Monthly Archives: November 2015

Conversation, Detention, Before an Arrest.

There are numerous websites that provide advice on how to deal with a police officer; many of these are based out of the USA, but the principles can easily be applied in Canada. The USA authority of ‘just cause’, known commonly as ‘articulable cause’ in Canada, probable cause, more commonly known as reasonable grounds (or reasonable and probable grounds) in Canada, can all easily be input into these so-called advice websites geared to teach a citizen about dealing with the police during street encounters and beyond. As officers, the difference between a conversation and a detention may not be all that ‘cut and dry’. It is becoming more and more important that we get it right.

In R. v. Poole 2015 BCCA 464Mr. Poole was walking in downtown Langley at approximately 3 a.m when two police officers in a marked vehicle observed him cross the street. The officers made a U-turn and pulled up alongside him. They rolled the window down and began to speak to Mr. Poole, obtaining his name and identification. When one of the officers ran the information through CPIC, he discovered an outstanding warrant for the arrest of Mr. Poole. The officers proceeded to arrest Mr. Poole and conducted a cursory search which revealed a loaded, fully cocked handgun concealed in his pants.

Poole was convicted on three charges for possession of a firearm dangerous to the public peace, carrying a concealed weapon, and possession of a restricted firearm without a licence or authorization, contrary to ss. 88(1), 90(1) and 95(1) of the Criminal Code, respectively.

The central issue on the voir dire was whether Mr. Poole had been detained when he was initially stopped by the police and prior to the arrest warrant being discovered and executed. Mr. Poole argued that the initial detention was arbitrary, contrary to s. 9 of the Charter. He also argued that he was not immediately informed of the reasons for his detention or of his right to counsel contrary to ss. 10(a) and (b). Mr. Poole’s position was that if the detention was arbitrary, then the search and seizure that followed were a breach of s. 8.

Mr. Poole and the two arresting police officers testified on the voir dire. Oftentimes in cases such as this, there was conflicting evidence given by Mr. Poole and the police officers. Both officers suggested dialogue began spontaneously when the cruiser window was rolled down without any verbal cues from either officer. Neither testified that they told Poole to stop. Poole testified he was told by one of them to stop and feared if he did not they would exit the car and detain him. The officers’ notes describe what followed as a casual chat in which the accused was cooperative and forthcoming to the point where he offered up identification and eventually his criminal past. Mr. Poole denied volunteering anything. Neither officer could recall being asked by Poole whether he could step behind the bushes to urinate, but neither denied he asked. Poole said he was told not to move. That suggestion was not put to either officer. Instead, a more neutral question “You responded no” was put to one of the arresting officers. On the evidence of the officers, the encounter was brief, friendly, and would not lead the casual observer to conclude that Poole was being detained. On Poole’s evidence, he was directed to stop, told not to move when he requested to do so, and asked to explain the contents of his backpack and ultimately produced it to one of the arresting officers when he exited the cruiser.

There were also inconsistencies in the evidence of the two officers, specifically as to the reason that one of the officers exited the cruiser. The notation was made by each material to the investigation in their notes or report to Crown counsel. Specifically, the officer that remained in the cruiser made an entry in his report to Crown counsel that referred to a street check. His notes failed to reference what was said to be the precipitating event leading to the contact with the accused, that is, the jaywalking, and he noted that he told the other officer to leave the car once the warrant was discovered, while the exiting officer noted that he left the car without any instruction on the basis of remarks made by Mr. Poole. The exiting officer’s report to Crown was in conflict with his evidence that Mr. Poole self-reported his armed robbery conviction. In the report to Crown, he noted the information regarding the accused’s records came back after he identified himself, leading to the conclusion that the information regarding the accused’s records was learned from the computer check done once particulars were entered onto CPIC.

The Trial Judge did not believe Poole’s version of events and the appeal court judges said that the trial judge’s assessment of Mr. Poole’s credibility and the resulting findings of fact were entitled to deference.

