Monthly Archives: August 2014

Marihuana odour and the basis for arrest.

R. v. MacCannell 2014 BCCA 254 – an appellate court has again considered whether marihuana odour alone is a basis to ground a credibly based belief that an offence was being committed and provides a basis for arrest. The accused was stopped by police for speeding. The officer, a very experienced officer in police investigations involving marihuana, smelled vegetative marihuana emanating from the vehicle. Based on the smell, he arrested the appellant and searched the vehicle. He found 50 marihuana plants behind the driver’s seat. A further 34 pounds was discovered when the truck was searched at the detachment. Later, other officers discovered cannabis resin and $4,000 in cash. The appellant argued that the trial judge erred in failing to exclude the evidence of the drugs and cash seized from his vehicle on the basis of violations of his Charter rights. He argued that his arrest was unlawful and that, accordingly, the search of his vehicle incidental to that arrest was unreasonable. The trial judge found that the officer had reasonable and probable grounds to arrest the appellant based solely on the overwhelming odour of vegetative marihuana.

The first argument on appeal was whether the arrest was made under s. 495(1)(a) or 495(1)(b) of the Criminal Code. In other words, was the arrest based on the reasonable grounds to believe the accused has committed an indictable offence, or did the officer find the accused committing a criminal offence?  Under the CDSA, s. 4(5) and Schedule VIII provide that a person who is found in possession of marihuana in an amount less than 30 grams is guilty of an offence punishable by summary conviction. The court ruled that the smell of vegetative marihuana in this case, as opposed to burnt marihuana, involked s. 495(1)(b) CC and whether the accused possessed more than 30 grams or not was irrelevant when the arresting officer “finds committing any offence”.

Next, the court turned to discuss if odour alone was sufficient to ground a credibly based belief that an offence was being committed? The Crown argued that the weight of the jurisprudence confirms that the necessary inference to justify an arrest may be drawn from odour alone, as decided in R. v. Schulz, 2001 BCCA 601, R. v. Dubois, 2004 BCCA 589, R. v. Ashby, 2011 BCSC 513, aff’d 2013 BCCA 334, R. v. Boyd, 2013 BCCA 19, R. v. Taylor,  2012 BCPC 112, aff’d 2012 BCSC 1517, leave to appeal ref’d 2013 BCCA 382and R. v. Janvier 2007 SKCA 147. The defence relied upon R. v. Ruiz, [2012] B.C.J. No. 2780 and several of the same cases cited by the Crown for the contrary proposition.  Justice N.J. Garson, writing for the unanimous court, said all that can be said on this ‘odour alone’ question is that depending upon the facts of the case, odour alone may be sufficient to support an arrest under ss. (b).

The last point the appellant made on appeal was that the officer ought to have considered other potential innocent inferences or excuses from which he could have drawn an inference other than that Mr. MacCannell was committing an offence. For example, Mr. MacCannell argued that he might have had an authorization to possess marihuana for medical needs pursuant to the MMARs, or that the odour could have been left over from earlier use of the vehicle to transport marihuana.  The court assessed the reasonable grounds standard and said this standard does not require an officer to satisfy him or herself that there is evidence of proof beyond a reasonable doubt or even a prima facie case. All that the officer must have is an objectively reasonable basis for believing the suspect is presently in possession of marihuana, without necessarily ruling out potentially innocent inferences, defences or lawful excuses.

The BCCA agreed with the decision of the trial judge in that the officer was a very experienced officer in police investigations involving marihuana, and the trial judge was satisfied that he had reasonable and probable grounds to arrest the accused, Mr. MacCannell, for possession of marihuana, to search the pickup, incidental to that arrest. He justified those actions based on the overpowering smell of vegetative marihuana. He had a reasonable belief that there was marihuana in the vehicle, and the trial judge found that belief, from an objective and subjective point of view, to be reasonable. Standing in the shoes of this officer, with his extensive experience, objectively he could easily have held a credibly based belief that Mr. MacCannell was in possession of vegetative marihuana. As the BCCA found that the arrest was lawful, it was unnecessary to consider the argument that the search incidental to his arrest was in violation of s. 8 of the Charter.

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Is the deployment of a police dog to the extent that the accused was bitten by the police dog while hiding from the police a use of excessive force?

R. v. Phoummasak 2013 BCPC 391 – I came upon this interesting case from late last year and thought it was worth posting. If any of you would like to read the full case and can’t find it, send me an email and I will forward it to you. Mr. Phoummasak, the accused, was targeted by the Abbotsford Police Department through information that they had received that he was dealing drugs in an area. As a result of that, this particular area was targeted by undercover officers. It was a bush area bordered on one side by railway tracks and across from the railway tracks there was a chain link fence which blocks off an industrial complex. On the other side was a swampy, low-lying level of bush which included trees, blackberry bushes, and brush, quite dense and, although there may have been a few trails through it, it was basically undeveloped land.

