Can there be any issue that police seeking to obtain information from and about an individual is a “search”?

The Supreme Court of Canada decision in R. v. Le [2019] S.C.J. No. 34 is being lauded as a victory for civil rights and the restraint of police powers regarding informal questioning of civilians, but for reasons I will discuss at the end of this post, it doesn’t appear to be the victory it’s being made out to be.  Or, if so, not for the reasons perceived.

As background, one evening at approximately 10:40 p.m. in May, three police officers noticed four Black men and one Asian man in the backyard of a townhouse at a Toronto housing co-operative. The police were looking for a third party who was wanted by the police for some violent crimes and who, they were told, frequented the area and may have been hanging out in this area of the townhouse complex.  The young men appeared to be doing nothing wrong. They were just talking. The backyard was small and was enclosed by a waist-high fence. Without a warrant, or consent, or any warning to the young men, two officers entered the backyard and immediately questioned the young men about “what was going on, who they were, and whether any of them lived there”. They also required the young men to produce documentary proof of their identities. Meanwhile, the third officer patrolled the perimeter of the property, stepped over the fence and yelled at one young man to keep his hands where the officer could see them. Another officer issued the same command. The officer questioning the male, Tom Le, demanded that he produce identification. Mr. Le responded that he did not have any with him. The officer then asked him what was in the satchel he was carrying. At that point, Mr. Le fled, was pursued and arrested, and found to be in possession of a firearm, drugs, and cash. He was charged with 10 offences, which consisted of seven weapons offences, two drug offences in relation to the 13 grams of crack cocaine, and one charge for possession of crime proceeds.

The trial focused primarily on the police entering the backyard and making inquiries, and the detention of the accused and subsequent search. The trial judge found that the officers attended at the backyard for valid and proper investigative purposes. They were lawfully entitled, pursuant to the implied licence doctrine, to enter this backyard through an open gateway in order to speak to any potential occupier of the townhouse. They were never asked to leave. When Le tried to conceal his bag, the police had reasonable grounds to believe that he was armed and dangerous. Le was effectively detained when he was asked about the contents of the bag. The trial judge found that this detention was not arbitrary because the police had reasonable grounds to believe that he was armed and as such, he was not subjected to any unreasonable search or seizure.

Le appealed to the Court of Appeal for Ontario. Writing for the majority, Doherty J.A. dismissed the appeal and held that the trial judge did not commit any errors in the ss. 9 and 24(2) Charter analyses.

The SCC took a different approach. Some believe that the case was clearly focused on police verbal interaction with civilians, “questioning”, but the case was decided contextually as a s. 9 ‘detention’ case, with only s. 8’s territorial privacy aspect receiving a passing mention in the SCC’s 3:2 decision. The highest court found that the police entered the property as trespassers and that the trial judge and the majority of the Court of Appeal for Ontario erred by concluding that the detention crystallized only when Le was asked what was in his satchel. Rather, the SCC found that he was detained when the police entered the backyard and made contact. Because no statutory or common law power authorized his detention at that point, it constituted an arbitrary detention. No statute authorized these police officers to detain anyone in the backyard. Similarly, the common law power to detain for investigative purposes could not be invoked. Le’s detention was arbitrary because, at the time of detention (when the police entered the backyard), the police had no reasonable suspicion of recent or ongoing criminal activity. Since the detention in this case was not authorized by law, the SCC felt there was no need to analyze whether that law was arbitrary or whether the detention was carried out in a reasonable manner. The court did, however, find that this was serious police misconduct. The court ruled that there simply were no grounds, let alone reasonable grounds, to suspect any criminal wrongdoing was committed or being committed by the young men in the backyard. The discovery of the evidence was only possible because of the serious s. 9 breach in this case. The convictions were set aside and acquittals entered.

Now, why do I say that this case doesn’t appear to be a major victory for civil rights? Well, the SCC could have examined this case in a different light, but it chose not to. Police questioning of citizens to elicit information, explanations and intentions was not considered at all in the context of s. 8’s informational privacy protection. Alan D. Gold and Michael Lacy posit that Le demonstrates problems that are arising because Courts are not dealing with the constitutionality of police questioning directly by recognizing that informational questioning is a search under s.8 of the Charter to which the usual s. 8 standards and principles are applicable. Instead, the constitutionality of police questioning is being evaluated by means of the surrogate issue of “detention”, a far from simple concept that leads to honestly held reasonable opinions that are diametrically opposed and dramatically expressed, such as the majority and minority opinions in Le.

They also suggest that Le highlights the Charter issues engaged by police interacting with and addressing a civilian. A police officer’s speech to a civilian can fall in one or more categories, according to the pair. It can be a command to “not move”, “halt”, “put hands up”, “keep hands where they can be seen”, amongst other possibilities. It can be a social conversation, such as asking for the nearest Tim Horton’s. Most importantly, the officer can be asking for information for an investigative purpose such as requesting a name, address, “what’s in the bag?”, “what are you doing here?” and similar inquiries. They believe that a police officer asking for self-identification or its equivalent physical counterpart of document production, asking for explanations regarding presence and future intentions, however politely is certainly ‘not leaving the civilian alone’ and certainly transgressing the normative social understanding of most persons that they would rather not be asked such questions by a police officer.

The Supreme Court of Canada has previously recognized police questioning can constitute a search and seizure for the purpose of s. 8 of the Charter (R. v. Mellenthin [1992] 3 S.C.R 615, [1992] SCJ No 100). Other courts have found that answers to police questions may or may not give rise to a s. 8 claim (R. v. Harris, 87 O.R. 3d 214). In addition, in R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32, the Supreme Court of Canada had the opportunity to consider whether an interaction between the police and a citizen which included questioning could amount to a search and seizure, but ultimately did not do so. Fast forward to the Le decision, where the opportunity again presented itself for such an examination and recognition of informational privacy issues, and again the opportunity was missed.  Hopefully as officers we will see some clear guidance in this area in a future case…

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Vehicle Stops – Law and Analysis

This post is not conclusive but meant to provide some guidance to officers conducting vehicle stops.

A motorist in Canada is legally obligated to stop their vehicle when directed to do so by a police officer: see, for example, Highway Traffic Act s. 253(2) PE; Motor Vehicle Act s. 83(1) NS; Motor Vehicle Act s. 105 NB,  Highway Traffic Act s. 201.1(1) NL; Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 216(1)-(2), etc.

