Gino Arcaro's Case Summaries

Contents




Case #26 — March 30, 2008

Legislation for 911 Investigations
R. v. Sucuqui (2008) ON S.C.

The issue of what authority the police have with regard to 911 calls has become needlessly complex.

Nine-one-one calls are part of a topic called “distress calls.” A key issue with these calls is the two types of uncertainty present that put the police in a decision-making bind. These uncertainties form the “protection/negligence” paradox: it is possible to exceed your search authority while trying to protect, and it is possible to be negligent if you don’t search enough.

The first type of uncertainty arises when the police are lacking the concrete information they need in order to investigate and reach proper solutions. Nine-one-one calls inherently lack information. The whole point of a 911 call is to communicate an emergency — there is no time to communicate an entire, concrete story. Nine-one-one calls are part of a group of distress calls that are characterized by the issue of “unknown problem.”

The second type of uncertainty is caused by the lack of statutory guidelines. Incredibly, no Canadian statute, including the Criminal Code, specifically informs the police what to do during 911 calls. The only provision that seems to apply, but actually does not, is s. 529.3(2) of the Criminal Code — exigent circumstances for a Feeney warrant to enter a dwelling-house.

This provision does not guide the police in 911 or unknown problem calls because s. 529.3(2) applies only when the problem is known. It is only relevant when two types of reasonable grounds exist: a person has committed a specific offence, and that person is in a specific house at the time of the call. Nine-one-one calls don't convey that belief.

The leading case that guides the police regarding 911 investigative authority is R. v. Godoy. That case clearly lifted many investigative restrictions by allowing the police to enter and search houses without a warrant, even when an occupant tells the police that everything is all right and denies the police consent to enter. The search has to be limited to determining whether people are hurt or need help. Although the Godoy authority does not allow a carte blanche search for any type of physical evidence, the search can be thorough enough to identify whether or not injured persons are in the house.

On February 27, 2008, a mystifying case law decision was released by the Ontario Superior Court of Justice in R. v. Sucuqui (2008). It qualifies as yet another of the countless Godoy derivatives. The Crown lost an appeal because a police search exceeded 911 investigative powers despite the authority given in the Godoy case.

It's time for Parliament to amend the Criminal Code and codify the Godoy rules. The derivative case law decisions are endless and increasingly complex. Nine-one-one calls are fundamental front-line police investigations. Parliament has to enact legislation in the Criminal Code to provide the police with concrete guidance for these investigations. It’s unbelievable that such a serious topic is found only in myriad case law decisions that require officers to conduct endless research to determine points of reference.

If you are a police officer, or seriously considering a career in law enforcement, this is one case that must be studied in 2008. A full article will be included in the upcoming revisions of both Criminal Investigation: Forming Reasonable Grounds and Basic Police Powers: Arrest and Search Procedures.




Case #25 — March 14, 2008

Admissibility of Confessions
R. v. Dove (2008) BCCA 102

The value of a proper confession is irrefutable. There is ample case law that demonstrates the benefit of an admissible confession. However, there is no law that establishes a concrete, step-by-step interrogation strategy.

The key word is strategy. You can't simply “wing it” when you are questioning a suspect. The goal of an interrogation is to obtain the truth. A preventive balance is needed — prevent innocent persons from being convicted, and prevent the repetition of serious offences.

A review of the case law reveals a number of proper, effective interrogation strategies. The primary guideline is the landmark SCC case R. v. Oickle (2000), which created the contemporary rule of evidence relating to the admissibility of confessions. Countless derivative cases have emerged since then that have added to the list of effective interrogation strategies available to police.

On March 7, 2008, the BCCA released its decision in R. v. Dove (2008), which involved an accused’s statement made during a homicide investigation and the officer's subsequent trial testimony. This case adds valuable point-of-reference circumstances to help guide front-line officers during interrogations.

One of the goals of this revision is to provide students with the most extensive and most practical case law review relating to the admissibility of confessions.

A full article will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds. One of the goals of this revision is to provide students with the most extensive and most practical case law review relating to the admissibility of confessions.




Case #24 — March 14, 2008

Consistency of Prior Statements
R. v. Stirling (2008) SCC 10

Witnesses who change their stories pose a common problem. This problem falls under the legal category of “prior inconsistent statements.” The rule of evidence is, generally, that prior inconsistent statements are inadmissible.

A prior inconsistent statement is a witness statement, made to the police, that contradicts the same witness’s trial testimony. The prior inconsistent statement is defined as the original witness statement. When testimony contradicts the original statement, the original statement is not automatically admissible.

Fifteen years have passed since the SCC created the contemporary prior inconsistent statement rule in the landmark case R. v. K.G.B. (1993). It is a complex law that works in conjunction with s. 9(2) of the Canada Evidence Act.

On March 14, 2008, the SCC released a decision in R. v. Stirling (2008) regarding the admissibility of prior consistent statements. The accused was convicted of criminal negligence causing death and criminal negligence causing bodily harm as a result of a single-vehicle accident that killed two people and seriously injured the accused. During the trial, a witness testified. During the witness’s cross-examination, the possibility surfaced that he had motive to fabricate his testimony. A controversy emerged about who the driver of the car was at the time of the accident — the accused or the witness.

Following a voir dire, the trial judge admitted several prior consistent statements made by the witness to rebut the suggestion of recent fabrication. The majority of the British Columbia Court of Appeal upheld the convictions. The dissenting BCCA judge would have ordered a new trial on the basis that the trial judge used the prior consistent statements to bolster the general credibility of the witness and for the truth of their contents.

The SCC dismissed the accused’s appeal. The prior consistent statements were “not used for an inappropriate purpose.”

R. v. Stirling includes a valuable case law literature review that explains the rule of evidence for prior consistent statements. Additionally, the circumstances provide a point of reference for traffic investigations that involve proving the identity of the driver of the offending car.

A full article will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




Case #23 — February 12, 2008

The Front-Line Police Paradox
R. v. Harrison (2008) Ont. C.A.

Front-line, proactive police decision making is not easy. It involves a clash of expectations.

The public expects the police to work hard to ensure public safety, and to be proactive while doing so. Proactive policing includes stopping motorists to determine whether crimes have been committed. The police become experts in developing suspicion; forming suspicions about crime is a major part of police work. However, the police are often limited by laws that prohibit searches based only on suspicion. A higher belief — reasonable grounds — is usually needed. The problem is reality. In reality, there is a blurred line that separates suspicion from reasonable grounds. A front-line officer has only a few seconds to process volumes of information and observations in order to make major decisions (such as whether or not to search, or whether to question a driver or let him leave).

If the police ignore suspicions, they are called lazy or negligent. If they act on those suspicions, they are called “flagrant” Charter violators. This is the front-line police paradox.

On February 11, 2008, the Ontario Court of Appeal made a significant reality-based ruling. A large quantity of drugs seized as the result of a warrantless search of a car by the police, without reasonable grounds, is admissible when the severity of the crime outweighs the severity of the police misconduct.

In other words, the application of section 24(2) of the Charter has changed significantly during the past two decades. The courts' decision-making pendulum has swung from one extreme to another. There used to be an almost rigid pattern of evidence exclusion that favoured the defence; evidence that was seized following a Charter violation was likely excluded instead of admitted. Now, a more flexible approach has favoured the prosecution, resulting in the admission of evidence despite “flagrant” Charter violations committed by the police. Section 24(2) Charter decisions are becoming more reality-based.