Police surveillance was done in this area. Two plainclothes officers were dispatched to attempt to find the accused and, if possible, to engage in a drug transaction. An officer (Doucette) headed out sometime around three o’clock in the afternoon on November the 21st. The accused was observed on the railway tracks by the officer. Doucette was hiding in the bush area. He observed the accused in black clothes. He was, from the officer’s perspective, some 50 feet perhaps away or even more, wearing black clothing, and carrying a black-and-white backpack. He observed that there were two unknown people, a male and a female, on the train tracks and it would appear that they were involved or seeking to find drugs and looking for Mr. Phoummasak.

The undercover operators engaged with these people. Doucette observed this and observed that there appeared to be some interactions between not only the undercover operators and these unknown people, but it would appear with the accused and the unknown people as well. At some point, Doucette was advised by radio that Mr. Phoummasak was arrestable as a result of what the undercover operators and other officers had seen. Doucette was advised that Mr. Phoummasak was running toward the industrial area and the Superior Propane tank, which was a very, very large tank which the police used in the course of this investigation as a reference point.

 Doucette headed up to an area on the railway tracks where he saw the accused come out of a clearing. At that point, Doucette yelled to Mr. Phoummasak, “Abbotsford Police Department. You’re under arrest. Get down on the ground.” Mr. Phoummasak froze. He had his hand on the backpack. He stepped back into the bush. The officer’s opinion was that he thought that Mr. Phoummasak was going to drop the backpack, as he had his hand on the shoulder strap in a fashion that would suggest he was about to dump that off.

Doucette, a few seconds later, saw another officer (Burrows), another member of the Abbotsford Police Department, come to the clearing. He told Burrows that he should be very careful as Mr. Phoummasak was very close. Doucette had not heard at that point any further noise coming from the bush area and so he directed the police to this clearing and further into the brush. He described it as thick dense bush area at least ten feet. He testified that the police had police jackets on, the sort with fluorescent lettering that says “police”. At around five o’clock, Doucette was down in the clearing area and located the black-and-white backpack that he said he had seen over the back of Mr. Phoummasak. He also saw a red light blinking and picked up a cell phone; it was functioning. In fact, that cell phone was determined to having been used at some point in drug transactions.

Doucette said that the police there, Sgt. Jack, who was perhaps the officer in charge, had a discussion about calling the Canine Unit, which would be Diego and Cpl. Scott. Doucette testified that he gave two loud, clear notices to the bush area that the dog was going to be called. He said, “Come out and you won’t be harmed.” From that point until when the Dog Unit arrived, approximately 20 minutes elapsed. It was now 5:30 p.m., November the 21st, and it was getting dark quickly at that time. Cpl. Scott testified he has been a police officer for 16 years. He has been a dog handler for seven. He has had two dogs and his current dog is Diego. He testified that Diego is being retired or perhaps has already been retired and that Cpl. Scott is in the process of training another dog. He said he is the only person who works with Diego, that he has trained at Innisfail, Alberta, which is the RCMP training centre for dogs and this extends to other police forces. He said that Diego has been trained for two general purposes; dual purposes that is, general and narcotics searches. He is trained to search and track and he is also trained to sniff out drugs.

The first thing that he did was he engaged Diego in trying to find some sort of a scent. He received the call while he was in Chilliwack, which is a 20 to 25-minute drive away. He arrived on-scene. He was briefed by the members. He was directed to a specific part of the wooded area. As he testified, this is a wooded area surrounded, if you will, by businesses and stuff but it is low-lying, swampy terrain. He said it looked to him as if it was somewhere around 400-by-200 metres, which is a fairly significant area, if you are calling it a wooded, dense brush. He said that when Diego was first deployed, he was in a harness; he was on a 25-foot line. He testified that this is a very manageable arrangement even in the bush. He commanded Diego to search for a track. Diego did indicate one so he started in the search mode and then he began to track. He believed that this was Mr. Phoummasak’s track because he was told that other police officers had not been in that area as of yet and so he was what he believed on the track of Mr. Phoummasak. He said that Diego began to pursue the track. He had his nose to the ground and he was pulling on the harness which to him is a sign that he has his dog on track; the dog is moving and, in particular, following a track. He said he went through the thick swampy area and he had Diego at that point on a 20-foot length. He said he was accompanied by a Det. Gamboa, the “runner”,  who was there for protection of the dog handler.

