Warrantless examination of cell phone upon arrest – Photographs of visible screen of locked seized cell phone.

The Alberta Court of the Queen’s Bench in R. v. Millett 2017 ABQB 9 has ruled that photographs taken by a police officer of the screen of a locked iPhone are admissible as such only provided the phone seizure and immediate examination was lawful, notwithstanding the screen’s immediate visibility. Of note, this investigation took place approximately six months after the release of the Fearon decision.

Millett was the driver and sole occupant of a rental vehicle which was stopped by the EPS to investigate an impaired driver complaint. The police activated lights and siren and Millett pulled over promptly and safely. The police did not observe any signs of impairment. When the roadside screening device showed that he had ingested no alcohol, the police initially arrested him on a possession of marihuana charge and on a prohibited weapon (brass knuckles — which were in fact wooden) charge.

Before leaving the arrest location, police searched Millett’s vehicle. No search warrant was ever obtained by the police, i.e. no warrant for the vehicle or for cellphones. On the driver’s seat of the rental vehicle, police found four cellphones. Inside the closed center console beside the driver’s seat of that vehicle, police found two cellphones; police found another two cellphones in the vehicle’s glove box. When police eventually examined the phones at the police station, approximately one and one-half hours after the seizure of the phones, police found that, of the 8 cellphones, 3 were on and functional. One of the three cellphones which was on and functional was found in the closed console; that telephone, an iPhone 5, was on, but locked; however, its settings allowed the display on the screen of communications received. In order to read the screen, police had to depress the “open” button and use a thumb to scroll up and down the information displayed.

The officer who took the photographs of the screen of one cellphone accessed the contact list in another of the functioning cellphones and found a phone number linked to the “AJ Stars” who had sent messages to the other phone. That officer did not record all the investigative steps she took with the seized cellphones: for example, she did not record her access of the contact list on one phone, or the removal of batteries to look for a pin number for the phone. She testified that she did not believe that she looked at any of the incoming messages on the telephone where she accessed the contact list, but that it was possible that she looked at incoming text messages and at the telephone call log on that telephone. She did not record who looked at the cellphones, or at their contents, although she believed that a Sgt and a Staff Sgt might have looked at the messages as well. She testified that there was no investigative urgency to the examination of the cellphones and that the police investigation of the situation was not hampered. The officer testified that the only urgency to looking at the screens of the various phones was that they might not have ongoing power, but she acknowledged that it would not have been difficult to obtain chargers for all of the cellphones. The officer did record something about the messages she accessed: she recorded that there were several messages from AJ and quoted “I need to smoke some shit but didn’t want him to go/meet at his home”.

The Crown’s position was that the messages on the telephone screen were “documents in possession”, access to which is lawful and use of which for the truth of their content — despite their hearsay quality — is also lawful. Millett objected to the introduction of the photographs because of the Crown’s failure to meet two of the Fearon requirements: the need for prompt access and documentation of the details of the search.

Justice J.B. Veit said that broad principles were adopted by the SCC in Fearon to clarify the way in which police forces must deal with all cellphone information. That court rejected the American bright line approach of requiring pre-authorization for all but the most exigent searches and, while repeating that warrantless searches are presumptively unconstitutional, imposed, instead, a nuanced, four-point test. That test has already weighed an individual’s right to privacy against important law enforcement objectives; a court applying the Fearon test should not re-weigh its foundations. The court applying the test can, however, take the circumstances of any breach of the test into account in deciding what remedy should flow from the breach. At para. 3:

“Since Fearon‘s careful balancing of an individual’s right to privacy against legitimate law enforcement objectives, no aspect of cellphone searches, including screens displaying incoming messages, can be treated as “documents in possession”. All police access to seized phones must conform to Fearon standards.”

Justice Veit did not accept the Crown’s contention that applying the Fearon test in the circumstances here would require the police to “avert their eyes”. On the contrary, in order to access the information tendered, the police had to depress the “open” button, and scroll up the screen. Here, the Crown had failed to prove that there was any need to promptly access these phones, i.e. to access them without a warrant, and the police officer who accessed the phones for information did not make detailed notes of what she examined and how the devices were searched. Merely providing photographs of the screen of one telephone is not adequate compliance with this requirement. In assessing the privacy issue, there were no detailed notes of who had what access to the telephone in question.

Millett argued that there was no valid law enforcement purpose here to the warrantless search because there was no need to protect the police, the accused or the public, there was no need to preserve evidence, and there was no need to “promptly” search any cellphone. The first two of these positions were not contested. The Crown did, however, take issue with the need for “promptness” in the circumstances here. Indeed, the Crown asserted that, objectively, there is always a need for urgency when dealing with cellphones, and observed that the exception for warrantless searches granted by Fearon is, at least in part, justified by the need for prompt police action. Justice Veit said there were two problems with the Crown’s position. The first is that the only evidence on this issue was given by the patrol officer who dealt with the phones and who testified that there was no need for the police to search the cellphones promptly. As the Crown’s expert testified, the records within the cellphones were preserved. The patrol officer testified that the police investigation “was not hampered” by any lack of prompt access to the cellphones. The second problem with the presumption that “objectively”, there is always urgency in dealing with cellphones is that the presumption would invalidate the balance which the SCC was attempting to strike when approving certain warrantless searches. In the result, it was clear that access to the phones did not meet the Fearon requirement for prompt access.

As Fearon observed, the fact that an individual cellphone owner has locked the device but allowed notification of incoming communications to be displayed on the screen does not mean that the owner has waived his right to privacy.

For these reasons, the information on the cellphone screen did not become part of the evidence on the main voir dire. At para. 5:

“In the circumstances here, i.e. in the absence of evidence that EPS had taken reasonable steps to inform its peace officers of the new law which applied to cellphone searches, and in the absence of an ability to determine the breadth of the invasion of Mr. Millett’s privacy, the introduction into the main voir dire of evidence by a breach of Mr. Millett’s constitutional rights would bring the administration of justice into disrepute.”