The change brings much more common sense to the way in which section 24(2) is applied, and to the expectations of front-line police decisions. According to section 24(2), evidence seized by the police after the commission of a Charter violation is not automatically excluded from a trial; the trial judge has discretion to admit or exclude it. A complicated set of guidelines governs how trial judges are supposed to use that discretion. In simple terms, the discretion is supposed to be based on what a “reasonable Canadian” citizen would think about how the admission or exclusion affects the reputation of the criminal justice system. A balance must be struck, determining what is more severe — the crime, or the Charter violation.

In R. v. Harrison (2008), a “very large quantity (77 pounds) of cocaine” was seized from a car driven by the accused. The trial judge ruled that the police officer who seized the drugs “did not have reasonable grounds to stop and search the car and that he knew it.”

The trial judge described the officer’s actions as “flagrant,” but decided that they “did not fall into the most egregious category.” Regardless, the drugs were admitted at the trial, resulting in a conviction.

The trial judge’s decision was based on a comparison of the severity of the police misconduct with the crime. The judge stated, “[the Charter breaches] pale in comparison to the criminality involved in the possession for the purpose of distribution of 77 pounds of cocaine." The trial judge concluded that the harm done to the reputation of the administration of justice by excluding the evidence would be greater than that done by admitting it.

The Ontario Court of Appeal denied the accused’s appeal. The trial judge’s decision was upheld.

The actual circumstances of this case are important because they form a valuable point of reference for front-line police officers who must make quick decisions during motorist stops. A full article will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #22 — February 5, 2008

Police Notebooks
R v. Schertzer (2007) Ont. S.C.

Are police notebooks public documents?

Are police notebooks admissible in court against an officer if he or she is charged with any type of misconduct or offence?

This case not only answers these two questions, but also provides a great case-law literature review about the relationship between police notebooks and self-incrimination.

A full article review will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #21 — January 16, 2008

HTA and Due Diligence
R. v. Kanda (2008) Ont. C.A. 22

Proof of Consent
R. v. Colson (2008) Ont. C.A. 21

On January 15, 2008, the Ontario Court of Appeal released two decisions relevant to front-line police investigations.

R. v. Kanda (2008): The accused was charged and convicted under the Highway Traffic Act for driving a car while a child passenger was not wearing a seat belt. The accused’s appeal was based on the issue of due diligence. He was driving his two sons, aged 12 and 8, to school when he was stopped and charged. At trial, he testified that he had ensured that both boys were wearing their seat belts when he left the family home. He was unaware that his younger son, seated in the back seat, had unfastened his seat belt during the drive. Subsequently, the accused was convicted. The Ontario Court of Appeal dismissed the appeal because HTA offences are strict liability offences.

R. v. Colson (2008): This case has significant impact on proving ”consent” seizures of physical items, including DNA samples. The accused was convicted of first-degree murder based largely on a DNA match to a saliva sample that he gave to police by consent. He appealed to the Ontario Court of Appeal. The issue at hand was the definition of consent: What is the standard of proof for consent? Do the Wills consent guidelines apply, or does the standard of “voluntariness” relevant to confessions apply?

The Ontario Court of Appeal rejected the appeal. DNA samples and confessions are different. The Wills guidelines apply to consent of seizures of physical items. The laws of voluntariness apply to confessions.

A complete interpretation will be included in the upcoming revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #20 — December 6, 2007

“Mere Presence/Association — Participation” Paradox
R. v. Jackson (2007)

The “mere presence/association — participation” paradox refers to a line separating mere presence at a crime scene (for example, a marijuana plantation) and mere association with a criminal (for example, a marijuana producer). The paradox asks two questions:

  • When does presence at a crime scene (for example, a marijuana plantation) constitute a crime?

  • When does association with a criminal (for example, a marijuana producer) constitute a crime?

There are two SCC rules that say it is not an offence to merely be at a crime scene or associate with someone who committed a crime.

  • Almost 30 years ago, the SCC, in Dunlop v. The Queen (1979), concluded: “An accused’s mere presence at the scene of a crime in circumstances consistent with innocence will not support a conviction.”

    The SCC repeated this rule on December 6, 2007: “The mere presence of an accused at the scene of a crime does not prove culpable participation in its commission.”

    Therefore, the act of being at a crime scene, by itself, does not prove that the person committed the offence that occurred at that crime scene.

  • The dissenting SCC judge in this recent decision reiterated the long-standing rule that “no one, in Canada, is guilty by association.”

    The difference between presence/association and “participation” is circumstantial evidence that accompanies both the presence and the association.

On December 6, the SCC released a decision upholding the conviction of an accused person who was arrested with four others on the site of a secluded marijuana plantation in a remote area of a forest, and was later convicted of illegal production of marijuana.

This case represents a point of reference that identifies the concrete volume of circumstantial evidence needed to raise mere presence and mere suspicion to “participation.” Among a number of circumstances that existed in this case, the most compelling circumstantial evidence was “prolonged and unexplained presence” at a crime scene.

Of course, the best way to raise presence/association to participation is by obtaining a confession.

A full case law literature review will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #19 — December 6, 2007

Admissibility of Confessions: Injured and/or Suicidal Suspect, and Modified Caution
R. v. Ngo (2007) ONCJ 315

In some crimes, the offender is: (1) injured, requiring hospitalization, and/or (2) suicidal. These two circumstances create the following interrogation problems:

  • If only mere suspicion exists, how does hospitalization affect consent? Can the injured suspect leave at any time during the interrogation? Can you interrogate the suspect before treatment is given to the suspect?

  • If the suspect is suicidal, can you make an offer for counselling? Can you interrogate a suspect who may be a candidate for Mental Health Act (MHA) detention?

  • Can you modify the formal ”caution” to adapt to these specific circumstances?

In R. v. Ngo (2007), a confession was admitted in these circumstances. This case is a point of reference for a number of acceptable interrogation techniques. Specifically, it creates a strategic framework that provides guidance on how to properly:

  • offer counselling;

  • use the victim’s need to know as an appeal to a suspect’s conscience;

  • modify the formal caution;

  • persist during a consent non-custodial interrogation;

  • question a hospitalized suspect;

  • question a suspect before medical treatment; and

  • question a suspect who is a candidate for MHA detention.

A full case review will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #18 — November 18, 2007

Circumstantial Homicide
R. v. Khan (2007) ONCA 779

On November 14, 2007, the Ontario Court of Appeal released a decision in R. v. Khan (2007) that provides a valuable case law literature review regarding:

  • a point of reference for what constitutes circumstantial evidence to prove both reasonable grounds and guilt beyond reasonable doubt in a homicide case;

  • the definition of ”guilt beyond reasonable doubt”; and

  • the duty of a parent to protect a child from abuse at the hands of another parent.

The court presented two concrete lists: (1) pre-offence conduct, and (2) post-offence conduct. The combined effect of the two lists represents an example of the volume and nature of circumstantial evidence that constitutes both reasonable grounds and guilt beyond reasonable doubt. Reasonable grounds and guilt beyond reasonable doubt are both levels of belief; guilt beyond reasonable doubt is a higher standard of belief. The SCC has defined it as a “standard of proof much closer to absolute certainty than to proof on a balance of probabilities.”

