Monthly Archives: October 2014

The Section 10(b) Charter right to retain and instruct counsel includes the ability to do so in private without being overheard by police

R. v. McLean 2014 ABPC 231 – although a decision at the Provincial Court level, the principles discussed are worthy of education. The accused was pulled over for speeding near Cold Lake, Alberta, and charged with an offence. Subsequent to the Traffic Safety Act offence, police also began an impaired driving investigation and subsequently charged the accused with ss. 253(1)(a) and(b) of the Code. 

Upon arrival at the Cold Lake detachment, the accused was provided with a second opportunity to exercise his s. 10(b) rights and placed in a small room (“the telephone room”) which was equipped with a telephone, a yellow page telephone directory, a counter and a chair. The arresting officer continually monitored the accused by looking through the small window in the door of the telephone room to ensure that the accused was not “messing around.” He explained that on the basis of past experience in impaired driving investigations, some accused persons “messed around” by eating pages from the telephone directory, by vomiting, and/or by sleeping rather than making earnest efforts to contact legal counsel.

In the course of monitoring the accused while he spoke with legal counsel, the officer overheard the words “Cold Lake” and “driving under the influence” through the shut door of the telephone room. In this regard, the officer took two to three steps away from the closed door to the telephone room to avoid hearing any more of the conversation. The officer recorded the words “Cold Lake” and “driving under the influence” in his duty note book. Aside from these utterances, the officer did not overhear any other words spoken by the accused while in the telephone room.

The accused testified that while speaking with legal counsel, he acknowledged that while the officer did not make any statements to him through the closed door, he could overhear conversations taking place outside the room when he was on the phone with legal counsel. Although he could not hear exactly what was being said, he was able to identify the voices of two investigating officers outside his door. He agreed that the officers were not yelling. Nonetheless, the accused was unsure as to what the officers themselves could hear from inside the room during his conversation with counsel. As a result, the accused concluded that his conversation was not private. This in turn made him reluctant to explore certain topics of legal inquiry with counsel. The accused’s primary concern was that he might be overheard. He testified: “I felt uncomfortable…I was nervous…the charges were serious…I was worried about them hearing what I had to say on the phone…even though I spoke quietly, the officer was continually coming up to the window.”

The accused admitted he did not then voice his privacy concerns to the officer because he wanted to appear cooperative and thought that it would not benefit his cause to do so. He assumed that he could subsequently “sort it out with counsel”. The accused also noted that it was nearing four in the morning and given that he had to report to work within a few hours, he did not feel there was anything to gain by raising these issues. He made it clear, however, that he would have preferred additional legal advice at that time in order to help him understand the criminal process he was facing.

Provincial Court Judge R.M. Saccomani said the s.10(b) Charter right to retain and instruct counsel includes the ability to do so in private without being overheard by police; R. v. Dowell, 2010 ABPC 389; R. v. Rudolph (1986), 32 C.C.C. (3d) 179 (Alta. Q.B.); R. v. Playford (1987), 40 C.C.C. (3d) 142 (Ont. C.A.). An accused person must be able to freely and candidly communicate with counsel in a manner consistent with the expectation of confidentiality — a hallmark of the solicitor-client relationship. It would defy common sense to expect an accused to properly instruct counsel if the conversation can be overheard; R. v. Edgar, 2013 ABPC 238 at para. 64; R. v. Playford, supra at para. 31. Conversations between a detainee and counsel typically require the provision of details or an explanation of the circumstances which led to the arrest. If such communications were overheard, they may be armed with the potential to seriously prejudice an accused in the exercise of legal rights; R. v. Playford, supra at para. 31; R. v. Burley, 2004 CanLII 9437 (ONCA). Police therefore have a duty to provide privacy to a detainee during his or her consultation with counsel. An actual lack of privacy in these circumstances is a breach of an accused’s s. 10(b) Charter rights; R. v. Hume, 2013 ONCJ 380 (Ont. C.J.) at para. 30; R. v. Carroll (2002), 2002 CarswellOnt 987 (Ont. S.C); R. v. Playford, supra at para. 40. Pure speculation or unreasonable assumptions on the part of an accused that communications could be overheard, however, would not be sufficient. On a balance of probabilities, there must be proof of a real or substantial possibility that a conversation was overheard; R. v. Stacey, 280 Nfld & P.E.I.R. 27 (Nfld. Prov. Ct.) at para. 25; R. v. Luong, 2000 ABCA 301.

