that the concentration in emergency police lights were his blood exceeded the legal limit (s.253(1)(b)).” The engaged, his lack of response when asked why he did accused’s admission that he was over the legal limit not stop, his statement that he had had more than the was sufficient, as the trial judge found, to give rise to legal limit, his glazed eyes, slow and careful walk the officer’s subjective belief. As for the objective and the odour of liquor on his person all led to a portion of the test, Justice Lane stated: valid s.254(3) Criminal Code demand. The accused was convicted. An appeal to the Saskatchewan Court In my view, the admission from the [accused] that he was driving after having consumed more than of Queen’s Bench was unsuccessful. the legal limit, taken with the other observations made by the officer, also means his belief was PAGE 3 Volume 9 Issue 5 - September/October 2009 GANGSTERS GIVEN $2,000 FOR PREDICTABLE & AVOIDABLE CHARTER BREACHES objectively reasonable. The issue is not whether the admission ultimately turns out to be true and correct, the issue is merely whether it is sufficient in the totality of circumstances to supply reasonable and probable grounds for the demand. … [para. 12] R. v. Brown, 2009 ONCA 633 And it was not necessary for the Court to determine at what point in time the officer's belief that there were reasonable and probable grounds be assessed – at the time the officer formed the belief or at the time of the demand itself. “[T]he only indicia which changed between the two points in time was the smell of alcohol,” said Justice Lane. “There was sufficient evidence without the indicia of the odour of alcohol to give rise to reasonable and probable grounds to lead the arresting officer to believe an offence had been committed.” The accused’s appeal was denied. Complete case available at www.canlii.org 24-hour suspension Saskatchewan’s Traffic Safety Act s. 146 (1) The driver's licence of a person whose venous blood contains not less than 40 milligrams of alcohol per 100 millilitres of blood is subject to suspension pursuant to this section. (2) At any time and at any place, a peace officer may request a driver of a motor vehicle to surrender his or her driver's licence to the peace officer if the peace officer has reasonable grounds to believe that the driver may have consumed alcohol in an amount that would make his or her driver's licence liable to suspension. (3) Subject to subsection (4), if a peace officer makes a request pursuant to this section for the surrender of a driver's licence, the driver's licence is suspended for 24 hours from the time of the request. Fo l l ow i n g a l e n g t hy p o l i c e investigation, about 1,200 Toronto police officers conducted a major police takedown on the Driftwood Crips gang. The gang was involved in trafficking firearms and drugs as well as acts of extreme violence. Approximately 100 gang affiliates were arrested and 86 of those were brought before bail court for their first appearance. However, they did not appear before a justice within 24 hours as required by s.503(1)(a) of the Criminal Code. No arrangements had been made by police or Crown before the takedown to ensure there would be adequate time and resources to accommodate the large number of detainees. The Crown was granted an adjournment to review the files on all matters, but some of the hearings were set well beyond the three day adjournment permitted by s.516(1). Nine applicants brought habeas corpus applications to secure their immediate release or an earlier bail hearing date. The judge found the applicants’ rights had been violated because they had not been brought before a justice within 24 hours and were remanded in custody longer than three days. In his view, ss.503(1)(a) and 516(1) ensure arrestees have an early opportunity for judicial review and a determination whether continued detention is warranted. He described these rights as “among the most important provisions of the Criminal Code”, fortified by ss.10(c) (the right to habeas corpus) and 11(e) (the right to reasonable bail without just cause). The judge ruled there was no defensible reason for what happened, despite Crown’s argument that any disclosure of the expected large scale arrest could compromise the police operation. The police operation was carefully planned and was many months in the making. Where resources are applied at the front end of the criminal justice process involving the investigation of crimes and the arrest of suspects, then resources should also be applied at the back end. The “sheer number of PAGE 4 Volume 9 Issue 5 - September/October 2009 an important judicial tool to persons arrested [did] not “Criminal proceedings are not control proceedings, provide a justification for brought by one party to vindicate discourage unreasonable or failure to abide by the inappropriate behaviour, and a private interest but in the interest requirements of the Criminal encourage out of court Code.” The accuseds’ Charter of the public at large ... There is a settlements. The threat of rights to liberty under s.7, adverse costs awards concern that if costs awards were arbitrary detention under s.9, discourages unnecessary or routine, the discretion of the and reasonable bail under s. f r ivo l o u s l i t i g a t i o n a n d 11(e) were breached. The judge encourages parties to settle Crown when acting in the public denied the remedy of release their disputes. interest would be unduly but expedited the bail hearings and awarded each applicant Criminal proceedings are not influenced or fettered.” brought by one party to $2,000 under s.24(1) as a just vindicate a private interest but in the interest of and appropriate remedy. The Crown appealed the the public at large ... [A] plaintiff brings an order to pay costs to the Ontario Court of Appeal. action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the Ordinarily, an accused person in a criminal case is costs. A prosecutor brings proceedings in the not entitled to costs unless they can show “a marked public interest, and so should be treated more and unacceptable departure from the reasonable tenderly. There is a concern that if costs awards standards expected of the prosecution.” Justice were routine, the discretion of the Crown when Sharpe, authoring the unanimous judgement, put it acting in the public interest would be unduly this way: influenced or fettered... [references & internal quotes omitted, paras. 