The issue on appeal that I want to discuss further was whether the trial judge misapplied the law when he determined that a detention did not occur prior to the execution of the outstanding arrest? Mr. Poole submitted that this case raised the same question identified in R. v. H. (C.R.), 2002 MBCA 58 at para. 12:

The question of whether a citizen has the right to walk the streets at any time of day or night without being asked by the police for identification, there being no articulable cause for seeking it, is, in my opinion, an important one which this court should address.

Poole argued that even if the trial judge’s findings on credibility stood on appeal, he erred in concluding that Mr. Poole was not detained before the arrest warrant was executed. Mr. Poole submitted that, unless a crime is occurring or police are conducting an investigation, a pedestrian has an expectation of complete freedom of movement, and if stopped by police as part of general policing duties will therefore always be detained. The appeal court said this proposition is not supported by the case law. A random stop of a pedestrian absent an investigation or crime may more readily lead to an inference of psychological compulsion, but that does not mean that every such stop amounts to a detention. As stated in R. v. H.(C.R.), 2003 MBCA 38:

[49] However, in this case, there was no crime committed and no investigation taking place. In such a situation, a pedestrian has the expectation of complete freedom of movement. To be stopped randomly in those circumstances without explanation by a figure of authority is contrary to one’s expectations and an inference of compulsion may be easier to establish than in other situations. As well, evidence of improper motive might reinforce an atmosphere of harassment or oppression and lead to a conclusion that the accused reasonably believed he had no other choice but to comply. While the police serve the community and perform vital law enforcement and peacekeeping functions, these objectives can be open to abuse in the form of racial profiling, harassment or other improper motives. So, for example, the court in R. v. Peck, [2001] O.J. No. 4581 (QL) (S.C.J.), held that there was a detention when one officer consciously relied on the race of the defendant as an important factor in deciding to question him.

The appeal court went on to examine other notable cases in this area, such as R. v. Mann, 2004 SCC 52, where the majority wrote at para. 19:

the police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.

In R. v. Grafe (1987), 36 C.C.C. (3d) 267 (Ont. C.A.), [1987] O.J. No. 796 (QL) at 7, the Court said that, “[t]he Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be.” In R. v. Grant 2009 SCC 32, the Court observed at para. 26 that detention does not occur in “every trivial or insignificant interference” by the police but only where “liberty is meaningfully constrained”. In Grant, a young man was walking on a sidewalk and was approached by a police officer who stepped in front of him, asked him “what was going on” and then asked the accused for his name and address. The accused provided a health card. Subsequently, the officer directed the accused to keep his hands in front of him. Further questioning ensued and other officers approached. The Court concluded that the encounter was not a detention at the stage of the initial general questions; the encounter only became a detention when “[t]he nature of the questioning changed from ascertaining [Grant’s] identity to determining whether he ‘had anything that he should not'” (at para. 49). In R. v. Suberu, [2009] 2 S.C.R. 460, a police officer approached the accused and told him, “[w]ait a minute. I need to talk to you before you go anywhere”, as the accused got into a vehicle. Before the accused could drive away, the officer asked the accused seven quick questions, and then also asked for the accused’s driver’s licence and vehicle registration. The Court considered the officer’s questioning to be general and preliminary in nature, rather than a focused interrogation, and found “the circumstances, as revealed by the evidence, do not suggest detention” (at para. 32).

These cases, said the appeal court, demonstrate that a brief encounter involving police questioning and a request for identification do not necessarily amount to a detention. Based on the trial judge’s findings here, there was no physical restraint or legal obligation on Mr. Poole to comply with the police officer’s request for his name. The officer was making general inquiries, not singling Mr. Poole out for focused interrogation. The officers did not initially get out of their vehicle or impede Mr. Poole’s travel, and the encounter was brief. Mr. Poole was 45 years old at the time, much larger in stature than either police officer, and had considerable past experience with police.

The Court in Grant made clear that not every involvement between police and the public amounts to a detention. This is so even where general enquiries are made by an officer and identification is asked for. There, McLachlin C.J.C. writing for the majority set out the following summary:

[43] Whether the individual has been deprived of the right to choose simply to walk away will depend, to reiterate, on all the circumstances of the case. It will be for the trial judge to determine on all the evidence. Deference is owed to the trial judge’s findings of fact, although application of the law to the facts is a question of law.