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“Overholding” and s. 9 Charter Breaches

The issues surrounding overholding are not new or novel in impaired driving investigations. A recent case out of the Ontario Court of Justice, R. v. Lorenzo 2016 ONCJ 634, examined this issue. Ms. Lorenzo was stopped for a sobriety check as the arresting officer had earlier decided to do so of patrons leaving a certain drinking establishment. While speaking to Lorenzo, the officer noticed an odour of alcoholic beverage on her breath, red and watery eyes, and she admitted to consuming alcohol a few hours prior. He formed the suspicion that, while operating a motor vehicle, she had alcohol in her body so he asked her to step out for a test. She failed the test and then she was arrested and given a s. 254(3) demand for breath sample. The investigation proceeded in the normal fashion, resulting in readings of 145 mg. of alcohol in 100 ml. of blood and 135 mg. of alcohol in 100 ml. of blood. Lorenzo was then held in cells until some 6 hours later “until sober”.

Section 498 of the Code places a duty to release upon the officer-in-charge (or another peace officer e.g. arresting officer) where a person has been arrested and detained without a warrant; the person  “shall”, “as soon as practicable” be released by an officer in charge (or other peace officer) with an exception where an officer has an appropriate belief, based on “reasonable grounds”, for not doing so (i.e. public interest considerations).

Several courts have cited that permitting the blood alcohol level to be the sole determinant results in too narrow a focus when deciding whether or not to hold an arrestee. For example, in R. v. Price 2010 ONSC 1898, the court said the officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused’s blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused’s vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. According to cases such as Price, it is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus (see also cases such as R. v. Cheema, [2016] O.J. No. 1787, R. v. Mazzuchin, [2016] O.J. No. 371, and others).

The court in Lorenzo found there was no lawful reason for Ms. Lorenzo’s detention once the investigation was complete and she was served with the appropriate paperwork. Instead of being released, she was held in cells for six plus hours and there were no circumstances that arose that interfered with the police being able to execute her release, nor with Lorenzo’s ability to get home in a cab in the manner she ultimately did, said the court. The officers-in-charge (in this case, more than one was involved) did not take necessary steps to see if there was a real possibility of releasing her to someone as soon as practicable, for example. Lorenzo was acquitted.


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Investigative detention and use of force…

There are limits to the degree of interference with a citizen’s liberty that the police can employ when interacting with a citizen short of arrest. Nevertheless, the law recognizes that, especially in situations potentially dangerous to the public or to the police, a degree of intrusion may be justified. A recent case out of the NLCA, R. v. Squires 2016 NLCA 54, examined balancing the importance of protecting citizens from the illegitimate use of force by police, while at the same time trying to ensure that the police are not unduly hampered in the way they carry out their important public duties and responsibilities, especially when safety issues relating to firearms are potentially involved.

Moldaver and Wagner JJ. explained the balance that must be struck in terms of a “fundamental bargain” in R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37 as follows:

[64] Every day, throughout this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others. In return, they are entitled to know that when potentially dangerous situations arise, the law permits them to conduct minimally intrusive safety searches to alleviate the risks they face. That is the fundamental bargain we, as a society, have struck with the police — and it is a fundamental commitment upon which the police are entitled to rely.

In Squires, police received an anonymous phone tip, in the early hours of the morning, that a male in a “black jeep” near a community centre in St. John’s had a firearm, possibly a shotgun or rifle. The first officer on the scene saw a lone black sport utility vehicle with a male occupant in the parking lot. A second officer arrived in another car a few minutes later. The first officer activated his vehicle’s emergency lights, exited the vehicle, drew his firearm and told the male, whom he recognized as Squires from a previous occasion, to put his hands out the window. Squires fully cooperated. Upon the second officer’s arrival, she also drew her gun. Squires was told to exit his vehicle and lie face down on the ground, whereupon the second officer handcuffed him and brought him to her police vehicle. He was read his rights and caution and was told the police were investigating a weapons complaint. Squires admitted there was a shotgun in his vehicle. Not knowing of Squires’ statement that there was a gun in the vehicle, the first officer, using a flashlight, looked through the tinted glass in Squires’ vehicle to determine if there was anyone else there and to ensure the officers’ safety. Not seeing any other occupant, he looked again and saw the partially covered barrel of a shotgun on the back seat. He opened the door, seized the gun and shotgun shells and told the other officer to arrest Squires for unsafe handling of a firearm. Squires was re-advised of his rights and cautioned and then arrested for careless use of a firearm and breach of a weapons prohibition. The second officer claimed reasonable grounds for the arrest based on the original complaint that had been phoned in, Squires’ admission that there was a shotgun in the vehicle, and the fact that the first officer had seen the firearm in the vehicle. The first officer confirmed in evidence that he did not have grounds to arrest Squires prior to observing the firearm, but he asserted that he searched the vehicle incident to the arrest. It was clear, however, that the formal arrest performed by the second officer back in the vehicle had not occurred before the gun and shells were actually seized.

On these facts, the trial judge concluded that Squires’ rights under sections 9 and 8 of the Charter were infringed, and excluded the evidence of the shotgun and shells. As a result, Squires was acquitted for lack of admissible evidence.

The NLCA noted that a minimally intrusive safety search must still generally be based upon lawful actions of the police such as a lawful arrest or a lawful investigative detention. Thus, if a safety search is conducted incident to a detention that is arbitrary under section 9, the search will be regarded as an unreasonable search in violation of section 8. While MacDonald recognized that, in exigent circumstances or circumstances of an imminent threat, a search for weapons based on safety concerns does not necessarily have to be incident to either a lawful arrest or lawful detention, it presupposes that the actions of the police prior to the search are otherwise lawful. On its facts, MacDonald does not extend to permitting a safety search as incident to an arbitrary (i.e. otherwise unlawful) detention. Exigent circumstances do not in themselves provide a justification for a search; rather, they provide a justification for proceeding to search without a warrant which would have been available had there been time to apply for it, i.e. the circumstances provide an otherwise lawful basis for the search. The police must be doing some lawful thing when the need for a “shortcut” in doing it arises through exigent circumstances (R. v. Fountain 2015 ONCA 354).

That said, it must be recognized that there may be good practical reasons to allow police, where safety issues are at play, to carry out investigative detentions (tailored in their nature to the factual circumstances) and searches incidental to such detentions. The police officers had testified that they did not have grounds to arrest, and did not arrest, Squires until the firearm was observed in the backseat of the vehicle. The question upon appeal therefore became whether the actions of the police in interfering with Squires’ liberty could be characterized as a legitimate investigative detention short of arrest.