As a result of Diego following a track, he found a black toque and that was seized. He then continued to track after he found that. He then lost the track. It would appear that the area had been contaminated by the other police officers who had gone in the area, which is what was told to Cpl. Scott. At that point, Diego’s head came up, he stopped pulling on the harness, he circled to try and find the track. The dog was indicating to Cpl. Scott that he was no longer able to track and then he was put into a search mode to try and find either a continuation of that track or a different track. He was removed from his harness. The line remained on him and he was given the command to search. It was very shortly after that that Diego indicated to Cpl. Scott that there was a presence of a human odour. At that point, Diego was under the control of Cpl. Scott. The line remained on him and Diego began to move. Cpl. Scott said that Diego worked the scent uphill towards the railway tracks and it was close to the fence line that separated Superior Propane. There were no lights. He did not have a flashlight. It was getting dark. It was very dense and thick blackberry bushes. There were some trees, there was foliage, there was very little illumination other than moonlight and it was heavily treed, it was very dense.

Cpl. Scott testified that he thought that the source of the scent could be on the other side of the fence. Cpl. Scott did not know where Mr. Phoummasak was. He said that Diego reached a thicket of blackberries, which of course given the thorns would be a difficult place for the police to go into themselves without having to get down on your hands and knees (big concern for officer safety). Cpl. Scott testified that he thought Diego would get up to the fence line. That they would probably be crossing the fence line and having to continue on with the tracking on the other side. However, at that point, Diego went under the blackberries. Diego was about 20 feet away, ducked under the blackberry bushes out of Cpl. Scott’s view completely. He heard Mr. Phoummasak yell out. Diego was not barking. Cpl. Scott pulled Diego back from underneath the blackberries, said there was resistance because Mr. Phoummasak was also being pulled by Diego. Diego did bite him on the upper thigh, causing a single puncture wound.

The accused was charged with two counts of possession of drugs for the purposes of trafficking. The accused raised the issue of whether the deployment of the police dog to the extent that he was bitten by the police dog while hiding from the police was a use of excessive force and brings into play the Charter of Rights and Freedoms such that the appropriate remedy would be either a judicial stay of the proceedings, or at the very least, an exclusion of the evidence that flowed from the use of the police dog, which in this case, would be the finding of the accused in the bush and his, therefore, subsequent identification by the police as the person found in the bush.

I won’t get into all the details of the types of police dog training discussed in this case, or the experts that testified on behalf of the defence or the Crown because it was quite in-depth, but suffice it to say that for the junior members and cadets, the two types discussed were the bark-and-hold (and the net-and-harass which is very close to the bark-and-hold) and the bite-and-hold (called find-and-bite by some agencies). In the end, this is what the Provincial Court Judge decided:

We have a known drug dealer; we have a person who has been evading the police for a period of approximately a half an hour before the dog arrives. The individual had been given an opportunity to present himself to the police and been given an opportunity to surrender with, other than being arrested, no further consequences in terms of physical difficulties. Indeed, he was even given a further 15 minutes while the dog was looking for him where he could have at any time given himself up. The circumstances further being it is dark, it is November, it is a heavily wooded, dense area where the accused was effectively invisible to the police. No one knew if he was armed. I am not suggesting that they knew one way or the other. They just did not know. They did not know anything about where he might go if he got away from the police or what might happen if he got away from the police. That is just a given in the circumstances. Again, as I say, these cases are all distinct. Every single case is distinct. Some may be similar to others but every case is distinct. What subjectively was the situation that Cpl. Scott found himself in and the other officers of the Abbotsford Police Department? Well, subjectively they had what I have indicated which is a known drug dealer, a significant amount of drugs and money found, cell phones found, that clearly observed transaction in their mind that involved the transaction of the hand-to-hand exchange of drugs and money. Further, they had a dark area, an unknown person who they did not know where he was.

Was it reasonable to deploy the dog? Yes. … The issue then is, is what happened when the dog bit Mr. Phoummasak? Subjectively, is that either a reasonable use of force or an unreasonable use of force? From the police perspective, given Cpl. Scott’s evidence that, in his mind, he thought Mr. Phoummasak was not close by, that he could have gone over the chain link fence. Cpl. Scott was simply engaged in the searching and tracing for Mr. Phoummasak and tracking at the point when Diego began to pull on the harness and move in a straight line. Cpl. Scott knew and would have known that Diego actually had some sort of a track.

… When the dog went underneath the bushes, Cpl. Scott, at that point, subjectively, had no indication that Mr. Phoummasak was there. It is not unreasonable for the dog handler to have the dog on a 20, 25-foot lead. The dog was not let go. The dog was not given a command to bite, all of which from an objective perspective, is reasonable conduct on the part of the police. In the dark with Mr. Phoummasak refusing to give himself up, in my respectful view, subjectively, Cpl. Scott was acting well within the bounds of his training. He fit within the standards that have been set across Canada for the use and deployment of a dog such as Diego and, accordingly, in my respectful view, subjectively and objectively he was legitimately engaged in the execution of his duties. He was not exerting any force against Mr. Phoummasak.