17-18] It has been recognized in many cases that while costs awards in favour of the winning party are a In this case, the Crown’s conduct was described by familiar feature of civil proceedings, they are the application judge as “improper and rare in criminal cases ... This difference derives unacceptable”, caused by its failure to make the from the different purposes of civil and criminal necessary arrangements to have sufficient court proceedings. Civil cases are concerned with resources available: compensation and the efficient resolution of disputes. Costs awards compensate the successful litigant, at least partially, for the expense of litigation. Costs awards also serve as HIGHLIGHT THE CHARTER RIGHT s. 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. .......... s. 9 Everyone has the right not to be arbitrarily detained or imprisoned. ......... s.11(e) Any person charged with an offence has the right ... (e) not to be denied reasonable bail without just cause, ... PAGE 5 [T]he arrest of the [applicants] was part of an operation that involved careful and detailed planning. The central element of that careful and detailed plan was the sudden and sweeping arrest of a large number of suspects. The execution of such a plan was bound to overwhelm the ordinary capacity of the bail court to handle those arrested in a timely fashion. Regrettably, however, the otherwise careful and detailed plan entirely ignored the obvious fact that unless something was done to ensure that adequate court resources would be available on the morning of the sweeping arrests, chaos and the denial of the statutory and Charter rights of those arrested was inevitable. The [applicants] should not have been required to bring habeas corpus applications to secure their statutory and Charter rights. The situation that produced their need to resort to this remedy Volume 9 Issue 5 - September/October 2009 !"#$!!%&'("$)*+# !"#$!!%&'("$)*+ LEGALLY SPEAKING: was entirely predictable. It could and should have been avoided. [paras. 22-23] Here, the applications judge “had identified a systemic failure in the processing of the [accuseds] post-arrest which resulted in a serious violation of their rights, and he was entitled to mark his disapproval of what had occurred by ordering the Crown pay the costs of proceedings that should never have been required,” said Justice Sharpe. “While the appropriate remedy in most cases involving delayed bail hearings will be to direct or conduct an expedited hearing, the application judge found this to be an exceptional case calling for an exceptional remedy.” And even though this prosecution involved serious charges against dangerous individuals, any departure from the rights secured by the Criminal Code and the Charter could not be justified. “Quite apart from the need to respect the rights of those eventually found to be guilty, sweeps of this kind will often bring before the court bystanders who were simply in the wrong place at the wrong time,” stated Justice Sharpe. Although costs in criminal cases are an exceptional remedy to be awarded only in “rare” cases, this was one such case within the exceptional category calling for an award of costs. Without laying blame for the constitutional violations on any one prosecutor, the systemic failure of the Crown to take any steps to avoid the entirely predictable violation of the statutory and Charter rights of the accuseds supported the award of costs. And $2,000 per applicant was not unreasonable. Complete case available at www.ontariocourts.on.ca !"#$%&'()#'%*+,-.'-/+0#)*1)&1 Right to Silence 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-# “The criminal process is both '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+ accusatorial and adversarial. R e%9+ s p e/$'8$+ c t fo#$-+ r i n)"#$%&'('*6+ d iv i d u a l 5"16-+ 8% 6&)*#-1+#$-+)"#$%&'()#'%*<+ autonomy and privacy dictates that when the prosecution levels a criminal 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#' #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-. accusation, it must investigate and prove its %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;; case without any compelled assistance from #$)#+ )"#$%&'()#'%*+ /'44+ )99%&1+ the #$-+ target of that 7%"6$#+ accusation. The -.'1-*8%99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$ constitutional right to silence, the %9+ #$-+ )"#$%&'('*6+ 5"16-+ /$-*+ 8%*1"8#'*6+ constitutional protection against self- #$-+ &-. @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+ incrimination and the constitutionally /$'8$+ )"#$%&'('*6+ 5"16-+ all8%"41+ protected#$-+ presumption of innocence reflect $).-+ 6&)* )"#$%&'()#'%*<+ the fundamental importance of the principle protecting an accused from conscription to the 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# '%*+'9 %*+' cause of the prosecution. An accused is #$ %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B constitutionally entitled to say “prove it” and %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/ nothing more in answer to a criminal charge.” )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7+9" Ontario Court#$-+ of Appeal Justice )99'1).'#+ Doherty in)7+ R. v.)+ /$%4->+ )* #%+ -D);'*-+ 7"==%&#'*6+ Wright, 2009 ONCA 62 at para. 17. 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+!"#$"#%&&#'()#*'+,#KLL !"#$"#%&&#'()#*'+,#KLL KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ www.10-8.c LATIN LEGAL LINGO Habeas Corpus - “You have the body” - a prerogative writ used to determine the legality of a detention; an instrument to safeguard individual liberty against arbitrary and lawless state action. '-$)"+&.