Monthly Archives: April 2013

Police “Knock and Talks” – a quick refresher

A recent case out of Alberta (R. v. Tran 2013 ABQB 188) has yet again brought about the debate of police “Knock and Talks”.  Another Alberta case, R. v. Oulton 2011 ABQB 243, provided a survey of cases that have considered this legal concept.  The main case, of course, is the Supreme Court of Canada case of R. v. Evans 1996 SCC 1.  In Evans, the SCC stated that the common law has long recognized an implied licence for all members of the public, including police, to approach the door of a residence and knock.  The law is clear that the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling.  Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling.  Evans illustrated the difference between police approaching a residence for the purposes of communication and investigation and approaching a residence to gather evidence.

Oulton reiterated that, “What emerges from these cases is that if the trial judge finds that the police knock on the door for the purpose of making an arrest, conducting a search, or acting on a suspicion or hunch, there will be a breach of Charter s. 8. If, on the other hand, the police knock on the door for the sole purpose of communicating with the occupants in furtherance of an investigation, they are acting within their implied license to knock, and they will not be breaching Charter s. 8.”

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Police failed to recaution young offender upon change in jeopardy during questioning.

R. v. D.T. 2013 ONCA 166 – the accused appealed his convictions for break and enter, theft under $5,000, and possession of marihuana for the purpose of trafficking.  The accused, age 16, was driving one of two vehicles stopped by police. The second vehicle was determined to be stolen. The accused initially told police that the vehicle he drove belonged to his mother, but subsequently admitted it was stolen. The accused was arrested, read his rights, and given the standard young person’s warning. At the station, the police advised the accused of his rights and his right to have a parent present. The accused agreed to make a videotaped statement and indicated he did not require his mother present during the interview. The accused admitted his role in the theft of the vehicles. At the end of the interview, he admitted to breaking into a private home and stealing marihuana, which he intended to sell. At trial, the accused sought exclusion of his statement. The trial judge found the accused’s rights were complied with, as he understood his rights, and declined multiple opportunities to have counsel or another adult present. The accused was convicted. He appealed on the basis that the trial judge erred in admitting his statement and erred in failing to find his s. 10(b) Charter rights were violated by his increased jeopardy arising at the end of his statement.

The ONCA allowed the appeal in part. There was no error in admitting the accused’s statement, as police comprehensively and scrupulously complied with the requirements of s. 10(b) of the Charter and ss. 146(2) and (4) of the Youth Criminal Justice Act.  However, the accused’s jeopardy changed markedly during the interview, obliging police to re-caution the accused.

“The original charge against the appellant was possession of stolen property under $5000. This was the only charge recorded on the Statement of a Young Person form filled in by the officer and signed by the appellant. At the start of the interview, the officer said, “so right now … you’re charged with possession of stolen property under five thousand (5000) dollars.”   The Judge said for some time, the interview proceeded entirely on the path of questions and answers about the two stolen motor vehicles. However, near the end the interview it veered onto new terrain. The officer started to ask questions about the contents of the cars. She mentioned several iPods. The appellant said that one belonged to him and “the black iPod was stolen from a house.”  In the Judge’s view, the spirit underlying, and the essential content of, the police duty to re-advise detainees of their s. 10(b) rights during an interview/statement are set out in R. v. Sawatsky 1997 ONCA 3561.  In short, Sawatsky held that the police must reiterate the right to counsel if they want to ask questions that go beyond an exploratory stage in connection with a related, but significantly more serious offence, or a different and unrelated offence. This obligation to re-advise applies even where the detainee brings up the other offences.

The Judge went on to say that in the YCJA context dealing with the intersection of young people and the criminal justice system, the “enhanced procedural safeguards” of s. 146(2) strongly support a similar analytical framework. In the Judge’s view, in the passage from the interview set out above, the appellant’s jeopardy changed noticeably. He started to talk about crimes that were both different and potentially more serious than that with which he had already been charged. In short order, he introduced, at a minimum, the following crimes: break and enter of a private dwelling, theft of an iPod and marihuana, possession of marihuana, and possession for the purpose of trafficking. Once all of this information was on the table, the officer had a duty to recognize that, in the language of Sawatsky, there was a real potential for the focus of the criminal investigation “to shift and broaden”.

In fact, as the Judge put it, this was precisely what happened. After the passage set out above, the officer continued to ask questions about the details of the break and enter into the private dwelling, the theft of the marihuana, and the reason for the theft, namely, “selling it”. In those circumstances, the Judge felt that the questions went well beyond being exploratory; they were patently investigatory. They should not have been asked without the police officer stopping, carefully re-advising the appellant of his various rights pursuant to s. 10 of the Charter and s. 146(2) of the YCJA, ensuring once again that the appellant understood those rights, and, if the appellant still wanted to make a statement about these new and more serious offences, ensuring that he properly waived his rights pursuant to s. 146(4) of the YCJA. Unfortunately, none of this happened.

