Monthly Archives: July 2014

Illegible Police Notes

A number of recent cases have examined disclosure in the context of police notes; more specifically, in cases where the police notes have been illegible. This post is not meant to cite change in our note-taking ways, but rather to report the consequences should our handwriting be illegible. This is a brief summary of what the courts have decided:

R. v. Lalani [2014] O.J. No. 108 (O.C.J.):

“I disagree with Ms. Stackhouse’s characterization of the Crown’s disclosure obligation. The Crown has a duty to disclose to an accused “all relevant information” in its possession or under its control. … In order to discharge this duty the Crown is under an obligation to request and procure from the police all relevant information and material concerning the case. … As a result, in my view, the provision of a typed version of one of the investigative officer’s notes where that officer’s handwritten notes were illegible was more than simply a courtesy; it was part of the Crown’s disclosure obligation.”

R. v. Guzman [2014] O.J. No. 2946 (O.C.J.):

“I agree that if officer’s notes prove, objectively, to be illegible, the Crown has an obligation on the request of defence counsel to provide a typed version of those notes.”

And finally, the older case of R. v. Aquino [1999] O.J. No. 5972 (S.C.J.):

“… Illegible written information does not constitute disclosure.”

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Medical Information and the Police Investigation

I recently had the opportunity (or misfortune, depending upon how you want to look at it) to spend some time with a number of nurses that were visiting my wife. Over time, as in most cases, the topic of the evening came around to “shop-talk”. I was surprised when a few of the nurses asked me to what extent we (police) can ask them personal and medical information of a patient in their care, the same person currently under investigation by us (e.g. impaired driving investigation). I was equally surprised when they said they often feel obligated to tell the officer the information, although they know there are privacy concerns.

I summed it up by saying that just because we get the information (from them), it does not mean we are legally entitled to have it. This years police cadets have heard me say this phrase on numerous occasions during our sessions on search and seizure this year. I am surprised that experienced officers are still taking the risks associated with asking information where there is a reasonable expectation of privacy and expect to use this information to form grounds for a breath or blood demand, or in a warrant application. I would hate to be the officer on the witness stand when defence counsel alludes, even in the slightest, that the information was illegally obtained and suggests that the officer used this information to formulate reasonable grounds.

This is not a new issue by any stretch of the imagination, and given the volumes of case law that have followed since, it warrants a quick review if this practice is still occurring. I will touch on one case that most others have cited since then.

R. v. Dersch [1993] S.C.J. No. 116 – the accused was charged with criminal negligence causing death and bodily harm and having the care and control of a motor vehicle while impaired by alcohol or drugs and thereby causing death and bodily harm. The motor vehicle he was operating had crossed the centre dividing line of a highway and collided head-on with another vehicle. The driver of the other vehicle was killed and three other persons, including the accused, were injured. A police officer at the accident scene observed a smell of alcohol from the accused and noticed that his eyes were glassy and bloodshot. The accused was taken to a hospital. The doctor who examined him attempted to insert an intravenous line into the accused’s arm, but the accused objected in strong language and refused to have a blood sample taken under any circumstances. The doctor requested the assistance of a surgeon present, who took a blood sample while the accused was unconscious, for medical reasons. One vial of the blood was used for a blood alcohol test. When the accused was subsequently asked by the police officer who had accompanied him to the hospital to provide a blood sample, he refused. In response to a written request by police, the doctor prepared a medical report which included the results of the blood alcohol test. A search warrant was later issued for the blood sample taken. The blood sample and blood alcohol test results were ruled admissible at the accused’s trial following a voir dire and the accused was convicted on all four counts. The Court of Appeal upheld the convictions. Defence appealed to the SCC, who allowed the appeal and directed a new trial.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.:

Participation in the emergency treatment of the accused did not in itself render the physicians agents of government for the purposes of s. 32 of the Canadian Charter of Rights and Freedoms, nor were they acting as agents of government in taking the blood sample in this case solely for medical purposes. It is nonetheless clear that some of the physicians’ conduct was wrong. The blood sample taken despite the accused’s unequivocal instruction to the contrary was improper, and the provision to the police of specific medical information about the accused without his consent violated the doctor’s common law duty of confidentiality to the accused. Since the accused had a reasonable expectation of privacy in respect of the information revealed, the obtaining of that information by the police in the circumstances is analogous to a search or a seizure within the meaning of s. 8 of the Charter. The information was obtained without a warrant, rendering the search by the police prima facie unreasonable, and the Crown has not satisfied the burden of rebutting this presumption of unreasonableness. It has not been demonstrated that there is any basis in statute or under the common law for this search and seizure, nor was there any emergency in the sense of the evidence being in danger of being destroyed if the time were taken to obtain a warrant. In view of this conclusion, it is not necessary to determine whether there was also a violation of the accused’s rights under s. 7 of the Charter. Since it has not been established that there is any basis under statute or the common law for the conduct of the police, that conduct cannot be said to be “prescribed by law” within the meaning of s. 1 and therefore cannot be justified thereunder.

The net result of the Charter violation by police in this case was to take advantage of the physicians’ improper conduct in taking the blood sample contrary to the patient’s specific instructions. When this factor is considered together with the seriousness of the Charter violation and the importance of guarding against a free exchange of information between health care professionals and police, the impugned evidence should be excluded pursuant to s. 24(2) of the Charter. In the absence of the evidence of the accused’s blood alcohol level, there is no evidence sufficient to sustain convictions on the care and control charges, which should be dismissed. While there remains evidence to support the criminal negligence charges, this is not an appropriate case in which to apply the curative provision, and a new trial is directed.