A driver has no choice but to comply with such a direction. When a motorist does so, they are “detained” from a Charter standpoint: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 30; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 31; R. v. Hufsky, [1988] 1 S.C.R. 621, at pp. 631-632; R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-644, but that detention is justifiable under s. 1 of the Charter provided that the stopping of the motorist is for reasons related to traffic safety, this includes things, “such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle”: R. v. Ladouceur, [1990] 1 S.C.R. 1257, at p. 1287. See also, Hufsky. It also includes the authority to detain a motorist whom a police officer observes or reasonably suspects of committing an offence: R. v. Wilson, [1990] 1 S.C.R. 1291, at p. 1297 (a.k.a. articulable cause).

The Supreme Court of Canada has held that a police officer who lawfully detains a motorist for traffic safety reasons may also harbour ulterior criminal investigative purposes for the detention. Provided that traffic safety remains a motivation for the detention, the fact that the officer is also interested in discovering evidence of another offence does not in itself invalidate the detention. That said, in such cases, a police officer must be careful not to exceed the limits of his or her traffic-safety powers. If they do so, they violate the Charter: see R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851, at paras. 4, 23, 32-41.

A police officer’s authority, “must be determined having regard to the police power actually exercised and not by reference to some other police power which may have been, but was not, exercised.” R. v. Stevenson, 2014 ONCA 842, at para. 56, leave to appeal refused [2015] S.C.C.A. No. 37.

A police officer is empowered to briefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a recently committed or still-unfolding criminal offence and the detention is reasonably necessary in all of the circumstances: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45. The power to detain is not confined to crimes known to the police but includes crimes that are reasonably suspected: R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 35; R. v. Nesbeth, 2008 ONCA 579, at para. 18, leave to appeal refused [2009] S.C.C.A. No. 10.

Section 10(a) of the Charter guarantees everyone the right “on arrest or detention” to be “informed promptly of the reasons therefor”. This constitutional right imposes an informational duty on police that they can discharge with relative ease. It merely requires a police officer on detaining a person to tell them in “clear and simple language” the reason(s) why: Mann, at para. 21; R. v. Evans, [1991] 1 S.C.R. 869, at p. 888.

This obligation applies whether a police officer is detaining a pedestrian or a motorist: Orbanski & Elias, at para. 31. Compliance with s. 10(a) assumes added significance when police detain a motorist because the right to counsel does not apply during motor vehicle stops motivated by traffic safety concerns: Orbanski & Elias, at para. 60. As a result, a detained motorist is often, “wholly reliant on the police to provide him with the information he requires to be able to make informed choices.”: R. v. Mueller, 2018 ONSC 2734, at para. 29. Given this, the obligation on police to inform a motorist of the reason for their detention is especially important during traffic safety stops.

In terms of when the person detained must be told of the reason(s) for their detention, the text of s. 10(a) instructs that this take place “promptly.” The case law makes clear that this means immediately: R. v. Nguyen, 2008 ONCA 49, at paras. 16-22. The only justification for delay is where the police must first gain control over a detainee whose actions are creating a dangerous situation: R. v. Boliver, 2014 NSCA 99, at paras. 15-20.

Driving is a licensed activity that is subject to regulation and control in the interests of public safety. The Supreme Court of Canada has upheld a variety of police powers meant to combat the threat posed by impaired, unlicensed and uninsured drivers, as reasonable limits on the constitutional rights of motorists under s. 1 of the CharterOrbanski & Elias, at paras. 54-60; Hufsky, at pp. 636-637; Ladouceur, at pp. 1279-1288; R. v. Thomsen, [1988] 1 S.C.R. 640, at pp. 653-656.

Nevertheless, a person who is lawfully entitled to operate a motor vehicle has a reasonable expectation of privacy in their vehicle, albeit of a diminished nature as compared to a dwelling or a private office. Given this, under s. 8 of the Charter, they enjoy the right to be secure against unreasonable search or seizure in their vehicle: see R. v. Belnavis, [1997] 3 S.C.R. 341, at para. 19; R. v. Grant, [1993] 3 S.C.R. 223, at p. 242; R. v. Mooiman and Zahar, 2016 SKCA 43, at para. 39. In assessing what is constitutionality permissible during the detention of a motorist, much depends on a police officer’s purpose and actions.

If traffic safety is amongst a police officer’s purposes for detaining a motorist, the officer can take a variety of steps without engaging the driver’s s. 8 Charter right. For example, a police officer may visually inspect the passenger compartment of the vehicle, including with the aid of a flashlight, require the driver to produce their license, car registration and proof of insurance, and also inspect the vehicle to assess its mechanical fitness. Such measures do not encroach upon a motorist’s reasonable expectation of privacy during a lawful traffic stop: Hufsky, at p. 638; Belnavis, at para. 28; R. v. Mellenthin, [1992] 3 S.C.R. 615 at pp. 623-625. These steps do not engage s. 8 even when a police officer also harbours an ulterior criminal investigative purpose for the detention, provided the officer’s traffic safety motivation for the detention persists, and they do not act in excess of the limits on their associated powers: Nolet, at paras. 32-41.

If during the lawful detention of a motorist for traffic safety purposes a police officer happens to observe an item that is immediately recognizable as evidence of a crime or illicit contraband, the plain view doctrine provides the officer with authority to seize the item: Criminal CodeR.S.C., 1985, c. C-46, s. 489(1)Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 11(8); R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 37; R. v. Law, 2002 SCC 10, [2002] 1 S.C.R. 227, at para. 27. Alternatively, if while operating within the parameters of their traffic safety powers, a police officer acquires the grounds necessary to undertake more invasive investigative steps, then they are entitled to act on such grounds: Nolet, at para. 28.

Once a police officer’s interest in traffic safety ends, however, any intrusion on a motorist’s reasonable expectations of privacy must comply with s. 8 of the Charter. Ordinarily, this means that the police officer will require reasonable grounds to search the vehicle for evidence of a crime: Mellenthin, at pp. 624-625; Nolet, at paras. 28, 39, 43. Alternatively, if the motorist is lawfully arrested, the vehicle may be searched for evidence or weapons incidental to that arrest, provided the vehicle is connected to the reason for arrest and there is a reasonable prospect that evidence will be located in the vehicle: see, generally, R. v. Caslake, [1998] 1 S.C.R. 51. Short of this, a protective weapons search could potentially be justified, but only if the police officer believes on reasonable grounds that his or her safety is at stake and that such a search is necessary: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 41. Depending on the circumstances, this may justify searching a motorist’s vehicle for weapons: see, e.g.R. v. Plummer, 2011 ONCA 350, at para. 65; R. v. Lee 2017 ONCA 654 at para. 43.