As noted in Squires, the standard to be applied to justify investigative detention is considerably lower than that required to arrest. Here, the officers acted on a tip that a man was in a black utility vehicle at the community centre with a shotgun or rifle. That was sufficient to justify investigating. In the absence of anything indicating worthlessness or substantial unreliability of the information received, the police are entitled to rely on such information for the purpose of investigating further (R. v. Clayton 2007 SCC 32).

It is the duty of a police officer to investigate potential crimes and to ask questions of citizens in relation to that investigation. It is not necessary that the police must have a subjective belief in the accuracy of the information at the time of commencing an investigation or that, at these early stages, there need be any objective corroboration of the information suggesting the need for investigation. That said, the right and duty to investigate does not automatically imply a right to detain or use force short of arrest. The degree of detention that is justifiable in pursuance of the investigation will depend, on a view of the totality of circumstances, on what is reasonably necessary to facilitate that investigation. At that point, the officer must have reasonable grounds to suspect that in all the circumstances the targeted person “is connected to a particular crime and that such detention is necessary” (R. v. Mann 2004 SCC 52).

Upon arrival at the scene, the first officer observed a man in a vehicle that roughly fit the description given in the tip. No one else fitting the description was present. Given the possible presence of a firearm, it was perfectly reasonable for the officer to suspect that Squires was connected with the alleged crime and to seek to detain him to investigate further, said the court. The safety of the public and the investigating officers was potentially engaged. The more difficult question, however, was whether the police acted appropriately in the manner in which they purported to effect the detention.

The trial judge concluded that “ordering the accused out onto the ground and searching him … exceeded what would be warranted in encompassing an investigative detention.” The use of force is usually associated with arrest rather than investigative detention. Here, said the court, it can not be said that the police had more than a reasonable suspicion, upon entering the parking lot and seeing a vehicle that generally matched the description in the tip, that the suspect in the vehicle had any weapon in his possession or under his control. There was no evidence led at trial of any reputation of Squires, who was known to the officer, for violence (although he was subject to a firearms prohibition). Further, the suspect was not behaving in a manner that in itself would have invoked suspicion. He was cooperative throughout and complied with all directions from the officer.

The degree of force used and the intrusion into Squires’ liberty was not, at that time, necessary to protect officer or public safety or to further the investigation which had been activated by the tip that had been received or the initial observations in the parking lot. Once the police went beyond a scenario requiring Squires to keep his hands visible, exit the vehicle and put his hands on the roof of the vehicle preparatory to, perhaps, a pat down search, and instead used physical restraint, and threats of physical force, they exceeded the bounds of permissible detention and, given the conceded absence of grounds for an actual arrest, caused the resulting detention to become arbitrary.

The NLCA said that an investigative detention should not be allowed to become a de facto arrest and stated that the duration and nature of the detention must be tailored to the investigative purpose of the detention. Generally, subduing and immobilizing by threatening force, handcuffing and placement in a police vehicle will not be necessary to carry out an offence investigation. In most cases, a direction to cease movement, exit a vehicle, keep one’s hands visible and respond to questioning will be sufficient. Obviously, handcuffing and other forms of physical restraint and confinement may be necessary in an investigative detention, but generally that should be the exception rather than the rule (see, for example, Clayton, R. v. Gnanachandran, 2005 CarswellOnt 3065 (S.C.) at para. 30; R. v. Cunanan (2008), 170 C.R.R. (2d) 69 (Ont. S.C.) at paras. 42, 44; R. v. Agengo, 2011 ABQB 171, 506 A.R. 344, at paras. 14-17)). The use of force, such as pointing a weapon, ordering the suspect to the ground, handcuffing and confining in a police vehicle will usually be regarded as a de facto arrest (see, e.g., R. v. Strilec 2010 BCCA 198, 256 C.C.C. (3d) 403; R. v. Orr, 2010 BCCA 513 at paras. 10-11).

The appeal court concluded, as did the trial judge, that it was reasonably necessary in the totality of the circumstances of the case, (given the report of a firearm and the general description given by the tipster, suggesting that the person could be regarded as a suspect), to detain and question Squires when he was observed in his vehicle on the community centre parking lot. However, in the absence of any indication of attempted flight, uncooperativeness or threatening behavior, that could have been accomplished by requiring Squires to exit the vehicle and to place his hands in plain sight on the top of the vehicle, preparatory to a pat down search. It did not in the circumstances require ordering him to the ground at gunpoint, handcuffing him and placing him in the police cruiser before continuing to look for any weapons. What began as a lawful detention became unlawful when excessive force and unnecessary detention methods were employed. The detention became arbitrary and was therefore a breach of section 9 of the Charter.

As for the search of the jeep, the police officer was lawfully in the place outside the vehicle from which the interior could be viewed. As well, once the firearm was observed, it would have been apparent to the officer that it may be evidence of a crime. It was the very type of item which was reported to them as being in the possession of someone in a black vehicle in the parking lot and which prompted the investigation in the first place. On the evidence, the arrest of Squires back in the second officer’s police car took place after the first officer saw the gun in the backseat of the vehicle, opened the door and seized it and the accompanying shells. How then can it be said that the search and seizure was incidental to arrest? The NLCA said that although the search preceded the actual words of arrest, it can still be characterized as being incidental to the arrest because the officer in fact had reasonable and probable grounds to arrest Squires as soon as he observed the firearm on the seat of the vehicle even though the actual words of arrest were not uttered until after the seizure. That brought it within the scope of a search incident to an arrest (see, for example, R. v. Debot [1989] 2 S.C.R. 1140). Accordingly, the appeal court concluded that the seizure of the gun was lawful and that the items and evidence in relation to it were admissible at Squires’ trial. The trial judge erred in concluding otherwise, ruled the appeal court.

In the end, the appeal court by a 4:1 ruling said that the evidence obtained in the course of the lawful search should not have been excluded at Squires’ trial. The arbitrary detention and excessive use of force did not justify the exclusion of the evidence, as the shotgun would have been observed had a reasonable level of force been used. The crown’s appeal was allowed and a new trial ordered. As the newly appointed justice to the SCC (M. Rowe, concurring) stated in Squires:

Regarding the seriousness of the conduct that infringed Mr. Squires’ rights under section 9, while the police used excessive force in their detention of Mr. Squires, their conduct was grounded in a sense of caution related to officer safety. The officers were not cavalier or egregious in their conduct; they simply went too far in the circumstances.

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Know the lawful limits of your authority.