$.%&'%+/012 3$.4'*5"&-"$/&60$42$ 81+9"0"+8" 1:;<=>?&@ABC&DEEF !"#$ (#*#'6"$ Z3)6"$ D7#)+,0'$ M3'=#)#',#$ 3' P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/ PAGE 6 R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#) M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8 A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/ Volume 9 Issue 5 - September/October 2009 ADULT ABORIGINAL INCARCERATION 2007/2008 ABORIGINAL ADMISSIONS TO CORRECTIONAL SERVICES A recently released Statistics Canada report entitled “The Incarceration of Aboriginal People in Adult Correctional Services” shows the disproportionate rate at which Aboriginals are incarcerated. Aboriginals are people identifying with North American Indian, Metis, or Inuit. Highlights of the report include: As a percentage of Canadian population 3% Admissions Percent • Aboriginal adults are more represented in custody than non-Aboriginal adults. • In 2007/2008 there were 369,200 admissions to correctional services. 2007/2008 ADULT ADMISSIONS TO CORRECTIONAL SERVICES Admissions Percent Remand 41.8% Provincial/Territorial Sentenced Custody 22.9% Probation 22.0% Conditional Sentences 4.7% Community Release (CSC) 4.0% Federal Sentenced Custody 1.4% Other 3.2% Remand 17% Probation 16% Conditional Sentences 19% Provincial/Territorial Sentenced Custody 18% Federal Sentenced Custody 18% • In Saskatchewan Aboriginal adults represented 11% of the general population while representing 81% of admissions to provincial sentenced custody. Saskatchewan’s incarceration rate of non-Aboriginals on Census Day in 2006 was 0.5 per 1,000 population while the incarceration rate for Aboriginals was 15.7 per 1,000 population. Th e A b o r i g i n a l i n c a r c e r a t i o n r a t e i n Saskatchewan is about 30 times higher than the non-Aboriginal incarceration rate. Saskatchewan’s Aboriginal & Non-Aboriginal Incarceration Rate Ages Aboriginal Incarceration Rate per 1,000 Non-Aboriginal Incarceration Rate per 1,000 20-24 26.6 1.0 25-34 21.9 1.2 35-44 17.4 0.8 45-54 8.2 0.4 55+ 1.6 0.1 • The median age of a person admitted to federal custody was 33 years. All ages 15.7 0.5 • In 2007/2008 Aboriginal adults accounted for 22% of admissions to sentenced custody while representing only 3% of the Canadian population. Source: Statistics Canada, 2009, The Incarceration of Aboriginal People in Adult Correctional Services, catalogue no.85-002-X, Vol. 29, no. 3. • Women accounted for 12% of all admissions to provincial and territorial sentenced custody and 6% of federal admissions. Aboriginal woman were more represented among the female correctional population than were Aboriginal men within the male correctional population. PAGE 7 Volume 9 Issue 5 - September/October 2009 ABORIGINAL PEOPLE AS A PROPORTION OF ADMISSIONS TO CORRECTIONAL SERVICES Province % Population % Remand % Provincial/ Territorial Custody % Probation % Conditional Sentence British Columbia 4% 20% 21% 19% 17% Alberta 5% 36% 35% 24% 16% Saskatchewan 11% 80% 81% 70% 75% Manitoba 12% 66% 69% 56% 45% Ontario 2% 9% 9% 9% 12% Quebec 1% 4% 2% 6% 5% Newfoundland 4% 23% 21% .. 23% New Brunswick 2% 9% 8% 8% 11% Nova Scotia 2% 9% 7% 5% 7% Prince Edward Island 1% 6% 1% .. .. Yukon 22% 78% 76% 66% 62% Northwest Territories 45% 85% 86% .. .. Nunavut 78% .. .. 97% 97% EYEWITNESS IDENTIFICATION DIFFERS FROM EYEWITNESS RECOGNITION during the course of the attack. The defence did not challenge the admissibility of the photo line-up evidence but contested the weight to which it should be assigned. The accused was convicted of aggravated assault and assault with a weapon. R. v. Ba, 2009 BCCA 400 A person was beaten and stabbed in a restaurant by at least two men. After the attack, the accused fled the scene but was found by police a short distance away with the assistance of a tracking dog. Some of his clothing was soaked in blood. The victim later selected the accused and identified him from a photo pack and said he was 100% sure. At trial in British Columbia Provincial Court the victim made an in-court identification at trial and testified he had seen the accused on two prior occasions and recognized him The accused appealed his convictions to the British Columbia Court of Appeal arguing, in part, that the trial judge failed to consider factors relevant to identification when he found this was a case of recognition rather than identification. But Justice Donald, delivering the opinion of the unanimous court, disagreed: PAGE 8 There was, in my opinion, a solid evidentiary basis for the judge’s finding that this was a case of recognition rather than identification of a person previously unknown to the victim. Volume 9 Issue 5 - September/October 2009 [T]he two categories are treated differently. .... “The distinction between cases of eyewitness identification of a person seen for the first time and cases where the witness recognizes someone previously known to them is welldiscussed in the case authorities...” Ex, a fair being held on the grounds of Lansdowne Park in Ottawa. Lansdowne Park contains a football stadium, a civic centre with a hockey arena, and several other buildings. There were trees and grassy areas around the perimeter of the property and surrounding some of the buildings. There is also an extensive paved area that serves as a parking lot for events. The grounds are surrounded by a fence and are accessible to the public through several gates. There is an admission fee to gain entry. The Super Ex included mid-way rides, game booths, concert areas, food courts, and a petting zoo. The accused’s game booth was located in a long corridor of game booths lined with stuffed animals and other trinkets that could be won as prizes. The corridor was on the paved area. The Super Ex was attended by what was described as a very young crowd, with a lot of young people who appeared to be between 12 and 16 years of age or