Monthly Archives: June 2013

“Drug purchase calls” to accused’s phone answered by police after accused’s arrest are hearsay evidence when tendered to prove accused’s illegal drug trafficking.

R. v. Baldree 2013 SCC 35 – this was an appeal from the Court of Appeal for Ontario.   Two officers responded to a suspected break-in at the
apartment of Lepage. They knocked on the door and a man, who identified himself as Baldree, allowed them in. The officers entered and immediately detected an odour of marihuana, and discovered joints and marihuana buds in an ashtray. In the closet of the spare bedroom, an officer found 90 grams of cocaine and 511 grams of marihuana. The police seized from Baldree a cellular telephone and some cash found in his possession. At the police station, Baldree’s phone rang and an officer answered it. At trial, the officer testified that the caller asked for Baldree and requested an ounce of marihuana for the price of $150. Counsel for Baldree promptly objected to this testimony on the ground that it was inadmissible hearsay. The trial judge disagreed. Having concluded that the officer’s testimony was not hearsay, the trial judge found it unnecessary to weigh its probative value against its prejudicial effect. Baldree was convicted at his trial before judge alone of possessing marihuana and cocaine for the purposes of trafficking. His appeal was allowed by a majority of the Ontario Court of Appeal and a new trial ordered.

The SCC dismissed the Crown’s appeal, stating that an out-of-court statement by a person not called as a witness in the proceedings is characterized as hearsay where it is tendered in evidence to make proof of the truth of its contents. Hearsay evidence is presumptively inadmissible as a matter of law. What the statement purported to prove was the truth of what the person not called as a witness was alleged to have asserted expressly or by implication.  What the SCC said was what that the Crown essentially asked the Court to conclude, based on the officer’s testimony, was that the unknown caller intended to purchase marihuana from Baldree because he believed him to be a drug dealer.

The court was presented with a single drug purchase call of uncertain reliability. The caller gave his address. No effort was made to find and interview him, still less to call him as a witness – where the assertion imputed to him could have been evaluated by the trier of fact in the light of cross-examination and the benefit of observing his demeanour. Crown counsel described the impugned telephone call as the strongest piece of evidence in the case. Moreover, the trial judge referred to the phone call in his reasons for judgment and took it into account when assessing Baldree’s credibility. In this light, the SCC said, it could hardly be stated that the improper admission of this evidence could not have affected the result at trial.

The SCC ruled that although it is perfectly consistent with the principled approach that even a single drug purchase call may meet the threshold test for reliability, the Crown failed in this case to establish that the call met the test justifying its admission as substantive evidence that Baldree was engaged in drug trafficking. Even if the caller was entirely sincere in his belief that Baldree was a drug dealer, that did not address why the caller believed what he believed — and whether his belief was in fact true or not.  The SCC further stated that this is not a case of multiple calls, where common sense tells us that the probability of numerous callers all being mistaken is unlikely, nor did the SCC  have sufficient indicia of reliability, either within the statement or in the form of confirmatory evidence outside the statement. Had the circumstances been somewhat different, there may well have been a satisfactory basis for evaluating whether the caller believed Baldree was a drug dealer and whether that belief was in fact true. That is what threshold reliability requires by the courts.

The SCC said that what was missing in this call was some assurance that Mr. Baldree was in fact a drug dealer. There were insufficient circumstantial guarantees of trustworthiness within the call itself and little or no external confirmatory evidence. However, if the caller had declined the offer of delivery and instead asked “if I can drop by Eric’s apartment to pick up the drugs”, that may have been sufficient because it would have indicated greater familiarity with Mr. Baldree and his activities, including contemporary knowledge of his recent move to Mr. Lepage’s apartment. A debt list at Mr. Lepage’s apartment with Mr. Baldree’s fingerprints on it may also have done the trick because it would have served as confirmatory evidence of Mr. Baldree’s involvement in drug trafficking.  The SCC said that one can imagine other scenarios, but in this case the SCC ruled that accordingly, and absent more, it thus seemed a bridge too far to accept the Crown’s argument that this call met threshold reliability thereby justifying its admission as substantive evidence that Mr. Baldree was engaged in drug trafficking.

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Legal Articulation

As of late, I have been asked by officers already in the field whether or not, as part of the law training here, I offer a course on “legal articulation”.  Since coming to the Academy, this issue has come up with the cadets as well, so I decided to do some cursory research.  The Atlantic Police Academy is a member of SPPADS (State and Provincial Police Academy Directors), so I did some checking and after only a cursory search thus far, no academy offers a stand-alone course of legal articulation (I stand to be corrected of course).  I weave legal articulation into my lectures of course, but a stand-alone course it is not, which I hope to change in the future.  The cadets are probably tired of hearing me speak those words, “legal articulation”.  Why is this issue so important?