Entirely different considerations apply if traffic safety does not truly factor into the officer’s decision to detain and is merely offered as a pretext (a false justification) to detain a motorist and look for evidence of a crime. Without any traffic safety justification, not only will the pretextual detention result in a violation of the motorist’s s. 9 Charter right from the outset, any resulting intrusion on the motorist’s reasonable privacy expectations will also be unlawful and violate s. 8 of the Charter: see, e.g.R. v. Ladouceur, 2002 SKCA 73, described as “fatally flawed from the outset” in Nolet, at para. 25. Where traffic safety is not the reason to conduct the stop, the officer must have at least articulable cause to stop the vehicle, meaning… “A constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation”: Simpson. The threshold is lower than the threshold for an arrest, which is reasonable grounds, but it is something more than an officer’s hunch based on intuition gained by experience.

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Detention of Passengers in Vehicles

With the force of the winter season behind us (hope I didn’t just jinx it), more people will be out-and-about, traveling the roadways, which will likely result in increased police-citizen interactions on those roadways.  I thought it fitting to post something on that topic, but not in terms of the driver, but in terms of passengers in those vehicles.

Remember, driving is a highly regulated activity, so although drivers are statutorily compelled to produce identification (i.e. valid driver’s licence) and vehicle documents (i.e. registration and proof of liability-insurance) upon request/demand of a peace officer or face charges under the various Motor Vehicle (Highway Traffic) Acts, the same cannot be said of a vehicle passenger where that passenger is not committing an offence (e.g. wearing a seatbelt, does not have open liquor in the vehicle, is not consuming cannabis, etc.).  In such cases, whether an officer’s request of the passenger’s identification (name, date-of-birth, address) will amount to a detention or unreasonable “search”, or further still whether querying this information on CPIC for outstanding warrants, BOLOs, current court orders or charges, will be reasonable will all turn on the facts of each case, as I will highlight.

First, let me premise this by saying that the law on this issue is still open. The SCC has not yet expressed its view, so decisions of the various appellant courts (and lower courts) across this country are mixed, at best:

As Doherty JA stated in Brown v. Durham (Regional Municipality) Police Force (1998), 43 OR(3d) 223 at para 31 (CA), leave to appeal to the SCC granted, but appeal discontinued, [1999] SCCA No 87:

“The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating section 216(1) of the [Highway Traffic Act], I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stop and detention.”

Likewise, in R. v. Harris 2007 ONCA 574, the Ontario Court of Appeal stated the following on this issue (at para 26):

“I cannot agree that the request of Harris for identification for purposes unrelated to the Highway Traffic Act altered the constitutionality of his detention. Harris was detained by virtue of the lawful stopping of the vehicle, the ongoing investigation of the Highway Traffic Actviolation, and Lipkus’s [the police officer’s] lawful assuming of control over the movements of the passengers in the vehicle. On the trial judge’s factual findings, Lipkus’s request for identification did not prolong or alter the nature of Harris’s detention. He remained in exactly the same position he would have been in had Lipkus questioned only the driver.”

In R. v. Coady, 2012 ABPC 194, after a vehicle had been stopped for legitimate reasons, an officer prevented a passenger who had exited the vehicle from leaving the scene and made persistent efforts to have him identify himself. In that case, there was no connection between the detention of the vehicle for traffic safety reasons and the subsequent detention of the passenger who tried to leave the scene; the court concluded that the detention was arbitrary and the arrest and search occasioned by the improperly compelled identification, unreasonable.

The officer’s request for R. v. Loewen’s (2018 SKCA 69) identification was not made in relation to any offence contrary to The Traffic Safety Act or any criminal offence. Rather, the officer testified that, when he conducts a traffic stop, he always requests identification from the passengers, if any, so it can be checked on the CPIC database. He does this “to find people who are either breaching court ordered conditions, wanted on warrants, outstanding criminals, that type of thing as part of [his] job” (an earlier post of mine on this issue). This was not a case where Loewen was simply asked his name, or for his identification, but the officer took Loewen’s identification back to the police car for some time without advising him that he was being detained, nor was he given RTC or a caution, or given the option of declining to provide identification.

I could go on to highlight other cases, but hopefully these will address the issue.  What is interesting is that many courts do not seem overly critical of officers running this information on databases (e.g. CPIC), but they are with the act of detaining the person to do so:

[an individual] does not have a reasonable expectation of privacy with respect to information in CPIC, at least insofar as police officers are concerned. A reasonable and prudent individual would assume that information about him or her emanating from a public court process will be available to police officers through an information data system such as CPIC.

…Absent a ‘detention’, merely asking for identification does not constitute a s. 8 ‘search or seizure’.

In R. v. Mooiman and Zahar, 2016 SKCA 43, 476 Sask R 216 the Court stated at paragraph 22:

True, the effect of stopping a vehicle and detaining the driver may impair the passenger’s ability to proceed further, but – all other things being neutral– nothing about a routine traffic-safety stop prevents a passenger of the vehicle from simply walking away. Similarly, absent a legal requirement under The Traffic Safety Act, the fact a passenger in a vehicle is necessarily caught up by a traffic-safety stop does not thereby legally compel or obligate the passenger to comply with the investigating police officer’s requests for information or assistance…

So, the takeway: Section 10 of the Charter provides that individuals who are arrested or detained have the right (a) to be promptly informed of the reasons for the arrest or detention, and (b) to retain and instruct counsel without delay and to be informed of that right. The duty of the police to inform a detained person of his or her s. 10 rights “is triggered at the outset of an investigative detention”: R. v. Suberu [2009] 2 SCR 460 at para 2. A police request for identification does not necessarily amount to detention, but “delays that involve significant physical or psychological restraint” will necessarily trigger ss. 9 and 10 of the Charter.

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Enter into the unknown [at least for now] – driving while impaired, etc…..

My emails and texts have been buzzing since late last year – present. As always, this is not legal advice (I am no lawyer by any stretch), but information from a fellow officer that attempts to educate law enforcement and interpret the muddled law as it is. I suspect this will not be my last post on this topic, but for now, let’s get to it….

As background, in 1921, Parliament made it an offence to drive while intoxicated. In 1925, it criminalized driving while intoxicated by narcotics. Dangerous driving has also been an offence since 1938. In 1951, Parliament responded to the concern that some courts were only convicting if the driver was “falling down drunk” by adding the offence of driving while impaired by alcohol. Major changes were made to the impaired driving laws in 1969. Parliament repealed the offence of driving while intoxicated, while keeping the offence of driving while impaired. At the same time, it made it an offence to drive with a Blood Alcohol Concentration (BAC) over 80 mg of alcohol per 100 ml of blood (over 80) and created an offence of refusing to provide a breath sample. Parliament provided for the BAC to be determined by an “approved instrument” (AI). In 1979, Parliament also authorized the use of an “approved screening device” (ASD) at the roadside to facilitate the detection of impaired drivers. It is a criminal offence to refuse to provide an ASD or AI sample. Parliament has also amended the Criminal Code over the years to respond to certain court decisions. It has also passed legislation to deter the dangers caused by street racing, fleeing the police and leaving the scene of an accident. It is also a criminal offence to drive while prohibited from doing so as a result of a Criminal Code conviction. In 2008, Parliament made more major changes to address drug-impaired driving, creating the legal framework for the Drug Recognition and Evaluation (DRE) Program. There is more, but you get the point….