even younger. The main point taken by the [accused], as I understand it, is that by treating this as a case of recognition, the trial judge applied a less stringent standard for eyewitness identification which may have led him to disregard circumstances calling into question the reliability of the identification. First among those listed was the condition of the victim when he made his observation of the second attacker, said by him to be the [accused]. By then he had already suffered stab wounds, and blows from the first attacker and therefore the [accused] argues he was rendered unable to make an accurate identification. At trial in the Ontario Court of Justice the accused conceded that the Super Ex at Lansdowne Park was accessible to the public and was a place where persons under the age of 14 years were present or could reasonably have been expected to be present. However, the accused contested that he was attending a park. The trial judge found that the Super Ex at Lansdowne Park was a public park as that phrase is used in s.161(1)(a) and the accused was convicted. This was squarely before the judge. The gist of his findings on this point is that he accepted the victim’s testimony about being able to see and recognize the [accused]. He found substantial confirmatory evidence including the blood soaked clothing, corroboration of the two prior encounters and the photo pack identification. [references omitted, paras. 8-11] The accused’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca GAME BOOTH AT FAIR A ‘PUBLIC PARK’ FOR PROHIBITION ORDER R. v. Perron, 2009 ONCA 498 The accused pleaded guilty to sexual interference and sexual touching against the complainants who were between the ages of 12 and 14. The accused’s sentence included an order pursuant to s.161(1)(a) of the Criminal Code, prohibiting him from attending a public park where persons under the age of 14 were present or could reasonably be expected to be present. A few months later he was arrested while working in a game booth that involved throwing darts at balloons at the Super The accused then appealed to the Ontario Court of Appeal arguing Super Ex was not a park within the meaning of s.161(1)(a). In his view, a park ordinarily, in its regular everyday use, referred to a green space, such as an area with lawns and gardens or forests and trees, which is set aside and maintained for recreational use by the public. What is in essence a parking lot cannot be turned into a park by virtue of the way it is being used. The Crown, on the other hand, submitted that a public park cannot be circumscribed by the physical geography of the land but must be significantly informed by the use made of it. The Ontario Court of Appeal first noted that there was no definition of “public park” in the Criminal Code. As a result, the Court would need to use the PAGE 9 Volume 9 Issue 5 - September/October 2009 rules of statutory interpretation in defining its meaning: “The purpose of s. 161(1)(a) is to protect children from becoming victims of sexual offences at the hands of those who have previously committed certain specified offences.” The purpose of s. 161(1)(a) is to protect children from becoming victims of sexual offences at the hands of those who have previously committed certain specified offences. The protection of this particularly vulnerable group in Canadian society must inform the task of construing the phrase in issue in this appeal. Section 161(1)(a) addresses the legislative objective by specifying a number of locations that an offender can be prohibited from attending. The context provided by the full list of locations is of assistance in construing the phrase in issue here. Some locations such as day care centers or school grounds are places where children will inevitably be present because of the activities carried on there. However, this is not necessarily so for other locations such as public parks. ... [N]ot all public parks are places where children are likely to be found. Wilderness parks for example are public parks where nothing goes on that is likely to attract children. However, consistent with the legislative objective, only public parks where children are present or can reasonably be expected to be present can be included in a prohibition order. In other words, Parliament has specified locations in s. 161(1)(a) because what goes on there makes it likely that young children will be present. area for motor vehicles etc. to be left in (trailer park). 7 the gear position or function in an automatic transmission in which the gears are locked, preventing the vehicle’s movement. 8 a large enclosed piece of ground, usu. with woodland and pasture, attached to a stately home etc. The first six are of relevance here. All are specified locations characterized by what goes on there. For most of the six, it is some form of recreational activity. Finally, in construing the phrase describing the location that the [accused] is prohibited from attending, sufficient clarity must be given. An individual bound by a prohibition order should be able to know what it requires, since breach of the order constitutes a criminal offence. ... [references omitted, paras. 13-17] In this case, the Appeal Court rejected the accused’s contention that only green space qualifies as a public park: ... The legislative purpose, the kinds of locations that can be included in a prohibition order, and the ordinary grammatical meaning of the words clearly focus on the kinds of recreational activities that the public can engage in at the particular location and whether they are likely to involve the presence of young children. There is nothing to suggest that a particular physical geography is a vital characteristic. Indeed there are many locations commonly referred to as parks which exhibit little if any greenery. Skateboard parks are but one example. While in a particular case the presence of greenery may help in identifying a location as a public park for the purposes of a prohibition order under s. 161(1)(a), I do not think that the absence of greenery necessarily excludes it. The grammatical and ordinary sense of the words in s. 161(1)(a) is informed by the definitions of “park” found in the Canadian Oxford English Dictionary ... : park/ park/ n. 1 a piece of land usu. with lawns, gardens, etc. in a town or city, maintained at public expense for recreational use. 2 a large area of government land kept in its natural state for recreational use, wildlife conservation, etc. 3 a large enclosed area of land etc., either public or private, used to accommodate wild animals in captivity (wildlife park). 