In other words, the key points about guilt beyond reasonable doubt are that:

  • it does not represent 100 percent certainty;

  • in order to reach it, the evidence has to be beyond the midpoint between ”balance of probability” certainty and 100 percent certainty;

  • it is possible to reach near 100 percent certainty with circumstantial evidence;

  • reasonable grounds represents a slightly lower level of belief; and

  • reasonable grounds may be formed solely on circumstantial evidence.

Circumstantial evidence refers to non-direct evidence — no confession, no eyewitness. There are two possible beliefs that circumstantial evidence may form — mere suspicion, or beyond it. The measuring stick is the number of logical conclusions that exist. Only one logical conclusion (the accused person’s guilt) constitutes beyond mere suspicion. More than one logical conclusion represents mere suspicion. The operative word is logical — not far-fetched.

Circumstantial evidence is composed of non-direct evidence that occurs within two time periods: (1) pre-offence conduct, and (2) post-offence conduct, and which implies “during the offence” conduct. In other words, circumstantial evidence is the sum of conduct before and after a crime that implies what happened during a crime.

There is no concrete definition of what specific volume and nature of circumstantial evidence forms reasonable grounds and guilt beyond reasonable doubt. However, the two lists in this offence represent a point of reference for what does constitute sufficient circumstantial evidence.

Finally, this case reiterates the criminal liability associated with one parent failing to protect a child from a vicious beating at the hands of the other parent. In this case, both parents were convicted for homicide-related offences. One parent actually caused the homicide; the other failed to intercede. Failing to protect and intercede constitutes being a party to the offence, because the non-abuser knew that the abuser’s conduct “was likely to cause death, and that [the] omission was intentional and designed to enable [the abuser] to murder the child.”

The circumstances of this case serve as a point of reference for what specifically constitutes parental failure to protect and intercede in a child abuse situation.

A full article demonstrating practical investigative applications will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #17 — November 3, 2007

Right to Silence
R. v. Singh (2007) SCC 48

The bold strategy of obtaining a confession from a murder suspect “no matter what” may be acceptable even if it requires persistence that ignores and changes the suspect’s intention to remain silent, as long as the police conduct does not negate the suspect’s ability to exercise his free will. On November 1, 2007, the Supreme Court of Canada made a landmark ruling that significantly expanded police interrogation strategy. The SCC upheld the murder conviction of an accused person who was convicted in 2002 for second-degree murder. The primary issue was determining the extent of police persistence that may be used to obtain a confession when an accused repeatedly invokes his right to remain silent.

In this case, a homicide investigation began when a bystander was shot and killed at a bar. The shooter fired a handgun through the open door of the bar after he had been kicked out for fighting. The investigating detective was “refreshingly frank” in testifying that he intended to get a confession from the accused during the homicide investigation, “no matter what.”

During the interrogation, the accused repeatedly invoked the right to silence, telling the detective that he did not want to answer questions. The detective persisted. The accused changed his mind and made certain statements.

The SCC ruled that the statements were admissible. The police have considerable leeway during interrogations where suspects invoke the right to silence. When an arrested person tells the police that he wants to remain silent, the police do not have to automatically stop questioning. The police may persist with questioning, as long as the interrogation conduct does not remove the accused person’s ability to exercise free will.

A full article, with practical conclusions that may be applied to front-line police interrogations, will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #16 — October 23, 2007

Admissibility of Statutorily Compelled Statements and Confessions
City of Toronto v. Baillie (2007)

Front-line policing includes a number of apparently simple investigations involving simple questioning that often leads to a witness making an incriminating statement. For example, imagine you are a uniformed patrol officer responding to a motor vehicle collision. Upon arrival at the scene, you see two cars on the side of the road, neither containing passengers. Both drivers are present and uninjured.

You interview both drivers. Both cooperate and give you written statements. Driver #1 was following Driver #2. He informs you that when Driver #2 stopped, he collided with the back of his car. Subsequently, you charge Driver #1 with “Following Too Close.”

Although this seems like a simple investigation, it will likely result in a complicated trial because of the “confession paradox.” The confession paradox refers to a web of contradictory, mandatory obligations relating to motor vehicle collision investigations.

  • The drivers have a mandatory obligation to report the collision.

  • The police have a mandatory obligation to investigate the collision and complete reports that include the drivers’ statements.

  • The drivers have a mandatory obligation to provide a statement so that the police can complete the collision report.

In the above scenario, Driver #1’s statement represents a confession. In order for it to be admissible in court, the police have to prove that the statement was voluntarily made. The confession paradox is: How can a statement be voluntary if a statute compels it?

The judgment in City of Toronto v. Baillie (2007) is significant because the circumstances form a point of reference for front-line questioning (and confessions) relating to motor vehicle collisions. Additionally, it includes an outstanding case law literature review that provides relevant and practical information for police officers, teachers, and students regarding the complex relationship among the following legal components.

1. Section 199(1) HTA: Duty to report accident

Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3).

2. Section 199(3) HTA: Duty of police officer

A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident.

3. Section 200(1) HTA: Duty of person in charge of vehicle in case of accident

Where an accident occurs on a highway, every person in charge of a vehicle or street car that is directly or indirectly involved in the accident shall,

(a)  remain at or immediately return to the scene of the accident;

(b)  render all possible assistance; and

(c)  upon request, give in writing to anyone sustaining loss or injury or to any police officer or to any witness his or her name, address, driver's licence number and jurisdiction of issuance, motor vehicle liability insurance policy insurer and policy number, name and address of the registered owner of the vehicle and the vehicle permit number.

4. Section 7 Charter: Right to silence

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.

5. Section 10(b) Charter: Right to counsel

Everyone has the right on arrest or detention … (b) to retain and instruct counsel without delay and to be informed of that right.

6. Section 11(d) Charter: Right to be presumed innocent

Any person charged with an offence has the right … (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal,

7. Section 24(2) Charter: Admissibility of evidence

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

8. R. v. Oickle (2000) SCC: the “modern/contemporary confession rule”

The HTA legislation compelling motorists involved in an accident to report the particulars of that accident to a police officer has two goals:

  • the public goal of road safety; and

  • the protection of the public from bad motorists.

The legitimate public goal justifies compelling a motorist to make a statement (that may violate the right against self-incrimination) to a police officer for the purposes of an accident report. The issue is that of striking a balance between the justification for compelling a statement and the individual’s rights and protection against self-incrimination.

A more detailed review of City of Toronto v. Baillie (2007) will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #15 — October 20, 2007

Police-Informant Privilege
Named Person v. Vancouver Sun (2007) SCC 43

After interrogation skills, informant development and informant management are the most crucial investigative skills. The unquestioned significance of confidential informants to both police investigations and the criminal justice system as a whole has been documented throughout history.

Consequently, the police-informant privilege (formally called the Crown privilege) is a vital law that protects the identity of confidential informants. It ensures the safety of informants and it encourages them to report significant evidence that helps solve major crimes. However, the balance between the “open court” concept of trial fairness often raises the question of the extent of informant confidentiality. Specifically, in order to ensure a fair, open trail, to what extent will an informant’s identity be protected?