Fast forward, 2018-19: Mandatory alcohol screening – under the old regime, officers could not require a driver to comply with any roadside test unless we had reasonable grounds to suspect the driver has alcohol or drugs in their body. With reasonable suspicion, we could demand that the driver either provide a breath sample on an approved screening device (ASD) (for alcohol) or perform standard field sobriety tests (for drugs or alcohol). Now, section 320.27(2)) CC allows an officer to require a driver to provide a breath sample on an ASD if the officer has an ASD close at hand. Unlike the old framework, this provision does not require that the officer form a reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion will still be required where the ASD is not at hand, or the driver is no longer operating or has care or control of the motor vehicle (the words… “require the person who is operating a motor vehicle”…was purposeful). Mandatory alcohol screening will likely occur mainly, but not exclusively, at organized sobriety checkpoints. Quite simply, a police officer who has stopped a driver lawfully, for example to investigate a speeding violation, would be able to demand that the driver provide an ASD sample without needing to have reasonable suspicion that the driver has alcohol in the body. The term “conveyance” is now used to refer to any motor vehicle, vessel, aircraft or railway equipment, so it is important to note that mandatory alcohol screening only applies to motor vehicles. As well, the definition of “operate” has also been amended to incorporate the concept of “care or control”. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station.

Some commentators and members of the public mistakenly consider this to be a new power to stop vehicles at random. In fact, random stopping has been considered on three occasions by the Supreme Court of Canada. The first case was R. v. Dedman [1985] 2 S.C.R. 2 where the Court found that random stops were justified at common law because of the importance of deterring impaired driving, the necessity of random stops to effective detection, and the fact that driving is already subject to regulation and control in the interests of safety. The second case was R. v. Hufsky [1988] 1 S.C.R. 621. It dealt with a random stop at a checkpoint pursuant to the Ontario Highway Traffic Act. The Supreme Court found that, in view of the importance of highway safety and the role to be played in relation to it by a random stop, the limit on the right not to be arbitrarily detained is a reasonable one that is demonstrably justified in a free and democratic society. The third case was R. v. Ladouceur [1990] 1 S.C.R. 1257. In that case, the stop was by a roving patrol car and not at an organized checkstop. The Supreme Court held that reducing the carnage on the highways caused by impaired drivers was a pressing and substantial concern which the government was properly addressing through random stops. As the Court noted, “stopping vehicles is the only way of checking a driver’s licence and insurance, the mechanical fitness of a vehicle, and the sobriety of the driver.”

Another change in this area is operating with a BAC equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours of driving. The change in the law isn’t that we can demand breath samples from drivers at home or in bars because we could do that under the old regime. The change is that now those breath samples can now afford evidence of an offence, where before they could not. The intent here, I believe, is to eliminate the bolus drinking defence, by changing the timeframe within which the offence can be committed. Also, it significantly limits the intervening drink defence. The bolus drinking defence arises when the driver claims to have consumed a large amount of alcohol just before or while driving. Although they admit that their BAC was “over 80” at the time of testing, they claim that the alcohol was still being absorbed and, at the time of driving, they were not “over 80”. The formulation also limits the intervening drink defence which arises when a driver drinks after driving but before they provide a breath sample. This defence often arises where there has been a serious collision and the driver claims to have been settling their nerves. This undermines the integrity of the justice system as it rewards conduct specifically aimed at frustrating the breath testing process. The only situation in which a driver could rely on intervening consumption to avoid a conviction is captured in subsection 320.14(5). The offence is not made out if all of the following conditions are met:

  • The person consumed alcohol after ceasing to operate the conveyance;
  • The person had no reasonable expectation that they would be required to provide a sample of breath or blood; and,
  • Their alcohol consumption is consistent with their BAC at the time the samples were taken and with their having had a BAC of less than 80 at the time of operation.

Situations in which a person would have “a reasonable expectation” that they would be required to provide a sample would be decided on a case-by-case basis by the courts. However, a person involved in a serious collision causing death, bodily harm, or major damage should reasonably expect to be required to provide a sample. I believe we will see alot of “unconstitutional” arguments in this area because, for example, if a driver could convince a court that they drove home, or to a bar, sober and then drank, never expecting to be subjected to a breath demand, and that after getting home he/she consumed a quantity of alcohol that they were not carefully tracking, the court may still find them guilty because without knowing how much alcohol they consumed, the person may be unable to show that the consumption matched up with their breath readings.

Further still, the new section 320.31(9)) CC provides that a statement made by a person to a police officer that is compelled under a provincial Act (e.g. file an accident report, admission of driving, etc.) is admissible for the purpose of justifying a roadside screening demand authorized by the Criminal Code. This has the potential to engage the protection under section 7 of the Charter against self-incrimination.

The new section 320.29 CC provides that a justice may issue a warrant to obtain a blood sample from a person where the justice is satisfied that:
– There are reasonable grounds to believe that the person was involved in an accident causing bodily harm or death within the previous 8 hours;
– There are reasonable grounds to suspect that there is alcohol or a drug in the person’s body; and
– A medical practitioner is of the opinion that the person is incapable of consent and that the taking of the sample would not endanger the person’s health.

As well, new subsection 320.31(4) CC provides that, where testing on an AI is performed more than two hours after driving, BAC at the time of the offence (i.e. within the two-hour window) is conclusively deemed to be equal to the BAC at the time of testing plus 5 mg/100 ml for every complete 30 minutes between the expiry of the two hour period and the time of testing. The onus remains on the Crown to prove the offence beyond a reasonable doubt, by combining the scientifically valid AI test with well-established scientific knowledge on the metabolism of alcohol.

There are many other changes, but I think this post went on long enough. This area of law is new: to us, the lawyers, and the courts, so time will tell once the litigations begin where we will end up. The letter of the law versus the spirit of the law will come to bear. When one obeys the letter of the law but not the spirit, one is obeying the literal interpretation of the words (the “letter”) of the law, but not necessarily the intent of those who wrote the law. Conversely, when one obeys the spirit of the law but not the letter, one is doing what the authors of the law intended, though not necessarily adhering to the literal wording…. interesting times indeed for us officers that love to delve into the abyss that is law!

Let’s not become ‘lazy’ or let our investigative skills suffer in the meantime…. we can be wrong in our beliefs and that is a cold comfort to a morally innocent person left without a defence under these new laws… the courts will hopefully work it out sooner than later to give us some guidance and certainty in this new area of law.