Well, a recent case out of Manitoba decided on May 30, 2013, (R. v. Frieburg 2013 MBCA 40) again reminded me of this issue.  I teach on the importance of testifying in court; the Examination in Chief, the Cross Examination, and the Re-examination or Redirect, and so on, in my law program and how important it is for the officer testifying to “articulate” his/her actions when testifying, when writing a SBOR report following a use-of-force incident, etc, because oftentimes it is our articulation that gets us into trouble, or more importantly, our lack of it.  Most of us are excellent story tellers amongst our peers, telling of an arrest, a search, or an application of force during an arrest, in a social setting, but become robots in our reports or when testifying.

Officers must also be able to explain to a fellow investigator, or a judge, that what they did at that moment in time was reasonable, justified, and necessary based on the totality of circumstances.  Although the majority of incidents where officers use force to control subjects may be both reasonable and necessary, it is very common, however, for officers to struggle when they are asked to explain and justify their actions.  We may have all the reasonable grounds in the world to search that vehicle, or arrest that person, but when asked why we did so at a later date, officers struggle in their ability to explain and justify their actions.  In the police world, we often refer to this as “legal articulation”.  We have to give voice and express ourselves easily and clearly.  It’s an art, not a science; the art of storytelling and it is this art that is often missing from articulation.
In Frieburg, officers conducting an investigation under the CDSA applied for and were granted a search warrant to search the residence of the accused.  The search was delayed pending the availability of additional police officers, but before the search was conducted, officers located and stopped a car, which was being driven by the accused.   The accused was arrested for possession of drugs for the purpose of trafficking, and she was transported to the Correctional Centre.  The stop and arrest occurred approximately one mile away from the residence where the search warrant was to be executed.  One of the issues on appeal (I won’t discuss the other issues in this post) was the lawfulness of the arrest.  To reiterate, Arrest without warrant by peace officer
    • 495(1) – A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to  commit an indictable offence; ………………..

On direct examination by the Crown, the officer testified as follows:

Q.  So can you tell us then what, what in your own mind was the operative reason for the arrest?

A.  Well any time we execute search warrants we, for optimal officer safety, we try to do it with people away from the residence, it’s safer to do it without people at the residence. …. Yes we decided to detain her in advance of that [the execution of the search warrant], or arrest her and take her and have her into custody so that we could in a safer manner, execute the search warrant.

During the direct examination, the trial judge had the following exchange with the officer:

THE COURT: Why did you arrest her? That’s what he [Crown counsel] wants to know and you’ve indicated that it was safer to execute search warrants when people are absent from the residence, but she’s already absent so why did you arrest her?

A.  Uhmm, well I guess to prevent any destruction of any further evidence or anything else that may have been beneficial for us.

The other officer testified in a similar vein, including stating as follows in cross-examination:

Q.  Just to be clear then, on the point of the detention and the arrest of Tera Frieburg, this was done just solely to facilitate the search warrant, is that right?

A. Correct. ….

Q.  I just want to be clear what authority did you feel you had to search, detain and arrest Tera Frieburg. What authority were you operating under?

A.  Based on us searching that residence and her being the target of that search I believed that we had the authority to arrest and detain her.

Neither officer stated that the reason for the arrest was that he, personally, believed that there were reasonable grounds to believe that the accused had committed an indictable offence or an offence under the CDSA.  Both indicated that the reason for the arrest at that particular time was to keep her away from the residence for optimal officer safety during the search of that residence.  That is not a valid reason for an arrest.  One officer suggested that another reason for the arrest was to prevent the destruction of evidence. The preservation of evidence is also not a valid reason to arrest, if there is no proof that the officer had the required subjective grounds at the time of the arrest to make the arrest.  In this case, the issue was not whether the officers understood the law, but what they subjectively, that is, personally, believed. The law is clear that the
officer must have a subjective belief that there are reasonable grounds to make the arrest.  The officers, although prompted, did not give that testimony.  This is not a mistake of law, but a lack of evidence, a lack of “legal articulation”, and as a result, the arrest was ruled unlawful.

When can argue that “we” would not of made that mistake, that “we” would of testified differently, and that may be the case.  I am no expert by any stretch of the imagination; I review a lot of case law every week and many, many times cases are won or lost based upon the officer’s testimony, or more specifically the officer’s legal articulation, and explaining that at that moment in time why, subjectively, their actions were reasonable, justified, and necessary based on the totality of circumstances.

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Screening Device Demand – Roadside Investigation (a Review)

R. v. Orbanski (2005) S.C.J. No. 37 – Both the common law and provincial highway legislation empower police to investigate drivers for impaired driving. Evidence obtained from compelled sobriety tests or questioning of the driver before the detainee has any access to counsel is a reasonable limit of the right to counsel as it only goes to the officer’s grounds to make a s. 254 demand. That compelled evidence may not be used to incriminate the accused at trial.  === The limited use of roadside evidence obtained from compelled sobriety tests or statements does not apply to other observations the officer might make of a driver. An officer may observe signs of impairment in a driver, such as a strong odour of alcohol, bloodshot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.

