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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