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Sidebar from the Reeves decision…worthy of a post

I didn’t want to take away from the “consent” issue/debate in the Reeves decision by cluttering it with a couple of other issues that require their own post.  Of note in Reeves was whether the police infringed Reeves’s Charter rights by entering the shared home without a warrant. This issue was not fully canvassed by the majority since it was not the main issue on appeal (Reeves conceded during oral submissions before the Court that he was not challenging the police entry into the Reeves-Gravelle residence). That being said, Justice M.J. Moldover, concurring with the majority, took some time to address the issue and I believe it’s something worthy for officers to appreciate. Justice Moldover wanted to express some tentative views on the issue of police entry into a shared residence, a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.  Justice Moldover felt that this is an important issue for debate since the police entry into the Reeves-Gravelle residence on the strength of Gravelle’s consent was the catalyst giving rise to a chain of events that culminated in the discovery of child pornography on the shared computer. If the entry contravened s. 8, it follows that the evidence discovered during the search of the computer was “obtained in a manner that infringed or denied” Reeves’s rights, bringing it within s. 24(2)’s exclusionary reach.

Further, Justice Moldover wrote that the legality of the police entry has implications beyond the four corners of this case. Police frequently attend residences to investigate suspected or ongoing criminal activity. Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home. Counsel’s concession that police entry into a shared residence is not a “search” therefore has the potential to affect a large swath of Canadian society by shifting our understanding of the right to be free from unreasonable search or seizure. Do police have the authority to enter the shared residence at common law under the ancillary powers doctrine, to take a statement, for example?

Consider a situation where a complainant calls the police and informs us that her partner has physically abused her but has left the house. There is no emergency that would allow the police to enter the home under the emergency search power articulated in Godoy. Without each occupant’s consent, the police would be unable to enter the home. At present, the police would appear to have two options. They could ask the complainant, who has just been assaulted, to suffer the embarrassment of speaking to the police outside of her home — a request that could understandably be met with a refusal. Or, we could try to obtain the consent from the co-resident who allegedly perpetrated the abuse — an exercise almost guaranteed to prove futile. Or a situation after being called by a resident who reports a theft of property from a home she shares with six roommates, are we required to (1) determine how many people live in the home, and (2) seek out and obtain the consent of each before entering the home to take a statement? In each of the foregoing examples, short of intruding on the co-resident’s expectation of privacy, we would effectively be powerless to investigate the reported criminal offences.

Our homes have the potential to reveal the most intimate details about our personal lives. Individuals therefore typically have a heightened expectation of privacy within their homes. That said, five constraints on the police entry power that Justice Moldover articulated to minimize the extent of the interference with that expectation, inlcude:

  1. First, the police must query whether conducting the interview in the person’s home is necessary. If, after being presented with the option of having the interview at home or elsewhere, the person is ambivalent as to where it takes place, then the interview should be conducted outside the home. On the other hand, if the person indicates a preference to speak with the police at home, the police may act upon that preference. They need not attempt to weigh the strength of the person’s conviction not to be interviewed outside the home. Nor ought the police to cross-examine the person about his or her underlying fears and motivations, in an effort to determine whether the person will leave the home if pressed or cajoled.
  2. Second, the scope of the entry power would be narrowly tailored to its purpose. Courts regularly focus on the purpose of a particular police action to evaluate its legality. For example, in Evans, this Court held that residents are deemed to grant the public, including police, an implied licence to approach their home and knock. However, the police may only approach a residence under the implied licence to knock doctrine if their purpose in approaching is to communicate with an occupant: Evans, at paras. 13-16. Similarly, a search incident to arrest is only lawful if the purpose of the search relates to the purpose of the arrest: R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 19-25. The purpose of the entry power that I am articulating is to take one or more statements in connection with a criminal investigation, whether from the authorizing resident, or from other willing occupants, as the authorizing resident may permit. Absent further lawful authority, the legality of the entry ends when the police exceed that purpose. To be precise, the police may not go further and lawfully search the residence or seize evidence from it unless they obtain the necessary grounds in the course of taking the statement or statements.
  3. Third, the police would only be permitted to enter the common areas of the home. This too flows from the purpose of the entry. Because the police are only in the residence to take a statement, there is no need to enter any private areas, such as bedrooms, where a resident’s expectation of privacy is generally at its highest. In contrast, each co-resident has a reduced expectation of privacy in common areas of their home.
  4. Fourth, the police can only enter if invited in by an occupant with the authority to consent. Unlike many of the other statutory and common law police entry powers, forced entry would be strictly prohibited. Furthermore, the consent must be voluntary and informed, and the resident’s consent must be continuous and may therefore be revoked. The police must respect the resident’s wishes if he or she revokes the consent.
  5. Fifth, the entry would only be for a limited duration. If, after taking the statement, or statements, the police do not obtain the requisite grounds to undertake any further investigative action, they must immediately leave the residence.

To summarize, the common law police power that Justice Moldover tentatively described to allow a narrow entry power to take a statement from an individual with the authority to grant police entry, or from other willing occupants, as the authorizing resident may permit, has five criteria:

(1) The police must offer the authorizing resident, and any other cooperating occupants, a suitable alternative interview location — if one is available — that does not potentially intrude upon the reasonable expectations of privacy of co-residents in their home. (2) The purpose of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants, in connection with a criminal investigation. The police may not go further and search for or seize evidence unless they obtain the necessary grounds to do so in the course of taking the statement or statements. (3) The police are only permitted to enter the home’s common areas into which they have been invited. (4) The police can only enter if invited in by a resident with the authority to consent and that consent must be voluntary, informed and continuous. (5) Unless the police obtain the necessary grounds to take further investigative action, the duration of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants.

Another interesting tidbit from the Reeves decision was from Justice Cote, concurring with the majority:

“Nevertheless, even though I am of the view that the entry into the home and the seizure of the computer were both lawful, I would still exclude the evidence under s. 24(2) of the Charter based on the other violations of law in this case — specifically, the fact that the police failed to comply with ss. 489.1 and 490 of the Criminal Code, R.S.C. 1985, c. C-46, by improperly detaining the computer and the fact that the search warrant was ultimately found to be invalid.”

Don’t forget or neglect to file the Report to Justice and Detention Order!

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Consent – not as clear-cut as it was in the yesteryears…

Reeves (R. v. Reeves 2018 SCC 56) shared a home with Gravelle, his common-law spouse. They were joint titleholders and had lived with their two daughters in this home for ten years. In 2011, Reeves was charged with domestic assault following an altercation with Gravelle and her sister. After this incident, a no-contact order was issued which prohibited Reeves from visiting the family home without Gravelle’s prior, written, and revocable consent. In October 2012, Gravelle contacted Reeves’ probation officer to withdraw her consent. She also reported that she and her sister had found what they believed to be child pornography on the home computer. They had found it in 2011.

