Monthly Archives: December 2013

Permitting police officers to consult with counsel before their notes were prepared was an anathema to the very transparency that the legislative scheme aimed to promote.

Wood v. Schaeffer 2013 SCC 71 – This was an appeal by Officers Wood, Pullbrook and Seguin from the Ontario Court of Appeal judgment which set aside a decision confirming their right to consult with counsel before their notes on incidents referred to the Special Investigations Unit (SIU) are prepared.

On June 22, 2009, Mr. Minty was shot to death by Cst. Seguin of the Ontario Provincial Police (“OPP”). That evening, Cst. Seguin had been dispatched to investigate an alleged assault committed by Mr. Minty on a door-to-door salesman. When Cst. Seguin arrived at the scene, he approached Mr. Minty. Mr. Minty walked quickly toward Cst. Seguin. He had a knife in his hand. Cst. Seguin instructed Mr. Minty to put down or drop his weapon. Mr. Minty ignored these commands and “charged at Cst Seguin with his arm extended and the knife pointing at the officer” (SIU Report, A.R., vol. III, at p. 661). Cst. Seguin shot Mr. Minty five times.  Cst. Seguin reported that shots had been fired and additional officers arrived at the scene. Sgt. Burton, Cst. Seguin’s senior officer, told all of the officers in the area that the SIU might consider them to be witnesses to the incident and instructed them not to make any further notes until they had spoken with counsel.  On October 14, 2009, Mr. Scott, the Director of the SIU (the “SIU Director”), provided his report on the incident to the Attorney General. In his report, the SIU Director found that Cst. Seguin “had a reasonable apprehension of imminent death or grievous bodily harm” from which he could not escape and concluded that “the lethal force used was not excessive” in the circumstances (SIU Report, A.R., vol. III, at p. 661).  The SIU Director noted in his report that he would be raising several issues of concern with the OPP Commissioner. Among them, the SIU Director included his concern that all witness officers had been instructed not to write up their notes until they had spoken to counsel.

On June 24, 2009, Mr. Schaeffer was shot and killed by Cst. Wood of the OPP. Cst. Wood and Acting Sgt. Pullbrook had traveled by boat to a rocky peninsula on Osnaburgh Lake to investigate a reported theft. When they arrived at the peninsula, the officers approached Mr. Schaeffer, questioned him, and attempted to detain him. According to the officers, Mr. Schaeffer physically resisted and pulled a knife out of his pocket. Both officers retreated as Mr. Schaeffer advanced towards them. Mr. Schaeffer did not comply with commands to drop the knife. At that point, Cst. Wood shot Mr. Schaeffer twice in the chest, killing him.  After the shooting, Det. Sgt. Wellock was assigned to attend the scene. Before leaving the detachment, she instructed another officer to tell Cst. Wood and Acting Sgt. Pullbrook not to communicate with each other and not to write any notes until they had spoken to counsel. Cst. Wood and Acting Sgt. Pullbrook retained the same lawyer as their counsel and spoke to him, separately, several hours after the shooting. Their lawyer advised both officers to refrain from completing their notes and to provide him with a draft set of notes for his review. Both officers completed their notebook entries two days after the shooting, on June 26, 2009, after counsel had reviewed their draft notes.  On September 25, 2009, the SIU Director provided his report on this incident to the Attorney General. He concluded that he could not form reasonable and probable grounds to believe that that Cst. Wood had committed a criminal offence because he could not “place sufficient reliance on the information provided by Cst Wood or Acting A/Sgt Pullbrook to decide what probably happened” (A.R., vol. III, at p. 516). The SIU Director expressed specific concern over the manner in which Cst. Wood and Acting Sgt. Pullbrook completed their notes. The SIU Director wrote:

This note writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity. The notes do not represent an independent recitation of the material events. The first drafts have been “approved” by an OPPA lawyer who represented all of the involved officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them. Nor are the notes the most contemporaneous ones — they were not written as soon as practicable and the first drafts remain in the custody of their lawyer. I am denied the opportunity to compare the first draft with the final entries. Accordingly, the only version of the material events are association lawyer approved notes. Due to their lack of independence and contemporaneity, I cannot rely upon these notes nor A/Sgt Pullbrook’s interview based upon them for the truth of their contents.

I have a statutory responsibility to conduct independent investigations and decide whether a police officer probably committed a criminal offence. In this most serious case, I have no informational base I can rely upon. Because I cannot conclude what probably happened, I cannot form reasonable grounds that the subject officer in this matter committed a criminal offence. [Emphasis added; A.R., vol. III, at p. 517.]

The courts examined the relevant Police Services Act and Regulations in this matter. The proper interpretation of the regulation lay at the heart of this appeal. The entitlement to counsel under s. 7(1) and the duty to make notes under s. 9(1) and (3) are of particular importance. These provisions read as follows:

7. [Right to counsel] (1) Subject to subsection (2), every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU.