… [T]he deployment of Diego with Cpl. Scott was a legitimate police operation. While it is regrettable that Mr. Phoummasak was bitten by the dog, it is a situation that appeared to have been inevitable because of not just the training of the dog, but the fact that Mr. Phoummasak chose to remain hidden. Therefore, I do not find that it is an excessive use of force. …

Firstly, I do not find a Charter breach. If I did, I would rule the evidence admissible and I would decline to enter a judicial stay of proceedings.”

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Mens rea for failing or refusing to comply with the demand to provide a breath sample necessary for analysis by means of an ASD

R. v. Tikhonov 2014 ONCJ 347 – just after 3:00 a.m. on July 29, 2013, a police officer in a marked OPP cruiser observed a vehicle weaving in its lane and straddling the left and right sides of the lane on the 401 highway westbound at Keele Street. The vehicle was stopped by the officer and in the course of communications at the roadside, the officer detected an odour of alcohol on the breath of the defendant and after further investigation, he formed the grounds for a demand for an A.S.D. breath sample. Subsequently, the defendant accompanied the officer to the cruiser and was placed in the locked back seat area and the A.S.D. procedure was explained and administered through a sliding window in the barrier between the front and back seats. In the officer’s opinion, the defendant failed to comply with the demand for a breath sample.

 The entire A.S.D. administration took place in the space of five minutes between 3:12 a.m. and 3:17 a.m., at which time the defendant was arrested. The officer testified that he first self-tested the A.S.D. instrument and obtained a reading of zero, satisfying himself that the device was working properly. He then demonstrated the operation of the device for the defendant by blowing into it and explaining what the defendant was expected to do. Over the course of five minutes, he provided the defendant with six opportunities to produce a suitable sample, but at no time did he obtain a reading on the device. He was asked what he observed during the first opportunity and he testified that the defendant was putting his tongue on the mouthpiece resulting in the absence of a tone and an unsuccessful attempt. On the second attempt, the officer gave evidence that the defendant was still not blowing as there was no audible tone produced. He then had the defendant blow through the mouthpiece to ensure that it was not obstructed in any way. He stated he demonstrated the proper way to produce a suitable sample and warned him that he faced a criminal charge if he failed to provide a breath sample.

The officer testified that an individual would have to blow into the device for five seconds to obtain a reading. He stated that on the third and fifth attempts, he heard an audible tone for about two seconds, but the defendant did not blow long enough to produce a suitable sample. On the fourth and sixth attempts, there was no audible tone, and in the officer’s opinion the defendant was still not blowing long enough. The officer reported that the defendant said to him: “Please, I need to work, I have a family.” Later the defendant said: “Please give me a ticket and follow me off the highway. I need my car for work.” The officer stated that the defendant seemed very nervous about providing a sample. After his arrest and a recitation of his rights to counsel, the defendant was released at the scene on an appearance notice and he was transported from the side of the highway in the front seat of the tow truck that had been ordered for the removal of his vehicle.

In cross-examination, the officer stated that his only training on the Draeger Alcotest 7410 instrument was at the police college before he began working for Toronto Police Services in 2006. He gave evidence it was his understanding that the instrument had to be calibrated every seven days. He agreed that the calibration date on the device was outside of the seven-day range and that he would not have used that device if he had realized it had not been calibrated within the previous seven days. He testified he was not sure of the meaning of the various “error messages” that could be received while using the device. He was not able to say whether he checked to see that the green light was on meaning that the device was ready to accept a sample before each opportunity to blow into the instrument although he said that it was his practice to do so. The officer agreed that he noted that the defendant had been given 10 opportunities to provide a sample in the synopsis he prepared for the Crown brief. He stated that this was a mistake and that he had been given 6 opportunities. The officer agreed that he was giving an opinion about the defendant’s tongue blocking the mouthpiece: that was not something that he had actually observed. He agreed he warned the defendant that if he failed to provide a sample the consequences “would be the same as impaired driving.” He agreed that was all he said about the consequences of a failure to provide a sample. In contradiction to the latter statement, the officer later testified that even though there was no reference in his notes, he always explained the warning for failure to provide a sample by “explaining the charge, the 90 day suspension and the seven-day vehicle impoundment.” The officer was then asked why he did not offer a final opportunity to provide a breath sample and he stated: “He already had six attempts in five minutes.” “I didn’t want to stay on the side of the highway to continue to give him opportunities.” “It was dangerous.”

The Honourable Justice Peter A. J. Harris said there are at least four Ontario Superior Court decisions (all summary conviction appeals) that have adjudicated on the particular state of mind to be proven by the Crown on the s. 254(5) offence. Two decisions have concluded that the mental element enacted in s. 254(5) is knowledge or awareness of the prohibited act: see R. v. Porter [2012] O.J. No. 2841 (Ont. S.C.J.); R. v. Pletsas [2014] O.J. No. 1136 (Ont. S.C.J.) while two decisions have held that Crown must prove that the defendant intended to produce that failure: R. v. Campbell [2008] O.J. No. 47, 2008 CanLII 203 (Ont. S.C.J.); R. v. Stanley [2003] O.J. No. 2076, 42 M.V.R. (4th) 95 (Ont. S.C.J.).