Later that day, a police officer arrived at the family home without a warrant. Gravelle allowed the officer to enter. Gravelle signed a consent form authorizing the officer to take the home computer, which was located in the basement, a shared space in the home. The officer testified that he sought Gravelle’s consent because he did not believe he had reasonable grounds to obtain a warrant to search the home and seize the computer. The computer was owned and used by both spouses. Reeves was in custody on unrelated charges when the computer was taken by the police.

The police detained the computer without a warrant for more than four months, but did not search it during this time. They failed to report the seizure of the computer to a justice, as required by s. 489.1 of the Criminal Code, during this period. In February 2013, the police finally obtained a warrant to search the computer and executed it two days later. The police found 140 images and 22 videos of child pornography on the computer. Reeves was charged with possessing and accessing child pornography.

Reeves succeeded on a pre-trial application to exclude evidence based on a breach of his s. 8 Charter rights. The application judge found that Reeves had a reasonable expectation of privacy both in his home and its contents, including the computer. He found that Reeves’s rights were violated through the warrantless search and seizure of the computer from the home because he did not consent, by retaining the computer for four months without reporting the seizure to a justice and that the ITO relied upon to secure the warrant to search the computer was insufficient, so the warrant should have been denied. The judge found that the Charter-infringing conduct was serious as was the impact on Reeves’s Charter-protected interests and ordered that the evidence be excluded. As a result of the exclusion of evidence, the Crown’s case was gutted and an acquittal was entered. The ONCA found that while Reeves was a joint owner of the home, he had a minimal reasonable expectation of privacy in it as he could not access the home without his partner’s consent, she had revoked her consent, and he was in custody at the time. Seizing the computer did not interfere with Reeves’s heightened expectation of privacy in it or imperil any of his legitimate interests. Reeves’s partner could consent and her consent was valid as it was voluntary and informed. As a result, the evidence was admissible and a new trial was ordered.

Before I get into the SCC’s decision here, recall for a moment the R. v. Vu 2013 SCC 60 decision, which essentially ruled that:

[i]f, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched (para. 3; see also para. 49).

So, part of the issue here was no statutory or common law authority could have justified the computer seizure in this case. If the police had had a warrant to search the home, Vu would have justified the seizure — but not the search — of the computer. The key issue in this case, then, was whether the police officer could rely on the consent of Reeves’s spouse to take the shared computer from their home?  To a lesser degree, whether the police infringed Reeves’s Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant.

The SCC said that, in short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response, and they would be best answered in a case that directly turns on this issue, with the benefit of full submissions. Therefore, in this case, the legality of the police entry did not affect the legality of the taking of the computer.

At para. 47:

“…in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’s subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Indeed, both the Crown and the Court of Appeal appear to have recognized that Reeves had a reasonable (although diminished) expectation of privacy. While Reeves’s reasonable expectation of privacy in the computer was limited, given that he shared control over the computer with his spouse, it still suffices to trigger the protection of s. 8 of the Charter …. Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter” ….

The SCC then turned to the alternative proposition that underlied the Crown’s argument — that Reeves’ Charter rights were waived by Gravelle’s consent. The presumptive warrant requirement for seizures captured by s. 8 of the Charter is not triggered if Reeves’s Charter rights were waived. The Crown’s argument that there was no seizure within the meaning of the Charter when a party with an equal and overlapping privacy interest provides consent would effectively permit the consenting party to waive the privacy rights of the other parties. This would be inconsistent with the Court’s decision in R. v. Cole 2012 SCC 53, said the SCC (the third-party consent doctrine – although a person may not have exclusive control over the home and computer, control does not need to be exclusive to support a reasonable expectation of privacy. By assuming the reasonable risks of shared living, a person does not assume the risk that the police can enter a shared home and seize its contents at the sole discretion of a co-resident).

According to the SCC, Reeves had a reasonable expectation of privacy in the shared computer, and his rights had not been waived. Accordingly, the taking of the computer by the police constituted a seizure within the meaning of s. 8 of the Charter. This warrantless seizure was not reasonable because it was not authorized by any law. The seizure therefore violated Reeves’s rights under s. 8 of the Charter. Given the seriousness of the state conduct and of its impact on Reeves’s Charter-protected interests, the application judge was correct in concluding that the admission of the evidence would bring the administration of justice into disrepute. The evidence was excluded and the acquittal restored.

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Godoy – 20 years later – misunderstood or misapplied?

Uniformed officers in R. v. Pireh 2018 ABPC 291 responded to a complaint from a person who resided in a condo complex. The complainant heard what sounded like people were being thrown around and there was yelling, banging, and thrashing going on in the unit; it sounded like they were throwing each other around, but the complainant wasn’t sure if it was fighting or playing. Other information obtained was a smell of marihuana coming from the place. The complainant also believed that there were four people living in that suite. No children that they knew of lived there, and the occupants that lived there were adult males in their early 20’s.

On arrival, police had a conversation with the complainant, whom the police had to contact to gain access to the condo complex. At that time, the complainant indicated that it sounded like the males were fighting in the suite. It sounded like they were being thrown up against the walls. The complainant identified the exact suite where the sound was coming from.

As police approached the door to the suite, it was silent. There were no sounds coming from the suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. Police knocked at the condo door, and it answered by Pireh, but he simply cracked the door open just enough for him to poke his head out. The officer wasn’t able to see inside the suite. He identified himself and advised Pireh that due to a concerned neighbour that heard what sounded like a physical confrontation in his suite, that they were there to check on the welfare of everyone in the suite.

Pireh was not forthcoming with information and didn’t want police to have access to the suite. Pireh stated that he was just playing around with his cousin, but didn’t want police to come in. The officer advised him that due to the complaint of sounds of people being thrown around into walls and thumping and banging, they were there to check on the welfare of everyone in the suite to ensure nobody was in any medical distress or injured. Again, Pireh didn’t want to let them into the suite. The officer then advised Pireh that they were coming into the suite based on their common law duty to ensure nobody in the suite was in any kind of medical distress or in need of any assistance. At that point, Pireh opened the door and officers entered the suite.

As soon as officers entered the suite, they identified a male as Pireh’s cousin, Eskandar, standing in the hallway. Pireh went into the living room area. An officer followed Pireh into the living room area to discuss what was going on, and to ensure no one was in any kind of need. Both Pireh and Eskandar “appeared sober, calm, no injuries.”