The applicable legal test in the circumstances is the ‘reasonable apprehension test’. In the absence of a proven privacy invasion there may nevertheless be a s.10(b) infringement where an accused establishes: 1) a subjective belief that he/she could not retain and instruct counsel in private; and that 2) said belief was objectively reasonable in the circumstances; R. v. Dowell, supra; R. v. Edgar, supra; R. v. Watamaniuk, 2012 ABPC 266; R. v. Veness, 2007 ABQB 283; R. v. Cairns, [2004] O.J. No. 210 (Ont. C.A.); R. v. Miller, 1990 CanLII 6490 (NL CA). In applying the test, the court must consider unique contextual factors including the actual location where the accused was offered the opportunity to speak with counsel and events surrounding the alleged breach; R. v. Stacey, 2008 Nfld & P.E.I.R. 27 (Nfld. Prov. Ct.). There is no legal burden on an accused to advise police of privacy concerns at the time they arise. The presence or absence of a complaint is simply one of the contextual factors to be considered within the analysis of the totality of the circumstances; R. v. MacKinnon, 2013 NSSC 356 (N.S.S.C.) at para. 29; R. v. Hume, supra at para. 33.

Judge R.M. Saccomani examined a number of cases in which a s. 10(b) Charter breach was not found, and others where a s. 10(b) Charter breach was found. Applying all these principles to the case at hand, Judge Saccomani said the accused stated he was uncomfortable, nervous, and felt constrained to speak freely with counsel because he feared he might be overheard by officers. The accused concluded that his conversation was not private because he could hear police voices outside the telephone room while he remained inside on the phone. Throughout his conversation with counsel, he observed that he was being continually watched through the small window fitted in the door by the investigating officer. Resultantly, the accused curbed his legal inquiries which he would have otherwise preferred to explore. The officer similarly presented as a credible witness whose testimony did not have any material inconsistencies. The officer admitted that he overheard words spoken by the accused while he stood outside the room. As he was aware that the accused was entitled to privacy, he immediately backed away from the door and recorded what he heard in his duty book. The officer acted in good faith and tried to ensure compliance with the accused’s s.10(b) Charter rights.

Judge Saccomani said the police telephone room, its construction, the manner in which it was utilized, or potentially a combination of these factors, created a space which failed to satisfy one of its primary functions [i.e.] a private space for the accused to communicate freely and candidly with counsel. Although the precise reason the room failed was not the focus of inquiry at trial, evidence nevertheless established that the accused heard conversations outside the room and that he too was overheard talking to legal counsel while inside the room. In the circumstances of this case, the breach in question seriously undermined the accused’s s.10(b) Charter right to retain and instruct counsel. In the Judge’s view, the intrusion was significant. Following the Grant Test, the Judge excluded the Certificate of Analysis from the evidence.

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Reasonable and probable grounds to arrest

Can v. Calgary Police Service [2014] A.J. No. 1112 (C.A.) – an Alberta Court of Appeal has examined the threshold to be met for the “reasonable and probable grounds” standard, or to us officers after the 1985 era, the “reasonable grounds” standard. This will serve as a reminder to us experienced officers, while at the same time, hopefully I can assist the recruits in furthering their understanding of this concept.

The Supreme Court of Canada set out the governing test in R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250-1:

In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.

Section 495(1) of the Criminal Code stipulates that a peace officer may effect a warrantless arrest under a number of scenarios. One, set out in s. 495(1)(a), is that a “peace officer may arrest without warrant … a person who … on reasonable grounds … he believes has committed … an indictable
offence”.

But what degree of certainty is required before peace officer X can be held to believe that A has committed an indictable offence? If 100 percent certainty is not necessary, what lesser degree of certainty is required before one can conclude that X believes A has committed an indictable offence? Is it enough if X believes that it is more likely than not — fifty-one percent degree of certainty — that A has committed an offence? Is it enough if X is moderately certain — a degree of certainty approaching fifty percent — that A has committed an indictable offence? Is it enough if X suspects that A has committed an indictable offence?