R. v. Lotozky (2006) O.J.  No. 2516 === Police officers who have reasonable grounds to suspect that a motorist is impaired are entitled to walk onto that person’s driveway to further their investigation. The entrance onto the driveway is permitted by the implied licence doctrine. If the officers are not asked to leave before they form grounds to make a screening demand or arrest the accused, then there is no violation of s. 8 of the Charter. Note that the court distinguishes between entry onto the driveway and entry into a dwelling house.

R. v. Padavattan (2007) O.J.  No. 2003 === “The clear language of the statute requires that the officer making a demand under s. 254(2) of the Code must have formed the reasonable suspicion and must also form an opinion as to the sufficiency of the breath samples provided. As well, an officer who makes the demand may require the subject to accompany him for the purpose of the test. However, where these requirements are satisfied, there is nothing in the language of s. 254(2), that expressly or by implication precludes the ASD test being administered by another officer. Nor is there any requirement that this other officer form the reasonable suspicion before administering the ASD test.”

R. v. Laroche (2005) J.Q.  No. 9117 === The law does not require only one particular form of the demand. A demand is sufficient as long as the words used and the circumstances in which the demand is made indicate to the accused that a demand is being made that he or she provide a sample of their breath and that in default he or she will be charged with refuse.

R. v. Foster (1999) O.J.  No. 5060 === In a refuse case, the Crown must prove that the screening device demand was unequivocal. The Crown must also show that the accused either wilfully refused to comply or unequivocally expressed an intention to refuse to comply. Where the officer made a demand, then delayed the test in order to set up the device, there was no request in the demand for immediate compliance. Nor was there evidence in this case of an unequivocal refusal.

R. v. Snow (2001) N.J.  No. 359 === A peace officer must explain to the accused the procedure of providing a sample of breath in a sufficiently clear way as to enable the accused to understand what he has to do. Under normal circumstances a demand made upon an accused but not communicated properly to him will not satisfy the requirements of s. 254(2) of the Criminal Code. A peace officer is required to clearly explain to an accused in a comprehensible and timely manner the procedure that must be followed to provide a sample of breath for analysis by a roadside screening device. The explanations of the peace officer should be directed to the accused personally (except in the case of an interpreter) and should be orderly and in a logical sequence. This will allow the maximum opportunity for the explanation to be received, understood and actually comprehended by the accused. The explanation must be clearly understood, the accused must know what is being required of him and when it is required.

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Process for an Arrest for Impaired Driving and the Breath Demand

R. v. Wiebe 2013 MBPC 27 – the accused was arrested for impaired driving and Chartered/Cautioned.  The accused advised that he understood his right to counsel and would like to speak to a lawyer.  The officer forgot to give the breath demand to the accused at the scene, but did it moments later once back at the police station.  The officer, after reading the breath demand verbatim, asked him if he was willing to provide a sample and he replied he was not.  After his refusal, the officer read him the refusal demand and he again said he would not comply.  The accused was charged with driving impaired and refusing to provide a breath sample

The issue at Trial was that once the arrested party has indicated a desire to speak with duty counsel, can the officer ask the person if they are willing to provide a sample?  The demand itself asks if the person “understands” the demand.  The officer then as to take it one next step to ask if they are willing to provide a sample.  The question is, can the next step be asked before they exercise their right to counsel.  The Trial judge in this case said we cannot.

In R. v. Bartle (1994) 3 S.C.R. 173, the SCC looked at the informational duty and the implementational of the police upon arrest or detention of an individual:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

In this case the officer, upon completing the breath demand, and after the accused had indicated he wished to speak to counsel, immediately asked him if he was prepared to provide a breath sample.  The accused did not blurt out his refusal – he was answering a direct question without the legal information necessary for him to answer with full knowledge of the consequences to him. The judge found that this questioning was a breach of the accused’s s. 10(b) rights to counsel, specifically the requirement that the police hold off questioning (R. v. Prosper (1994) 3 S.C.R. 236).

The final issue centered around what happened after the accused was able to exercise his right to counsel. If he was prepared to blow, should he have let the officer know that instead of remaining silent? Should the officer have given him another breath demand? There have been different opinions on this over the years.  Here the judge quoted another case and ruled, “It would have been prudent to ensure that an accused could not defend on the basis that he was, after his call, waiting for another demand to be repeated…”

The judge also found issue with the demand not being made “as soon as practicable”.  The officer completed the other requirements of reason for arrest, rights to counsel and police caution, and then left the accused in the cruiser for 7 or 8 minutes while the officer coordinated passenger movement and towing of the vehicle and then travelled to the detachment.  The officer did not give him his breath demand until just prior to entering the police garage; some 14 minutes after the officer first had the opportunity to do so. This was not within a reasonably prompt time and was a breach of the accused’s s. 8 rights according to the judge.

Having found two separate Charter breaches here, under s. 8 and s. 10(b), the judge excluded the evidence.

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