On October 11, 2007, the Supreme Court of Canada released a significant decision that answered this question. In Named Person v. Vancouver Sun (2007), the SCC wrote an extensive case law literature review that is relevant to front-line police officers and provides valuable research for law enforcement educators and students.

A full article with practical findings will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #14 — October 11, 2007

Civil Liability for Negligent Investigations
Hill v. Hamilton–Wentworth Regional Police Service (2007) SCC 41

On October 4, 2007, the SCC released a landmark decision in Hill v. Hamilton–Wentworth Regional Police Service (2007). This decision sets a standard for police investigations and potential civil liability of negligence for substandard investigations, and acts as a point of reference for what does not constitute a substandard, negligent investigation.

In this case, an accused person was wrongfully convicted. Wrongful conviction represents one type of potential civil liability. A substandard investigation represents another type of civil liability — negligence. However, the police were not negligent in this case. The circumstances are significant because they represent a crucial point of reference for what does not constitute investigative negligence.

Specifically, the SCC answered the following questions:

Can the police be held liable if their conduct during the course of an investigation falls below an acceptable standard and if harm to a suspect results from the substandard investigation?

Yes, the police may be civilly liable for negligence.

Is police conduct during the course of an investigation or arrest subject to scrutiny under the law of negligence at all, or should police be immune on public policy grounds from liability under the law of negligence?

“The police are not immune from liability under the Canadian law of negligence. The tort of negligent investigation exists in Canada. The law of negligence does not demand a perfect investigation. It requires only that police conducting an investigation act reasonably. When police fail to meet the standard of reasonableness, they may be accountable through negligence law for harm resulting to a suspect.”

Additionally, the SCC noted:

  • “[T]he existing remedies for wrongful prosecution and conviction are incomplete and may leave a victim of negligent police investigation without legal recourse.”

  • “The torts of false arrest, false imprisonment and malicious prosecution do not provide an adequate remedy for negligent acts. Government compensation schemes possess their own limits, both in terms of eligibility and amount of compensation.”

The police have a common-law and a statutory obligation to investigate crime. This creates the paradox regarding the decision of when to investigate a suspect and when to leave a person alone. The proposed tort duty that emerged from this decision “does not presuppose a duty to leave the citizen alone, but only a duty to investigate reasonably in accordance with the limits imposed by law.”

Finally, the circumstances of this investigation surrounded the formation of reasonable grounds based on a number of investigative techniques, including:

  • a Crime Stoppers tip;

  • identification by a police officer based on a surveillance photo; and

  • several eyewitness identifications (some tentative, others more solid), including those obtained by the use of photo lineups.

The decision explains what is and what is not acceptable investigative practice.

The full interpretation of this decision and how it applies to reality will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #13 — September 22, 2007

Admissibility of Drugs Seized During Marijuana Grow Operation Investigation
R. v. Nguyen (2007) ONCA 645

On September 21, 2007, the Ontario Court of Appeal upheld the conviction of an accused who, as the result of a marijuana grow operation, was convicted of:

  • production of marijuana, possession of marijuana for the purpose of trafficking, and possession of marijuana, contrary to ss. 7(1), 5(2) and 4(1), respectively, of the Controlled Drugs and Substances Act; and

  • theft of electricity, contrary to s. 326(1)(a) of the Criminal Code.

The key points are that, at the beginning of trial, the accused admitted two elements:

  • there was a marijuana grow operation inside her residence at the time; and

  • the residence had been modified to accommodate the grow operation and there were 1,121 plants and a hydro theft that exceeded the value of $5,000.

However, the accused challenged three issues:

  • Her involvement. She denied that she was involved in the grow operation.

  • The search warrant. A search warrant was obtained and executed. The accused challenged the issuance of the search warrant on the house she owned that housed the grow operation.

  • Entry. The accused challenged the manner of the warrant’s execution on the basis that the police failed to do a “knock and notice” before breaking the front door of the house with a battering ram.

The trial judge dismissed the challenge to the search warrant but accepted the challenge regarding entry. The “knock and notice” failure constituted an s. 8 Charter violation. However, the seized drugs were admitted under s. 24(2) of the Charter because the exclusion of the drugs would bring the administration of justice into disrepute.

The seized drugs represented the bulk of the Crown’s case. The accused was convicted and sentenced to 15 months’ incarceration, along with restitution in the amount of $10,000 to Hydro One, probation for a one-year period, and a weapons prohibition.

The accused’s appeal regarding the conviction was rejected. This judgment is significant because:

  • it includes a valuable case law literature review regarding the “knock and notice” rule; and

  • it provides an investigative point of reference for marijuana grow operations with specific focus on the relationship between search warrants, entry, and admissibility of seized drugs under s. 24(2) of the Charter.

A full article will be included the upcoming revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #12 — September 19, 2007

The "Mere Suspicion" Bind (Continued)
R. v. L.B. (2007) ONCA 596

R. v. L.B. (September 5, 2007) may be the most important case law decision of 2007 for three reasons.First, the Ontario Court of Appeal reversed a mind-boggling acquittal that, if it had stood unchallenged, would have changed front-line policing forever. Second, the court sent a powerful message to the criminal justice system about the importance of protecting schools. Third, the police were given considerable leeway when investigating suspected gun possession on school campuses by virtue of the "egregious conduct" rule.

The following quote from the judgment summarizes the case:

"This case involves a loaded handgun in the possession of a student on school property. Conduct of that nature is unacceptable without exception. It is something that Canadians will not tolerate. It conjures up images of horror and anguish the likes of which few could have imagined twenty-five years ago when the Charter first came to being. Sadly, in recent times, such images have become all too common — children left dead and dying; families overcome by grief and sorrow; communities left reeling in shock and disbelief."

The case overturned the exclusion of a seized handgun during a proactive police investigation at a school in Toronto. The court introduced "egregious conduct," referring to the only type of police behaviour that will exclude a gun seized from a school campus. As stated in the previous discussion, police are expected to be proactive in order to prevent crime, but that strategy is easier said than done. Proactive policing is intended to prevent crime before it happens or to keep it from escalating. But proactive investigations usually occur with a framework of uncertainty, such as limited time and limited information. The "mere suspicion" bind limits police authority, including the detaining of suspects, questioning, search, and seizure.

This judgment serves as a point of reference for all front-line proactive investigations designed to protect Canadian school campuses. Specifically, the circumstances represent a reference point for what is not considered "egregious conduct."

This judgment also includes one of the best case law literature reviews regarding the complex topic of "detention."

The complete case translation will be included in the upcoming revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #12 — September 11, 2007

The "Mere Suspicion" Bind
R. v. L.B. (2007) ONCA 596

The police are expected to be proactive in preventing crime, but that strategy is easier said than done.

Proactive policing is intended to prevent crime before it happens or before it escalates to a larger scale. One example of the latter is possession of weapons. A proactive investigation uncovers persons possessing firearms so that firearms can be seized and removed from the streets before they are used to kill people.

Proactive policing is governed by complex Criminal Code laws and case law. It attempts to strike a balance between protecting the public and protecting the privacy of innocent people. The extent of all investigative authority, including proactive strategy, corresponds to the extent of belief that links a specific person to a specific offence. Strong belief leads to strong investigative authority.