4 (usu. in combination) a an area devoted to a specified purpose (industrial park). b an area developed for a particular form of recreation (snowboard park; water park; theme park). 5 N. Amer. an enclosed arena, area, stadium, etc. for sports events (esp. ballpark). 6 an In my view, to breach this term of a prohibition order under s. 161(1)(a), the person bound by it must be attending at a defined or discrete location that is accessible to the public for recreational use that involves or is reasonably likely to involve children under the specified age. In particular cases, other factors may also be relevant, such as the presence of greenery or the public designation of the location as a park. PAGE 10 Volume 9 Issue 5 - September/October 2009 Construed in this way, the phrase “public park… where persons under the age of fourteen years are present or can reasonably be expected to be present” best serves the legislative purpose and is most faithful to the ordinary and grammatical sense of the words in their legislative context. Moreover, it provides the clarity necessary for the person bound by the order to know the locations that must be avoided. Justice Goudge concluded that the Super Ex at Lansdowne Park was a public park. The accused was “at a defined location to which the public had access for recreational use that included or could reasonably be expected to include the presence of persons under the age of fourteen years. Moreover, in this case, there was some greenery at the location although it was peripheral. Finally, the location itself was publicly designated as a park. A person in the [accused’s] position would reasonably know that he cannot attend that location in those circumstances.” The accused’s appeal was dismissed. Complete case available at www.ontariocourts.on.ca CARNIVAL NOT A ‘PLAYGROUND’ FOR PROHIBITION ORDER R. v. Lachapelle, 2009 BCCA 406 The accused was arrested after a police officer saw him walk to a hamburger stand at a carnival. The carnival, or amusement fair, visited the town once a year. It featured rides, games and food stands and it was held on a piece of private property. There was no fee for admission to the site but customers were charged for rides, food and games. The accused had an order under s.161 of the Criminal Code prohibiting him f r o m a t t e n d i n g a ny p l ay g r o u n d . H e wa s subsequently charged with failing to comply with the prohibition order. At trial in British Columbia Provincial Court the trial judge noted that there had been no “typical playground equipment” in the immediate vicinity of where the accused had been found, but that children had been using the rides some 20 to 30 paces away, and running and playing in an open area. The arresting officer, in describing the carnival as the “ultimate playground” for area residents, testified that many families were at the carnival with young children, that some nine or ten-year-olds were without adult supervision and that the carnival was a “magnet” for the children of area. The accused, on the other hand, opined that he was not prohibited from going to the carnival because it was located on a private hayfield. He said he was only there to have a burger with his aunt. The trial judge was not satisfied that “public park” included a carnival located on private land even though the public had access to it and children under 14 could be expected to be present. In his analysis, a “public park” was ordinarily a place “set aside” for use by the public, and more than a place accessible to the public. As for the meaning of “playground”, he ruled that a playground for the purposes of s.161 must be something more than someone playing on a piece of ground, otherwise a vacant lot, a street hockey game, or many other activities in a public area could be interpreted as a playground. The accused was acquitted. The Crown then appealed to the British Columbia Supreme Court. The appeal judge rejected the Crown’s submission that the carnival was a “public park” because the proposed analysis would require the individual and the court to determine whether the recreational use and degree of access at the time would qualify the location as a “public park” rather than deciding whether the geographical location was set aside or designated as such. As for whether the carnival was a “playground”, a similar concern arose. It too would require the individual and the court to analyze and assess the nature of the activity carried on or likely to be carried on at a location at a particular time. A playground is commonly understood to be an area with swings, climbing equipment or other facilities designed for children and is usually located in a park or school or other location established by a community and set aside or designated as such. The Crown’s appeal was dismissed. The Crown then appealed to the British Columbia Court of Appeal arguing the lower courts wrongly PAGE 11 Volume 9 Issue 5 - September/October 2009 focussed on the “designation” of a place rather than the manner in which it is being used. In the Crown’s view, the appeal judge drew an overly narrow definition of the word “playground”. Instead, the Crown submitted that “playground” should be interpreted to refer to “areas where children are likely to congregate for the purposes of play,” a meaning consistent with dictionary definitions of “playground”. Justice