The Judge ruled that the appropriate remedy was to exclude the portions of the accused’s statement directed toward the break and enter and the marihuana. The convictions for those offences were set aside and a new trial was ordered. The conviction for theft under $5,000 was affirmed.

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Does the accused have a reasonable expectation of privacy in the common areas and storage areas of a condominium?

R. v. White 2013 ONSC 1823 – this case focused on a Charter application for violations of ss. 8 and 24(2) of the Canadian Charter of Rights and Freedoms.  The applicant submitted that police, prior to obtaining the search warrant, trespassed on the property to gather information, contrary to s. 8 of the Charter.  The trespasses occurred by a police officer to the common areas of the building and storage units.

The doors giving access to the condominium building were supposed to be locked at all times but, as they were old, they became stiff in the winter which prevented them from latching properly.  As a result, they were often not closed properly by the resident.  A tracker warrant had been obtained and had been successfully installed on a vehicle in relation to a drug investigation project and in tracking this vehicle, it led the detective to the particular building in question, where it was suspected that one of the suspects was keeping his stash of illicit drugs.

The detective entered the main door of the 10 unit condominium building by following a postal employee that was entering the building to deliver mail to mail boxes next to the entrance.   The detective walked through the corridors of the building and entered a door that led to the basement that housed caged lockers identified by tags identifying unit members. He found a locker for one unit that he suspected was the applicant’s.  He could see through the fenced locker that there was a 3.5 feet cylindrical filter, blower fan, hoses and suitcases. These were items that the detective felt, from his experience in dealing with drug investigations, could be used in a grow-op operation.   The detective stated that he did not touch anything, took no photographs and did not install any technical devices whatsoever. He spent approximately 20 minutes in the building. He said that he had not obtained permission for his walk through.  He stated that entering buildings without permission was often done in his experience when performing illicit drug investigations.

Later in the investigation, the detective testified that while tracking the first suspect and suspecting that he was going to the condominium building, he had raced ahead and entered the building, again without permission. He hid in the south stairwell at the third floor level and saw the suspect enter a particular unit.  On the day the investigation ended, the detective stated that he had entered the building, again through a side door that was not properly closed. He said that he saw the suspect enter the same unit and he saw this through a window on the fire door outside the third floor where he was hiding. He said that he heard screeching sounds similar to the sounds made by packing tape being pulled off a roll. He recalled thinking that there was poor insulation in the building as he could hear voices through the fire door. Although he could not hear all the conversation, he stated that he felt that a drug deal was being discussed.

The detective remained in the building until the suspect left carrying a white and blue box. He stated that he had had no conscious thought about the legality of what he was doing. He did not consider that he was trespassing as he was simply doing what he has done on many other occasions in the course of his investigations. He claimed that his purpose for entering the building was to find out if the suspect was taking in or removing some object. He stated that drug traffickers often use more than one unit in a building.  The detective testified that, after he left the building, he followed the suspect’s vehicle, as did other members of the surveillance team. They followed him to a Mall where the suspect unloaded the box from his vehicle into a minivan. This minivan was followed to a point along a highway and was then pulled over. He explained that the blue and white box taken out of the minivan was the same box he had seen the suspect remove earlier from the building and then removed again from his car to the minivan at the Mall.  The detective testified that he cut open the packing tape on the box, which was removed from the minivan, and found marihuana and cocaine rolled in paper towel inside the box. The box was identified by means of photographs police had taken on their return to the station.  He also testified that he helped another detective, the lead officer for the investigative team, prepare an information to obtain a search warrant while surveillance was being maintained on the building by another police officer. A warrant was obtained for three locations, with one being the unit of the building in question, belonging to the applicant.

The lead detective in this matter testified that he did not believe that the applicant owned anything in the common areas of the building, meaning the hallways, the lobby and the stairwells.   He said that the police conduct was reasonable throughout and that the other detective was engaged in the execution of his duties and as such, had the same right as a pizza delivery person or a repair contractor to enter the common area without entering any units.

The Court examined if the applicant’s s. 8 Charter rights were breached.  In doing so, they cited the cases of R. v. Edwards 1996 SCC 128 and Hunter v. Southam Inc. 1984 SCC 145.  In Edwards, the SCC examined a reasonable expectation of privacy, considering:

    • (i)   presence at the time of the search;
    • (ii)  possession or control of the property or place searched;
    • (iii) ownership of the property or place;
    • (iv)  historical use of the property or item;
    • (v)   the ability to regulate access, including the right to admit or exclude others from the place;
    • (vi)  the existence of a subjective expectation of privacy; and
    • (vii) the objective reasonableness of the expectation.