The challenge associated with proactive policing is the nature of the circumstances that prompt the proactive investigation. The circumstances usually constitute the"mere suspicion" bind, referring to a situation that puts the police in the center of a Catch-22 situation.

Mere suspicion is a paradox. It is a belief that includes significant uncertainty but obliges the police to act. It starts with a set of simple circumstances that have the potential to be both normal and abnormal. The situation does not clearly reach the certainty of "find committing" or the near-certainty of "reasonable grounds." Instead, mere suspicion is a belief that includes more than one logical conclusion. It has two potential sides — a legal side and an illegal side. A wrongdoing is not a certainty, but the circumstances cannot be ignored.

The starting point of mere suspicion is an observation. The next step is rapid analytical thinking, followed quickly by a conclusion. Imagine being a police officer on patrol. You see a young man wearing a knapsack, standing against a railing outside a school. He looks at you, then quickly looks away to another young man standing a distance away. One may have gestured to the other. The two may be together or completely separate. Is this suspicious, or is it completely innocent behaviour? Is there anything illegal in the knapsack or not?

The bind has now occurred. Do you investigate or drive on? The bind deepens if you do stop, ask both for ID to determine if either is wanted, and they act nervous. Acting nervous represents another paradox. Stress is inherent in all types of police questioning. Being questioned by the police if you are innocent is stressful, but so is being guilty of having possession of something illegal. Guilt often produces a powerful type of stress called cognitive dissonance, which manifests in a wide range of physical behaviours.

Consequently, nervousness may be a symptom of either guilt or innocence. Front-line interrogation is needed to solve the mere suspicion bind. Effective questioning will either exonerate the suspect or elevate the mere suspicion to the stronger belief of reasonable grounds. The challenge of front-line interrogation is different from and greater than formal detective interrogations for three reasons:

1.  time constraints;

2.  officer safety risk; and

3.  the absence of custody.

In front-line interrogations, there is minimal time to plan questioning strategy, The environment is uncertain and, to some extent, uncontrollable, and the suspect cannot be arrested because only mere suspicion exists. At the start of a front-line interrogation, you do not positively know if the suspect is armed or not. Determining whether the suspect is armed is one of the goals of a front-line interrogation. Additionally, you must either obtain consent, or make a rapid decision, to use the "investigative detention" authority that justifies a brief detention and very limited questioning.

In comparison, a formal detective interrogation at the police station has the benefit of environmental control. The suspect will have already been searched. The officer has decided on the location and the participants. There is more time to plan interrogation strategy, and there is the certainty that the suspect is unarmed. The suspect will clearly be under arrest or have given valid consent.

On September 5, 2007, the Ontario Court of Appeal released a significant decision that answers the questions associated with the mere suspicion bind. The police charged the accused with one count of possession of a loaded, restricted firearm and seven other gun and gun-related counts after they seized a gun from his knapsack. The accused was acquitted on all counts as a result of a pre-trial ruling in which the trial judge excluded the gun from evidence under s. 24(2) of the Charter.

The Ontario Court of Appeal allowed the Crown's appeal, reversing the decision, and admitted the gun. Two police officers testified at a voir dire about the questioning of the accused and the circumstances leading to the discovery and seizure of the gun. The trial was an excellent example of how a seemingly routine investigation became a source of complex court analysis. According to the Ontario Court of Appeal, the trial judge went "down an analytical path" that led to a "wrong conclusion on the issue of detention. Regrettably, that error skewed his entire analysis."

This case serves as an excellent point of reference for officers for application during front-line investigations that result in the mere suspicion bind.

A complete article that fully explains and interprets this case will be included in the upcoming revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #11 — September 2, 2007

Identification Evidence
R. v. McKenzie (2007) ONCA 349

Imagine you are a police officer investigating a major crime. An eyewitness tells you, "That's him — that's the guy who did it." Sounds simple, but it isn't.

When an eyewitness informs the police, "That's him," a complex law called identification evidence is mobilized, requiring the police to apply a complicated series of concepts.

On August 28, 2007, the Ontario Court of Appeal released a significant decision that serves as an excellent point of reference for practical and applied teaching and learning.

Offences

The accused was charged with two counts of robbery, one count of forcible confinement, and one count of use of an imitation firearm.

Executive Summary

A home invasion was committed by three men. A woman and her 17-year-old son were confined, their house ransacked, and their property stolen. At trial, the facts of the home invasion, theft, and use of the firearm in the course of the invasion were not disputed. The sole issue was the identification of the accused as one of the robbers.

Circumstances

Three young men forced their way into the victims' residence during the early evening hours. According to the victims' evidence, the three men who ultimately invaded the home had come to the house earlier that evening, and the son had spoken to them at the back door of the house. Afterwards, the three men left.

About a half hour later, the same three men returned. The son again answered the door. He said one of the men asked him if he had any marijuana to sell. When the son said "no," another one of the men brandished a gun, and the son was taken down to the basement of the house.

The mother heard "scuffling in the kitchen" and attempted to call 911. She was uncertain if she had succeeded before one of the three men came toward her with a gun and told her to give him the phone. She did. The mother was led at gunpoint to the basement, where she found her son and the other two men.

Mother and son were left with one man while the gunman and the other man searched the house. They demanded money and marijuana. The mother told them where they could find both.

The three offenders stole marijuana, money, a Playstation console, a Nintendo console, a VCR, and some games, and left the scene.

Identification Evidence

  • Both victims gave police descriptions of the home invaders.

  • Six days after the robbery, a photo line-up was conducted. Separately, the mother and son both identified the accused’s picture as being the gunman.

  • The accused argued that the victims’ identifications were tainted because prior to the photo line-up, both victims had heard from various persons that the police had a certain suspect, that their original descriptions had discrepancies, and that a noticeable scar had not been reported.

  • Additionally, one of the co-accuseds testified on behalf of the Crown, minimizing his own participation and maximizing the accused's involvement.

The judgment includes excellent literature reviews relating to both issues — identification evidence and accomplice evidence — that serve as investigative points of reference.

A full article will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #10 — August 24, 2007

Asking Passengers for ID
R. v. Harris (2007) ONCA 349

On August 24, 2007, the Ontario Court of Appeal released a significant judgment in R. v. Harris that affects front-line policing in daily Highway Traffic Act investigations.

Imagine that you are a police officer on patrol at 1:00 a.m. You see the driver of a van commit a traffic violation and you stop the van. There are three occupants in the van (the driver and two passengers).

Do you have authority to ask all three for ID? The HTA authorizes stopping cars and asking drivers to produce licenses, but there is no specific authority that compels passengers to produce ID documentation.

In this case, you ask all three for ID, which they produce. CPIC checks reveal that one of the passengers is bound by conditions of an undertaking that he is presently violating. You arrest the passenger for breach of undertaking, search the arrested person as authorized by the common law search incident to arrest authority, find cocaine, and seize it.

Despite the apparent simplicity of this routine HTA investigation, this case prompted a complex decision that involved answering six questions:

1.  Did the request to the passenger for constitute a detention?

Yes

2.  Was the detention arbitrary?

No

3.  Did the lawful detention render the request for identification lawful?

No

4.  Did the request for identification constitute a sec. 8 Charter violation?

Yes

5.  Did a sec. 10(b) Charter violation occur?

No

6.  Should the cocaine be excluded under sec. 24(2) of the Charter?

No

A full article that practically explains this case will appear in the upcoming revision of Highway Traffic Act Investigations. In the interim, a full article is available by contacting the author at http://football.forte51.com/blog/index.php




TopCase #9 — August 19, 2007

Cruelty to Animals Investigation

The recent controversy about cruelty to animals investigations in Toronto, and the suspension of an OSPCA officer, has sparked controversy about how much authority OSPCA officers have, specifically in relation to exigent circumstances.