Will the state allow a peace officer to arrest a person only if a fact pattern exists which allows a reasonable person to conclude that it is at least more likely than not that the person has committed a criminal offence? Professors Coughlan and Luther, in Detention and Arrest 76-78 (2010) are satisfied that this is the standard for a lawful warrantless arrest in Canada:

In the arrest context, the standard does not require so high a standard as prima facie case. However, it does require that the thing believed be more likely than not, that it be probable. … Many courts, the Supreme Court among them, have continued to use the phrase “reasonable and probable” when speaking of the required grounds for arrest. … It has occasionally been suggested that “reasonable grounds” in the arrest context can be satisfied by something less than probability, but this interpretation arises from failure to pay attention to context. The source of the confusion is a statement by the Supreme Court in Mugesera v. Canada … in which the Court said that reasonable grounds to believe required less than the civil standard of proof on the balance of probabilities. To apply this in the arrest context is to ignore that it is a statement about the standard in the Immigration Act for refusing entry to suspected war criminals, not a standard in the Criminal Code … There is no basis for thinking that it overrides [the Supreme Court’s] statements in Storrey, Debot, Barren v. Canada, or other cases which maintain the probability requirement.

A fifty-one percent degree of certainty is the starting point of the high degree of certainty sector of the spectrum. …

This point on the scale measuring likelihood of criminality — a high degree of certainty — would accord considerable weight to the liberty value. At the same time, settling on this measure as opposed to a less onerous standard, impairs to some extent the community’s ability to vigorously pursue law enforcement objectives. Most jurists would be reluctant to adopt such a demanding standard for a lawful warrantless arrest.

The Supreme Court of Canada has never stated with precision the degree of certainty that justifies an arrest under s. 450(1)(a) of the Criminal Code (revised to s. 495(1)(a) CC). Generally, speaking, it has been content to tell us what it is not.

A review of the Supreme Court of Canada’s opinions on warrantless arrest demonstrates that there are only two possible answers to how certain must the arrestor and the objective evaluator be before an arrest under s. 495(1)(a) of the Criminal Code is lawful. It is either a moderate or a high degree of certainty. There is no reason to argue that the extremely low, low or very high degrees of certainty have any judicial support.

First, the arrestor must believe, at the time the arrest was made, that there is (a) a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence. This is a subjective assessment and a question of fact. …

The second condition exists if a reasonable person, with the arrestor’s training and experience and aware of the facts known to the arrestor, would conclude that (a) there is a moderate degree of certainty or (b) a high degree of certainty that the arrestee has committed an indictable offence.

The existence of the second condition is a question of law and an objective evaluation. …

And as the Honourable Thomas W. Wakeling stated in this decision:

But I am troubled by the fact that the Supreme Court of Canada has not clearly articulated the standard it favors for a warrantless arrest. …”

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Arrest of accused held unlawful where crucial information that provided reasonable grounds was obtained from an earlier unconstitutional arrest

R. v. Brown 2014 BCSC 1872 – a British Columbia Supreme Court has examined s. 495 CC in the sense of information gathered as a result of one unlawful arrest being used to formulate grounds of a subsequent arrest (the ole adage of the “fruit of the poisonous tree” doctrine).

In short, after a suspicious meeting with the driver of the white Cadillac, who was unknown to the investigation until that time, and one of the two male parties who the Drug Unit had been surveilling and gathering supporting information on for some weeks, the driver of the white Cadillac was arrested. The lead investigator did not believe there were reasonable grounds for arresting the driver of the white Cadillac, but another officer arrested the driver of his own accord and for his own reasons (I will not discuss them here). Suffice to say, the court ruled that one suspicious meeting, without more, did not create a credibly-based probability that an individual was involved in an indictable offence. The fact that the white Cadillac was reported to have been associated with drug activities was not sufficient to further evidence to meet the reasonable grounds threshold. Form that unlawful arrest, cash and heroin were found in the car.

From surveillance and source information, the meeting between the driver of the white Cadillac and one of the two targets, and in part based on the cash and heroin found in the white Cadillac, the two other parties were also arrested that day. Those two parties were the actual targets of the investigation.