R. v. Noftall 2016 NLCA 48 – officers assist other agencies on a regular basis and oftentimes enter private property under the authority of that agencies mandate (legislative authority). If we are assisting animal control officers, social workers, etc. and doing so under their legislation, as officers we are expected to know and abide by our lawful limits within that legislation.

A social worker with the Department of Child, Youth and Family Services in Fortune, NL, received a telephone call reporting that a child about one year of age may be in need of protective intervention. The social worker knew the caller but did not know either Noftall or his partner, the child’s mother. The caller reported that “there was information in the community” that Noftall and his partner had a grow-op in their home from which illegal drugs were being sold. The social worker contacted her supervisor and it was decided that the report should be investigated without delay. Before approaching the Noftall house, the social worker contacted the RCMP and requested that a police officer accompany her and her colleague, also a social worker, for the investigation. The officer testified that he went with the social workers, not because of the allegations, but to ensure their safety as they investigated the referral that there was a child in the house who might be at risk of harm.

Like most provinces, NL has legislation which provides for investigation of a report of a child in need of protective intervention and the agency can request the assistance of a peace officer (in this case, the RCMP legislation provided for preservation of the peace under section 18(a) of the Royal Canadian Mounted Police Act, RSC 1985, c. R-10). Any officer assisting must know their lawful authority and limits under the specific legislation for their territorial jurisdiction.

Both the social workers and the officer smelled a strong odour of marihuana when they entered the house. The social worker, accompanied by the officer, proceeded to search the house after the social worker indicated to Noftall that she did not require a search warrant. Noftall showed the social worker and the police officer to the bedroom where the social worker saw six tubs in a closet in one of the bedrooms containing plants. Noftall was arrested for growing marihuana. Police then obtained a search warrant and seized the marihuana plants and related paraphernalia. The trial judge found that because the officer merely accompanied the social workers for their protection, the officer did not breach s. 8 of the Charter.  The NLCA disagreed.

The officer knew that the social workers were investigating a report that a child may be in need of protective intervention based on the presence of a marihuana grow-op and drug trafficking from the child’s home. Upon entering the house, the officer detected a smell, indicating to him the presence of growing marihuana. The trial judge accepted that this officer was competent, from his experience and training, to distinguish the smell of growing marihuana from that of dry or burnt marihuana.

According to the NLCA, when he smelled the marihuana, the officer had two separate mandates: that is, securing the safety of the social workers, and investigating a possible offence. He could not use the former to clothe the latter with authority that would otherwise result in a breach of Noftall’s rights under section 8 of the Charter. In order to avoid this conundrum, the officer could have taken the following approach, said the court. When he smelled the marihuana which he identified as “growing”, he could, as he did, have given this information to Noftall, the child’s mother, and the social workers. At that point, he could have proceeded in a manner that would have been consistent with both his mandates by asking all present to remain in the kitchen while he took action to obtain a search warrant. A warrant, which may be requested by telephone, would have provided authorization for a search under the Controlled Drugs and Substances Act consistent with Noftall’s rights under section 8 of the Charter (as a side note to junior officers reading this, although many ITOs have to be submitted in writing, 11(2) of the CDSA allows for an application via telephone – oral application).

The appeal court noted in passing that Noftall’s conduct could not be construed as informed consent to the search for purposes of grounding a charge under the Controlled Drugs and Substances Act. He showed a social worker and the officer to the location of the marihuana plants in reliance on the social worker’s representation that a search warrant was not required. The court also noted further that a request by the officer that Noftall remain in the kitchen with him would constitute an investigative detention, engaging the relevant law. It was unnecessary to consider the issue in this case since that was not the approach taken by the officer.

In the circumstances, the police officer’s failure to obtain a warrant prior to a search for the location of the marihuana plants resulted in a breach of Noftall’s rights under section 8 of the Charter for purposes of investigating an offence and laying a charge under the Controlled Drugs and Substances Act. The trial judge erred in concluding that the officer’s involvement in the social worker’s investigation under the Act allowed him to search Noftall’s residence and to lay a charge when he was led to the location of the plants which, together with the firearm, were then in plain view.

Despite the violation, following the Grant analysis, the evidence was admitted and the conviction held by the NLCA.

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Was the defendant’s right to consult counsel of choice violated?

R. v. Maciel 2016 ONCJ 563 – this impaired driving (refusal) case involved several issues, but this post will focus on one – the issue of consulting counsel of choice. Following the arrest, the officer informed Maciel of his right to counsel. He responded by indicating he wanted to call a lawyer. When asked if he had a specific lawyer that he wanted to contact, Maciel said “David Locke”. Rights to counsel were completed by 2:45 p.m. At that point, the officer read the primary caution to Maciel, followed by the breath demand. They arrived at the station at 3:05 p.m. Once at the division, he was subject to the ordinary booking procedures. At 3:09 p.m., the officer placed a call to Mr. Locke’s office phone number. The officer then placed a call to a second phone number that he believed to be Mr. Locke’s cellular phone number. There was no answer at either number, and the officer left a voice mail message at both requesting a call back. The officer did not note, nor did he recollect, where he obtained either of the numbers that he telephoned.

After leaving voice mail messages, the officer waited a few minutes for Mr. Locke to return his calls. At 3:12 p.m., he offered Maciel the opportunity to call duty counsel instead of Mr. Locke. Maciel declined, indicating that he wanted to speak with Mr. Locke. The officer testified that he thought it sensible to wait 20 or 30 minutes to receive a call back before making further efforts to contact counsel. The officer called the same two phone numbers again at 3:32 p.m. and 3:34 p.m. respectively. There was no answer at either number and he left further voice mail messages. At 3:35 p.m., the officer once more offered Maciel an opportunity to call duty counsel, which he again declined, still maintaining his desire to speak with Mr. Locke.