The two prominent cases are:

  • R.v. Baker (2004) Ont. C.A.; and

  • R. v. Ringler (2004) Ont. C.J.

The first case explains:

  • relevant provisions of the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCAA);

  • the status of OSPCA officers (whether they are peace officers or not); and

  • OSPCA warrants

The second case explains the relationship between:

  • exigent circumstances under the "Feeney" rules;

  • the authority of police officers; and

  • emergencies involving animals inside dwelling-houses.

This case explains whether or not the police can enter a house without a warrant to save an animal under the "exigent circumstances" exception to the Feeney warrant laws.

Complete articles will be included in upcoming revisions of Basic Police Powers: Arrest and Search Procedures and Criminal Investigation: Forming Reasonable Grounds.




TopCase #8 — August 14, 2007

Common-Law Search After Arrest (continued)

The most common-law search authority that allows the police to automatically search a lawfully arrested person without a warrant and without consent is one of the most commonly used investigative authorities in front-line policing. Originating from common law, the authority has evolved and continues to evolve through countless case laws.

The evolution of this authority focuses on a number of issues, but the primary question is regarding the "scope of the search" — how far does the authority extend? The person is the primary scope of the search authority. The primary purpose of the search is protection and safety. However, all arrests are made in some type of "place". The question has concerned the "surrounding place" — specifically, can the police search the surrounding area where the arrest was made? In other words, does this common law search authority extend from the person to the surrounding place? If it does, how far does the extension go? What is the definition of "surrounding place"?

One of the most important relevant case laws was made by the SCC in R. v. Caslake (1998). Among the rules that emerged from this case, the most important was summarized by the following quote: "The police have considerable leeway in the circumstances of an arrest which they do not have in other situations." Despite the investigative benefit provided by this SCC statement, the rule is still abstract and lacks a concrete definition or concrete point-of-reference circumstances.

Caslake has been applied to countless cases since 1998 that provide realistic points of reference applied to daily policing. However, the research needed to interpret the derivative cases is a daunting task. To assist your research, the following list of 16 cases provides wide-ranging yet practical point-of-reference situations that can be applied in "real-life" investigations:

  • R. v. Chau (2000) Ont. CA

  • R. v. Sparvier (2001) Sk. QB

  • R. v. Backhouse (2005) Ont. CA

  • R. v. Condon (2006) BCCA

  • R. v. Malcolm (2006) BCCA

  • R. v. Wilson (2006) Ont. CA

  • R. v Aprile (2006) Ont. SC

  • R. v. Blake (2006) Yk. TC

  • R. v. Lewis

  • R. v. R.S.T. (2007) MBQB

  • R. v. Rebelo (2007) Ont. CA

  • R. v. Hodson (2007) Ont. SC

  • R. v. Alkins (2007) Ont. CA

  • R. v. Shankar (2007) Ont. CA

  • R. v. Duong (2007) Ont. CA

Narratives that interpret and apply the findings will be included in the next revision of Basic Police Powers:
Arrest and Search Procedures
, as well as in the Reality Police modules available from the author.




TopCase #7 — August 3, 2007

Admissibility of Confessions: The "Fresh-Start" Concept
R. v. Lewis (2007) ONCA 349

The fresh-start concept refers to an investigative situation that applies to both front-line uniform patrol officers and detectives. The concept is applicable in the following situation:

  • an offender is arrested;

  • he is informed of the right to counsel;

  • he invokes this right by requesting the opportunity to call a lawyer; and

  • a delay (for a wide range of reasons) in the accused's opportunity to consult with a lawyer results in a division in the interrogation between pre-consultation and post-consultation statements.

The fresh-start concept informs the police how to effectively start over after the lawyer consultation occurs. It applies to any type of questioning/statement that is separated by a lawyer consultation during the questioning/statement. In other words, questioning starts before the arrested person consults with a lawyer and continues after the consultation, until a confession is elicited.

On May 8, 2007, the Ontario Court of Appeal released a decision in R. v. Lewis, explaining how the fresh-start concept is used to determine the admissibility of a confession made to the police. The Lewis decision is a derivative case that emerged from a series of prior cases that created the principles of the fresh-start concept.

A practical interpretation of the Lewis decision and prior relevant cases, with an emphasis on step-by-step procedure, will be included in the next revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #6 — July 30, 2007

Common-Law Search Incident to Arrest
R. v. Nunnery (2006) Ont. S.C.

The common-law search authority that allows the police to automatically search a lawfully arrested person has been the subject of myriad case law. One of the most important, relevant examples was made by the SCC in R. v. Caslake (1998).

Since then, a number of Caslake derivatives have emerged. One of the most recent, R. v. Nunnery (2006), is significant for five reasons.

1.  It expands the common-law search trilogy — injury, escape, evidence — to identification and "check for injuries".

2.  It confirms that the common-law search incident to an arrest includes an automatic search of pockets and removal of items for inspection, without restrictions.

3.  The opinion that a drunk had to be arrested for his or her own protection may be proved by "implied" evidence in cases where the officer does not "explicitly" testify about an opinion.

4.  The context/circumstances of this case represent a teaching and investigative point of reference regarding:

  • drug seizures resulting from common-law searches after public intoxication arrests; and

  • a matrix/paradigm that lists concrete evidence that proves the Liquor Licence Act (LLA) concept of "intoxication".

5.  A valuable literature review now exists that explains the relationship between five LLA provisions and the common law search incident to arrest.

A complete article that fully explains and interprets this case will be included in the next revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #5 — July 24, 2007

Use Firearm in Commission of Indictable Offence: Definition of "Use"
R. v. Steele (2007) SCC 36

On Friday, July 20, 2007, the SCC released a decision that added to the definition of the word "use" in relation to the offence of "use firearm during the commission of an indictable offence."

The Criminal Code has a number of weapon and firearm offences that include the words "possession" or "use." The problem is that the Criminal Code defines the word "possession", but not the word "use."

"Using" a firearm during the commission of indictable offence is itself a serious indictable offence (sec. 85 C.C.), separate from the substantive or central offence. For example, a man, using a gun, robs a bank. Robbery is the "substantive" indictable offence; using the firearm is a separate indictable offence. Additionally, it is one of the few criminal offences that has a mandatory minimum prison sentence.

The offence was enacted in 1977 as part of a complex gun control legislation scheme. For first-time offenders, it carries a mandatory minimum sentence of imprisonment, to be served consecutively to the substantive offence.

Parliament had two objectives: (i) to prevent the danger of serious injury or death associated with the use of firearms, and (ii) to prevent victim intimidation.

Synopsis

The circumstances of the case can be summarized as follows.

The accused and three accomplices forcibly entered a home at night searching for a marijuana grow operation. Although the intruders had hoped the house would be unoccupied, three occupants were home. The occupants of the house heard the intruders say, "We have a gun," "Get the gun, get the gun," and "Get the gun out." One intruder was holding an item, about the size of a gun, in his hand. One of the occupants saw an intruder remove a dark metal object from inside his jacket.