The Crown argued that the latter two arrestees did not have standing to challenge the presence of the cash and heroin found in the white Cadillac as a reasonable ground for the respective warrantless arrests of each of them. The Crown said that the respective Charter rights of both men were not engaged by the search of the white Cadillac. A Charter right is a personal right and “can only be made by the person whose Charter rights have been infringed”. In other words, in the case at bar, the search of the white Cadillac engaged only the first arrestee’s Charter rights.

The judge said in the case at bar, the officer relied on the heroin and cash found as part of the first male’s unlawful arrest as the determinative ground to justify the arrest without warrant of the other two males. Unlawfully obtained facts or evidence cannot be used as the determinative basis for establishing reasonable grounds for an arrest:

“If the Court were to rule that the cash and heroin could be considered as giving rise to “reasonable grounds”, then, as an investigative technique, the police would be tempted to conduct unlawful and warrantless arrests in the hope of finding evidence and then using such evidence as reasonable grounds under s. 495 of the Criminal Code to arrest an individual without warrant. The Court cannot signal such techniques as acceptable conduct.”

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If the police wish to control the process of contacting counsel, then they must do as much as reasonably possible as the accused himself or herself would do

R. v. Fulford 2014 SKPC 105 – although a decision at the Provincial Court level, I have posted it here due to some of the principles discussed in the case, which could relate to any situation upon arrest and not just the one at hand. This was an impaired driving case involving a breath demand where the court decided grounds existed for an ASD only (I have posted other cases related to this issue of concern prior to this one, so I won’t go into it here).

The main issue discussed involved a breach of Fulford’s s. 10(b) Charter rights. The arresting officer took it upon himself to locate three telephone numbers from the Internet for the accused’s lawyer of choice. Upon calling the first number, the officer received no answer. The second number produced a message from the lawyer’s “assistant” permitting a message option to be left; however, the officer did not leave a message. Inexplicably, the officer did not make the accused aware of the third number, nor even try to call it, because he testified it might have been an incorrect number and he did not want to bother the wrong person at this time of night. The officer then advised the accused that he was not able to get through to his counsel of choice, and the accused provided samples of his breath without obtaining legal advice.

When the accused was asked in his cross-examination why he didn’t try other counsel, he reiterated he wished only to speak to that particular lawyer and that if he could not be reached that evening he would have to try him the next day. Ordinarily, the court said this would be fatal to the accused’s position that his s. 10(b) rights were breached because the obligation would clearly be on him to try alternate counsel if his or her first choice could not be reached. However in this case, the accused could hardly be faulted in retrospect when he had been given misinformation and no reasonable opportunity had been given for his counsel to call back since proper efforts were not made to contact him by the officer.

The judge said that section 10(b) is a cornerstone constitutional right. When an accused is charged with a criminal offence, he or she should have full, fair and unfettered ability to speak to legal counsel of choice. Decisions made at this juncture could have profound long term significant effects on the future of the accused, including considerations of a criminal record, loss of license, impact on family and livelihood, and so forth. If the police wish to control the process of contacting counsel, then they must do as much as reasonably possible as the accused himself or herself would do (see R. v. Brouillette, 2007 SKPC 67 (P.C.)). This would entail making appropriate attempts and providing accurate information back to the accused to effectively exercise this very fundamental right. In effect, the police become the agent or arm of the accused for this purpose.

In order to avoid future difficulties in this regard, the Court made the following suggestions:

  1. give the accused a current year phone book and a reasonable time to peruse same unless of course the individual has a number he or she wishes to call at the outset;
  2. if a list of lawyers is present, then draw such list to the attention of the accused as an additional aid;
  3. if the accused signifies to the police officer that he or she requires assistance to locate counsel, then this should be provided by directing the individual to the yellow pages where the lawyers’ names are contained;
  4. if the policy of the police handling the phone and placing the call is employed, then the call should be made as provided to the officer and the accused should be informed that the number(s) have been called (the judge suggested that the better policy in the Court’s view is to simply allow the accused the opportunity to have the phone book and access to the telephone to dial directly – if the accused chooses to abuse this by calling someone else then clearly that is to their detriment);
  5. if the police locate telephone number(s) by alternate means, such as hereby Internet search, the results should be shown to the accused and all numbers utilized;
  6. if no answer is received and a message option is provided, the message should be left as to the circumstances and request an immediate call back. The accused should then be advised as to what has transpired and precisely what message was left;
  7. a reasonable time should then be given for the lawyer to in fact call back – what is reasonable will obviously vary in the circumstances depending upon time of day, whether it is a weekend et cetera, however the Court would suggest a minimum time of 20 minutes as sufficient for this purpose;
  8. if no call is forthcoming within the prescribed period then the accused should be reminded of his or her options to seek alternate counsel and again be given a reasonable opportunity to do so, if that is the accused’s wish.