Other cases were referred to, namely R. v. Nguyen 2008 ABQB 721, R. v. Piasentini 2000 ONSC 3319, and R. v. Thomsen 2005 ONSC 6303.  Unlike the present case, however, those involved incidents where the accused had no ownership interest in the complex or the unit.  In those cases, the courts ruled similarly that it was not objectively reasonable to conclude that one has a reasonable expectation of privacy with respect to a place in which he has no ownership interest, which he does not use as a residence (temporary or otherwise), but rather merely has an ability to enter and leave.  In Piasentini, it was distinguished because it involved an apartment building:

There could not be said to be any right of possession or control of the hallway by the applicant and no ownership of the hallway. There was no history of use of the hallway that would have excluded others, such as police officers, and, while there was a right to admit others to the hallway, there was no overall right to regulate access since invitees of other tenants or the landlord could not be excluded by the applicant.”

In the current case, the Judge said that the storage units can be likened to an underground garage or secured parkade for the tenants of a building.  The Judge said further that a parallel can be drawn between the secured parking garage and the storage units in the condominium building as these are both areas that are secured for unit owners and require a key or some type of access card, to enter. Therefore, it is evident that by entering the storage unit in this instance, the police went beyond the limit of private property leading up to the respondent’s door.  The Judge referred to the “implied invitation to knock” as found in R. v. Evans 1996 SCC 8, and said that as the police did not have an implied invitation to enter the storage units’ area of the building nor were the police in pursuit of the Applicant at the time, the police entered the storage units unlawfully.  The Judge stated that the accused’s rights under s. 8 of the Charter were violated by the warrantless search conducted by the police of the common areas of the accused’s condominium building. The police had no statutory authority to conduct that search. In the absence of lawful authority, the search must be found unreasonable (R. v. Kokesch 1990 SCC 117)

Finding that the police search was an unreasonable intrusion on the accused’s right to privacy, the Judge turned to the “Grant Test” (24(2) Charter) and found that the long-term impact on the administration of justice, by letting in evidence found in a search of a dwelling house with a warrant devoid of legally obtained grounds, would bring the administration of justice into dispute and the evidence was therefore excluded.

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The 20-minute delay between the detention of the accused and administering of the roadside screening device did not meet the “forthwith” component.

R. v. Semerdji 2013 OJ 1287 – Officers on duty in the City of Toronto at 3:21 in the morning heard the squealing of tires. Their attention was thus drawn to a motor vehicle being driven by an individual subsequently identified as the accused.  The officers observed the vehicle travelling at excessive speed as it approached and turned into a gas station.  The vehicle was observed to park at the gas station kiosk, but diagonally at 45 degrees and not parallel to its curb. The accused exited the driver’s door and approached the kiosk window.

The two officers involved approached the accused.  One of the officers noted that she could smell alcohol emanating from his breath when she was one meter away from him; that his eyes were red and bloodshot and that on exiting the car he was rocking and swaying. At 3:32 in the morning, she formed the suspicion that he had consumed alcohol and required him to sit in the rear of her police cruiser, which he did with his feet remaining on the ground.  At this point, she found the smell of alcohol emanating from bis breath “very apparent”.  She then read the accused the standard breath sample demand pursuant to paragraph 254(2)(b) of the Criminal Code from the back of her memo book. On this evidence, the judge was satisfied that the officer had reasonable grounds, both subjectively and objectively, to make the demand; that she did so forthwith upon forming her suspicion and was permitted to detain the accused for the purpose of obtaining a sample of his breath, providing that the roadside breath test was also administered forthwith.

There was no approved roadside screening device on scene, so one of the officers called for one while the other officer continued her questioning of the accused from 3:32 in the morning until the approved screening device arrived.  At 3:45 in the morning, a third officer arrived on scene with a screening device, 12 minutes after the request and 13 minutes after the officer had formed her reasonable suspicion.  The calibration date on the device’s label indicated it was out of calibration, so from 3:45 to 3:51, the officers discussed this issue and then began the test. On his sixth attempt, the accused provided a suitable breath sample which produced an “F” or a Fail reading on the approved roadside screening device.

So, from the time the officer formed her grounds, made the demand, and the first test was administered, 20 minutes had elapsed.  The second concern noted by the judge was that the accused had a cellular telephone in his possession on the night in question. Upon his arrest after registering a fail on the roadside screening device, an officer informed the accused of his right to counsel, but there was no evidence that he was then afforded an opportunity to reach and consult with counsel of his choice.  The accused did not avail himself of this opportunity until the breath technician again advised him of his 10(b) right and afforded him the opportunity to exercise it at 4:27.