At 3:38 p.m. Maciel was moved into the breath room, where the breath tech took custody of him. The breath tech explained to Maciel the efforts that had been made to get a hold of Mr. Locke. He then offered Maciel the opportunity to call duty counsel. Once again, Maciel declined, indicating that he wanted to speak with his own lawyer. The breath tech then proceeded to read the formal breath demand to Maciel. He responded by indicating that he would prefer to wait for his lawyer. At that point, the breath tech explained the consequences of failing to provide a breath sample and told Maciel that waiting to speak to his lawyer was not a reasonable excuse given that the police had already waited a reasonable amount of time for counsel to call back. The officer again reiterated the demand, and Maciel again refused, citing his desire to speak with his lawyer first. They went back and forth like this a number of times, with Maciel saying at one point: “I understand that, you guys have been trying as much as you can, I would want to speak to my lawyer first; if you were in my shoes, you’d want to speak with your lawyer first too.” Finally, after clearly warning Maciel that he was being given one last chance, and Maciel responding, “I need to speak with my lawyer,” the breath tech indicated that he was interpreting his response as a refusal to provide a breath sample and informed him that he would be charged accordingly.

The Honourable Justice James Stribopoulos said it appeared from the evidence heard at trial that the practice of the Peel Regional Police is to make telephone calls to counsel on behalf of a person in custody who has asked to speak with either duty counsel or a specific lawyer. Those in police custody are not provided with a phone book, access to the Internet, and the use of a phone to contact counsel of their choosing. Rather, it is the police who make these efforts on behalf of persons in their custody. The Judge said this is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so. For example, in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer’s directory, phone books and are even provided with access to the Internet. In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing.

Quite obviously, said the Judge, it was not his role to second-guess police operational procedures. And, to be clear, he did not believe there was anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows, said the Judge, that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begged the question as to what standard should be used in evaluating the adequacy of police efforts.

If the police do not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seemed eminently sensible to the court to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. As Justice Horkins noted in R. v. Panigas [2014] O.J. No. 1244 at para. 52:

When the police, as an institution, decide to take control of the accused’s means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

In this case, the officer used the Internet to look up Mr. Locke’s office number on the Law Society of Upper Canada’s website. In addition, he conducted what he described as a “Google search” and managed to locate a second number for Mr. Locke (which turned out to be a home phone number). Messages were left at both of these phone numbers, first at around 3:10 p.m., and then again about twenty minutes later. Unfortunately, the officer did not actually look at the website maintained by Mr. Locke’s law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it included a “Contact Us” link. Had he clicked on that link, he would have obtained both Mr. Locke’s e-mail address and his cell phone number, said the Judge.

In the Judge’s view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As was the case with Mr. Locke, a criminal lawyer’s website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours.

Where the police have assumed the responsibility to contact counsel of choice, the Judge thought it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In the Judge’s view, common sense suggests that at a minimum, this should include:

  • Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;
  • Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;
  • Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;
  • Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory;
  • Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

In this case, after considering the serious nature of the violation and the impact on Maciel’s constitutionally protected interests, while also remembering society’s interest in having the case adjudicated on its merits, the Judge believed that exclusion of the evidence would better serve the long-term repute of the administration of justice.

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The Importance of Making Notes

Every so often, a new case highlights the importance of notebooks and reminds us of the pitfalls and consequences of failing to make notes during an investigation (call). This latest case is not posted to serve as “case law” or precedent, but rather as a reminder to officers.

R. v. Fewer, [2016] N.J. No. 312 – Fewer was released on an undertaking given to a peace officer. The undertaking included a condition prohibiting Fewer from the “possession and consumption…of alcohol.” Subsequent contact with the police led to Fewer being charged with the offence of breach of undertaking, contrary to section 145(5.1) of the Criminal Code. At Fewer’s trial, a police officer testified that he had contact with Fewer and another individual. The officer testified that he smelled alcohol coming from Fewer’s breath. However, in the notes this officer made in relation to what occurred, there was no reference to Fewer being present, let alone any smell of alcohol being detected from him. Fewer argued that the absence of any reference to him in those notes should cause the court to doubt the reliability of the officer’s evidence.

Provincial Court Judge W. Gorman cited Wood v. Schaeffer, [2013] 3 S.C.R. 1053, where the the Supreme Court of Canada said police officers taking detailed notes should not be underestimated, indicating that it had “little difficulty” in concluding that police officers “have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation” (at paragraph 67).  He also cited R. v. Seguin, [2016] O.J. No. 3813 (C.J.), where it was noted that the “failure to contemporaneously record important information may result in the court being unable to accept the viva voce evidence in that regard” (at paragraph 41).

At trial, the officer testified that on the day in question, he was assisting a fellow officer and he heard someone “screaming” from inside the other officer’s police vehicle. He indicated that he opened the back door of the vehicle to see what this person “wanted” and to “see what was wrong.” He testified that he could “smell alcohol on [this person’s] breath” and that he was “upset.” The officer did not describe whether the smell was a strong or weak one. He did not indicate how close he came to Fewer, whether he spoke to Fewer, or whether Fewer spoke to him.

On cross-examination, the officer was referred to the notes he made concerning this incident. The notes referred to Mr. C; to Mr. C being advised of his right to contact counsel; a smell of alcohol coming from Mr. C; and Mr. C being arrested. However, the notes contained not a single word in relation Fewer. Judge Gorman was concerned about the lack of reference to Fewer in the officer’s notes. The officer took the time to make notes concerning his contact with Mr. C, but as pointed out earlier there was not one word spared for Fewer. As a result, the officer had to rely entirely on his memory. The entirety of the officer’s evidence left the Judge with a reasonable doubt as to whether he smelled alcohol coming from Fewer. The charge laid against Fewer was dismissed.

If interested, other cases such as R. v. Zack, [1999] O.J. No. 5747 (C.J.), R. v. Makhota, [2004] O.J. No. 5415 (C.J.) and R. v. Bailey, [2005] A.J. No. 790 had similar findings that evidence “not contained in officer’s notes may be suspect or given less weight”. This does not mean that every time an officer’s notes are found wanting that that officer’s evidence will be suspect (see R. v. Gill, 2015 ONSC 7872, at paragraph 45 and R. v. Broxterman, 2016 ONCJ 285, at paragraph 17), but why risk it…

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Delay in implementation of 10(b) Charter rights.

R. v. Tieu 2016 ABQB 344 – this was a drug investigation that focused on two individuals; Tieu not being either of them. Tieu entered the surveillance area unexpectedly one day and he was arrested after a short meeting with one of the male targets of the investigation.  Tieu drove into the lot where one of the targets was parked. Tieu had arrived in a Mitsubishi, opened the trunk, went to target’s truck and entered on the passenger side. Tieu and the target then left the lot in the truck and returned a short while later, at which time Tieu exited the truck. Tieu then walked back to his car with a laptop bag (subsequently found to contain 30 ounces of cocaine) . The Cpl in charge of the investigation, although not on scene at the time, was given this information by officers that were on scene.  After receiving the information, the Cpl ordered that Tieu be arrested for trafficking.  The target that Tieu had met with was arrested an hour later.