The Court mentioned that no formula will fit every circumstance; however, this format in the Court’s view would be a simple common sense approach to reaching counsel of choice.

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Will the officer not having a copy of the arrest warrant with them result in a s. 9 Charter violation?

R. v. Gerlitz 2014 ABQB 252Mr. Gerlitz was arrested and detained on eleven outstanding warrants relating to the Income Tax Act and the Criminal Code. Gerlitz, a sovereign citizen (i.e. an individual who does not recognize the authority of the government), alleged that his rights under sections 7, 9, 10(a), 10(b), 10(c) and 12 of the Charter were breached from that incident. He sought a judicial stay of proceedings as the only appropriate remedy under s. 24(2).  While this case focused on other issues, the main issue was the rationale behind having a copy of the warrant upon arrest.

Despite acting on the basis of a valid warrant, the officers responsible for arresting and detaining Mr. Gerlitz did not have a copy of the warrant with them at the time of the arrest. The Crown conceded that it would have been feasible for the officers to have had a copy on them at the time of Mr. Gerlitz’s arrest. Therefore, by not having a copy of the warrant when it was feasible to do so, the police did not comply with s. 29(1) when arresting Mr. Gerlitz. However, the ABQB said that s. 29(2) is the applicable provision when dealing with an arrest warrant. As such, s 29(1) does not apply. Whether not having a copy of the warrant upon arrest amounted to a breach of Mr. Gerlitz’s Charter rights was the question.

In the analysis, the ABQB examined the pre-Charter case, Gamracy v. The Queen, [1974] SCR 640. The issue in Gamracy was whether the officer was acting in the execution of his duty in arresting a person on the basis of an outstanding warrant without having the warrant and without having any knowledge of the contents of the warrant. The accused was charged with assaulting a police officer in execution of his duty when the accused resisted arrest. The court found that the duty of the arresting officer is “fully discharged by telling the arrested person that the reason for his arrest is the existence of an outstanding warrant”. As such, the majority in Gamracy, found that the officer was in the execution of his duty.

In the case at hand, the Honourable Mr. Justice M.D. Gates said in cases where an arrest is made on the basis of an outstanding warrant, there are conflicting cases about what will satisfy the requirement under s 10(a) of the Charter. One line of authority, following the majority in Gamracy, states that informing a person that he or she is being arrested for “outstanding warrants” is sufficient. The other line, following the minority in Gamracy, states that a person needs to be advised not only of the warrant, but also the nature of the charge set out in the warrant. Thus, in R. v. Wrightman, 2004 ONCJ 210, aff’d [2005] OJ No. 1360 (SCJ), the failure of the arresting officer to advise the accused of the “particulars of the warrant” by stating only that there was a warrant for arrest fell below the constitutional requirement under s 10(a).

The evidence of the officer was that he told Mr. Gerlitz he was arresting him for outstanding warrants related to tax or fraud. In Justice Gates’ view, this satisfied the requirements under Gamracy and Wrightman. The inquiry under s 10(a) of the Charter did not, however, end there. The question was whether the information provided to Mr. Gerlitz, on his arrest and detention, “viewed reasonably in all the circumstances”, was sufficient for him to assess his legal position at the time.

Justice Gates said having a copy of the arrest warrant certainly would have been the “prudent police practice” as recommended in R. v. Beune, 2005 BCPC 175. While police are not required to always adhere to the best practices, the practice ultimately chosen in the circumstances of a given arrest must be sufficient to satisfy the Charter rights of the accused (see R. v. Cornell, 2010 SCC 31, at para 43; Beune, at para 59). The operative question in the analysis under s 10(a) of the Charter then was “whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).