Justice Harris said there is no definitive jurisprudential rule as to when the mens rea element of a Criminal Code offence is relegated to “knowledge” as opposed to “intention” and he determined that the Crown must prove that the defendant intended to produce the failure to provide a suitable breath sample, following R. v. Campbell, R. v. Stanley, supra. Justice Harris said Mr. Tikhonov gave his evidence thoughtfully and in a forthright and straightforward manner. Essentially, he testified that he thought he did what he was asked to do. He gave evidence he tried to blow into the machine, and stated: “then I tried to blow harder. I didn’t try to fake it.” Mr. Tikhonov’s evidence was not shaken or seriously impugned in any way in cross-examination according to the justice.

The justice was apprehensive about whether the device was in good working order and operated properly in accordance with the evidentiary requirements in fail to provide breath sample cases: see R. v. Danychuk [2004] O.J. 615 (Ont.C.A.).

(1) The officer’s only training on the device was at the police college before he joined the force, some 7 years before his contact with the defendant. (2) The officer testified that he would not have used the A.S.D. if he had known the calibration was out of date; (3) The officer was not familiar with the error message codes and did not know whether he made sure the green “ready” light was displayed before every test (although it was his practice to do so); (4) The officer did not seem confident about how long an individual would have to “blow” to obtain a reading and had not timed the defendant’s efforts and could only hazard a guess as to how long he heard the tone on two occasions (about 2 seconds). Like all disputed police/civilian interaction, a video depiction of the entire A.S.D. administration process would have greatly assisted in the determination of these issues.

While the justice found that the officer was generally credible, there were a few nagging concerns about his administration of the A.S.D. testing. When asked what he observed, he stated that the defendant was putting his tongue on the mouthpiece – an assertion he later admitted was just an assumption. Secondly, the justice was troubled about whether the consequences of failure were adequately explained and without any police notebook entries on this subject, the justice said he had no ability to assess the officer’s evidence. Thirdly, the brevity of the testing process (5 minutes in duration) seemed to have been driven by extraneous considerations, such as the danger of remaining in a parked vehicle on the shoulder of the highway (“I didn’t want to stay on the side of the highway.” “It was dangerous.”). Fourthly, while not a statutory precondition, one additional factor considered by the justice was that there was no helpful pause in the opportunities to “blow” offered and a concluding well-documented “last chance” extended with a final warning about the consequences of a failure.

In the end, Justice Harris acquitted Tikhonov.  The justice found that the Crown did not prove that Tikhonov intended to fail to provide a suitable breath sample. There were concerns with respect to the administration of the testing process. The officer might not have adequately explained the consequences of a failure. The brevity of the process seemed to be driven by extraneous considerations such as the danger of remaining in a parked vehicle on the shoulder of the highway. There was no “last chance”. The ASD might not have been in good working order and properly operated. The calibration was out of date, the officer was not familiar with the error codes, he did not know whether he made sure that the green “ready” light was displayed before every test, he was not confident as to how long someone would have to blow to obtain a reading, and he did not time Tikhonov’s efforts. Tikhonov’s evidence that he tried to provide a suitable breath sample was accepted by the justice.

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Does a Charge of “Keep the Peace and be of Good Behaviour” Require a Contravention of a Criminal Statute?

R. v. Smith 2014 NSPC 44 – Smith was placed on probation on the 16th day of December, 2012. He was ordered, among other things, that he had to keep the peace and be of good behaviour. On the 6th day of June, 2013, Smith agreed through intermediaries to meet for a consensual fight with another young man. Smith and another young man arranged to meet at what appeared to be a local ball field in a residential area of Parrsboro, Nova Scotia. Two separate videos were introduced from two separate videographers showing Smith aggressively approaching the other man and then striking him. The other individual fell to the ground, but proceeded to get back up saying, “Is that all you got?” He then proceeded to charge at Smith. Smith slapped the other man in the face several times, knocking him to the ground. The accused then backed off retreating to his vehicle and issuing the challenge, “Does anybody else want to have a f!!! go?” No one else took up the invitation.

Someone in the area called 911 during the fight to report what was occurring. In addition, there were at least eleven other people that observed the activities that took place that day. At least two of those individuals recorded videos of the encounter on their phones. Some of the bystanders shouted and at least one indicated that the other person involved in the altercation with the accused had had enough. The police became involved and, while no other charges were laid, the authorities did charge Smith with breaching his probation by failing to keep the peace and be of good behaviour. Smith argued that an individual cannot be convicted of a breach of the term of probation to keep the peace and be of good behaviour without committing a criminal offence. The Crown disagreed and argued that a failure to be of good behaviour can refer to “conduct that falls below the conduct expected of all law abiding and decent citizens”.