In short, why obtain information illegally from the nurse or doctor; we obviously cannot use this information to formulate reasonable grounds for a demand or in a search warrant application? Getting the information in this way opens us up to attack from defence counsel and runs the high risk of losing the case. We have to get our grounds legally, which is not often the easiest route, but having a reason for doing something does not make that thing reasonable (or legal) to do in all cases.

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An individual who enters a hospital to receive medical treatment is not in a Charter- free zone.

R. v. Taylor 2014 SCC 50 – this decision was reported earlier today. The accused was arrested for impaired driving causing bodily harm when he lost control of his vehicle, injuring three of his passengers. At the time of his arrest, he was informed of his Charter rights, including his right to counsel, and was asked whether he wanted to call a lawyer. The accused responded that he wanted to speak both to his father and to his lawyer. At no time was the accused given access to a phone while at the scene of the accident. As a precaution and in accordance with normal practice, the accused was taken by ambulance to the hospital for examination. At the hospital, a nurse took five vials of blood from the accused. The police later demanded and obtained a second set of samples of the accused’s blood for investigative purposes. At no point during the accused’s time in hospital did the police attempt to provide him with an opportunity to speak to his lawyer or determine whether such an opportunity was even logistically or medically feasible. The police successfully applied for a warrant to seize the first vials of blood the hospital took from the accused.

The trial judge agreed with the Crown that the second set of blood samples were taken in violation of the accused’s s. 10(b) rights, but found that there was no breach of the accused’s s. 10(b) rights prior to the first samples being taken. This was based on the trial judge’s assumption that where an accused is awaiting or receiving medical treatment, there is no reasonable opportunity to provide private access to the accused to a telephone to implement his right to instruct counsel. The first set of blood samples were admitted at trial. On the basis of this evidence, the accused was convicted of three counts of impaired driving causing bodily harm. A majority in the Court of Appeal in Alberta allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of these blood samples. The evidence was excluded, the conviction set aside, and an acquittal entered.

The SCC unanimously dismissed the Crown’s appeal.  At paras. 1 and 2 of the SCC decision delivered by Justice Abella:

This is a case about the police informing an individual about his right to counsel as soon as he was arrested, then promptly forgetting to implement it throughout his detention, including during his stay in a hospital. While he was at the hospital, blood samples were taken which were used as evidence at trial to convict him of impaired driving causing bodily harm.

Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees that detained or arrested individuals have the right to retain and instruct counsel without delay. In R. v. Manninen, [1987] 1 S.C.R. 1233, this Court recognized that this imposes a corresponding duty on the police to ensure that individuals are given a reasonable opportunity to exercise the right. This appeal is about the scope of that duty when a detained individual is receiving medical treatment. The question before us is whether the police’s failure to take any steps to implement or facilitate access to counsel is a breach of s. 10(b) in the circumstances. In my view, it is and the evidence should be excluded.

A majority in the Alberta Court of Appeal allowed the appeal, finding that the trial judge erred when he concluded that there was no reasonable opportunity to facilitate access to a lawyer prior to the taking of the first set of blood samples. In its view, Mr. Taylor’s s. 10(b) rights were violated, and this resulted in Mr. Taylor’s “inability to exercise a meaningful and informed choice as to whether he should or should not consent” to the taking of blood samples by the hospital. The evidence was excluded, the conviction set aside, and an acquittal entered. The SCC agreed with the majority of the Court of Appeal’s conclusion.

At para. 21, Justice Abella said:

The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu, [2009] 2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair, [2010] 2 S.C.R. 310, at para. 25.

And at paras. 24-28:

The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross, [1989] 1 S.C.R. 3, at p. 12; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269).

The majority in the Court of Appeal was of the view that in light of Cst. MacGillivray’s acknowledgement that he could have provided his own cell phone, the “‘mistake’ in failing to provide it” gave rise to a breach of s. 10(b). The Crown takes issue with this finding, and I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

But the police nonetheless have both a duty to provide phone access as soon as practicable to reduce the possibility of accidental self-incrimination and to refrain from eliciting evidence from the individual before access to counsel has been facilitated. While s. 10(b) does not create a “right” to use a specific phone, it does guarantee that the individual will have access to a phone to exercise his right to counsel at the first reasonable opportunity.

At paras. 31-33, Justice Abella said:

There may well be circumstances when it will not be possible to facilitate private access to a lawyer for a detained person receiving emergency medical treatment. As this Court noted in Bartle, a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances. But those attenuating circumstances are not engaged in this case. As the trial judge found, the paramedic “did not feel there was anything wrong with the Accused”, but took Mr. Taylor to the hospital only “out of an abundance of caution, and in accordance with normal practice”. And once at the hospital, it was 20 to 30 minutes before the hospital took any blood from Mr. Taylor, more than enough time for the police to make inquiries as to whether a phone was available or a phone call medically feasible.

The duty of the police is to provide access to counsel at the earliest practical opportunity. To suggest, as the trial judge did, that it is presumptively reasonable to delay the implementation of the right to counsel for the entire duration of an accused’s time waiting for and receiving medical treatment in a hospital emergency ward, without any evidence of the particular circumstances, undermines the constitutional requirement of access to counsel “without delay”.

Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.