In the end, Justice Gates ruled:

While I am of the view that the officers could have easily satisfied s. 29(1) in having a copy of the warrant to show to Mr. Gerlitz, I am not persuaded that Mr. Gerlitz lacked sufficient information to properly assess his legal position. It is, of course, very unfortunate that a copy of the warrant was not shown to Mr. Gerlitz at or near the time of his arrest. However, I take into consideration that throughout this proceeding Mr. Gerlitz has insisted on seeing original signatures on each and every document related to this prosecution. I am not at all certain that seeing a copy of the warrant would have met Mr. Gerlitz’s specific concerns. Having said that, I recognize that the determination of whether or not there was a breach of s. 10(a) involves an objective and not a subjective test. Viewed objectively, I am satisfied that Mr. Gerlitz was provided with sufficient information in this instance. As such, there was no breach of s. 10(a).

Therefore, a violation of s. 10(a) of the Charter depends on the circumstances.  What we should learn from this: Best practice: have a copy of the arrest warrant upon the time of arrest. Alternative: advise the accused of the “particulars of the warrant” and provide a copy later when feasible.  

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In a 2:1 decision, the ABCA ruled that a Production Order under s. 487.012(3) of the Criminal Code can be granted on reasonable suspicion according to the wording of the provision and reasonable grounds as for a search warrant are not required

R. v. Fedossenko 2014 ABCA 314the accused was injured in a single-vehicle accident. The accused was taken to the hospital in an ambulance. A police constable accompanied him in the ambulance. On the way to the hospital, the police constable asked the accused if he had anything to drink. The accused answered, “a few beers earlier”. The civilian witnesses, one was the EMT member, said nothing about alcohol or impairment. The constable and the paramedic who treated the accused testified that they could not detect the smell of alcohol in the ambulance. When the constable placed his nose close to the accused’s mouth, he said he could detect a “faint smell of alcohol.” The constable also testified that the accused was coherent and not slurring his speech. The accused’s eyes were noted to be red.

At the hospital, the accused received emergency medical treatment. Part of the medical treatment involved taking samples of the accused’s blood. After those samples were taken, police informed the accused that he was under arrest for impaired driving. He was read his Charter and caution rights. The accused responded saying that he understood his rights and did not wish to speak to a lawyer. He agreed to a police demand that he provide samples of his blood. As a consequence, a second set of samples of the accused’s blood was taken.

The following night, the police constable made an application before a presiding justice of the peace for a search warrant pursuant to section 487 to seize the vials of blood taken from the accused by the hospital for medical purposes. In support of that application, an Information to Obtain a Search Warrant was affirmed by the police constable. The constable stated that vials of blood taken from the accused while receiving emergency treatment would afford evidence that the accused committed impaired driving offences. He said the police wished to seize the vials of blood so they could submit them to the RCMP for analysis to determine the concentration, if any, of alcohol in the accused’s blood. The stated grounds for the constable’s belief that the vials of blood (or their analysis) would afford evidence of impaired driving offences was that the accused, when asked if he had anything to drink, replied “a few beers a little earlier” and that he, the constable, could detect a faint smell of alcohol when he placed his nose close to the accused’s mouth. The application for the search warrant was denied by a justice of the peace on the basis that there were insufficient grounds for believing that an offence had been committed.

Weeks later, the police received the results of the analysis which the RCMP performed on the samples taken pursuant to the blood demand. Those results showed a prohibited blood alcohol content. Armed with the results of the RCMP blood-alcohol analysis, the police then applied for an order requiring the production of the hospital’s emergency medical records including records of the analysis done of the respondent’s blood by the hospital. This application for an order to produce documents was made pursuant to section 487.012. The application was made before a different justice of the peace than the one who heard the search warrant application.

In support of this application for a “production order” requiring the hospital to produce its analysis of the accused’s blood, the same police constable swore an Information to Obtain which was almost identical to the Information to Obtain he affirmed in support of the search warrant. However, in this second Information to Obtain, the police constable included the additional fact of the RCMP analysis of the accused’s blood taken from him pursuant to the blood demand which indicated a blood alcohol level in excess of the legal limit. The production order was sought on the basis that the hospital records including the analysis of the accused’s blood would corroborate the RCMP analysis of the accused’s blood and would thereby afford further evidence respecting the commission of the impaired driving offences.