Provincial Court Judge Paul Scovil conducted an extensive review of the authorities regarding the concept of “keep the peace and be of good behaviour”. In R. v. Docherty [1989] S.C.J. No. 105, the Supreme Court of Canada considered whether then Section 666(1) of the Criminal Code was to be interpreted as an offence requiring its own mens rea or as an offence which automatically follows upon a conviction for any Criminal Code offence or other deliberate act which constitute a violation of the conditions of a probation order. Section 666(1) was the precursor to Section 733.1. Section 666(1) should be noted as having the word “willfully” as part of the offence as opposed to the term “without reasonable excuse” as contained in the now 733.1.

Justice Wilson in her decision in Docherty considered the Newfoundland Court of Appeal decision in R. v. Stone (1985), 22 C.C.C. (3d) 249. At paragraphs 21-22, the Court stated as follows:

Steele J. proceeded from the view, expressed at p. 255, that the two terms, “keep the peace” and “be of good behaviour”, impose “separate and distinct conditions though in certain circumstances may overlap”. At page 256, he draws the following distinction:

  • When considering whether there has been a failure “to keep the peace”, one is conscious of public opinion and its perception of peace and good order and what does or does not offend that nebulous standard. If the issue is an individual’s good behaviour, the emphasis shifts to a more personal analysis of his conduct. A breach of an undertaking “to keep the peace” means a disruption or the upsetting of public order whereas a breach of a bond of “to be of good behaviour” means some act or activity by an individual that fails to meet the fanciful standard of conduct expected of all law-abiding and decent citizens. It is quite possible, as I have already said, that one can fail to be of good behaviour yet not commit a breach of the peace. It is probably a matter of degree. We are only concerned with the second aspect of the statutory condition, namely, “to be of good behaviour”.

Steele J. goes on to say at p. 257 that a conviction for breach of a federal, provincial or municipal statute “may be — perhaps usually is — but not necessarily” a failure to be of good behaviour. Conversely, conduct which does not violate any statute may nevertheless breach the condition to keep the peace and be of good behaviour. The accused in that case was found not to have had the required intent for the underlying offence, i.e., the offence of fraudulently obtaining food. Nevertheless, his behaviour at the restaurant was found to fall short of “good behaviour”. The stated case did not raise the issue of the requisite mens rea for wilful failure to comply with the probationary condition to “be of good behaviour”, and Steele J. did not deal with it. By upholding the conviction under s. 666(1), however, he implicitly affirmed the trial judge’s finding that the appellant had the requisite mens rea for that offence.

While the decision in Docherty mainly considered what was meant by “willfully”, the paragraphs cited from Stone appeared to accept that the concept of “keep the peace” was a separate one from that of to “be of good behaviour”. That line of thinking pervades subsequent case law.

Judge Scovil then examined R. v. Johnston [1993] M.J. No. 539 (Man. Q.B.), a case which was factually similar to the matter before him. In Johnston, the accused had followed another individual from a building out into the public where a fight ensued. The trial judge in that case determined that it was a voluntary fight between the two combatants. The accused was charged with failing to comply with his probation order, namely: “keep the peace and be of good behaviour”. Justice Monnin’s decision contained a review of Stone and Docherty, but only tangentially considered the question of the difference, if any, between “keeping the peace” and “being of good behaviour”. At paragraph 4 of that decision, Justice Monnin stated as follows:

In dealing with the first ground of appeal, the appellant argues that for the offence to be complete, there must be a failure of both keeping the peace and being of good behaviour. In addition, the appellant argues that good behaviour is to be read as lawful behaviour because that is an objective standard while if the test was less than lawful behaviour, the test would of necessity become subjective and thereby not measurable in a precisely defined way.

 Justice Monnin spoke of there being failures of both “keeping the peace” and “being of good behaviour”. He did not go on to consider what exactly that would mean. He did go on, however, to find that the consensual fight in Johnston was an activity such as to justify a conviction based on as he said, “at the very least, the appellant breached the public peace”. His comments subsequent to that seem to state that it was on the first ground of “keeping the peace” as opposed to “being a good behaviour”. He stated at paragraph 10:

 I do not have to deal with the concept of good behaviour because of my finding but, if I had, I think that I would be hard-pressed to state that a public fight, even though maybe consensual, can be considered as good behaviour. A consensual fight might not be an offence but it is clearly not a behaviour pattern for adults that is condoned or sanctioned in a community of people living together.