But probably para. 34 sums it up best:

An individual who enters a hospital to receive medical treatment is not in a Charter free zone. Where the individual has requested access to counsel and is in custody at the hospital, the police have an obligation under s. 10(b) to take steps to ascertain whether private access to a phone is in fact available, given the circumstances. Since most hospitals have phones, it is not a question simply of whether the individual is in the emergency room, it is whether the Crown has demonstrated that the circumstances are such that a private phone conversation is not reasonably feasible.

With regards to the Charter-infringing state conduct, Justice Abella said that the record indicates that the s. 10(b) breach was not the result of a wilful disregard for Mr. Taylor’s rights. Nevertheless, Cst. MacGillivray’s failure to facilitate Mr. Taylor’s s. 10(b) rights constituted a significant departure from the standard of conduct expected of police officers and cannot be condoned. In short, at no point did the police do anything to facilitate Mr. Taylor’s access to counsel at the hospital, either before the initial hospital samples were taken or when they demanded a blood sample.

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The confusion of a search incident to an investigative detention (“safety search”) following R. v. MacDonald , 2014 SCC 3

MacDonald was a somewhat puzzling decision.  To make matters worst, the minority in the decision spoke in strong and clear terms about an issue, but the majority didn’t advert to the issue in the slightest. I’ve posted the MacDonald decision earlier in the blog, so I won’t go into the facts or the actual decision this time around. I’ve gotten alot of questions about the raised threshold in MacDonald from “reasonable grounds to suspect” as decided in R. v. Mann, 2004 SCC 52, [2004] 3 SCR 59, to the new standard of “reasonable grounds to believe” as the majority decision in MacDonald seemed to identify in order to do a pat down search for weapons of a person detained.

I spent the last week in Halifax on a criminal law conference with 750 judges and lawyers from across Canada, so I took the opportunity to ask some of these legal professionals about the MacDonald decision. What I learned was that crown prosecutors, defence counsel, and judges alike as just as puzzled as we (police) are about the decision, so in essence I’m no clearer than I was before last week.

Perhaps the most confusing process is that having a “believe” standard for safety searches for investigative detentions (as the majority in MacDonald decided) is inconsistent with the ability to detain someone on the basis of suspicion, which is still good law. Arguably, the majority’s holding prevents us from searching to keep ourselves safe in detentions we are entitled to conduct. On the other hand, where there are reasonable grounds to believe that someone is “armed and dangerous”, we can simply arrest them anyway and search them incident to arrest, rendering the investigative detention and the safety search unnecessary.

I was directed to two new cases on the issue. With the minority having identified the issue so harshly, it can no longer be ignored, and judges are already split on the interpretation of MacDonald. I won’t go into the facts of each case because they didn’t essentially decide new case law or powers for us, but both courts interpreted the threshold in MacDonald differently, so I will give you the judge’s interpretation of what MacDonald means to us in their view.

The first one is R. v. Le 2014 ONSC 2033, a decision by the Honourable Justice Kenneth L. Campbell. Justice Campbell was at the conference and his decision was discussed. This is what Justice Campbell said in Le at paras. 98-100 regarding the MacDonald decision:

The Supreme Court of Canada recently addressed the constitutional propriety of police “safety searches” in R. v. MacDonald, holding that, after the accused in that case refused to respond to police inquiries about the nature of the partially obscured “black and shiny” object in his hand, the police were justified in pushing open the accused’s apartment door in order to see whether the object was, as suspected, a weapon. Importantly, expressly applying R. v. Mann, at para. 40, the court in R. v. MacDonald, at paras. 31, 39-41, re-affirmed the common law police power to conduct a “safety search” when an officer believes “on reasonable grounds that his or her safety, or the safety of others, is at risk.” Such unplanned, reactionary, warrantless searches may properly be conducted, as the court observed in R. v. MacDonald, at paras. 32, 36-38, 41, where they are reasonably necessary to eliminate imminent threats to the safety of the public or the police in response to dangerous situations.

There is some question whether the decision in R. v. MacDonald changes the legal threshold for lawful police “safety searches” from the traditional “reasonable suspicion” standard to a higher standard akin to the search warrant requirement of “reasonable and probable grounds.” I do not read the R. v. MacDonald decision as having such an effect. It is important to recall that, from its judicial inception in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the courts in the United States and Canada have long applied, in somewhat different language, the standard of “reasonable suspicion” to measure the constitutional permissibility of such “stop and frisk” searches. The significantly higher standard of “reasonable and probable grounds” has never been the required threshold, for the sound functional reason that it would render such searches legally redundant and practically useless. If a police officer possessed reasonable and probable grounds to believe a suspect was armed and dangerous, the suspect would invariably be arrested, not merely detained, and would be physically searched as incident to that arrest. There would be little point in the existence of the police “safety search” power, which has been clearly recognized in the appellate court jurisprudence, if it provided no search powers beyond those already recognized as being incident to an arrest. Moreover, if police officers are to lawfully conduct investigations in relation to detained (but not arrested) suspects, it only stands to reason that they must be given the lawful means of taking the necessary steps to protect themselves and others during the course of such investigations. Otherwise, the police would be needlessly placed at serious risk in the performance of their important public duties. See: R. v. Chehil, 2013 SCC 49, at para. 3, 20-24, 27; R. v. MacKenzie, 2013 SCC 50, at para. 74; R. v. Clayton and Farmer, at paras. 20, 28-30, 43-49, 81-84, 98, 103-104, 118, 123-126; R. v. Simpson (1993), 12 O.R. (3d) 182; 79 C.C.C. (3d) 482 (C.A.), at p. 202; Arizona v. Johnson, 129 S.Ct. 781 (2009), at p. 784; R. v. Crocker, 2009 BCCA 388, 275 B.C.A.C. 190, at paras. 62-72, leave denied: [2009] S.C.C.A. No. 466, [2010] 1 S.C.R. viii; W.R. LaFave, Search and Seizure – A Treatise on the Fourth Amendment (2005, 4th ed.) at s. 9.6(a); J.A. Fontana and D. Keeshan, The Law of Search and Seizure in Canada (2010, 8th ed.) at pp. 709-712.