[44] In summary, we conclude as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

  • a. The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
  • b. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
  • c. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

Here, the actions of the police were not in the nature of a focused investigation as the term is understood in Grant, nor was there anything in the actions of the police which can be considered either oppressive, either in language or deed, such as to cause a reasonable person in the situation of the accused to conclude that he had no option but to remain. The encounter was short, approximately five minutes from the initial contact to his arrest. In that brief period, there was no command by the officers which could have reasonably led the accused to conclude he was not able to keep walking or that he was obliged to answer the posed questions. Poole’s appeal was accordingly dismissed.

Remember, take detailed notes of such interactions and any subsequent conversation. Something viewed as trite by us as saying, “Stop, police,” or “Keep your hands in front of you” can make all the difference between a conversation and a detention.

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Indecent Acts…..Investigative Steps Not to Forget

R. v. Novello, [2015] O.J. No. 5563 – this was an appeal by the accused from convictions for commission of an indecent act by masturbating in a public place in the presence of others and dangerous driving (this post will not discuss the latter). As a result of a complaint from a citizen, the appellant became the subject of an investigation by the members of the Toronto Police Service (TPS). The appellant was placed under surveillance by a team of police officers dressed in plain clothes and driving unmarked police cars. On both March 14 and 15, 2012, the appellant was observed masturbating in a public location while watching young children playing. On March 14, 2012, an officer saw the appellant park his vehicle at an apartment building and walk into a parkette where a number of young children were playing. The appellant was seen entering an alcove. He then put his hands in the front pockets of his pants and started masturbating. Similarly, on March 15, 2012, two officers saw the appellant, from different vantage points, in the vicinity of a soccer pitch, watching two young girls playing soccer together. Both police officers witnessed the appellant put his hands into his pants pockets and start masturbating. In their testimony, both of the officers related their observations in “very descriptive terms.” The trial judge concluded it was reasonable to infer, based on the independent observations of each officer, that the appellant was masturbating in a public place in the presence of one or more persons.

To reiterate, back in 2012, Section 173(1) of the Code stated:

Everyone who wilfully does an indecent act

(a) in a public place in the presence of one or more persons, or

(b) in any place, with intent to insult or offend any person, is guilty of an….

The relevant provisions have since changed to now read:

Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months.

Section 173 in 2012 provided that an indecent act may be a crime in one of two ways, and it still does, except now it is no longer a summary conviction offence, but a hybrid or “crown elected” offence, and it is no longer separated as paragraph (a) or (b) as different offences; the difference today is to be reflected in the charge wording itself, and not delineated by paragraph (a) or (b) as different charges as they were in 2012.  Only after the crown election does the (a) or (b) matter now and that is in terms of trial procedure and sentencing, etc. So, for the remainder of this post, when paragraphs (a) or (b) are mentioned, know that although the delineation is no longer there in 2015, the principles discussed are still the same.

The mental element of “wilfully” applies to both subsections (a) and (b). No further mental element is required under subsection (a). The intention of the “actor” does not determine the indecent quality of the act. The subsection also requires that the act occur in a public place. In contrast, subsection (b) requires a mental element in addition to wilfulness. The act must be done with the intention to insult or offend another person. It may take place either in public or in private. The intention of the “actor” to insult or offend determines the indecent quality of the act.

I won’t discuss the issues of “community standard of tolerance” or whether or not the acts require a sexual context in this post because I simply want to discuss some investigative steps that as officers, we must not forget to cover; the standard of tolerance issue and sexual context issue are for the Crown to argue. According to Justice Campbell of the ONSC in Novello, the trial judge made a legal error in finding that a “presumption of intent to do an indecent act wilfully arises where it is seen by another person,” and that the appellant was, accordingly, guilty of “wilfully engaging in an indecent act of masturbation in a public place in the presence of one or more persons” (as cited from R. v. Parsons, [1963] 3 C.C.C. 92 (B.C.S.C.)). 