In R. v. S.S. [1999] N.J. No. 230, the Newfoundland Court of Appeal reviewed the question of what is meant by “keeping the peace and being of good behaviour” in relation to breach of a probation order. The accused in that matter was charged under the Young Offenders Act with breach of probation when he had to be removed from his class at school due to disruptive behaviour. The accused was defiant of authority, disrespectful of rights of property, used foul language, and acted in such a manner that disturbed and disrupted the orderly operation of the classroom. S.S. had also engaged in a physical altercation with his teacher. The position of the defence in the matter was that in law, the scope of an obligation to keep peace and be of good behaviour did not extend to non-criminal behaviour in the school. The Newfoundland Court of Appeal considered the conflicting positions expressed in prior case law. The Court concluded that the concept of failure to “be of good behaviour” in the statutory conditions in the probation order is limited to noncompliance with legal obligations in federal, provincial or municipal statute and regulatory provisions, as well as obligations in court orders specifically applicable to the accused. It does not, however, extend to otherwise lawful conduct if that conduct falls below some community standard expected of all peaceful citizens.

Judge Scovil proceeded to examine other cases out of Ontario and Newfoundland, but for the sake of simplicity, I will summarize what Judge Scovil decided:

“A breach of the peace occurs where there is an actual assault, public alarm, or an excitement caused. A mere annoyance or insult to an individual, stopping short of actual personal violence, is not a breach of the peace. An essential ingredient is something in the nature of a riot, tumult or actual violence. The core notion of a breach of the peace is a violent disruption or disturbance of the public tranquility, peace or order. … It has also been described as “unacceptable conduct that unduly disrupts and violates public peace and good order” without any emphasis on any particular crime. …

I find that the term “keep the peace and be of good behaviour” has two distinct components. To be of good behaviour is limited to noncompliance with legal obligations found within federal, provincial or municipal statutory and regulatory obligations. I note that not necessarily all infractions of statutory obligations will trigger a breach of good behaviour. Breaches related to keeping the peace concern behaviour that is violent and disturbing to the tranquility of the public.

Here the accused engaged in public brawl that was of a clear violent action. It occurred in full public view causing obvious disturbance to those in the area. The accused failed in his obligation to keep the peace and in no way was he operating within the rehabilitative framework of his probation order. Accordingly, I find him guilty as charged.”

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“Mr. Big” and the Confession Rule

The “Confession Rule” applies to all oral or written statements made out of court by an accused to a person in authority proffered by the Crown in criminal or quasi-criminal proceedings. To exclude a confession, the inducement (or other coercive action) must emanate from a person in authority, which of course police officers are in the named class. As stated in R. v. B. (A.) (1986), 50 C.R. (3d) 247, at 257-59, [1986] O.J. No. 91 (Ont. C.A.), Justice Cory said:

 As a general rule, a person in authority is someone engaged in the arrest, detention, examination or prosecution of the accused. When the word “examination” is used, I believe it refers to interrogation by police officers, detention or security guards and members of the Crown attorney’s office.

The “Confession Rule” has now been examined in a whole new light in R. v. Hart 2014 SCC 52, a judgement published on July 31, 2014. Hart’s twin daughters drowned in Gander Lake, Newfoundland, on August 4, 2002. The police immediately suspected that Hart was responsible for their deaths. However, they lacked the evidence needed to charge him. As a result, two years after the drowning, undercover officers began a “Mr. Big” operation by recruiting Hart into a fictitious criminal organization. At the time, Hart was unemployed and socially isolated — he rarely left home and when he did, he was in the company of his wife. After he was recruited to the organization, Hart worked with the undercover officers and was quickly befriended by them. Over the next four months, Hart participated in 63 “scenarios” with the undercover officers and was paid more than $15,000 for the work that he did for the organization. As part of that work, Hart was also sent on several trips across Canada — to Halifax, Montreal, Toronto and Vancouver. Hart often stayed in hotels and occasionally dined in expensive restaurants during these trips, all at the fictitious organization’s expense. Over time, the undercover officers became Hart’s best friends and Hart came to view them as his brothers. According to one of the undercover officers, during this time frame, Hart made a bald statement in which he confessed to having drowned his daughters.

The operation culminated with a meeting akin to a job interview between Hart and “Mr. Big”, the man purportedly at the helm of the criminal organization. During their meeting, Mr. Big interrogated Hart about the death of his daughters, seeking a confession from him. After initially denying responsibility, Hart confessed to drowning his daughters. Two days later, Hart went to the scene of the drowning with an undercover officer and explained how he had pushed his daughters into the water. He was arrested shortly thereafter.

At trial, Hart’s confessions were admitted into evidence. The trial judge denied Hart’s request for permission to testify with the public excluded from the courtroom. A majority of the Court of Appeal allowed Hart’s appeal and ordered a new trial. The Court of Appeal unanimously held that the trial judge erred in refusing to allow Hart to testify outside the presence of the public. A majority of the court also concluded that the Mr. Big operation had breached Hart’s right to silence under s. 7 of the Charter. The majority excluded two of Hart’s confessions, the one to Mr. Big and the one to the undercover officer at the scene of the drowning. However, the majority concluded that Hart’s bald confession was admissible and ordered a new trial. The Crown appealed to the SCC, and a 5:2 panel dismissed the appeal.