In R. v. Mann and its progeny the courts have confirmed the existence of the police power to detain individuals for investigative purposes and, where the police have “reasonable grounds” to suspect the detainee is armed and dangerous, to conduct a brief frisk or pat-down search to ensure their own safety and the safety of the public as they conduct such investigations. In my view, R. v. MacDonald is but an application of that well-established warrantless search power in a particular factual context, namely, where the search involves police entry of the confines of a private residence, where there is an increased expectation of privacy. See: R. v. Zargar, 2014 ONSC 1415, at paras. 29-32. Indeed, in R. v. MacDonald, the Supreme Court expressly purports to apply R. v. Mann in this factual context – not overrule it (or the many subsequent judgments that have clarified and applied it). The confusion in relation to this legal threshold has arisen, it seems to me, from the use of the phrase “reasonable grounds” to describe the threshold of “reasonable suspicion” or “articulable cause,” as this same terminology is also used to describe the higher threshold of “reasonable and probable grounds.” See: R. v. Mann, at paras. 33-35, 40-45, 63-64. Accordingly, it is important to recall that, in this particular context, the term “reasonable grounds” is used to describe a threshold of reasonable suspicion, not a threshold of reasonable probability.

The second case is R. v. Green 2014 ONSC 1470, a decision of the Honourable Justice Nancy J. Spies, who took a different approach than that of Justice Campbell.  This is what Justice Spies said of MacDonald in Green:

The minority came to the same conclusion as the majority (four) judgment of Lebel J. but for very different reasons. They argued that the case ought to have been resolved by extending the logic of Mann (at para. 87) and that instead the majority had effectively overturned the “safety search” power recognized in Mann and a decade of subsequent jurisprudence (at para. 90). As the minority pointed out (at para. 84), the majority’s decision assumed that the officer in question had reasonable grounds to believe that Mr. MacDonald was armed and dangerous although the officer had only testified that he was concerned that Mr. MacDonald “might” have a weapon. They concluded that the consequence of the majority decision was to deprive officers of the ability to conduct protective searches except in circumstances where they already have ground to arrest” (at para. 90).

Arguably the minority in MacDonald are in the best position to interpret what the effect of the majority’s decision is.

“When the performance of a police duty requires an officer to interact with an individual who they have reasonable grounds to believe is armed and dangerous, an infringement on individual liberty may be necessary.” (at para. 39, subpara. 2, emphasis added). This is repeated at para. 41 where the majority states that “the search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search”. [Emphasis added]. Although this statement is less clear, there could be no doubt what the majority meant given the statement of their factual conclusion at para. 44 that the officer had reasonable grounds to believe that there was an imminent threat to the safety of the police”….

However, the minority decision is very persuasive and clearly they are of the view that the majority has raised the standard required before an officer can lawfully conduct a pat down search as they stated (at para. 90).

So, we have two decisions out of the same level of court in Ontario by two justices who have interpreted MacDonald differently.  While Justice Spies found a s. 8 violation where police conducted a safety search without “reasonable grounds to believe,” Justice Campbell did not. All we can hope for is an appeal to the SCC of a case with similar facts soon so that we can clear up this confusion once and for all.

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Can the police question drivers about other matters when they are stopped for the purpose of a road side check and where the police do not have reasonable grounds to do so?

The short answer is no.  As Justice Cory explained in R. v. Mellenthin, [1992] 3 S.C.R. 615 at p. 624:

Check stop programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search.

Of course, all kinds of issues can come into play (such as informed consent as discussed in R. v. Wills, [1992] O.J. No. 294, 70 C.C.C. (3d) 529 (Ont. C.A.)), but that is not the reason for this post. So, you may ask why I’m citing the SCC case of Mellenthin from 1992 on my blog? Well, this same issue has come up again in a 2014 case named R. v. Koczab 2014 SCC 9.

In Koczab, the accused, while driving his vehicle from British Columbia to Ontario, was pulled over for speeding in Manitoba. The police officer requested his driver’s licence and registration. He noticed that the vehicle was registered to the accused in British Columbia and that his driver’s licence was issued in Ontario. The officer questioned the accused as to why he had different addresses on his licence and registration. The accused answered that he worked in the movie industry and lived at both places. The driver, the vehicle, and the explanation for the different addresses seemed very familiar to the police officer. He returned to his cruiser to conduct the routine police checks relating to the documentation. They revealed that the accused had been fingerprinted in the past for theft and drug charges. His record showed only one criminal conviction for theft. The officer testified that he did not feel that these entries were of any concern. He went back to the accused’s vehicle, returned his documents, gave him a verbal warning for his speeding and told him that he was free to go. Ten minutes had elapsed since the beginning of the traffic stop.