Pireh stood next to the couch and white coffee table in the living room area. Almost immediately, an officer noticed what appeared to be a black handgun on the white coffee table. At that time, the officer grabbed the gun to secure it and verify it was a real firearm. When he picked the gun up, he was able to verify it was a real firearm. He ejected the magazine and found 7 rounds of 9mm ammunition in the magazine. He then worked the action to eject any live round from the chamber. No live round was ejected. He then made the firearm “safe.” There was no trigger lock on the gun and it was not secured in any kind of container. The handgun was a 9mm Smith and Wesson. The serial number was defaced. After making the gun safe, he placed it on the kitchen counter.

After telling his partners that he had found a live handgun, officers arrested Pireh. After Pireh was arrested, and having been informed that 4 males lived in the suite, officers carried on searching the suite to ensure there were no other people that may be injured were there. Officers then searched the laundry room, and then entered a bedroom. No other people were found. The bedroom was messy with piles of clothes everywhere. On exiting the bedroom, an officer noticed a dresser against a wall with some of the dresser drawers partially opened. Inside one of the drawers he noticed a bundle of money wrapped in a rubber band and two clear plastic bags containing what appeared to be crack cocaine (one of the plastic bags was later determined to contain 24.3 grams of crack cocaine. The other bag contained 7 grams. The combined weight was 31.3 grams). Police applied for and later returned to the suite to execute a CDSA search warrant – less than 30 grams of marihuana was also found, and some documents in the name of the other tenants of the condo. Pireh was charged with 11 offences relating to the handgun, readily accessible ammunition, and drugs.

The judge examined that emergency calls can originate from a number of different sources. In many cases, there is evidence of a 911 call, or 911 hang-up call, that may relate to both domestic and non-domestic situations, originating from complainants both inside and outside a private residence. Absent there being a 911 call, the police agency in question had created a list of priority calls, categorized in terms of seriousness and immediacy, as priority # 1, # 2 and # 3 calls. Again, these calls may relate to both domestic and non-domestic situations, and originate from complainants both inside and outside a private residence. Finally, according to the evidence adduced in this case, the agency had created a list of codes to identify a particular situation (i.e., code 1014 – causing a disturbance) that may or may not be ongoing, and may relate to domestic and non-domestic situations, originating from complainants both inside and outside a private residence.

In terms of applicable legal principles, the trial judge drew no distinction between a 911 call and a priority # 1 dispatch call. In the circumstances of this case, the police treated them in the same way as requiring an immediate response to an emergency situation. As well, in terms of applicable legal principles, the judge drew no distinction between a call to the police originating from inside a private residence and a call originating from outside the residence. As the judge cited, an informed caller from outside the apartment describing the nature of the emergency is a more reliable justification for a concern about the health and safety of the occupant of the apartment than is a disconnected telephone call. In the judge’s view, the  analysis relating to 911 calls, and analogous 911 calls, was equally applicable to the police responding to an outside complaint of a code 1014 – causing a disturbance call. In determining if an immediate police response to an emergency situation was required, the court had to examine all the surrounding circumstances, including the context of the complaint, and the situation at the residence on arrival by police.

The judge found that the complaint received by the police in this case was not a 911 emergency call, or a priority # 1 complaint or a domestic situation. Police were not certain that it was, and when viewed along with the totality of the evidence, evidence in this regard was not reliable. The complaint in this case was a police response to an outside, code 1014 – causing a disturbance call, placed by a neighbour who lived in the same building as the accused. Based on the totality of the evidence, the judge accepted that the police had an honest belief that they were entitled to enter the accused’s suite to ensure the safety of everyone that may have been in the suite.

At paras. 136-137:

“The difficulty in this case is that the police only had limited information as to what an outside third party said she heard going on in the suite. The credibility and reliability of the complainant could not be tested because she did not testify in the voir dire. When the police attended at the building and approached the door to the accused’s suite, it was silent. There were no sounds coming from the accused’s suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. When the accused answered the door, the police described both him and Eskandar… “appeared sober, calm, no injuries. Although the police could not see into the suite, there is no evidence that anything was going on in the suite at the time.”

“When viewed objectively, the limited information available to the police as to what may have been going on in the accused’s suite, what they saw at the scene, and their conversation with the accused at the door, did not give rise to an emergency situation that would entitle this Court to view the code 1014 – causing a disturbance call as analogous to a 911 call. This case boils down to a complaint made by a disgruntled neighbour about sounds… “people being thrown around, yelling, thumping and banging, isn’t sure if it’s fighting or playing…” coming from the suite occupied by the accused and three other males in their 20’s, no women or children or anyone being in distress mentioned.”

The judge ruled that the Crown had failed to satisfy the court on the balance of probabilities that the police had reasonable grounds to enter the accused’s suite pursuant to their common law duty to ensure the safety of everyone that may have been in the suite. Therefore, the entry by police into the accused’s suite and search was not authorized by law and violated section 8 of the Charter.

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Warrantless tracking or “pinging” of a cell phone…

R. v. Day [2018] N.J. No. 370 – police were engaged in a police chase of a vehicle. The police stopped the chase when it seemed dangerous but determined the owner of the vehicle (Romaine Fudge – no relation). The owner said the vehicle was loaned to Day and Keefe, an individual known to the police and wanted on an arrest warrant. Keefe was known to be the driver of the vehicle. The police obtained Day’s cell phone number from the owner and requested that OCC conduct a cell phone ping to determine Day’s location. The police did not seek a warrant to authorize the search. The police made several pings. The police later located the vehicle at the owner’s residence. Keefe and Day had returned the vehicle and left on foot. There was no evidence that Day was suspected of having committed any offence. Day and Keefe were located and arrested. It was during the arrest of Keefe that Day resisted arrest, assaulted a peace officer, uttered threats to cause death, and breached conditions of an undertaking.

Day argued that her rights under s. 8 of the Charter were violated. The Crown admitted that the pinging of Day’s cellphone was a warrantless search but argued that it was necessary for officer safety because Keefe had a history of violent and unpredictable behavior.  To officers not familiar to this provision of the Code, Section 492.1 sets forth the grounds upon which the police may obtain a warrant for a tracking device such as a cell phone at subsection (2):

A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

Section 487.11 of the Criminal Code states:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

As you can see, Section 487.11 does not reference subsection 492.1(2). The question remains as to whether, in the absence of a warrant and the statutory authority pursuant to section 487.11, the police may rely on a common law authority to conduct a search in exigent circumstances.

This search (“ping”) was not incident to arrest, but any informed officer will know that there does exist a common law authority to conduct a warrantless search even where, as in this case, that authority is not codified. The issue of exigent circumstances appear to rest on two bases: the first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained; the second basis emerges where there is a concern for public or police safety.