Upon arresting Tieu, three constables took him out of the car. One of those officers read Tieu his Charter rights. He asked Tieu if he understood, and Tieu said yes. Further, he asked Tieu if he wanted to call a lawyer, and Tieu said “yes.” No other statements were given by Tieu at the time. Following his arrest, Tieu was taken to the Airdrie RCMP detachment which was a 50 minute drive away from the surveillance area. This location was staffed only by guards without any authority to provide telephones to arrested persons. When questioned at trial on why a police station nearby was not utilized to provide Tieu with his Charter rights, an officer responded that it is police policy to take any person arrested by the RCMP in Calgary to the Airdrie detachment, or else to another station outside the city of Calgary that contains an RCMP cell block. When asked why a Calgary cell block location closer to the scene of the arrest could not have been used, the officer stated:

“We utilize RCMP detachments and resources. We don’t take prisoners to the Calgary Police Service stations. We’re not familiar with their processes. We’re not familiar with how they do things. So we would typically take anyone that we arrested within Calgary and shuttle them up to Airdrie detachment, as being the closest serving detachment for the RCMP.”

During the 50 minute drive through Calgary to the Airdrie RCMP detachment, the arresting officer and driver of the police vehicle, gave evidence that he and Tieu engaged in conversation. He made no notes of this conversation, nor could he recall with any certainty what was or was not talked about. This was significant in a section 10(b) analysis, as the Supreme Court of Canada has imposed a duty of restraint on police officers to refrain from eliciting evidence from detainees until he or she has been given a reasonable opportunity to retain and instruct counsel (R. v. Prosper [1994] 3 SCR 236).

The officers sought a search warrant to search the target’s residence.  Officers testified that Tieu was not given access to counsel to prevent the destruction of evidence (until the search warrant was executed) and for officer safety.  Yet, following the initial (“clearing”) search of the target’s residence, another 2 hours lapsed before Tieu was finally given access to a phone to call a lawyer.

Tieu was not provided the opportunity to contact counsel for 5 1/2 hours after his arrest, 4 1/2 hours after Pearson’s arrest, and 2 hours after Pearson’s apartment was entered without a warrant (the warrant was issued some 4 1/2 hours following the officers “clearing” and securing the target residence). The ABQB stated that any delay in facilitating an arrestee’s section 10(b) rights will amount to a breach, except in those rare instances when “urgent,” exigent or extraordinary circumstances interrupt the facilitation of the right to counsel.

The extraordinary or exigent circumstance justification under 10(b) is reserved for rare situations in which police have reasonable grounds to suspect that delay is (i) necessary to prevent imminent bodily harm or death to any person, and; (ii) to believe that evidence is present and that the delay is required to prevent the imminent loss or imminent destruction of evidence ….

The court ruled that the exigent circumstance exception to facilitating a person’s 10(b) rights is not and must not become a common or default approach used by police on a regular basis. The justification is necessarily narrow and will only excuse a breach of section 10(b) in genuinely extraordinary circumstances. To find otherwise would effectively condone police behaviour that blatantly disregards the Charter rights of accused persons, while also undermining those situations in which extraordinary circumstances are actually present and a delay is properly justified. In this case, the court did not find such urgent circumstances existed and the evidence was excluded.

While the Court did not find that the police were operating in bad faith, there was knowledge of and intention to delay Tieu’s right to counsel. It was not a mistake or result of oversight; rather the breach was deliberate. This placed the conduct at the serious end of the spectrum, and is the type of police conduct the Court said it must denounce and distance itself from.

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Penile swab incident to a lawful arrest – striking a proper balance between an accused’s privacy interests and valid law enforcement objectives

R. v. Saeed (2016) SCC 24 – around 4:00 a.m. on May 22, 2011, the complainant was viciously attacked and sexually assaulted. At 6:05 a.m., the accused was arrested and was advised of his right to counsel. He was mistakenly released and re‑arrested at 8:35 a.m. Based on the complainant’s allegations, the supervising police officer felt that there were reasonable grounds to believe the complainant’s DNA would still be found on the accused’s penis and a penile swab should be taken. The penile swab could not be taken immediately. Around 9:30 a.m., the accused was handcuffed to a wall in a cell with no toilet or running water to preserve the evidence. He spent about 30 to 40 minutes handcuffed in the dry cell. The supervising officer did not seek a warrant for the swab, because in his view, the swab was a valid search incident to arrest. The swab took place at around 10:45 a.m before two male officers who blocked the cell’s window with their bodies. The police permitted the accused to conduct the swab. The accused pulled his pants down and wiped a cotton‑tipped swab along the length of his penis and around the head. The swab was tested and revealed the complainant’s DNA.

At trial, the central issue was the identity of the complainant’s assailant. The accused challenged the admissibility of the evidence of the complainant’s DNA obtained from the penile swab. The trial judge ruled that the penile swab violated the accused’s s. 8 Charter right to be free from unreasonable search and seizure. However, she admitted the DNA evidence under s. 24(2) of the Charter and relied on it to convict the accused of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court of Appeal dismissed the accused’s appeal. The majority held that taking the swab violated s. 8  of the Charter but the evidence was admissible under s. 24(2).

The Supreme Court of Canada, by a 8:1 majority, dismissed the accused’s appeal. At para. 1:

The common law power of search incident to arrest is an ancient and venerable power. For centuries, it has proved to be an invaluable tool in the hands of the police. Perhaps more than any other search power, it is used by the police on a daily basis to detect, prevent, and solve crimes. This case is no exception. By the same token, it is an extraordinary power. Searches incident to arrest are performed without prior judicial authorization, and they inevitably intrude on an individual’s privacy interests. That, too, is the case here.

At para. 4:

At issue, once again, is the scope of the common law power of the police to search incident to arrest. Courts have examined and re-examined this power as new investigative methods and types of evidence have presented themselves. But no matter the context, to be constitutional, searches incident to arrest must be reasonable.