The police officer, believing he may have stopped the accused on a prior occasion, asked him if he would mind answering a few questions. The accused replied, “Yeah go ahead.” This led to a series of questions about the movie industry and the Ontario licence plate. The answers to these questions evoked memories which caused the officer to conclude that he had stopped this accused in the past and had been provided with the same story, which he felt was rehearsed. He then asked the accused whether he had been stopped before. The accused replied “No.” He asked him whether he had any convictions. The accused replied that he had been caught with a couple of grams of cocaine. This answer again evoked memories and the officer was now positive that he had stopped the accused previously.

The officer then asked the accused what he had in his back seat. The accused replied that he had a couple of suitcases. He asked whether he had any liquor, drugs, or large amounts of cash in the vehicle. The accused answered no to all three questions. The officer asked “So what’s in the suitcases?” The accused responded “Clothes, do you want to see?” The officer said “Sure.” Immediately before the accused opened the back door, the officer asked the accused again, “You sure you don’t have any drugs in the vehicle?” The accused replied “Yeah.” The officer asked “You are letting me look?” and the accused said “Yes.” The officer told the accused that, if he found drugs, he may be charged. The accused replied that he had learnt his lesson and would not be doing that again.

Without being prompted, the accused then proceeded to open the back door and, again unprompted, opened the suitcases. The officer did not search the suitcases, but observed clothes in them. At that point, the officer noticed that the carpet had been altered near the back seats. This fact caused the officer to think that there might be a hidden compartment located there. The officer had considerable experience in detecting and locating such compartments, as he had personally investigated and discovered hidden compartments in approximately 50 other cases. As the officer was now thinking that he might detain the accused for a further criminal investigation, he thought it prudent to call for back up for officer safety. He told the accused “I just have to go to my car for a minute.” He then went to his car and called for back-up.

At that point, the officer’s non-communicated intention was that he would be arresting the accused. However, before doing so, he decided he would give the accused an opportunity to provide an innocent explanation for the altered carpet. He went back to the accused and, prior to any back-up attending, proceeded to ask him the following three questions:

1) Have you had any bodywork done to the vehicle? Answer: No

2) Have you had any panels removed? Answer: No

3) Do the back seats fold down? Answer: Yeah, I’ll show you.

Again, without being asked, the accused proceeded to fold the back seats forward. Once folded, the officer noticed more damage to the carpet and smelt the strong odour of fresh silicone. As the officer knew that silicone is not used in factory installations in vehicles, he believed that the fresh smell of silicone could only be explained by a recent use to create a sealed hidden compartment that may contain drugs. The officer then arrested the accused for drug possession and advised him of his right to counsel. He declined to contact counsel. Back-up arrived at that point. The vehicle was searched incidental to arrest and 17 one-kilogram bricks of cocaine were found in a silicone-sealed hidden compartment underneath the backseat. Having discovered the cocaine, the officer returned to the accused to advise him that he was now under arrest for trafficking in cocaine. He was again given his right to counsel and again the accused declined to contact anyone.

At trial, the validity of the traffic stop and the questions related to the traffic matters were not challenged at trial. Moreover, the trial judge concluded that, as the officer had reasonable grounds to suspect the accused was a drug courier before he called for back-up, his detention was not arbitrary within the meaning of s. 9 of the Charter. However, the trial judge found that the accused was detained when the officer asked him the last three questions. He concluded that the accused’s rights under s. 10 of the Charter had been violated because he had neither been advised of the reason for his detention, nor of his right to counsel before answering the questions. Finally, the trial judge excluded the evidence following a s. 24(2) analysis.

The Crown appealed to the Manitoba Court of Appeal, which ruled that the trial judge applied an analysis that focussed on the officer’s non-communicated thoughts and intentions. As a result of this misapplication of the law, the trial judge overemphasized the officer’s intentions to call for backup and to arrest Koczab. This resulted in a finding there had been a detention that was unreasonable and not supported by the evidence. There was a nexus between this legal error and the verdict. Even if there had been a Charter breach, the evidence would not have been excluded pursuant to s. 24(2). A new trial was ordered by the Court.

The accused appealed to the SCC.  The SCC, in reaching it’s decision, adopted the dissenting opinion of Justice M.M. Monnin J.A in the Manitoba Court of Appeal decision, thereby allowing the accused’s appeal and excluded the evidence, restoring the acquittals for trafficking and possession for the purpose of trafficking.

A Charter detention has been defined by the Supreme Court of Canada as being “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (see R. v. Grant, 2009 SCC 32 at para. 44). The majority in Grant also held that the test to determine whether the accused has demonstrated “significant” psychological restraint is whether the police conduct would cause a reasonable person in the accused’s circumstances to conclude that he/she was not free to go and had to comply with the police direction or demand (see Grant at paras. 31 and 44). This approach to the determination of detention has been described as the “claimant” or “detainee” centered approach involving a “detainee-centered objective analysis.”

The Supreme Court of Canada in Grant provided a non-exhaustive list of factors to assist a trial court in its detainee-centered objective analysis of whether a psychological detention was sufficiently significant so as to trigger Charter rights. Trial courts consider the following factors (Grant at para. 44):

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

The SCC agreed that the trial judge made a finding that the police officer made a decision to detain the accused on his second trip to the cruiser car. By that time, the officer was of the view that the accused was a drug courier and that he would be conducting a drug investigation. While the officer, at trial, attempted to put that decision at a later time, in cross-examination he eventually admitted that his answer at the preliminary hearing was truthful. At that time, he had said as follows:

Q Okay. Now, page 25 of the preliminary hearing, I’m going to put the following to you, line 9 again:

After that point in time, I figured that [the accused] was a drug courier, from what I observed. I went and told [the accused] I’d be back. I walked back to my police car. I radioed for a second car to attend.