The judge concluded that the 20-minute delay between the detention of the accused and administering of the roadside screening device to him was in fact sufficient time for him to have a realistic opportunity to contact, seek and receive legal advice from counsel in the peculiar circumstances of this particular fact situation and concluded that the forthwith requirement had not been met. There was accordingly also a breach of the accused’s 10(b) Charter right on the night in question.

The officer candidly testified that she would not have taken this ASD device out on the road because it was her belief that such devices require a calibration every 14 days to be reliable and this particular one was out of calibration for 51 days, but she went ahead and used it on the accused regardless. With this doubt on her mind as to the reliability of the roadside screening device, the judge stated that clearly she lacked the requisite belief, both subjectively and objectively, to make her sub-paragraph 254(3)(a)(i) demand, which was accordingly unlawful.  Thus, the accused’s continued detention at that point was arbitrary and infringed upon his Section 9 Charter right against arbitrary detention. The application of the approved screening device was also a contravention of his Section 8 Charter right to be secure from unreasonable search and seizure, as was the subsequent breath testing back at the station.

Following the “Grant test” in R. v. Grant 2009 SCC 32, in the judge’s view, a reasonable man would think that the administration of justice had been brought into further disrepute were he to admit into evidence the readings of the amount of alcohol in the accused’s blood on the night in question, and the officer’s testimony thereto in all the circumstances of this case.  As a result, the accused had established on a balance of probabilities that the impugned evidence should be excluded and there being no other evidence, the accused was accordingly acquitted of the charge before the Court.

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Apple’s iMessage impossible for police to intercept

If you are under the same impression as me, I have been told by various officers in the field and tech gurus alike that the iPhone does not have a secure encryption like the Blackberry does and this is why police agencies in Canada recommend the latter for use in the field as the preferred issued cell phone.

CNET has just published a report based on an internal USA Drug Enforcement Administration document that messages sent with Apple’s encrypted chat service are “impossible to intercept,” even with a warrant.  The DEA was conducting a criminal investigation and warned that because of the use of encryption, “it is impossible to intercept iMessages between two Apple devices”.

The DEA’s warning, marked “law enforcement sensitive,” was the most detailed example to date of the technological obstacles — FBI director Robert Mueller has called it the “Going Dark” problem — that police face when attempting to conduct court-authorized surveillance on non-traditional forms of communication.  The DEA says that “iMessages between two Apple devices are considered encrypted communication and cannot be intercepted, regardless of the cell phone service provider.” But, if the messages are exchanged between an Apple device and a non-Apple device, the agency says, they “can sometimes be intercepted, depending on where the intercept is placed.”

For further reading:  news.cnet.com/8301-13578_3-57577887-38/apples-imes sage-encryption-trips-up-feds-surveillance/

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A Notice of Intention to Produce Certificates is deficient when it does not specifically identify an attached certificate

R. v. Cormier 2013 NBQB 89 – A New Brunswick QB judge has ruled a Notice of Intention to Produce Certificates was deficient at a possession for the purpose of trafficking Trial.  The Saint John, New Brunswick case involved several counts, with one being PPT for cocaine. In the course of trial preparation as it is customary to do, an officer served a Notice as follows:

 

“WHEREAS you have been charged with an offence under Section 5(2) of the Controlled Drugs and Substances Act, I hereby give notice to you pursuant to section 51 of the Controlled Drugs and Substances Act that it is intended to produce at your trial Certificates of an Analyst and true copies of the said certificate are hereto annexed. No. 11 09013 W, No. 11 09017 W, No. 11 09288 W, 11 09014 W.

DATED this 4th day of January, 2012, at the City of Saint John, County of Saint John and Province of New Brunswick.

 

The officer testified at the voir dire that he had prepared that notice and that it also should have referred to another Certificate of Analyst, 11 09015 W; the only one of the analyst’s certificates that related to cocaine.  The officer testified that he gave that certificate with regard to cocaine to the accused with the Notice of Intention to Produce the other numbered certificates. Thus, the Crown argued that in substance and in effect for practical purposes, the accused knew, or should have known, despite the missing numbers and certificate, that the Certificate of Analyst with respect to cocaine was going to be used at his trial.