The SCC said that a penile swab does not fall within the scope of R. v. Stillman, [1997] 1 S.C.R. 607. First, a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. Accused persons do not have a significant privacy interest in a complainant’s DNA. Second, a penile swab is in some ways less invasive than taking dental impressions and the forcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. In sum, a penile swab implicates different privacy interests and law enforcement objectives than seizures of an accused’s bodily samples and impressions.

There can be no doubt that requiring a penile swab is an intrusion on an accused’s privacy. A penile swab has the potential to be a humiliating, degrading and traumatic experience. On the other side of the ledger, it can serve important law enforcement objectives…

…The police may take a penile swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested. The reasonable grounds standard will prevent unjustified searches before they occur and will hold the police to a higher level of justification before they can take a penile swab. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has already been destroyed. The potential for destruction or degradation of the complainant’s DNA will always be a concern in this context…

The swab must also be conducted in a reasonable manner. The following factors will guide police in conducting penile swabs incident to arrest reasonably:

  • A swab should, as a general rule, be conducted at the police station.
  • It should be conducted in a manner that ensures the health and safety of all involved.
  • It should be authorized by a police officer acting in a supervisory capacity.
  • The accused should be informed shortly before the swab of the nature of the procedure, its purpose and the authority of the police to require the swab.
  • The accused should be given the option of removing his clothing and taking the swab himself or the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary.
  • The officers carrying out the swab should be of the same gender as the accused unless the circumstances compel otherwise.
  • There should be no more police officers involved in the swab than are reasonably necessary in the circumstances.
  • The swab should be carried out in a private area.
  • It should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time.
  • A proper record should be kept of the reasons for and the manner in which the swabbing was conducted.

In light of these requirements, the penile swab in Saeed did not violate the accused’s rights under s. 8 of the Charter, according to the SCC. The accused was validly arrested. The swab was performed to preserve evidence of the sexual assault. The police had reasonable grounds to believe that the complainant’s DNA had transferred to the accused’s penis during the assault and that it would still be found on his penis. The swab was performed in a reasonable manner. The police officers were sensitive to the need to preserve the accused’s privacy and dignity. The accused was informed in advance of the procedure for taking the swab and its purpose. The swab itself was conducted quickly, smoothly, and privately (the swab took at most two minutes). The accused took the swab himself. There was no physical contact between the officers and the accused. The officers took detailed notes regarding the reasons for and the process of taking the swab. The swab did not fundamentally violate the accused’s human dignity.

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Search incident to an investigative detention – do police just get one kick at the can?

In R. v. McGuffie 2016 ONCA 365, the Ottawa Police Service received a telephone call at about 2:00 a.m. from security personnel at a downtown bar advising that a group of five men in the bar had been seen passing a handgun around. Several officers responded to the call. An officer arrived at the bar at about 2:07 a.m. Security staff were ushering the patrons out of the bar. Other officers were already present. The doorman identified two individuals as part of the group that had been passing the handgun around in the bar. McGuffie, one of those two men, walked away quickly from the bar. The officer followed him and caught up to McGuffie a short distance from the bar. He asked McGuffie why he was “running away from his friends?” McGuffie gave conflicting responses. The officer decided to detain him as he suspected McGuffie had the weapon seen earlier in the bar. The officer told McGuffie that he was being detained because he believed he had a handgun. McGuffie denied having a handgun.

The officer handcuffed McGuffie and conducted a “quick search to the vulnerable parts of his body“- a pat down of his waistband and waistline, which the officer described as a “cursory search“. Nothing turned up in the search. McGuffie was standing on the street when he was handcuffed and searched. The detaining officer placed McGuffie in the back of another officer’s police car, and the detaining officer returned to the bar to assist other officers in searching for the handgun. He said he was concerned about officer safety and was of the belief that the gun was in the bar. After what he said was a quick search of the bar, the detaining officer returned to the other officer’s car and said he told McGuffie that he was going to search him for a firearm since he said he found out it was a small gun easily hidden; 31 minutes had passed. He removed him from the cruiser and did a “quadrant search” – to be thorough. During the search, he found “a package of white powder in a rectangular shape” identified as cocaine (118.5 grams), which he said felt like the barrel of a gun; and approximately $600 cash in his pockets. He also found a small bag of marihuana in his pants pocket. He also found and seized a cell phone. The officer arrested McGuffie at 2.55 am for possession for the purpose of trafficking; this was some 30-35 minutes from the initial detention. McGuffie was also strip searched back at the station, which turned up 30.2 grams of crack cocaine. The courts also found issue with the strip search, but I will not be discussing that part of the appeal here. Part of the reason was that the handgun had been located previously by a K9 Unit.

The ONCA ruled that the initial detention of McGuffie on the street was a lawful exercise of the police power, but police infringed his s. 9 right by placing him in the cruiser for 30 minutes. He was effectively imprisoned from the moment he was handcuffed and placed in the cruiser and should have been advised that he had a right to speak to his lawyer. If McGuffie wanted to speak to a lawyer, police should have afforded him that opportunity without delay. McGuffie’s rights under s. 10(b) were breached. The initial pat down search of McGuffie on the street was reasonable and justified as an incident of his investigative detention. The second more thorough search of McGuffie was unlawful and unconstitutional. If there was any danger to the officer when he conducted the second search, it flowed directly from the unlawful detention of McGuffie and not from anything the officer was doing in the lawful exercise of his duty. If the arrest was unlawful, the search incidental to the arrest was unlawful and contrary to s. 8.  The ONCA excluded the evidence and acquitted McGuffie. According to the ONCA, the detaining officer seemed wholly unaware of, or worse yet, wholly unconcerned with, the limits of his powers to detain and search individuals. He was equally oblivious to his obligations under s. 10(b).

D.H. Doherty, for an unanimous court, said, in part:

“I would draw an analogy between searches that are said to be lawful as an incident of an arrest and safety searches which are said to be lawful as an incident of a lawful investigative detention. If the arrest is unlawful, the search incidental to the arrest is unlawful and contrary to s. 8 …. Similarly, if an investigative detention is unlawful, a safety search said to be justified on the basis of that detention must be unlawful and contrary to s. 8. …”

The court also recognized the interplay between investigative detention and the right to counsel. D.H. Doherty at para. 47:

“…It does …highlight the tension between the relatively brief duration of investigative detentions and the exercise of the right to counsel by persons being held under investigative detention. The submission assumes that the police can significantly prolong the detention if necessary to afford the detained person an opportunity to speak with counsel. I do not necessarily accept that submission. It may be that, if a police officer can afford a detained person an opportunity to exercise his s. 10(b) rights only by significantly prolonging an investigative detention, the police officer must release the detained person rather than breach s. 9 of the Charter. I leave that question for another case.”