… why was that?

For backup. I believed that I was going to do a drug investigation.

Q Do you recall that answer —

A Yes.

Q — and do you recall that question?

A Yes.

Q Was that answer the truth?

A Yes.

Q Now, I’m then going to suggest to you that you, that prior, prior to [another officer] attending, that you also, in your mind, concluded that [the accused], in fact, was detained and not free to leave?

A Prior to [another officer] attending?

Q Yes.

A I was getting real close, yeah.

Q Not —

THE COURT: You, you were what?

THE WITNESS: Getting real close to if he said no, I’m leaving, no I probably wouldn’t have let, let him leave, yeah.

Q So as far as you were concerned, he was detained?

A At that point in time, if he said I’m leaving, yes, I would have stopped him from leaving.

At the time of the trial, the officer had been a police officer for 21 years. He was an instructor with respect to various techniques of police investigations, particularly on highway traffic stops, and had considerable experience in that area. He acknowledged the importance of providing people with their rights, understood the application of the Charter and was aware of the duty to inform individuals of their right to silence under s. 7 of the Charter. Under cross-examination, he said as follows:

Q You decided he wasn’t free to go, but you never told him that; is that correct?

A That’s correct.

Q You had decided, in your mind, he was detained, but you never told him that; is that correct?

A Correct.

Q You, in your mind, after deciding in your mind that he was detained and not free to do, go, didn’t provide him with his legal rights; is that correct?

A Correct.

Q Right to counsel or right to silence?

A Correct.

Q And I’m sure you’re well aware, either on a detention or an arrest, that, that if a person is given their legal rights, you’re not to continue questioning until they’ve had an opportunity to exercise them; is that correct?

A If they wish to execute (sic) yes.

Q Correct. So you have to hold off questioning until they’ve been given at least an opportunity to see if they wish to contact counsel?

A Correct.

Q And you’re well aware of that principle; is that correct?

A Correct.

The trial judge then explained that, while he took into account the fact that, while on his way back to his car, the officer had made a decision to detain the accused, that decision by itself did not mean a detention had occurred. However, he then found that the statement of the officer “I just have to go to my car for a minute” was an implied direction not to leave. The trial judge then commented on the fact that, upon his return to the accused’s vehicle, the officer asked a lengthy series of questions of approximately five minutes’ duration before another officer arrived, which questions focused on the physical state of the vehicle:

“In the totality of the circumstances, [the accused] was detained when [the officer] formulated the intention to detain, said he would be right back, returned to his car, telephoned for a back-up, and came back to the SUV to ask the first question. Before being asked the question, [the accused] had the right under subss. 10(a) and 10(b) to be advised that he was being detained, the reason for it, and of his right to counsel.” ….

In Justice Monnin’s view, a reasonable person, having been questioned aggressively on issues relating to drug convictions and whether he was currently involved in drug trafficking, having previously been told he was free to go, but then indirectly told to stay where he was, would likely conclude that he was not free to go and had to comply with that directive. “It would take a brave soul in the circumstances to defy the state actor and go merrily on his way. He would, no doubt, soon be involved in a police chase,” said the Justice.

Applying the criteria in Grant, the circumstances giving rise to the encounter had clearly moved to the singling out of the individual for focused investigation. The fact that the accused was in potential jeopardy was confirmed by the police officer’s own evidence that he was conducting a drug investigation. That the accused was in jeopardy is not determinative of the issue (see Grant at para. 41). However, as in this case, jeopardy can be a factor supporting a finding that a detention has occurred, especially in a situation where a person is the subject of a criminal investigation, a time when the availability of his s. 10 rights are important.

While, in the case at hand, the highway traffic stop had ended, as found by the trial judge, detention had occurred when the accused was indirectly told by the officer not to leave. This triggered his s. 10 rights. The MBCA referred to the words used by the police in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 as being of a like nature to those used by the officer in this case, (in Suberu, the words used were “Wait a minute. I want to talk to you before you go anywhere” (at para. 9)). They were not found to amount to an implied direction. However, the difference is in the timing. In Suberu, the trial judge, [2006] O.J. No. 1958, found the comments to have been made as part of an exploratory investigation at a time when the police officer was merely attempting to determine if there was any involvement by Mr. Suberu. As explained by the majority decision of the Supreme Court of Canada in Suberu (at paras. 29, 31):

The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. While the trial judge in this case did not have the benefit of the test refined in Grant, his findings on the facts, supported by the evidence, lead to the view that a reasonable person in the circumstances would have concluded that the initial encounter was preliminary investigative questioning falling short of detention.

The trial judge’s finding that the initial part of the encounter was of a preliminary or exploratory nature on its face does not support the contention that Mr. Suberu was under detention within the meaning of the Charter at this point. It suggests rather that Constable Roughley’s conduct indicated that he was engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled. Looking at the matter through the lens of the detention analysis proposed in Grant, the trial judge’s conclusion that the circumstances did not trigger the right to counsel cannot be said to be in error. There was no right to counsel because there was no detention.