From the point of view of the defence, even if the certificate with regard to the cocaine had been given among the papers delivered to the accused, there was no reasonable notice in the Notice of Intention to Produce Certificates that that particular certificate with regard to cocaine was intended to be produced at the trial. 
Section 51(3) of the Controlled Drugs and Substances Act states:  “Unless the court otherwise orders, no certificate or report shall be received in evidence under subsection (1) unless the party intending to produce it has, before its production at trial, given to the party against whom it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.”
The NBQB judge referred to several higher level courts in reaching his decision, including Regina v. Henri (1972), 9 C.C.C. (2d) 52R. v. Breen (1975), 12 N.B.R. (2d) 616; R. v. Morrison (1992), 42 N.B.R. (2d) 271; and R. v. Sturgeon (2006), 299 N.B.R. (2d) 264.  Essentially, the judge reiterated the strict requirement that notice be precisely and properly given to take advantage of any procedural shortcut under the Controlled Drugs and Substances Act.  It was his view to be faithful to the time-honoured principle that no one be convicted of a criminal offence without proof beyond a reasonable doubt and strict compliance with any procedural steps.
For these reasons, he said it was his duty to follow the directions of the Court of Appeal and other higher courts in the country and rule that the Notice of Intention to Produce Certificates was deficient as it did not specifically identify an attached certificate with regard to cocaine, Certificate 11 09015 W.

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Accused acquitted of care and control by Nova Scotia Provincial Court Judge where accused found sleeping in car with engine running

R. v. MacDonald 2013 NSPC 18 – A Nova Scotia Provincial Court Judge has acquitted the accused of  (a) having the care and control of a motor vehicle and (b) having the care or control of a motor vehicle while in either case he was impaired by alcohol or drug or by having consumed alcohol in such a quantity that his blood alcohol concentration exceeded the legal limit.  At Trial, the accused did not deny that he was intoxicated or that his blood alcohol level exceeded the legal limit.  Rather, he submitted that, in the circumstances of his case, there was no realistic risk of danger to the public by him setting the vehicle in motion. Therefore, it could not be found that, in law, he was in care and control of a motor vehicle.

On New Year’s Eve of 2010, the accused travelled via his car from Yarmouth to Halifax to be with his friend. They had planned to celebrate the New Year together at a local bar.  His friend was staying at a local hotel where the accused went to his room to freshen up before a night of drinking. The agreement was that the accused would stay in the room after they had visited the bar but his friend did not give him an access key.  At some point in time, at the bar, they got separated and the accused, after closing time, thinking that his friend had returned to the hotel room also went there. However, when he knocked on the door he received no response. He, nonetheless, surmised that his friend had gone to buy a pizza so he went into the hotel’s lobby to await his return. The hotel staff, however, informed him that he could not stay in the lobby.  The accused had only $20.00, was intoxicated, and now had no place to stay.  It was very cold outside, so he decided to enter his vehicle in order to keep warm and to await his friend’s arrival. His vehicle was a Honda Civic with standard gear shift and it was legally parked on the street across from the hotel. He occupied the driver’s seat, reclined it and, from habit, put on the seatbelt. Likewise, he put the gear shift into neutral and pulled up the hand brake and turned the engine and heater fan on to keep warm. His intention was to wait for his friend, but he fell asleep.

The running engine, and also the windshield wipers working, caught the attention of a pedestrian, who after checking and seeing the accused asleep in the vehicle, called the police. When the police arrived, they awoke the accused and arrested him, took him to the police station where upon demand he provided breath samples that showed that his blood alcohol concentration exceeded the legal limit. Also, at the police station, he encountered his friend who had been arrested earlier, at the bar, for being involved in a drunken brawl.

At Trial, the Trial Judge set out the essential elements of “care and control” under s. 253(1) of the Criminal Code as ruled in the Supreme Court of Canada decision in R. v. Boudreault 2012 SCC 56:

(1) an intentional course of conduct associated with a motor vehicle;

(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk of danger to persons or property.

Quoting from the Boudreault decision, the Trial Judge also affirmed that the risk of danger must be realistic and not just theoretically possible, but nor need the risk be probable, or even serious or substantial.

  • To require that the risk be “realistic” is to establish a low threshold consistent with Parliament’s intention to prevent a danger to public safety. To require only that the risk be “theoretically possible” is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

Additionally, it was affirmed:

  • A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion — without intending at that moment to do so — may nevertheless present a realistic risk of danger.
  • In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
  • The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction.

The Trial Judge found and did not doubt that the accused made arrangements with his friend to spend the night at his friend’s hotel room after a night of celebration. Likewise, the judge found that the accused had a plan that objectively was concrete and reliable. Further, the judge found that the accused tried to implement that plan because after the accused left the bar, he went straight to the hotel room but his friend, unbeknown to him earlier had been arrested. He now found himself in a quandary. He had only $20.00, knew no one else in the city and could not wait for his friend in the hotel’s lobby. Furthermore it was a very cold night – minus ten degrees.

In addition, the judge did not doubt and found that the accused’s blood alcohol level exceeded the legal limit and that he entered his vehicle and occupied the driver’s seat and reclined it. Likewise, the judge accepted and found that his intention was to keep warm from the inclement weather and to await his friend’s return to the hotel. He fell asleep. Further, the judge accepted and found that he put the gear into neutral and firmly applied the hand brakes, and that where his vehicle was parked was a level portion of the highway.