Newbury, writing the unanimous decision, noted there were two areas of tension arising with the construction of “playground” as it appears in s.161(1)(a). • a tension between the designation of a space and the activities carried on there. One being “an activity-centred approach that looks to ‘what goes on there’ rather than what the space is called or ‘designated’.” • a tension between the ordinary or grammatical meaning of a word and the context in which it is used. “When a statutory provision is to be interpreted the word or words in question should be considered in the context in which they are used, and read in a manner which is consistent with the purpose of the provision and the intention of the legislature ... If the ordinary meaning of the words is consistent with the context in which the words are used and with the object of the act, then that is the interpretation which should govern.” The Court of Appeal concluded that the carnival was not a “playground”: In my respectful view, we would be permitting context to overwhelm the ordinary and grammatical meaning of the word “playground” if we were to accede to the Crown’s argument. If it were correct, the term would include a cul de sac at the end of a street where children play hockey, a courtyard between two office towers where older children play with skateboards, or a private driveway with a basketball hoop. In my opinion, these are not ordinarily referred to as “playgrounds” because they are not outdoor areas whose purpose is to provide children with a place to play. I do not suggest that a “playground” must necessarily be a permanent structure or facility, nor that particular facilities or equipment must be provided, but the purpose of the site should be clear. (Usually the purpose of a playground is made evident by facilities such as swings.) I do suggest that “what goes on there” is not the only criterion incorporated by the ordinary and grammatical meaning of the word “playground”. Most of the dictionary definitions mentioned above connote a purpose for which the space is intended, rather than merely the use of space, whether temporary or permanent, formal or informal. By keeping sight of this “ordinary sense” of the term, a balance may be achieved between the objective of protection of children and the principle that an offender who is subject to an order under s. 161 should be in a position to know where he is allowed and not allowed to be found. As well, the overbreadth problem ... may be avoided. I conclude, then, that ... the ordinary meaning of “playground” [refers] to an outdoor area the purpose of which is to accommodate play by children. Overall, the carnival was a commercial operation intended for the amusement of the public. The “public” of course includes children, but we were not referred to any evidence to the effect that children’s play was its main object or purpose. A carnival may have rides intended for children but will also have other amusements intended for adults or for families generally. No doubt a carnival in Gitanmaax is different from a larger operation such as the P.N.E. in Vancouver, but I do not think that either would be referred to as a “playground” in the grammatical and ordinary sense of the word, even read in the context of s.161 and harmoniously with the object and scheme of the Code and the intention of Parliament. Had it been Parliament’s intention to prohibit sexual offenders such as [the accused” from attending at any place where children are present or may be expected to be present for purposes of play, it would have been an easy matter to say so. Finally, it should be noted that the Crown’s argument on this appeal was based on the notion that the carnival as a whole constituted as a “playground”. It may well be that in appropriate circumstances a ‘sub-area’ of a multi-purpose site could be said to constitute a “playground” within the meaning of s. 161(1)(a) of the Code. That situation did not arise in this case, however, since there was no finding that PAGE 12 Volume 9 Issue 5 - September/October 2009 the carnival included an area intended only for children’s play and in any event, [accused] was arrested in a line-up for food some distance from where any rides were located. [references omitted, paras. 31-33] under s.95(1) of the Criminal Code. The other charges were either dismissed or withdrawn by the Crown. The Crown’s appeal was dismissed. Complete case available at www.courts.gov.bc.ca Editor’s note: Crown was granted leave to appeal on the sole issue of whether the carnival was a “playground” for the purpose of the s.161(1) order. Leave was not granted for the interpretation of the meaning of “public park”. KNOWLEDGE OF BARREL LENGTH IMMATERIAL TO PROHIBITED FIREARM CHARGE R. v. Williams, 2009 ONCA 342 The Crown appealed the accused’s acquittal for possession of a loaded prohibited firearm to the Ontario Court of Appeal arguing the accused did have the necessary mens rea for the offence. The accused, on the other hand, admitted that the handgun was a prohibited weapon, that it was found on his person, that it was loaded, and that he was not licenced nor did he have a registration certificate for the gun. But he submitted he did not have the necessary mens rea because he was unaware that the barrel was shorter than 105 millimetres - the demarcation between a prohibited firearm and a restricted firearm under the Criminal Code. He never measured the the gun nor did he have a reason to believe it was 102.07 millimetres. Thus, he did not know that the firearm was “prohibited.” After receiving a tip from a Justice Blair, however, disagreed with the accused. confidential informant, Toronto’s Guns and Gang Unit made a high-risk In my view, the mens rea under s. 95(1) is takedown of a motor vehicle thought satisfied where the offender knew that he or she was in possession of a loaded firearm. to be driven by an individual armed Knowledge of the length of the handgun’s barrel with a weapon. The accused was not the suspected is