All four intruders fled approximately five minutes after their arrival. The occupants made two 911 calls describing the intruders and their car. Within minutes, the police stopped a vehicle occupied by the accused and his accomplices. They searched the car and found several weapons, including a loaded handgun. The accused was charged with several offences, including using a firearm while committing or attempting to commit the indictable offence of break and enter contrary to s. 85(1) of the Criminal Code.

Trial

The accused was convicted of sec. 85(1) C.C. The trial judge ruled that the four intruders had formed a common intention to carry out a break and enter, and that a gun was used to the knowledge of all four.

British Columbia Court of Appeal

The accused's appeal to the British Columbia Court of Appeal was rejected. The BCCA upheld the conviction.

Supreme Court of Canada

The accused's appeal to the Supreme Court of Canada failed. The SCC upheld the conviction. The SCC ruled that "use" includes the actual presence or immediate availability of a firearm, revealed by the offender's words or conduct.

A complete article that fully explains and interprets this case will be included in the next revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #4 — July 19, 2007

Spousal Incompetency Rule and Hearsay Rule
R. v. Couture (2007) SCC 28

The SCC made a landmark decision on June 15, 2007 in R. v. Couture, regarding the admissibility of confessions made by a suspect to his/her spouse.

Investigations often include interviewing a former or current spouse of a suspect who was the recipient of a confession made by the suspect. An admissible confession is the most valuable type of evidence. Confessions to persons not in authority are automatically admissible. However, legally married spouses (at the time of the trial) are not competent and compellable witnesses for the Crown.

Synopsis

The circumstances of the case can be summarized as follows.

The accused was charged and convicted of two counts of second degree murder after he made two confessions to his spouse.

The police were investigating the murders of two women. The accused's wife told police that the accused confessed he committed both murders. The confessions were made before their marriage, while the accused was in prison on unrelated charges. The wife had been the accused's Christian volunteer counsellor at the prison where he was serving time for those unrelated offences. During the course of his counselling, he told her that he had murdered two women. After the accused was released on parole, they became legally married. They later separated.

Trial

The wife was ruled to not be a competent/compellable witness for the Crown based on the spousal rule of evidence. However, the trial judge admitted the wife's evidence under the hearsay exception rule. The trial judge based the admissibility on the authority of the SCC decision in Hawkins, which allowed the admission of the wife's evidence as hearsay evidence under the principled exception to the hearsay rule (hearsay is admissible if the two elements of necessity and threshold are proved). The accused was convicted for both murders.

British Columbia Court of Appeal

The British Columbia Court of Appeal allowed the accused's appeal. The BCCA ruled the statements were inadmissible, set aside the convictions, and ordered a new trial.

Supreme Court of Canada

The Crown's appeal was dismissed. The wife's statements were inadmissible because "their admission under the principled exception to hearsay would, in the circumstances of this case, undermine the spousal incompetency rule and its underlying rationales."

The complete case will be included in the upcoming revision of Criminal Investigation: Forming Reasonable Grounds.




TopCase #3 — July 16, 2007

The Discretion vs. Obstruct Justice Paradox
R. v. Beaudry (2007) SCC 5

On Jan. 31, 2007, the SCC made a ruling regarding the relationship between police discretion and obstruct justice. This extremely important case law decision is a landmark for the 21st century. It is the best example available of the reality of policing, rather than its TV version. This case explains how challenging policing really is — the rapid-fire decisions that have to be made on the front line in the blink of an eye, without time to research laws, and the severe consequences that you can suffer in police work. In addition to the legal aspect of the decision, this case should be compulsory reading for all students who want to work in policing. It sends a powerful message — policing is serious business, not the "2 'P's" (pay and pension). This case tells every student that you have to take policing seriously, that you never stop learning, and that you have to have a better reason to get hired than wanting a secure source of income and a good pension. There are myriad consequences attached to police work. Policing is not the glamorous profession portrayed by Hollywood; it's not an alternative to job dissatisfaction or a quick way to fill a psychological void.

Use of discretion is a crucial policing skill. It is the essence of problem solving. Discretion refers to a decision to not charge an offender after evidence is obtained that forms a reasonable grounds belief. Not every offender is charged in Canada. Charging an offender is only one way to solve a problem.

As simple as it sounds, using discretion often requires complex, rapid decision making. No statutory provision explains concretely how to use discretion. There is no concrete case law paradigm that guides use of discretion in every case. The Beaudry case strongly emphasizes the fine line between use of discretion and obstruct justice. The police are expected to be problem-solvers, but if the solution is wrong, the consequence is the offence of obstruct justice. The SCC made six significant rulings.

1.  Contrary to popular myth, the police do not have absolute, carte blanche discretionary authority. The police have discretion to decide whether to lay charges, but they cannot automatically use discretion not to charge in every case.

2.  Discretion has to be proportionate. It has to correspond with the degree of severity of the offence.

3.  Discretion has to be justified. A concrete set of reasons must accompany each decision.

4.  Disproportionate, unjustified discretion constitutes the offence of Obstruct Justice.

5.  A "simple error in judgment" is insufficient to constitute Obstruct Justice.

6.  The Beaudry case is a point of reference — a specific example of the type of discretion that constitutes Obstruct Justice.

A complete article that fully explains and interprets this case will be included in the upcoming revision of Basic Police Powers: Arrest and Search Procedures.




TopCase #2 — July 13, 2007

Admissibility of Conditional Confession — Binding the Interrogator
R. v. Spencer (2007) SCC 11

Binding the Interrogator

Accomplices in amorous relationships sometimes pose challenges during police questioning when they attach conditions to interrogations and confessions. The two most common conditions are:

1.  an offer to confess in exchange for leniency to protect the other accomplice; and

2.  a request to visit the accomplice before he/she confesses.

These conditions bind the interrogator, referring to a decision where all alternatives may be wrong.

A recent Supreme Court of Canada decision in R. v. Spencer (2007) involved a confession made by an accomplice after conditions were made that bound the interrogator.

Synopsis

In this case, the accused was arrested for 18 robberies. His girlfriend was arrested for only one robbery. A handgun, fired during a robbery escape, and stolen jewelry was found in the residence they shared. The accused confessed to police after two significant events occurred.

1.  The police told the accused that his girlfriend would be charged with possession of the handgun and stolen jewelry. The accused offered to confess in exchange for lenient treatment of his girlfriend. The officer refused, informing the accused he could not make that deal.

2.  The accused asked to visit his girlfriend while both were in custody. The visit was withheld until a partial confession was made. After the visit was allowed, the suspect confessed to more robberies.

Court Decisions

The accused was convicted following a 20-day trial that included an 8-day voir dire, after which the confession was admitted. The accused successfully appealed the conviction to the British Columbia Court of Appeal; the confession was excluded and a new trial was ordered. The Crown then successfully appealed to the SCC. The confession was ruled admissible and the conviction restored.

Extensive reasons were given. A number of significant practical strategies emerged from the reasons. They will be explained in the upcoming revision of the Criminal Investigation: Forming Reasonable Grounds.