From the above accepted facts, it seemed to the judge that the accused took care not only to ensure that he had a plan to make sure that he would not drive after consuming alcohol, but also when he had no alternative but to wait in his vehicle, he took the precaution to make sure that the handbrake was securely applied and that the car was in neutral gear. This precaution, said the judge, would seem to have immobilized the vehicle as best as he could so that it would not pose a realistic risk of him unintentionally or inadvertently putting it into motion. Further, the judge noted, the accused neither drove to the bar, nor from it, but had previously parked his vehicle. Also, he walked back to the hotel. These factors would, in the judge’s mind, reinforce the notion that, on a reasonable inference, he had no intention to drive his vehicle after his consumption of alcohol.

Even so, the judge commented, it should be clear that it is settled law that the intention to drive the vehicle is not an essential element of the offence.  Thus, as a matter of law, a person found in the driver’s seat of a vehicle is presumed to have its care or control unless he can establish that he did not occupy that seat for the purpose of setting it in motion.  Here, the Trial Judge said that the only relevant argument submitted by the Crown was that at some point, the accused might awake and decide to drive his vehicle. However, the judge reiterated that such a risk must “be realistic and not theoretically possible.” Furthermore, it sets too low a bar as the mere proof of occupying the driver’s seat does not necessarily mean that it can be concluded, without doubt, that such a person, in law, has the care or control of the vehicle.

As a result and applying the principles enunciated in Boudreault to the facts as the judge accepted and found, he concluded that in the circumstances, the accused could not at any point intentionally set the vehicle in motion. Thus, in the judge’s opinion, there was no realistic risk of danger to the public and found him not guilty as charged and entered acquittals on the record.

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Captain Paul Landry Receives Award

Paul

Captain Landry is shown here receiving the Queens Diamond Jubilee Medal from Member of Parliament, Lawrence MacAulay. He received the medal for his work over the past fourteen years as a volunteer webmaster for the Canadian Military Firefighters. He was nominated by the Canadian Forces’ Fire Marshal in Ottawa. Captain Landry is one of the Learning Managers of the Basic Firefighting Program at the APA.

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Police Note-Taking

R. v. Thompson 2013 ONSC 1527 – A “gun-call” to the police, which is an almost daily occurrence in the Greater Toronto Area.  While this case focused on other issues, it is mentioned here due to the comments that the Judge made with the note-taking of the officers.  The Judge commented that, “By way of postscript, something must be said about the police note-taking as described in this trial. As a general rule:

    • (1)  because police officers don’t wear head-cams and have to discharge their duties in often risky and fast-moving circumstances, it is to be recognized that there is a limit to the degree of detail that can be recorded in a notebook at the scene of an incident or indeed subsequently
    • (2)  reasonable efforts should be made, however, to contemporaneously record significant details, including those relevant to constitutional rights of a suspect – note-taking should not be routinely deferred to later in a shift at a police facility
    • (3)  where multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective and not after a (de)briefing where the incident is discussed as a group
    • (4)  an officer should record when notes were made, where and in whose company if not alone.”

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Text messages are private communications and, even if they are stored on a service provider’s computer, their prospective production requires authorization under Part VI of the Code

R. v. TELUS Communications Co. 2013 SCC 16 – The Supreme Court of Canada has ruled that Text messaging is, in essence, an electronic conversation. Technical differences inherent in new technology should not determine the scope of protection afforded to private communications. The only practical difference between text messaging and traditional voice communications is the transmission process. This distinction should not take text messages outside the protection to which private communications are entitled under Part VI.

On March 27, 2010, the Owen Sound Police Service obtained a general warrant under s. 487.01 and related assistance order under s. 487.02 of the Code. The warrant named two Telus wireless subscribers and required Telus to provide the police with copies of any text messages sent or received by these subscribers which were stored on Telus’ computer database. In addition, the warrant required the production of subscriber information identifying any individuals who sent text messages to, or received text messages from the two individuals who were the target of the warrant.  The warrant covered a subsequent two-week period between March 30, 2010 and April 16, 2010. During this time, the warrant required Telus to abide by a specific production schedule. On March 30, 2010, Telus was required to produce the information for March 18, 2010 to March 30, 2010. On each of the following 13 days, Telus was required to produce, on a daily basis, the text messages sent or received within the last 24 hours, as well as any related subscriber information.

The focus of the appeal turned on the interpretation of “intercept” within Part VI. “Intercept” is used throughout Part VI with reference to the intercept of private communications. This means that in interpreting “intercept a private communication”, the court must consider the broad scope of Part VI and its application across a number of technological platforms, as well as its objective of protecting individual privacy interests in communications by imposing particularly rigorous safeguards. The interpretation should not be dictated by the technology used to transmit such communications, like the computer used in this case, but by what was intended to be protected under Part VI.