For those officers unfamiliar with the “Mr. Big” operation, the technique is a Canadian invention. Although a version of the technique appears to have been used more than a century ago, its modern use began in the 1990s and by 2008, it had been used by police across Canada more than 350 times. The technique, used only in cases involving serious unsolved crimes, has secured confessions and convictions in hundreds of cases. The confessions wrought by the technique are often detailed and confirmed by other evidence. However, the Mr. Big technique comes at a price according to the SCC in that suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions. Unreliable confessions provide compelling evidence of guilt and present a clear and straightforward path to conviction. In other contexts, they have been responsible for wrongful convictions — a fact the SCC said it cannot ignore.

Mr. Big confessions are also invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization. This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice according to the SCC. Speaking for the majority, Justice Moldaver said Mr. Big operations also run the risk of becoming abusive. Undercover officers provide their targets with inducements, including cash rewards, to encourage them to confess. They also cultivate an aura of violence by showing that those who betray the criminal organization are met with violence. There is a risk these operations may become coercive. Thought must be given to the kinds of police tactics we, as a society, are prepared to condone in pursuit of the truth.

Justice Moldaver said:

Under existing law, Mr. Big confessions are routinely admitted under the party admissions exception to the hearsay rule. Attempts to extend existing legal protections to Mr. Big operations have failed. This Court has held that Mr. Big operations do not engage the right to silence because the accused is not detained by the police at the time he or she confesses. And the confessions rule — which requires the Crown to prove an accused’s statement to a person in authority is “voluntary” — is inoperative because the accused does not know that Mr. Big is a police officer when he confesses.

In sum, the law as it stands provides insufficient protection to accused persons who confess during Mr. Big operations. A two-pronged response is needed to address the concerns with reliability, prejudice and police misconduct raised by these operations.

At paras. 81 and 83, Justice Moldaver said:

Having determined that the law must respond to the risks inherent in Mr. Big confessions, the more difficult question is what form that response should take. Mr. Big operations raise three distinct concerns — reliability, prejudice, and the potential for police misconduct — and we must ensure that trial judges have the tools they need to address all three of these issues.

In searching for a response to the concerns these operations raise, we must proceed cautiously. To be sure, Mr. Big operations can become abusive, and they can produce confessions that are unreliable and prejudicial. We must seek a legal framework that protects accused persons, and the justice system as a whole, against these dangers. On the other hand, Mr. Big operations are not necessarily abusive, and are capable of producing valuable evidence, the admission of which furthers the interests of justice. We ought not forget that the Mr. Big technique is almost always used in cold cases involving the most serious crimes. Put simply, in responding to the dangers posed by Mr. Big confessions, we should be wary about allowing serious crimes to go unpunished.

At paras. 84-86, Justice Moldaver said:

In this section, I propose a solution that, in my view, strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime. This solution involves a two-pronged approach that (1) recognizes a new common law rule of evidence, and (2) relies on a more robust conception of the doctrine of abuse of process to deal with the problem of police misconduct.

The first prong recognizes a new common law rule of evidence for assessing the admissibility of these confessions. The rule operates as follows. Where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility is overcome where the Crown can establish, on a balance of probabilities, that the probative value of the confession outweighs its prejudicial effect. In this context, the confession’s probative value turns on an assessment of its reliability. Its prejudicial effect flows from the bad character evidence that must be admitted in order to put the operation and the confession in context. If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant and thus inadmissible. This rule, like the confessions rule in the case of conventional police interrogations, operates as a specific qualification to the party admissions exception to the hearsay rule.

Second, I would rely on the doctrine of abuse of process to deal with the problem of police misconduct. I recognize that the doctrine has thus far proved less than effective in this context. While the problem is not an easy one, I propose to provide some guidance on how to determine if a Mr. Big operation crosses the line from skillful police work to an abuse of process.

At trial, Mr. Hart maintained that he was “intimidated, scared and felt trapped in his ability to get out” and that his motive to lie about having murdered his children was “the money, the friendships he created with undercover operators, the lifestyle and the chance to get out of Newfoundland”.

And finally, at paras. 150-151, Justice Moldaver said:

The Court of Appeal excluded the respondent’s June 9 and 11 confessions and quashed his convictions. It ordered a new trial on the basis that the respondent’s April 10 confession was admissible, and that it provided a “sliver” of evidence upon which a jury could convict the respondent of murder (para. 258).

I have concluded that the April 10 confession must also be excluded. As such, it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict. However, the final decision on how to proceed rests with the Crown. In the result, I would dismiss the appeal.

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