Although not mentioned in the ONCA decision here, it seems to me at least that this issue was discussed in some length in Her Majesty the Queen v. Suberu [Indexed as: R. v. Suberu], 85 O.R. (3d) 127 some time ago. In that decision, it was discussed that a person who is under investigative detention and who after being advised of his or her right to counsel chooses to exercise that right, that person will almost inevitably end up suffering a longer detention and more intrusive state conduct than he or she would otherwise have endured. The court said that there can be a brief time span between an initial detention for investigative purposes and the administration of the s. 10(b) rights to reflect the nature of the vast majority of investigative detentions, in that they must be of a brief duration. The ONCA said that the police activity during the brief interlude contemplated by the words “without delay” must be truly exploratory in that the officer must be trying to decide whether anything beyond a brief detention of the person will be necessary and justified. If the officer has already made up his or her mind that the detained person will be detained for something more than a brief interval, there is no justification for not providing the individual with his or her right to counsel immediately. On appeal to the SCC (2009 SCC 33), the SCC rejected that approach, but the focus of the appeal seemed to be whether or not “advising” the person of his or her rights would cause a prolonged detention. Well, the SCC put that to rest when it ruled that the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. From the moment an individual is detained, s. 10(b) is engaged and the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

So, alas, it seems that the question of whether or not it is a s. 9 Charter violation with regards to “implementing” the duties upon detention if the detainee chooses to exercise it and prolonging the detention to make that happen will have to be answered another day. The implementational obligation imposed on the police under s. 10(b) requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel. The content of the police duties under s. 10(b) was not at issue in the Suberu appeal, and it was not settled in McGuffie. However, it would be difficult to see it being anything but a s. 9 violation since in R. v. Mann 2004 SCC 52, the SCC said:

“…investigative concerns will usually justify only a brief detention following which the officer will either have to release the individual or, if reasonable and probable grounds exist, arrest the individual.”

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Penile Swab Incident to Arrest?

The jurisprudence concerning the taking of penile swabs is developing. Reported decisions are limited and are not consistent. For example, several have expressly found a breach of s. 8 of the Charter (R. v. Saeed (AH), 2014 ABCA 238, 577 AR 143; R. v. Pun, 2012 ONSC 5305; and R. v. BAP, 2013 SKQB 14, 456 SaskR 23), while three others found no breach of s. 8 (R. v. Hodgson, [2008] OJ No 4748 (QL); R. v. Amey, 2013 ONSC 5108; and R. v. Harasemow, 2014 BCSC 2287. In three of the cases, the evidence was ruled admissible (Saeed; Hodgson; and Harasemow). In three of the cases, the evidence was excluded (Pun; Amey; and R. v. Ali, 2014 ONSC 6609).

The Supreme Court of Canada recently heard an appeal from the decision in Saeed, in which the majority of the Alberta Court of Appeal, applying Stillman, held that a penile swab is not a search that is incident to arrest, and that a warrant must be obtained unless the evidence sought could significantly deteriorate or disappear, or in circumstances of “extreme exigency” (at para 62). The evidence was admitted under s 24(2). The Supreme Court of Canada’s decision in Saeed is on reserve. Until we have the benefit of that decision, two recent decisions have held that a penile swab can be lawfully taken incident to arrest for a sex offence (R. v. Laporte 2016 MBCA 36), and  a warrantless search and seizure of a penile swab incident to arrest does not constitute a breach of section 7 or 8 of the Charter (R. v. M.T. 2016 NUCJ 9).

What is interesting from the Laporte decision is that the MBCA took the analytical approach for addressing the question of whether the taking of the penile swabs breached the accused’s s. 8 rights. While R. v. Fearon 2014 SCC 77 concerned searches incident to arrest in the context of cell phones found on accused persons, the MBCA said it provides a contextual analytical approach to address “the permissible scope of search incident to arrest”. The court also applied R. v. Golden 2001 SCC 83, which concluded that, as a result of the serious infringement of privacy and personal dignity occasioned by a strip search, such searches are only authorized at common law when four requirements are met: 1) the search must be “incident to a lawful arrest for the purpose of discovering weapons in the detainee’s possession or evidence related to the reason for the arrest”; 2) the police must have “reasonable and probable grounds justifying the arrest”; 3) the police must have “reasonable and probable grounds justifying the strip search”; and 4) “the strip search [must] be conducted in a manner that does not infringe s. 8 of the Charter” (at para 99).

Therefore, applying the analysis in Golden, and modified as required by Fearon, the MBCA in Laporte concluded that the following are required for a penile swab to be a lawful search incident to arrest:

1) The police have reasonable and probable grounds justifying the arrest;

2) The police have reasonable and probable grounds justifying the penile swab search incident to arrest. In other words, the police have reasonable and probable grounds to believe that the penile swab will provide relevant evidence related to the arrest; and

3) The police have conducted the penile swab in a manner that complies with s 8 of the Charter. In this regard, the following questions provide a framework not only for the police, but also a court called upon to address the Charter compliance of the search:

1. Was the penile swab conducted at the police station and if not, why not?

2. Was the penile swab conducted in a manner that ensured the health and safety of all involved?

3. Was the penile swab authorized by a police officer acting in a supervisory capacity?

4. Were the police officers carrying out the penile swab of the same gender as the person being searched, and if not, why not?

5. Was the number of police officers involved no more than necessary in the circumstances?

6. Was the minimum force that was necessary used to conduct the search?

7. Was the penile swab carried out in a private area such that no one other than the individuals engaged in the search can observe the search?

8. Was the penile swab conducted as quickly as possible and in a way that ensures that clothing removal or exposure is restricted to that necessary to complete the swab?

9. Was the accused person given the opportunity to swab himself and if not, why not?

10. Was the procedure recorded in a respectful manner? For example, was the camera turned away during the swab procedure or directed at the accused person’s back to avoid genital exposure?

11. Was a proper record kept of the reasons for and the manner in which the penile swab was conducted?

A search warrant for penile swabs does not appear to be available under the current provisions of the Code (i.e. General Warrant s. 487.01(2)). I will report on the SCC decision in Saeed once it is reported.

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