When Telus subscribers send a text message, the transmission of that message takes place in the following sequence. It is first transmitted to the nearest cell tower, then to Telus’ transmission infrastructure, then to the cell tower nearest to the recipient, and finally to the recipient’s phone. If the recipient’s phone is turned off or is out of range of a cell tower, the text message will temporarily pause in Telus’ transmission infrastructure for up to five days. After five days, Telus stops trying to deliver the message and deletes it without notifying the sender.

Unlike most telecommunications service providers, Telus routinely makes electronic copies of all the text messages sent or received by its subscribers and stores them on a computer database for a period of 30 days. Text messages that are sent by a Telus subscriber are copied to the computer database during the transmission process at the point in time when the text message enters Telus’ transmission infrastructure. Text messages received by a Telus subscriber are copied to the computer database when the Telus subscriber’s phone receives the message. In many instances, this system results in text messages being copied to the computer database before the recipient’s phone has received the text message and/or before the intended recipient has read the text message.

Telus argued that the general warrant was invalid because the police had failed to satisfy the requirement under s. 487.01(1)(c) of the Code that a general warrant could not be issued if another provision in the Code is available to authorize the technique used by police. Since the warrant purports to authorize the interception of private communications, and since Part VI is the scheme that authorizes the interception of private communications, a general warrant was not available. The Crown’s position, on the other hand, was that the retrieval of messages from Telus’ computer database does not fall within the scope of Part VI since the copies on Telus’ computer database are not real-time communications and the police are therefore permitted to use the general warrant power to authorize the prospective production of text messages stored on a service provider’s computer.

The part of the warrant that required production of historical messages predating the issuance of the warrant was rescinded since both the Crown and Telus conceded that a production order was available to obtain those messages.  The SCC was not asked to determine whether a general warrant is available to authorize the production of historical text messages, or to consider the operation and validity of the production order provision with respect to private communications. Rather, the focus of the appeal was on whether the general warrant power in s. 487.01 of the Code can authorize the prospective production of future text messages from a service provider’s computer. That means that the SCC did not address whether the seizure of the text messages would constitute an interception if it were authorized after the messages were stored.

Section 487.01 was enacted in 1993 as part of a series of amendments to the Code in Bill C-109, S.C. 1993, c. 40. The Bill introduced a number of new judicial authorization provisions. Section 487.01 was meant to make search warrants available for techniques or procedures not specified in the Code. It authorizes a judge to issue a general warrant permitting a peace officer to “use any device or investigative technique or procedure or do anything described in the warrant that would, if not authorized, constitute an unreasonable search or seizure”:

    • 487.01 (1) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may issue a warrant in writing authorizing a peace officer to, subject to this section, use any device or investigative technique or procedure or do any thing described in the warrant that would, if not authorized, constitute an unreasonable search or seizure in respect of a person or a person’s property if
      • (a) the judge is satisfied by information on oath in writing that there are reasonable grounds to believe that an offence against this or any other Act of Parliament has been or will be committed and that information concerning the offence will be obtained through the use of the technique, procedure or device or the doing of the thing;
      • (b) the judge is satisfied that it is in the best interests of the administration of justice to issue the warrant; and
      • (c) there is no other provision in this or any other Act of Parliament that would provide for a warrant, authorization or order permitting the technique, procedure or device to be used or the thing to be done.

The key to this case lied in whether s. 487.01(1)(c) applied, namely, whether another provision would provide for the authorization sought in this case.  Viewed contextually, therefore, s. 487.01(1)(c) stipulated that the general warrant power is residual and resort to it is precluded where judicial approval for the proposed technique, procedure or device or the “doing of the thing” is available under the Code or another federal statute.   In other words, the SCC ruled that s. 487.01(1)(c) should be broadly construed to ensure that the general warrant is not used presumptively. This is to prevent the circumvention of more specific or rigorous pre-authorization requirements for warrants.

Section 184(1) CC makes it an indictable offence to “wilfully intercep[t] a private communication” by use of a device. Part VI provides a comprehensive scheme for the authorization of these interceptions. It was enacted in 1974 through the Protection of Privacy Act, S.C. 1973-74, c. 50, which amended the Code to add Part IV.1 (now Part VI) entitled “Invasion of Privacy”.  The definition of “intercept” in s. 183 includes “listen to, record or acquire a communication or acquire the substance, meaning or purport thereof”. Consistent with the broad scope of Part VI, this definition is not exhaustive and focuses on the state acquisition of informational content — the substance, meaning, or purport — of the private communication. It is not just the communication itself that is protected, but any derivative of that communication that would convey its substance or meaning. “[P]rivate communication” is defined in s. 183 as follows:

    • … any oral communication, or any telecommunication, that is made by an originator who is in Canada or is intended by the originator to be received by a person who is in Canada and that is made under circumstances in which it is reasonable for the originator to expect that it will not be intercepted by any person other than the person intended by the originator to receive it, and includes any radio-based telephone communication that is treated electronically or otherwise for the purpose of preventing intelligible reception by any person other than the person intended by the originator to receive it;

Sections 185 and 186 of the Code set out the general requirements governing the application for an authorization under Part VI. Compared with other search and seizure and warrant provisions in the Code, the provisions in Part VI contain more stringent requirements to safeguard privacy interests. Before granting an authorization under Part VI, a judge must be satisfied that the authorization is in the best interests of the administration of justice. A judge must also be satisfied, in accordance with s. 186(1)(b), “that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures”. In R. v. Araujo 2000 SCC 65, the SCC clarified that this criterion required the police to show that there was “no other reasonable alternative method of investigation in the circumstances of the particular criminal inquiry”.

Part VI authorizations must also state the identity of persons whose private communications will be intercepted, the place at which they are intercepted, and the manner of the interception. They are required to contain such conditions as the judge considers advisable and will only be valid for a limited period of time not to exceed 60 days. Finally, a written application by the Attorney General, Minister of Public Safety or a designated agent is required.In addition to these prerequisites for authorization, Part VI contains a number of notice requirements. Section 196 requires that notice be given to targets of interceptions authorized under s. 186 within a certain timeframe. Under s. 189, an accused must be given notice of any interception intended to be produced in evidence.  In addition, s. 195 requires the Minister of Public Safety and Emergency Preparedness or the Attorney General for each province to produce an annual report with respect to the use of Part VI authorizations.

Both the Crown and Telus acknowledged that text messages qualify as telecommunications under the definition in the Interpretation Act. They also acknowledged that these messages, like voice communications, are made under circumstances that attract a reasonable expectation of privacy and therefore constitute “private communication” within the meaning of s. 183. Similarly, there was no question that the computer used by Telus would qualify as “any device” under the definitions in s. 183.  The issue then was how to define “intercept” in Part VI. The SCC said that the interpretation should be informed not only by the purposes of Part VI, but also by the rights enshrined in s. 8 of the Charter, which in turn must remain aligned with technological developments.

The SCC ruled that unlike traditional voice communication, a text message may or may not be delivered to its intended recipient at the time it is created. Receipt of the text message depends on whether the phone is turned on, whether it is in range of a cell tower, and whether the user has accessed the message. If Telus is unable to deliver the message, it remains in the transmission infrastructure for five days, at which point Telus stops trying to complete delivery. Furthermore, unlike voice communications, text communications, by their nature, generate a record of the communication which may easily be copied and stored. A narrow or technical definition of “intercept” that requires the act of interception to occur simultaneously with the making of the communication itself is therefore unhelpful in addressing new, text-based electronic communications.

When Telus copies messages to its computer database, several steps in the transmission process have yet to occur. The production schedule required by the general warrant in this case means that the police likely obtained stored copies of some text messages before they were even received by the intended recipient. Had the police acquired the same private communications directly from the transmission stream, instead of from the stored copies, the Crown conceded that a Part VI authorization would be required. The SCC said that the level of protection should not depend on whether the state acquires a copy of the private communication that is being transmitted or a copy that is in storage by a service provider as part of the communications process. Parliament drafted Part VI broadly to ensure that private communications were protected across a number of technological platforms.

The Court went on the say that an interpretation of “intercept a private communication” that includes the investigative technique used by police in this case finds support in the statutory definition of “intercept” in s. 183. The definition includes the simple acquisition of a communication. It does not require the acquisition of the communication itself; rather, the acquisition of the “substance, meaning or purport” of the communication is sufficient. Moreover, this interpretation is harmonious with the scheme and objectives of Part VI, which is drafted broadly in order to regulate and control a wide variety of technological invasions of privacy. Finally, the Court said, it strikes the appropriate balance between the serious invasion of privacy that results from the surreptitious acquisition of private communications and the evolving needs of effective law enforcement.

The police gained a substantial advantage by proceeding with a general warrant in this case. They did not need the Attorney General’s request for an authorization; they did not need to show that other investigative procedures had been tried and failed; they did not need to provide any notice to the target individuals; and they did not need to identify which other individuals’ private communications may be acquired in the course of the search.The general warrant in this case purported to authorize an investigative technique contemplated by a wiretap authorization under Part VI, namely, it allowed the police to obtain prospective production of future private communications from a computer maintained by a service provider as part of its communications process. Because Part VI applied, a general warrant under s. 487.01 was unavailable and aaccordingly, the SCC allowed the appeal and quashed the general warrant and related assistance order.

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