not part of the mens rea required for the individual, but he was a passenger in the vehicle. offence created by s. 95(1), and consequently, When he exited the vehicle at the request of the the trial judge erred in acquitting the [accused] police, he was carrying a loaded Krieghoff Suhl 9 on this count. millimetre Luger handgun with a barrel length of 102.07 millimetres - a prohibited weapon - in the Section 95(1) makes it an offence to possess “a waistband of his pants. The gun had ammunition in loaded prohibited firearm or restricted firearm the magazine and the chamber. The accused was …,” unless the person possessing the firearm has charged with eight counts relating to the handgun, a licence to do so and a registration certificate but was only convicted of possessing a firearm for the firearm. There are not two offences – without a licence or a registration certificate. He was possession of a loaded prohibited firearm, and possession of a loaded restricted firearm. Rather, sentenced to 9 months in custody in addition to 15 there is only one offence: possession of a loaded months credit for pre-trial custody – the equivalent firearm, whether prohibited or of 2 years’ imprisonment. But restricted. ... [paras. 12-13] he was acquitted of possessing “Knowledge that the barrel of a loaded prohibited firearm. And further: the handgun measures 105 The trial judge sitting in the Ontario Superior Court of millimetres, or more or less than It is clear that s. 95(1) creates only Justice held that the accused’s that length – i.e., of whether one offence, the gravamen of ignorance of the length of the which is the possession of a loaded the handgun is ‘prohibited’ or firearm. barrel of the handgun in It matters not whether the question negated the mens rea ‘restricted’ – is immaterial.” firearm is “prohibited” or necessary for a conviction PAGE 13 Volume 9 Issue 5 - September/October 2009 “restricted.” The offence is the same. The potential penalties are the same under s. 95(2). The mens rea required for conviction under s. 95(1), therefore, is simply knowledge by the offender that he or she is in possession of a firearm – in this case, a handgun – that is loaded. Here, there is no doubt the [accused] knew he was in possession of a loaded handgun. It is therefore unnecessary to consider whether some other mental state – for example, wilful blindness – would be sufficient to establish “knowledge”. prohibited firearm or restricted firearm – adopting the exact language of the offence created – the accused will submit that the Crown must prove knowledge of one or the other, but he or she just did not know either! To give effect to the language and purpose of s. 95(1), and to the intention of Parliament, it is only necessary to give to the mens rea component its common sense meaning: the requisite mental element will be established where the Crown proves that the accused was knowingly in possession of a loaded prohibited or restricted handgun that he or she was not legally entitled to possess. Knowledge that the barrel of the handgun measures 105 millimetres, or more or less than that length – i.e., of whether the handgun is “prohibited” or “restricted” – is immaterial. [para. 18] This interpretation is consistent with the language of the Code and with the purpose of the provision and the intent of Parliament. The offence created by s. 95(1) is designed to protect the public from the danger posed by people with loaded firearms. It is intended to catch all unauthorized loaded handguns. A “prohibited firearm” – in the context of handguns – is defined in s. 84 as a handgun that has the characteristics set out therein. A “restricted firearm” is defined in s. 84 (again, in the context of handguns) to mean “a handgun that is not a prohibited firearm”. Consequently, a handgun is either a restricted or a prohibited firearm. There are no other handguns under the Code. That is why the language forbids the possession of “a loaded prohibited firearm or restricted firearm” .... [paras. 16-17] And further: [U]nder s. 95(1) of the Code, the offence is the possession of a loaded firearm. Whether the firearm is prohibited or restricted does not matter. The common denominator in the comparison between the two types of offences is that the actus reus (possession of a forbidden item) and the mens rea (knowledge of the characteristics that make it a forbidden item) do not relate to different crimes but rather to the same crime in each case. [para. 21] Justice Blair also found the accused’s argument that the Crown must prove mens rea in relation to the type of weapon specified in the indictment would create an unwarranted hurdle for the Crown. : Accused persons could always assert that they had not measured or made any enquiries about the length of the handgun’s barrel. Accordingly, regardless of the way in which the charge is framed, the Crown would rarely, if ever, be able to obtain a conviction. Where the charge is possession of a loaded prohibited firearm, the argument will be that the accused person did not know that the length of the barrel was 105 mm or less and therefore lacked the requisite mens rea that the gun was a prohibited firearm. Where the charge is possession of a loaded restricted firearm, the same argument would be made with respect to the length over 105 mm. If the Crown charged possession of a loaded ... ... ... [T]he language of s. 95(1) creates only one offence: possession of a loaded firearm (prohibited or restricted). Since a handgun – the loaded firearm in this instance – must by definition be either a prohibited or a restricted firearm, convicting the [accused] of the offence with which he was charged (possession of a loaded prohibited firearm) knowing that he was in possession of a loaded handgun, does not involve transferring to him an intention relevant to one crime in order to convict him of another. [para. 23] The Crown’s appeal was allowed and a conviction was entered. Complete case available at www.ontariocourts.on.ca PAGE 14 Volume 9 Issue 5 - September/October 2009 !"