9. [Notes on incident] (1) A witness officer shall complete in full the notes on the incident in accordance with his or her duty and … shall provide the notes to the chief of police within 24 hours after a request for the notes is made by the SIU.

(3) A subject officer shall complete in full the notes on the incident in accordance with his or her duty, but no member of the police force shall provide copies of the notes at the request of the SIU.

The Supreme Court of Canada ruled, in part:

Permitting police officers to consult with counsel before their notes were prepared was an anathema to the very transparency that the legislative scheme aimed to promote. When the community’s trust in the police was at stake, it was imperative that the investigatory process be, and appear to be, transparent. Manifestly, the legislature did not intend to provide officers with an entitlement to counsel that would undermine this transparency. The SIU’s governing Regulation hewed closely to the specific recommendations of those tasked with proposing reforms. Read in the full light of its history and context, it was apparent that the Regulation was not meant to afford officers an entitlement to consult with counsel before they completed their notes. Nor was such an entitlement consistent with an officer’s duties under the legislative scheme. Such an expansive understanding of the entitlement to counsel impinged on the ability of police officers to prepare accurate, detailed, and comprehensive notes in accordance with their duty. Permitting consultation with counsel before notes were prepared ran the risk that the focus of the notes would shift away from the officer’s public duty toward his or her private interest in justifying what had taken place. This shift would not be in accord with the officer’s duty. The public trust in the police was, and always had to be, of paramount concern. This concern required that officers prepare their notes without the assistance of counsel. Consultations with counsel during the note-making stage were antithetical to the very purpose of the legislative scheme. An officer’s notes were not meant to provide a “lawyer-enhanced” justification for what had occurred. They were simply meant to record an event, so that others, like the SIU Director, could rely on them to determine what happened. The Court of Appeal was correct in finding that police officers were not permitted to have the assistance of counsel in the preparation of their notes. However, the Court of Appeal erred in finding that police officers were entitled to receive basic legal advice as to the nature of their rights and duties prior to completing their notes. Even the perfunctory consultation contemplated by the Court of Appeal was liable to cause an “appearances problem”. Because the initial consultation was privileged, the public would have no way of knowing what was discussed. However, officers were free to consult with counsel after they have completed their notes and filed them with the chief of police.

Of interest, the SCC also made reference to several other decisions in which police note-taking was at issue.  For example, in their 1993 report to the Attorney General of Ontario on charge screening, disclosure, and resolution discussions, a committee made up of experienced counsel and police officers and led by the Honourable G. A. Martin, observed that:

[T]he duty to make careful notes pertaining to an investigation is an important part of the investigator’s broader duty to ensure that those who commit crimes are held accountable for them.

[I]nadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution. In short, inadequate note-taking does a disservice to both an accused and the community, [which] is entitled to expect that innocent people will be acquitted and guilty people properly convicted. [Emphasis added.]

In another instance, the Honourable R. E. Salhany considered the significance of police notes in the course of a public inquiry into a death caused by an off-duty officer. He explained the importance of notes in this way:

[Note-making] is not a burdensome task that police officers must reluctantly undertake because they were taught to do so at their police college. It is an integral part of a successful investigation and prosecution of an accused. It is as important as obtaining an incriminating statement, discovering incriminating exhibits or locating helpful witnesses. The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator. [Emphasis added.]

The importance of police notes to the criminal justice system is obvious. As Mr. Martin observed of properly-made notes:

The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate. [p. 152]

The SCC also made reference to the Ontario Police College, Basic Constable Training Program — Student Workbook (2008), at p. 2, since these incidents happened in Ontario:

Your notes are made from independent recollection and are your link to the past. They are there to assist you to gather the facts and details and to properly record events, observations and performances experienced during general duty functions and investigations … . [I]t is your responsibility to maintain an up-to-date record of what you have done, seen, heard, smelled, or touched during your tour of duty.

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Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are inconsistent with the Charter. The declaration of invalidity should be suspended for one year.

(Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72 – for those of us following this case, I have included a short summary of the decision. 

The Supreme Court of Canada stated, in part:

The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

… [T]he negative impact of the bawdy-house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.”

In other words, the SCC found Sections 210, 212(1)(j) and 213(1)(c) of the Code to be inconsistent with the Canadian Charter of Rights and Freedoms and hence are void.

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A Newfoundland and Labrador Provincial Court has found a section 8 Charter violation by undercover officer posing as young girl during ‘luring’ investigation making record of chat room communications with accused.

R. v. Mills [2013] N.J. No. 395 Dockets: 0113PA0055 and 0113PA00937 – an officer created a Hotmail account for a fictitious 14 year old female person.  The officer then created a Facebook page and profile with background information listing her address as St John’s and that she was a student at a local high school. He used a profile picture he obtained on the internet for both the Hotmail and Facebook accounts.  The officer did not make any “friend” requests for his Facebook page, but received several friend requests from other individuals as a result of having listed the local high school as his profile high school. He received other friend requests from other individuals who were friends of the people he had already agreed to friend and added them to his Facebook page.