Significantly, in his Information to Obtain the production order, the police constable swore that he had reasonable grounds to believe that the accused had committed offences and that the documents sought would afford evidence respecting the commission of those offences. He did not however, inform the justice of the peace hearing his production order application that his prior application for a warrant to seize the vials of blood had been denied because the justice of the peace hearing that application found that there were no grounds to believe that an offence had been committed.

In the result, the production order was granted on the basis that the Justice of Peace was satisfied that there were reasonable grounds to believe that the accused had committed the impaired driving offences and that the hospital records would afford evidence respecting the commissions of those offences.

Prior to trial, the accused filed a Charter Notice alleging, inter alia, a breach of section 8 (the right to be secure against unreasonable search or seizure) of the Charter. At trial, the Crown conceded that the blood-alcohol analysis performed by the RCMP was inadmissible, having been obtained in breach of the Charter. Two witnesses to the accident, an EMS paramedic and the police constable who attended at the scene the night of the accident and who obtained the production order, testified. Following the evidence-in-chief of the police constable, defence counsel sought and obtained leave to cross-examine him on both his Information to Obtain the search warrant and his Information to Obtain the production order.

The trial judge concluded that the requirements of paragraph 487.012(3)(a) had not been met. Her reasoning was:

At the time of applying for the production order, the officer did not inform the JP that he had applied for an earlier search warrant and that he had been denied on the basis that there were no grounds to believe that an offence had been committed. If it had already been judicially determined that there were no grounds to issue a search warrant on this basis, then there would be also be no reasonable and probable grounds to arrest the accused and no reasonable and probable grounds to have the accused supply a sample of his blood. If I therefore excise from the ITO the illegally obtained results of the blood analysis, I am left with the identical ITO that had already been rejected.

In addition, in reviewing all of Constable Coates’ evidence, I concur with the JP who denied the search warrant request. Constable Coates fell well short of having reasonable grounds to arrest the accused and to make the demand. The only indicia of impairment was a single vehicle accident, admission of a few beers earlier, red eyes, a faint smell of alcohol on his breath, but only when the officer put his nose to Mr. Fedossenko’s mouth. Absent was any information about road conditions or driving pattern. The evidence of the EMS personnel was that Mr. Fedossenko estimated his speed to be between 50 and 60 kilometres. Neither the civilian witnesses nor Mr. Corey Amberley, the EMT that treated Mr. Fedossenko, noted any signs of impairment. Mr. Coates confirmed the accused was coherent, compliant and able to understand. Constable Coates testified that Mr. Fedossenko did not slur his words. He was able to respond appropriate. This was also confirmed by Mr. Corey Amberley, the EMT member.

If I remove the information in the ITO that should be excised, in particular, reference to the blood analysis, and include in the ITO the relevant information that the prior application for a search warrant in relation to the same investigation had been denied, and taking into consideration the totality of the evidence that I have heard, I find that on the material before me, there was no basis upon which the authorizing judicial officer could have been satisfied that the pre-conditions for the granting of the probation [sic] order was authorized. Having found that there was no basis on which to grant the production order that was being sought, I therefore find that there is a section 8 breach.

The summary conviction appeal judge dismissed the Crown’s appeal on the basis that the trial judge did not err in law in her interpretation of the standard required by section 487.012(3) for a valid production order. The summary conviction appeal court judge found the trial judge to be “right” when she found that the standard or standards for obtaining a search warrant and a production order are the same, that is, reasonable grounds to believe that the respective Code requirements were present.

The primary issue in this appeal to the ABCA was whether or not the granting of the production order complied with section 8 of the Charter. In order to determine whether the granting of the production order complied with the Charter, it was necessary to determine whether the obtaining of the production order complied with the relevant provision of the Criminal Code, namely section 487.012(3)(a), and whether the production order complied with that provision turns on how “reasonable grounds to believe that an offence … is suspected to have been committed” is to be interpreted.