However, in this case, by his own admission, the officer’s investigation had reached a stage where the movements of the accused were to be controlled. Justice Monnin made a more apt comparison to Grant, where the comments of the officer to the appellant to “keep his hands in front of him” (at para. 6) were insufficient by themselves to indicate detention, but crystallized into a detention when other police officers approached. The majority stated as follows (at para. 49):

Two other officers approached, flashing their badges and taking tactical adversarial positions behind Cst. Gomes. The encounter developed into one where Mr. Grant was singled out as the object of particularized suspicion, as evidenced by the conduct of the officers. The nature of the questioning changed from ascertaining the appellant’s identity to determining whether he “had anything that he should not”. At this point the encounter took on the character of an interrogation, going from general neighbourhood policing to a situation where the police had effectively taken control over the appellant and were attempting to elicit incriminating information.

In the case at hand, Justice Monnin said the implied direction not to leave after questioning upon potential drug trafficking would have given a reasonable person cause to believe that he was not free to leave. The questioning upon return to the vehicle turned to whether modifications had been done to the vehicle. While stated by the officer as being for the purpose of allowing the accused to give an innocent explanation for the suspected modifications to the vehicle, it was, nevertheless, part of the officer’s criminal investigation and was for the purpose of eliciting information which could be incriminating. Further, said Justice Monnin, while there was no physical contact and the discussions were polite and cordial, the accused was never directly told that he had a choice not to answer. He was asked if he would mind answering a few questions, but at no time was he advised that he need not and that no consequences would follow. The conduct which was of concern to the trial judge and which he considered in the assessment of the s. 24(2) application was that the officer was aware that he would be detaining the accused based upon a hunch that he was an individual that he had stopped previously.

The trial judge concluded that the officer’s conduct was “neither inadvertent nor minor. It was wilful and egregious” (at para. 36). He then commented on the fact that, in his cross-examination, the officer was evasive and he found that the breach was not made in good faith.

So, where does this leave us?  I think Justice Moldaver J. in R. v. Aucoin, 2012 SCC 66, phrased it best at para. 50:

“the law surrounding police powers in the detention context is still evolving”

Deciding when a detention triggers Charter rights requires a balancing between an individual’s rights and the collective interest in ensuring that the police are able to investigate and prevent crime (see Grant, and Suberu, 2009 SCC 33 at para. 24, [2009] 2 S.C.R. 460).


Filed under Recent Case Law, Section 10 Charter

Police occurrence reports are “records” within the definition of s. 278.1 CC and thus subject to the Mills regime.

R. v. Quesnelle 2014 SCC 46 – this decision was just handed down today by the Supreme Court of Canada. The respondent, Vincent Quesnelle, was charged with sexually assaulting two complainants, T.R. and L.I.  Prior to trial, CBC Radio aired a documentary about the complainant T.R. (a street sex worker), during which the lead investigator in this case indicated that she had obtained and reviewed four or five police occurrence reports which involved T.R. but were not made in the course of the investigation that resulted in the charges against the accused.  The detective did not include the reports in the investigatory file.

Before trial, the accused made an application seeking disclosure of certain police occurrence reports which involved a complainant, but which were not made in the course of the investigation of the charges against him.  The trial judge ruled that the occurrence reports at issue were “records” under the Mills regime, specifically s. 278.1  of the Criminal Code .  As such, the accused applied for disclosure of the occurrence reports pursuant to s. 278.3 of the Code.  The trial judge dismissed the application and the accused was ultimately convicted.  The Ontario Court of Appeal allowed the accused’s appeal on the basis that the police occurrence reports were not “records” under the Mills regime and should have been part of regular Crown disclosure under R. v. Stinchcombe, [1991] 3 S.C.R. 326.  The Court of Appeal therefore ordered a new trial and the matter was appealed to the SCC.

In sexual offence cases, the Criminal Code limits the disclosure of private records relating to complainants and witnesses.  The relevant provisions, ss. 278.1  to 278.91 , known as the Mills regime, permit disclosure only where a record is likely relevant and its disclosure is necessary in the interests of justice.  The regime applies to “records” that contain personal information for which there is a reasonable expectation of privacy, unless they are made by persons responsible for the investigation or prosecution of the offence.  The issue on appeal was whether these provisions apply to police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted.  The question was whether these unrelated police occurrence reports count as “records” as defined in s. 278.1 , such that the statutory disclosure limits apply.

The Mills regime establishes a two-part process through which accused persons may apply for disclosure of such records.  First, a record ― whether in the hands of the Crown, the police, or a third party (s. 278.2(2) ) ― will only be produced to the court where the trial judge is satisfied that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and that disclosure to the court is necessary in the interests of justice: s. 278.5 .  Second, after reviewing the record, the judge may only order disclosure to the accused if the record is likely relevant and disclosure is in the interests of justice:  s. 278.7 .

The ONCA ruled that the object of s. 278.2 and the intention of Parliament, as well as the words of s. 278.1 read in their grammatical and ordinary sense, indicate that police-made occurrence reports are excluded from the application of the s. 278 regime and that police occurrence reports do not qualify as “records” for the purposes of s. 278.2, and therefore do not fall within the realm of private records Parliament intended to target in enacting ss. 278.1 to 278.9.

A unanimous SCC disagreed with the ONCA. The SCC concluded that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accused:

“Privacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters.  Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.”