In the case of Day, the Crown did not allege that the exigent circumstances relied upon by the officer were in relation to the loss of evidence but rather that the exigent circumstances involved a danger to people. The trial judge ruled that although there may have been some risk to the police officers and to the public during the high speed pursuit of Keefe which could constitute exigent circumstances, that risk was eliminated once the chase was discontinued by police and certainly once the vehicle was located at the home of the lawful owner. There was no evidence that the officers themselves were in danger and the statement of one officer that “they (Day and Keefe) might break into someone’s home” while evading police was groundless and speculative. The judge was satisfied that the officer chose to disregard the rights of Day to be protected against unreasonable search and seizure based on the convenience of locating Keefe and for fear, not that he might cause harm, but that he may evade the police.

The use of Day’s cellphone to track Keefe was willful and in reckless disregard of her Charter rights and had a serious impact on her reasonable expectation of privacy. Given that the offences occurred when Keefe was arrested, there was no basis to believe that they would have occurred at all if the breaches were not perpetrated. The judge ruled that the admission of evidence obtained by police subsequent to the breach would bring the administration into disrepute.

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Teacher using concealed camera to make surreptitious video recordings of female high school students – voyeurism?

What defines expectation of privacy for the Criminal Code offence of voyeurism? R. v. Jarvis 2019 SCC 10 was largely about a teacher in a high school who used a covert, miniature camera to take videos of young women’s cleavage over more than a year. It was discovered and he was charged under the relatively new voyeurism offence in the Code. Two essential elements of the offence are that there have to be circumstances that give rise to a reasonable expectation of privacy and the recording has to be done for a sexual purpose. In Jarvis, the recording took place in otherwise “public areas” of the school, so not in washrooms or changing rooms. It also has to be “surreptitious”, but the observation itself was not surreptitious. What was being recorded was largely observed in real-time by the teacher. The recording was surreptitious.

While the trial judge found that the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose (it’s hard to get my head around that, as the teacher had many, many recordings spanning more than a year of students’ cleavage and chest areas. I’m not sure what other purpose he could have had, but what do I know?). The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy (the court was split on the reasonable expectation of privacy in a “public place” where the young women could generally be observed by teachers and other students). 

The SCC ruled that… “Privacy”, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include (these are not word for word how the SCC listed them):

  • a person’s location – the fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
  • the form of the alleged invasion of privacy – was it an observation or recording? Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. 
  • the nature of the observation or recording – relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used, etc.
  • the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording – relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body.
  • any rules, regulations or policies that governed the observation or recording in question – although formal rules, regulations or policies will not necessarily be determinative, in this case, there was a school board policy in effect at the relevant time that prohibited the type of conduct engaged in by the teacher.
  • the relationship between the person who was observed or recorded and the person who did the observing or recording – relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
  • the purpose for which the observation or recording was done – for example, if a patient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing the diagnostic procedure. However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise — the patient’s privacy will undeniably be violated. The SCC said that sexual purpose, as an element of the offence in s. 162(1)(c), must be established beyond a reasonable doubt for the offence to be proven. In some cases, depending on the entire context, observation or recording may not breach expectations of privacy despite having a sexual purpose. In such cases, the offence in s. 162(1) will not be made out. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose, and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.
  • the personal attributes of the person who was observed or recorded – considerations such as whether the person was a child or a young person may be relevant in some contexts.

Because Jarvis’ videos were of teenage students, were recorded by their teacher in breach of the relationship of trust and of a formal school board policy, were shot at close range, were of high quality and were focused on the bodies of students, Jarvis acted contrary to the students’ reasonable expectations of privacy. The Court entered a conviction and remitted the matter for sentencing.

I suspect after this case, we will see more court cases and discussions around what is an expectation of privacy in generally public places? We’ll also have to think hard about what role technology plays in privacy, particularly where CCTV cameras are said to be largely equivalent to real-time recordings. This will impact our investigations in the months and years to come. As cited in para. 62 of the Jarvis decsion:

“This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy.”

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It was just a matter of time – do you recall the Patrick (2017) decision?

“Do you have anything on you?”An all too often posited question by us to an arrestee.

To save readers the time in recalling R. v. Patrick (2017) BCCA 57 (application for leave to appeal dismissed by SCC), the BCCA ruled that an officer’s narrowly tailored questions motivated solely by safety concerns are permissible to a detainee about to be frisk searched (the question must be specific to address safety-based concerns and not an attempt on our part to use the search power conferred by Mann as a subterfuge for evidence gathering). The court went on to say that nothing compels a detainee to answer such a question (see my previous post on this case for more details).

Fast forward, in R. v. Fead [2018] A.J. No. 1573, before the officer proceeded with the search subsequent to the arrest of Fead for officer safety, he made an inquiry of her as to what she might have in her possession. The officer had no memory of what he asked her (he made very few notes and had little memory). He provided various possibilities including, “Do you have anything that would hurt me, poke me, stab me?” “Do you have anything on you?” Do you have anything that I need to be aware of, “Do you have anything on you that you should be concerned about?”

Whatever the officer said to her, she responded by acknowledging she had cocaine and syringes in her shoe. The trial judge answered the question of whether it was a narrowly tailored question as to anything in the possession of the detainee that might cause injury to the officer solely motivated by safety concerns in the officer’s favour.  The ABQB disagreed.

The trial judge found as a fact the officer asked “Do you have anything on you?”, but the ABQB ruled that the court record does not support such a finding; therefore, it was an error on the face of the record. It was impossible to conclude the officer asked a narrowly tailored question with respect to officer safety. The officer did ask something, but in his evidence in chief said he had no specific recollection of the question. He testified as to his normal practice as to “anything that would hurt me, poke me, stab me.” He fairly acknowledged it could have been “Do you have anything on you I should be concerned about?” or as broad as “Do you have anything on you?” Interestingly, the syringes could be a response to a safety inquiry, but the cocaine to an evidence collection inquiry. As the ABQB did not know what the officer said, the reasonableness test in Patrick could not be applied.  

The reasonableness test you ask? Well, would a reasonable person consider the question narrowly tailored as to whether a detainee has possession of anything that might injure the searching officer rather than an inquiry to collect evidence? The ABQB found that the warrantless search was unreasonable and a breach of section 8 of the Charter. The evidence should have been excluded.

Lesson for us?  Keep the question specific to address safety concerns in these types of situations; notes, notes, notes…..and if an officer relies on his or her “common practice” as opposed to notes or memory, be prepared to be asked for more evidence respecting your standard practice to further support the reliability of your evidence in this regard, such as how long and how often you have used this standard practice, and how long you have been a police officer, etc.  If defence can show the unreliability of your evidence of common practice (sometimes you do this, but there are times you do that), it won’t fare well for your testimony.

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