Nearly a month later, he received a Facebook message from Mr. Mills asking about the profile picture. The officer responded to Mr. Mills and asked which person he was in his pictures on his Facebook page. Mr. Mills responded. The officer corresponded with Mr. Mills saying “she” was new to Facebook and unfamiliar with what to do. Mr. Mills responded to “her” and asked to see more pictures. It is clear from the message content that he realized her age as he stated “But you seem really sweet and I don’t care about someone’s age. All that matters is the kind of person they are. … Are you open to meeting new friends, meeting new people to hang out with you?”

From the photographs he observed on Mr. Mills Facebook page, the officer obtained the license number of his motorcycle and performed a motor vehicle registration check. From this he learned Mr. Mills address and date of birth. In order to ensure that he had captured all the information on the screen, the officer employed a program called “Snagit” which allows the computer user to capture and copy the information on the screen. Snagit is a screenshot program that captures video display and audio output. The officer employed the “Snagit” program on each of his communications with Mr. Mills.  The “Snagit” program is a program that is available to the public and commonly used. In addition to the screen captures, the officer performed a CPIC check on Mr. Mills and learned that he had been convicted of impaired driving in BC in 2001. The officer also ran an ICAN check on Mr. Mills and learned there were three hits on him. In 2006 he was a suspect in a sexual assault on a 16 year old girl and was the driver in a motor vehicle accident and in 2007 and he was the complainant in a theft.

Mr. Mills sent a message to “her” Facebook page and provided his cell phone number and asked what she was doing on the weekend. Mills sent an email to “her” and stated his age was 23 (it was 32), that he was a carpenter and asked her to send him a text message and he would keep her entertained. The officer indicated “she” did not text and wanted to use emails.  Mr. Mills continued to send emails to “her” for the next two months until his arrest. There was only one occasion when the communication between the officer and Mr. Mills was carried out outside of the email traffic; that was when the officer posted a comment on Mr. Mills’ Facebook wall. Mr. Mills removed the post and sent a message to “her” as follows: “Look I don’t want you to be upset but I had to remove it. Nothing personal, It’s just my Mom is on my facebook and she is really old fashion. I’d rather not hear what she has to say about our age difference.”

In addition to the communication between the officer and Mr. Mills, there was also communication between another officer and Mr. Mills. The second officer created a fictitious person, another teenage girl, also 14 years of age. The second officer corresponded with Mr. Mills for nearly two months on Facebook, Hotmail messenger and Hotmail email. The second officer testified that using the identity, he had initiated contact with Mr. Mills by sending a friend request to Mr. Mills shortly after creating the profile. The second officer’s communication was generated as a direct result of the first officer’s profile and was directly related to that officer’s activity.

The court said that through the participation in these communications, the undercover officers gained access to Mr. Mills’ cell phone number and subscriber information, Motor vehicle registration information including residential address and date of birth. With that information obtained, the officer was able to perform both CPIC and ICAN checks on Mr. Mills.  The judge said:

“… [I]t would appear that chat messages and emails are or in some instances may be electronic communications depending on the circumstances of their transmission and can fall within section 183. Certainly a review of the exhibits GH #1, #2, and #3 indicates that while the messages took place over an extended period of time there were occasions when there was an immediacy to them with a series of messages over a short space of time. For example, the exchange of emails between Mr. Mills and the first officer has all the characteristics of a private conversation. Consequently I find in this case the emails and chat messages are electronic communications and fall within section 183.

In this case, employing the “Snagit” program was an additional seizure of the communications beyond the recording that automatically takes place in the recipient’s computer. With respect to the expectation of privacy nothing turns on state intrusion being characterized as a search or a seizure the test is the same. In R. v. Dyment, [1988] S.C.J. No. 82, 66 C.R. (3d) 348: “If I were to draw the line between a seizure and a mere finding of evidence. I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject- matter allegedly seized.”

In addition to employing the “Snagit” program, the officer used the information he received from Mr. Mills in his email to do searches on CPIC and ICAN. These are data bases that could not be accessed by the general public and are not something that an email correspondent would expect the recipient to be able to access.

The officer testified that there were no police policy manuals setting out any limitations or guidance for the technique he was employing. The manner in which the investigation was carried out was left to his discretion and he did not have any written policies or procedures to guide him to set the limits on the tactics he employed. It seems clear that prior authorization and judicial supervision would be appropriate.

In this case, the officer was aware of Mr. Mills and his potentially inappropriate interest in a 14 year old girl.

It was at that point when Mr. Mills was identified as the target that he should have sought authorization. For the purposes of this decision, I find that he should have obtained an authorization pursuant to section 184.2 and a general warrant. It seems clear that the 184.2 authorization was necessary to capture the chat and email communications and the general warrant for the Facebook page and photographs and to perform the additional data searches. The surveillance continued without authorization for a period two months. I find that as a result there is a breach of his section 8 rights.”

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