TopCase #1 — July 7, 2007

Landmark Supreme Court of Canada Decision Gives Victory to Police
911 Call Search and Seizure of Firearms
R. v. Clayton (2007) SCC 32

On July 6, the Supreme Court of Canada reversed an outrageos Ontario Court of Appeal decision that gives the police a common sense, common-law authority, and strategy to investigate 911 gun calls at public places Calling it a "victory" for the police usually motivates critics to remind us that policing is not about victories. That depends on the definition of victory. In this case, victory means (a) doing the right thing, and (b) a successful outcome where no one got killed or injured in an extremely dangerous emergency. All professions are entitled to some type of victory. So should police work.

In 2005, the Ontario Court of Appeal acquitted two co-accused persons for weapon offences and wrote a scathing criticism about police conduct — specifically, the search and seizure of guns from two people who were leaving a bar in a car, after road blocks were set up in response to a 911 gun call. The Ont. CA blamed "institutional failures" in police training that "significantly aggravated" the severity of Charter violations relating to the search and seizure of guns.

The SCC reversed that decision, in a stinging judgment that criticized the 2005 Ont. CA decision. The two accused persons were convicted, the seizure of the guns was deemed constitutional, and the police now have confirmed common law authority/strategy to set up roadblocks at a crime scene in response to 911 gun calls.

To appreciate the severity of the legal chain of events leading to the SCC decision, consider the simplicity of the issue — a 911 gun call. A 911 call has two simple elements: (a) emergency and (b) uncertainty. 911 represents the potential of imminent risk (death or serious injury), with two significant investigative response limitations: (a) time and (b) information. This forms the reality of limitations — minimal time and minimal information to make life-or-death decisions in a rapidly changing situation.

Put yourself in the shoes of a front-line police officer who receives a radio broadcast that simply reports "911 — man armed with a gun." Policing is a continuous cycle of belief and response. A wide range of information is received, a corresponding belief is formed, and a corresponding response is made. The investigative response is proportionate to and governed by the belief. "911" forms a universal belief — danger exists. That belief is non-negotiable and undeniable. 911 legitimately mobilizes optimum self-protection mode.

A 911 call binds the police. The public has two expectations of the police — protection and privacy. The public wants to be protected without unreasonable invasion of privacy. The police cannot neglect a problem, but cannot exceed their authority. Striking the balance is an enormous challenge, but the reality of front-line policing is this — public safety and officer safety always come first. It's instinctive and obvious. Safety always has and always will supercede all other objectives. Every officer's first goal is to prevent death and injury. If you polled any number of Canadian citizens, that goal will get overwhelming consensus support.

Synopsis

The circumstances of the case were as follows.

Within minutes of receiving a 911 call reporting that a number of persons were openly displaying handguns in a strip club's parking lot, the police stopped the first car leaving from the lot's rear exit. The car's two occupants, accused person #1 (driver) and accused person #2 (passenger), were searched. Each had a loaded semi-automatic handgun — weapons prohibited by the Criminal Code. The following is a summary of the sequence of events.

  • 1:22 a.m.: A 911 call was received reporting that four of about ten men (identified by race) were in a parking lot in front of a strip club, openly displaying handguns. The caller identified and reported four vehicles. The dispatcher broadcast a "gun call", and a number of police officers immediately responded.

  • 1:26 a.m.: Constables #1 and #2 positioned their police vehicle at the rear exit of the club's parking lot. Almost immediately, a car left the area of the offence scene and drove toward the exit. However, the car was not one of the four cars reported by the 911 caller.

  • 1:27 a.m.: Constables #1 and #2 stopped the car. They saw that the occupants (the accused persons) were both male and of the same race reported by the caller. Cst. #2 approached one of the accused persons (the driver) and told him that there had been a gun complaint. Cst. #2 asked the driver to exit the car and became concerned for his safety because the driver "protested twice" before exiting the car. Cst. #2 asked the driver to put his hands on the top of the car.

Cst. #1 approached the passenger (accused #2) and began questioning him. The passenger gave "strange and evasive answers and stared straight ahead, avoiding eye contact." He wore gloves, even though it was not "glove weather." Cst. #1 asked the passenger to exit the car and to place his hands on the rear of the car. The passenger exited the car, but stood blocking Cst. #1's sightline to the inside of the car.

When Cst. #1 put his hand on the passenger's shoulder to direct him to the back of the car, the passenger shoved Cst. #1 and ran away. Both officers pursued him while another constable (#3) watched the driver.

Officers in front of the club subdued the passenger. Cst. #1 searched him and found a loaded, prohibited handgun in his pocket. Cst. #3 arrested the driver for possession of a loaded, prohibited weapon. The driver was searched, and a loaded, prohibited handgun was found under his jacket.

Trial

Both accused persons were convicted. The trial judge ruled that the initial stop of both accused was lawful, but that their further detention and search violated ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. Despite the Charter violations, he admitted the guns into evidence under s. 24(2) of the Charter. The accused were convicted of carrying concealed weapons and the possession of loaded, prohibited firearms. The trial judge concluded that the police investigation was a "legitimate response to safety concerns in a fast-paced situation."

Ontario Court of Appeal

The accused persons' appeals were allowed, and both were acquitted. The court ruled that the seizure constituted Charter violations. The evidence of the handguns was excluded under s. 24(2) of the Charter.

Astonishingly, the Ont. CA ruled that the roadblock was unlawful because there was "no imminent danger" and "no tailored response." Remarkably, a call that reported multiple people at a strip club "openly displaying" guns constituted "no imminent danger." The Ont. CA actually expected the police to design a customized strategy "tailored" to the specific circumstances of this specific 911 call. Additionally, the Ont. CA attributed the Charter violations to "institutional failures" of the police to adequately train the police.

Supreme Court of Canada

A unanimous decision by the SCC reversed the Ont. CA decision. The Crown's appeal was allowed, and the convictions were restored. The SCC ruled that there was "no evidence" of institutional failure regarding police training. Not minimal evidence — none. The SCC concluded that "tailored responses" to 911 calls would be "unreasonable burdens" imposed on the police.

The Globe and Mail (p. A8, Saturday, July 7, 2007) reported that:

1.  "civil rights groups fear ruling will clear way for broader police powers to invade privacy", and

2.  the vice-president of the Criminal Lawyers Association was "disappointed", saying, "The Supreme Court should not be expanding incursions into privacy and liberty — that's Parliament's job."

The Supreme Court of Canada must be applauded for overturning an absurd decision that would have placed police officers in needless binds during all future investigations that start with 911 gun calls. This decision is an extremely important case law decision because it restored common sense for front-line police officers. A full analysis of the case reveals excellent police work — smart, rapid decision making in a dangerous, volatile situation. Every officer involved should receive formal commendations for risking their own lives to solve an incredibly complex and dangerous problem without anyone being killed or hurt.

This case represents:

1.  a point of reference for future 911 gun call investigations; and

2.  an excellent example of the demands of daily front-line policing, and why every police candidate has to demonstrate both a sound mind and a sound body. This case should be mandatory reading for all police candidates, especially when complaints arise that the physical testing is too hard and that academic testing is too stressful. Making this case compulsory is a great way to emphasize why police candidates have to be physically and academically fit to get hired.

A full examination and practical interpretation of the R. v. Clayton case will be included in the upcoming revision of Basic Police Powers: Arrest and Search Procedures.