In this context, “wilfully” seems to serve two purposes: first, the person must have wilfully committed the act of masturbation (which was easy to prove here); second, however, addresses the wilful nature of the “presence” of one or more persons itself. Justice Campbell said two points have to be considered: (1) whether or not an accused is, in fact, observed by another engaged in an indecent act; and (2) whether or not the accused wilfully engaged in that indecent act in the presence of another person. For example, an accused may engage in an indecent act in circumstances where he or she is not aware of the presence of another, and is not aware that he or she is being observed by another. In such circumstances, it would be illogical for a court to presume that, having been surreptitiously observed by another while engaged in an indecent act, the accused must have wilfully performed the indecent act in the presence of another person.

As officers, although the offence is no longer delineated as (a) and (b) in 2015, our investigation must be catered to what the offence elements are for the charge. Did the person wilfully do an indecent act in a public place in the presence of one or more persons, or did they do it in any place with intent to insult or offend any person? Through our investigation, when it is a charge under what was 173(1)(a), we should cover off whether or not the person knew they were being observed by another; did he or she attempt to catch the eye of the complainant or anyone else, for example? In reading this case, I recalled another case I read a while back in which the person was convicted of an offence under 173(1)(a) of the Code (R. v. Gill, [2010] B.C.J. No. 2005, 2010 BCPC 256) in which the female complainant and the defendant were stopped at a red light (separate vehicles). The complainant felt as if someone was watching her, looked to the vehicle on her left, and saw the defendant masturbating and the defendant looked towards her. She and the defendant made direct eye contact with each other; she testified that the defendant was “very obviously” trying to get her attention. After the initial eye contact, he covered his penis and then re-exposed his penis as he stared at her through the passenger window of his vehicle. The trial judge found that Mr. Gill’s conduct was wilful in masturbating in the driver’s seat of his car while stopped at a traffic light on a busy Surrey street, and while he was deliberately making eye contact with the complainant, and as such was an indecent act in the presence of one or more persons. The only reasonable inference to be drawn from the proven facts was that Mr. Gill would be seen by the female complainant and he knew it. The exhibitionist nature of this conduct was, said the trial judge, further clear evidence of the intention of Mr. Gill.

Whereas, in another case I read (R. v. Sloan, [1994] O.J. No. 758, 89 C.C.C. (3d) 97 (Ont. C.A.)), a car parked in a secluded corner of a parking lot over 100 feet away from other cars, such that ordinary passer by would not have been able to see into the car, was not an indecent act because it did not fit the meaning of a “public place”. The ONCA is Sloan ruled that surreptitious surveillance cannot turn what is essentially an act done in private into one which takes place in public (per Galligan J.A.).

If the offence is under the old 173(1)(b), the indecent act was done wilfully with the intent to insult or offend, so the investigation must be conducted to uncover those elements of the offence. In contrast, s. 173(2), which deals with the exposure of genital organs to a person under 16 years of age, explicitly requires that the exposure be for a sexual purpose. This suggests that Parliament was alert to the prospect that some, but not all, indecent acts have a sexual purpose. Parliament did not use similar language in respect of the purpose of the acts targeted in s. 173(1)(a) or (b).

Back to the case at hand; in Novello, the trial judge found that [the appellant] positioned himself in a somewhat clandestine manner and was observed to place both hands in his front pants pockets close to the groin area and vigorously move his hands back and forth continuously as the front of his pants tented and he paced back and forth in an excited state. But since there was no evidence to infer or suggest that the appellant knew he was being observed or watched, Justice Campbell said there was no legal presumption that, where an accused was engaged in some indecent act and was, in fact, observed by another person while engaged in that indecent act, the accused must, therefore, have wilfully engaged in the indecent act in the presence of the other person.

Justice Campbell said instead of carefully reviewing the evidence in the case in order to determine whether or not the Crown had, in fact, established that the appellant possessed the specific intent of wilfulness required by s. 173(1) of the Criminal Code, the trial judge erroneously convicted the appellant based upon a perceived (but non-existent) legal presumption that the necessary wilfulness was established by the fact that his acts of masturbation were in fact witnessed by another. As a result, the conviction for the offence of indecent act was set aside and a new trial ordered.

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