Section 487.012 dealing with production orders was enacted in 2004 and has not been extensively judicially considered; whereas section 487 dealing with search warrants was enacted decades ago and has received considerable judicial consideration. In a 2:1 decision, the court ruled:

“Section 487.012(3)(a) of the Code sets one of three criteria for the potential grant of a production order to acquire evidence. Section s 487.012(3) provides that the information in support of the grant of the order must show “… that there are reasonable grounds to believe that (a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; …”. Both courts below interpreted that language to mean that the information in support of the order must always set out reasonable and probable grounds to believe that an offence has been committed.

The interpretation of s 487.012(3) of the Code by the Courts below is plainly wrong.

This provision, s 487.012(3) has two other requirements, namely (b) and (c). Altogether they provide for judicial authority to seize evidence which has already been obtained from the subject and is lawfully possessed by third parties. To effectively remove the words “or is suspected” from s 489.012(3)(a) would be unsupportable under the principle that Parliament does not use words to no purpose. … The appellant submits that to give s 487.012(3)(a) its ordinary grammatical meaning in its context would produce a different result than he says has been established under Charter principles as to s 487(1) of the Code respecting traditional search warrants. But the provisions are different and for a different purpose.

Under the circumstances here, the police were not required to show reasonable and probable grounds to believe the offence was in fact committed in order to meet the requirement in s 487.012(3)(a) of the Code. The purpose of the production order was to verify the reasonable suspicion that the offence was committed. …

The majority said that the medical interests of the accused were not at odds with his constitutional rights. As the trial judge and summary appeal judge excluded evidence and ultimately acquitted Fedossenko based on a mistaken interpretation of the legislative requirements for obtaining production of Fedossenko’s medical records, a new trial was required.

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The National Research Council Recommends Best Practices for Law Enforcement and Courts in Handling and Relying Upon Eyewitness Identifications in Criminal Cases

A new report from the National Research Council recommends best practices that law enforcement agencies and courts should follow to improve the likelihood that eyewitness identifications used in criminal cases will be accurate. Science has provided an increasingly clear picture of the inherent limits in human visual perception and memory that can lead to errors, as well as the ways unintentional cues during law enforcement processes can compromise eyewitness identifications.

To increase the likelihood of accuracy in eyewitness identifications, the report recommends that law enforcement agencies use the following practices in handling eyewitness identifications:

  • Train all law enforcement officers in eyewitness identification. An eyewitness’s memory of an incident can be contaminated by a wide variety of influences, including interaction with the police. All law enforcement agencies should provide their officers and agents with training about vision and memory, practices for minimizing contamination, and effective eyewitness identification protocols. Police officers should be trained to ask open-ended questions, avoid suggestiveness, and efficiently manage scenes with multiple witnesses (for example, minimizing interactions among witnesses).
  • Implement double-blind lineup and photo array procedures. Even if a line-up administrator doesn’t verbally tell the witness which person in a lineup or photo array is the suspect, he or she could still convey the suspect’s identity through unintended body gestures, facial expressions, or other nonverbal cues. Using a double-blind procedure, in which neither the witness nor the administrator knows which person in the lineup or photo array is the suspect, can avoid this inadvertent bias.
  • Develop and use standardized witness instructions. The report recommends the development of a standard set of easily understood instructions to use when engaging a witness in an identification procedure. Witnesses should be instructed that the perpetrator may or may not be in the photo array or lineup and that, regardless of whether the witness identifies a suspect, the investigation will continue. Such instructions should be used consistently in all photo arrays and lineups and could either be pre-recorded or read aloud by administrators.
  • Document witness confidence judgments. Evidence indicates that an eyewitness’s level of confidence in their identifications at the time of trial is not a reliable predictor of their accuracy. The relationship between confidence and accuracy is likely to be strongest at the time of initial identification. Law enforcement should document the witness’s level of confidence verbatim at the time when she or he first identifies a suspect.
  • Videotape the witness identification process. To obtain and preserve a permanent record of the conditions associated with the initial identification, the committee recommended that video recording of eyewitness identification procedures become standard practice.

The report also gives some best practices for the Courts, but I won’t get into those for this blog post.  These best practices are recommended, said the Report, because:

… [M]emory is often an unfaithful record of what was perceived through sight; people’s memories are continuously evolving. As memories are processed, encoded, stored, and retrieved, many factors can compromise their fidelity to actual events. Although the individual may be unaware of it, memories are forgotten, reconstructed, updated, and distorted.

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