#$!!%&'("$)*+#, LEGALLY SPEAKING: 1;%<=>*1?=0@=A7 someone who will agree to sell them drugs. They then arrange for a meet, exchange cash for drugs and arrest the seller. There was no set script for the ILLICIT DRUG TRADE initiating telephone call, but the accused answered one of these calls. He said he was working and the 23$-+#&')4+5"16-+$)7+#%+8%*7'1-&+/$-#$-&+#$-&-+ “[I]llicit drug trade in Canada is officer said he needed “40 up” - slang for $40 worth '7+7"99'8'-*#+&-4'):4-+'*9%&;)#'%*+%*+#$-+:)7'7+ of cocaine. The accused agreed to meet and the source of much violence. provided officer with powdered cocaine in %9+ /$'8$+ #$-+ )"#$%&'('*6+ 8%"41+the$).-+ Some of it involves vendors at 5"16-+ exchange for $40. He was arrested and charged. !"#$%&'()#'%*+,-.'-/+0#)*1)&1 !" 23 79 4# 9' @0,"$:9#56+3'$+5$A05#4$3'$0$,0 (##$80/#$BB$=3)$6"#$0'5>#)5? At trial in British Columbia Provincial Court the 6&)*#-1+#$-+)"#$%&'()#'%*<+ war with one another over territory and perceived slights, and much of it 3$-+)"#$%&'('*6+5"16-+;"7#+:-+7)#'79'-1+#$)#+ accused plead guilty to trafficking in cocaine and possessing cocaine for C?$D11$3,,980'65$3=$0$*#"+,1#$0) the purpose of trafficking. #$-&-+)&-+&-)7%*):4-+)*1+=&%:):4-+6&%"*17+#%+:-4'-.-+#$)#+)*+ involves those who are users committing However, he sought a judicial stay of proceedings %99-*8-+$)7+:--*>+'7+:-'*6>+%&+'7+):%"#+#%+:-+8%;;' ##-1>+)*1+ offences up to the level of robbery in order to >"#'$6"#$*#"+,1#$+5$56388#4 on the basis that he was entrapped. The trial judge #$)#+ #$-+ )"#$%&'()#'%*+ 7%"6$#+ /'44+ )99%&1+ -.'1-*8-+ %9+ #$)#+ heard expert evidence that the dial-a-dope trade in acquire the funds needed to support habits and $ F0G$!)9# illicit drugs is more anonymous, more mobile, and %99-*8-<+?%/-.-&>+#$-+#&')4+5"16-+1%-7+*%#+7#)*1+'*+#$-+7$%-7+ $ FAG$H015# addictions.” - Alberta Court of Appeal in R. v. more difficult to investigate than “buy and bust” $ %9+ #$-+ 2009 )"#$%&'('*6+ 8%*1"8#'*6+ #$-+ 3$-+ which Morris, ABCA 3035"16-+ at para. /$-*+ 14. street&-.'-/<+ level trafficking lends itself more readily I?$D5J+'/$0$4)+*#)$63$A13>$+'63 to alternative police investigative techniques, @"-7#'%*+9%&+#$-+#&')4+5"16-+'7+/$-#$-&+#$-&-+/)7+)*A+:)7'7+%*+ including surveillance. The trial judge3=$ found the 89)835#$ 4#6#)7+'+'/$ 6" /$'8$+ CALLING #$-+ )"#$%&'('*6+ 5"16-+DIAL-A8%"41+ $).-+police 6&)*#-1+ COLD SUSPECT conduct#$-+ was reasonable and lawful and they 3439)$+5$0$8#)7+55+A1#$5,)# were involved in a bona fide investigation. It did not )"#$%&'()#'%*<+ DOPE NUMBER AMOUNTED TO ENTRAPMENT amount to random virtue testing and therefore was '36$#'/0/#$6"#$)+/"6$63$,39 not'%*+'9+7)#'79'-1+ entrapment. 3$-+#&')4+5"16-+7$%"41+%*4A+7-#+)7'1-+)*+)"#$%&'()# M"0)6#)? R. v. Swan, 2009 BCCA 142 # $-+#%#)4'#A+ %*+)44+#$-+;)#-&')4+=&-7-*#-1>+)*1+%*+8%*7'1-&'*6+B The accused appealed to$ the British Columbia Court F0G$!)9# The accused was arrested following %9+#$-+8'&8";7#)*8-7C>+#$)#+#$-&-+/)7+*%+:)7'7+%*+/$'8$+#$-+ of Appeal arguing the police entrapped him and that $ FAG$H015# an undercover dial-a-dope operation. a judicial stay of proceedings should have been )"#$%&'()#'%*+8%"41+:-+7"7#)'*-1<++3$-+#&')4+5"16-C 7 +9"*8#'%*+'7+ $ A police officer had compiled a list entered. In his view, the police did not have a of telephone numbers that )7+ were B?$he N"+,"$ 8)3*+',#$ "04$ 6"#$ 7 #%+ -D);'*-+ #$-+ 7"==%&#'*6+ )99'1).'#+ )+ /$%4->+ )*1+ *%#+ #%+ that reasonable suspicion was engaged in drug suspected of being associated to trafficking when they offered him an opportunity to (98)#7#$M39)6$3=$M0'040$+' 7":5-8#+'#+#%+)+B;'8&%78%='8+)*)4A7'7+!"#$"#%&&#'()#*'+,# !"#$"#%&&#'()#*'+,#KLLM+GHH!+ KLLM+GHH!+ %9+!==-)4+H$'-9+I"7#'8-+J'*8$>+ !"#$"#%&&#'()#*'+,# emailed the entire police department and asked random virtue testing. He the police were them to get names or phone numbers or the best tip more than mere KNL>+)#+=)&)7<+OKFON>+&-9-&-*8-7+%;'##-1<+ making cold-calls on $ nothing FAG$D1A#)60Q they could on a dial-a-doper. The officer received suspicion and that the police did not attempt to $ F,G$R'60)+3Q 150-250 telephone numbers (tips) which came in verify their sources before making these calls, even various ways; email, matchbooks, napkins, teared off where it was possible to$ doF4G$S9#A#,? so, and that verification pieces of paper, Crimestoppers tips, or just a phone of tips was regarded as virtually irrelevant in such an number on a piece of paper. These numbers were investigation. Because the police did not limit the T?$!"#$+'=3)706+3'01$496<$+78 then given to other officers working on the project scope or target area of the investigation to something M"0)6#)$+5$63$ who would try and make a drug deal and an arrest narrower than everywhere 5?CLFAG$3=$6"#$ within the cell phone’s by calling the telephone number and speaking with reach or every number which happened to appear)+/"65U$ '3 '36+,#$ 3=$ 6"#+)$ whomever answered the call. Telephone calls based on the unsubstantiated police list of phone numbers, #V#),+5#$6"#7?$ on these tips were 95% cold calls - made to an the police were not engaged in a bona fide unknown person, unknown name, everything $ F0G$!)9# investigation. The Crown, on the other hand, unknown from start to finish. The methodology contended that the police conduct did not amount $ FAG$H015# followed is that the undercover officers make to random virtue testing and that the investigation telephone calls to each number until theyM3'=#)#',#$ reach !"#$ (#*#'6"$ Z3)6"$ D7#)+,0'$ 3'$ ("0J#'$ was bona fide. www.10-8.ca '-$)"+&.$.%&'%+/012"& 3$.4'*5"&-"$/&60$42$7& 81+9"0"+8" 1:;<=>?&@ABC&DEEF P0A<$(<'4)37#YDA95+*#$[#04$!)0970$+5$A#+'/$"#14$3'$ PAGE 15 R,63A#)$ W\OU$ ILL]$ +'$ A#096+=91$ ^0',39*#)U$ P)+6+5"$ M3197A+0?$ !"+5$ <#0)U$ 3*#)$ CLL$ 58#,+01+;#4$ #V8#)65$ >+11$ A#$8)#5#'6+'/$=)37$0)39'4$6"#$>3)14U$+',194+'/$0$56)3'/$ W?$D$831+,#$3==+,#)$'##4$'36$7 M34#$ 088)3*#4$ 5,)##' +'560'60'#3951<$983'$4+5,3* 01,3"31$ +'$ 6"#+)$ A34