Accordingly, the SCC agreed with the trial judge that the unrelated police occurrence reports at issue were “records” within the definition of s. 278.1  and thus subject to the Mills regime.  The trial judge was entitled to conclude that the reports should not be disclosed.  The SCC allowed the appeal, set aside the order for a new trial, and restored the conviction, and remitted the sentence appeal to the Ontario Court of Appeal.


Filed under Disclosure, Recent Case Law

Corroboration and grounds to arrest based upon an informant’s information

A recent case, R. v. Day 2014 NLCA 14, out of the Newfoundland and Labrador Supreme Court – Court of Appeal, has prompted me to post a summary of some judicial decisions that may be of interest to the officers that handle informants (human sources) and then use that information to formulate reasonable grounds to arrest the suspect.  I won’t get into the facts of the case; instead I will discuss the points and issues that were brought up in the appeal that are of importance to us in the field.

No discussion on informants can begin without first mentioning the value of informants to the enforcement of criminal law in this country that has long been recognized and respected (R. v. Scott, [1990] 3 S.C.R. 979, pp. 993-994; and R. v. Leipert, [1997] 1 S.C.R. 281, para. 9). However, informant information can be variable in its reliability, and care must be taken by the police not to act on it without thought or indifference. This was recognized by the Supreme Court in R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421; and R. v. Greffe, [1990] 1 S.C.R. 755. In Garofoli, a case concerning reasonable and probable grounds to justify a search, Sopinka J. quoted with approval Lamer C.J.’s adoption of Martin J.A.’s statement in R. v. Debot (1986), 30 C.C.C. (3rd) 207 (Ont. C.A.), a case involving the lawfulness of a warrantless arrest, as the test for assessing confidential informer’s information:

I am of the view that such a mere conclusory statement made by an informer to a police officer would not constitute reasonable grounds for conducting a warrantless search. … Highly relevant … are whether the informer’s ‘tip’ contains sufficient detail to ensure that it is based on more than mere rumour or gossip, whether the informer discloses his or her source or means of knowledge and whether there are any indicia of his or her reliability, such as the supplying of reliable information in the past or confirmation of part of his or her story by police surveillance.

Justice Sopinka went on to say, at page 1456, that:

“[h]earsay statements from an informant can provide reasonable and probable grounds to justify a search” but warned that evidence of a tip from an informer by itself is insufficient to establish reasonable and probable grounds.”

He concluded at page 1457 that:

“[t]he reliability of the tip is to be assessed by recourse to ‘the totality of the circumstances'”, and said “[t]here is no formulaic test as to what this entails. Rather, a court must look to a variety of factors including: 1) the degree of detail of the ‘tip’, 2) the informer’s source of knowledge, and 3) indicia of the tipster’s reliability”.

Debot directs that police must attempt to confirm details in an informant’s tip. However, in doing so, the court said it is not necessary to confirm each and every detail, although the level of verification required may be higher in cases where the informant’s own credibility cannot be assessed (page 1172). Both Garofoli (paragraph 67) and Debot (pages 1168 to 1171) stressed that the credibility of the informant and the source of his or her information are very important.

The next thing to be examined in the context of arresting the suspect based upon the information received by an informant is the case which each and every officer should have imprinted in their memory: R. v. Storrey, [1990] 1 S.C.R. 241. In Storrey, at para. 17 the Supreme Court of Canada interpreted what is now paragraph 495(1)(a) and held that the reasonable grounds for arresting a person without a warrant encompasses both 1) a subjective belief on the part of the police that the person has committed or is about to commit an indictable offence, and 2) that the subjective belief must be “justifiable from an objective point of view.” The Storrey test, as it has become known, was summarized by Welsh J.A. of the NFCA at paragraph 19 of R. v. Warford, 2001 NFCA 64, 207 Nfld. & P.E.I.R. 263:

The proper test is twofold: (1) did the police officer, from a subjective perspective, have reasonable and probable grounds for arresting [the accused], and (2) could a reasonable person in the position of the officer conclude there were reasonable and probable grounds for the arrest?

The present case, Day, cited several cases that I will summarize as follows:

  • Provincial Court Judge Fradsham made a good logical point in R. v. Hilts, [1997] A.J. No. 516, (1997) 203 A.R. 161 at paragraph 30:

“The “anticipated pattern” in this case was the accused driving to High River in a particular motor vehicle. The fact pattern occurred. However, can one say that those two facts give any credence to the allegation of criminal activity by Mr. Hilts? In my view, if the police place reliance on an informer’s “tip” because some facts in that “tip” have been verified by them, then that “verified” information must be material to the criminal activity alleged by the informant. Otherwise, the exercise of verification is really an exercise in bootstrapping. Unverified allegations of crime are not bolstered because they are made with verified allegations of unrelated, innocent facts.”

  • A similar view was set out by Allen J. in R. v. Mori, [2012] O.J. No. 2837, 2012 ONSC 3433 at paragraph 56:

“They confirmed Mr. Cutajar’s identity, his residential address, and his telephone number. Although accurate, that information does not assist with predicting a criminal offence.”

  • And finally, the dissenting reason given by Justice Malcolm Rowe in this case:

The Crown has conceded that what the police had was insufficient to properly obtain a search warrant for Mr. Day’s residence. They now assert it was sufficient to arrest him. Must not the grounds for laying hands on a citizen, hand cuffing, searching and confining him be greater than for entering his house? Must they not at least be equal? I would say “yes”.

There you have it.  Some things to consider if you are basing your RGs (or RPGs for the older officers out there) to arrest based upon source information.

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Filed under Worthy of a Review