Monthly Archives: February 2019

Sidebar from the Reeves decision…worthy of a post

I didn’t want to take away from the “consent” issue/debate in the Reeves decision by cluttering it with a couple of other issues that require their own post.  Of note in Reeves was whether the police infringed Reeves’s Charter rights by entering the shared home without a warrant. This issue was not fully canvassed by the majority since it was not the main issue on appeal (Reeves conceded during oral submissions before the Court that he was not challenging the police entry into the Reeves-Gravelle residence). That being said, Justice M.J. Moldover, concurring with the majority, took some time to address the issue and I believe it’s something worthy for officers to appreciate. Justice Moldover wanted to express some tentative views on the issue of police entry into a shared residence, a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.  Justice Moldover felt that this is an important issue for debate since the police entry into the Reeves-Gravelle residence on the strength of Gravelle’s consent was the catalyst giving rise to a chain of events that culminated in the discovery of child pornography on the shared computer. If the entry contravened s. 8, it follows that the evidence discovered during the search of the computer was “obtained in a manner that infringed or denied” Reeves’s rights, bringing it within s. 24(2)’s exclusionary reach.

Further, Justice Moldover wrote that the legality of the police entry has implications beyond the four corners of this case. Police frequently attend residences to investigate suspected or ongoing criminal activity. Many of those residences are inhabited by more than one person with authority to permit third parties to enter the home. Counsel’s concession that police entry into a shared residence is not a “search” therefore has the potential to affect a large swath of Canadian society by shifting our understanding of the right to be free from unreasonable search or seizure. Do police have the authority to enter the shared residence at common law under the ancillary powers doctrine, to take a statement, for example?

Consider a situation where a complainant calls the police and informs us that her partner has physically abused her but has left the house. There is no emergency that would allow the police to enter the home under the emergency search power articulated in Godoy. Without each occupant’s consent, the police would be unable to enter the home. At present, the police would appear to have two options. They could ask the complainant, who has just been assaulted, to suffer the embarrassment of speaking to the police outside of her home — a request that could understandably be met with a refusal. Or, we could try to obtain the consent from the co-resident who allegedly perpetrated the abuse — an exercise almost guaranteed to prove futile. Or a situation after being called by a resident who reports a theft of property from a home she shares with six roommates, are we required to (1) determine how many people live in the home, and (2) seek out and obtain the consent of each before entering the home to take a statement? In each of the foregoing examples, short of intruding on the co-resident’s expectation of privacy, we would effectively be powerless to investigate the reported criminal offences.

Our homes have the potential to reveal the most intimate details about our personal lives. Individuals therefore typically have a heightened expectation of privacy within their homes. That said, five constraints on the police entry power that Justice Moldover articulated to minimize the extent of the interference with that expectation, inlcude:

  1. First, the police must query whether conducting the interview in the person’s home is necessary. If, after being presented with the option of having the interview at home or elsewhere, the person is ambivalent as to where it takes place, then the interview should be conducted outside the home. On the other hand, if the person indicates a preference to speak with the police at home, the police may act upon that preference. They need not attempt to weigh the strength of the person’s conviction not to be interviewed outside the home. Nor ought the police to cross-examine the person about his or her underlying fears and motivations, in an effort to determine whether the person will leave the home if pressed or cajoled.
  2. Second, the scope of the entry power would be narrowly tailored to its purpose. Courts regularly focus on the purpose of a particular police action to evaluate its legality. For example, in Evans, this Court held that residents are deemed to grant the public, including police, an implied licence to approach their home and knock. However, the police may only approach a residence under the implied licence to knock doctrine if their purpose in approaching is to communicate with an occupant: Evans, at paras. 13-16. Similarly, a search incident to arrest is only lawful if the purpose of the search relates to the purpose of the arrest: R. v. Caslake, [1998] 1 S.C.R. 51, at paras. 19-25. The purpose of the entry power that I am articulating is to take one or more statements in connection with a criminal investigation, whether from the authorizing resident, or from other willing occupants, as the authorizing resident may permit. Absent further lawful authority, the legality of the entry ends when the police exceed that purpose. To be precise, the police may not go further and lawfully search the residence or seize evidence from it unless they obtain the necessary grounds in the course of taking the statement or statements.
  3. Third, the police would only be permitted to enter the common areas of the home. This too flows from the purpose of the entry. Because the police are only in the residence to take a statement, there is no need to enter any private areas, such as bedrooms, where a resident’s expectation of privacy is generally at its highest. In contrast, each co-resident has a reduced expectation of privacy in common areas of their home.
  4. Fourth, the police can only enter if invited in by an occupant with the authority to consent. Unlike many of the other statutory and common law police entry powers, forced entry would be strictly prohibited. Furthermore, the consent must be voluntary and informed, and the resident’s consent must be continuous and may therefore be revoked. The police must respect the resident’s wishes if he or she revokes the consent.
  5. Fifth, the entry would only be for a limited duration. If, after taking the statement, or statements, the police do not obtain the requisite grounds to undertake any further investigative action, they must immediately leave the residence.

To summarize, the common law police power that Justice Moldover tentatively described to allow a narrow entry power to take a statement from an individual with the authority to grant police entry, or from other willing occupants, as the authorizing resident may permit, has five criteria:

(1) The police must offer the authorizing resident, and any other cooperating occupants, a suitable alternative interview location — if one is available — that does not potentially intrude upon the reasonable expectations of privacy of co-residents in their home. (2) The purpose of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants, in connection with a criminal investigation. The police may not go further and search for or seize evidence unless they obtain the necessary grounds to do so in the course of taking the statement or statements. (3) The police are only permitted to enter the home’s common areas into which they have been invited. (4) The police can only enter if invited in by a resident with the authority to consent and that consent must be voluntary, informed and continuous. (5) Unless the police obtain the necessary grounds to take further investigative action, the duration of the entry must be limited to taking a statement, or statements, from the authorizing resident, or one or more willing occupants.

Another interesting tidbit from the Reeves decision was from Justice Cote, concurring with the majority:

“Nevertheless, even though I am of the view that the entry into the home and the seizure of the computer were both lawful, I would still exclude the evidence under s. 24(2) of the Charter based on the other violations of law in this case — specifically, the fact that the police failed to comply with ss. 489.1 and 490 of the Criminal Code, R.S.C. 1985, c. C-46, by improperly detaining the computer and the fact that the search warrant was ultimately found to be invalid.”

Don’t forget or neglect to file the Report to Justice and Detention Order!

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Consent – not as clear-cut as it was in the yesteryears…

Reeves (R. v. Reeves 2018 SCC 56) shared a home with Gravelle, his common-law spouse. They were joint titleholders and had lived with their two daughters in this home for ten years. In 2011, Reeves was charged with domestic assault following an altercation with Gravelle and her sister. After this incident, a no-contact order was issued which prohibited Reeves from visiting the family home without Gravelle’s prior, written, and revocable consent. In October 2012, Gravelle contacted Reeves’ probation officer to withdraw her consent. She also reported that she and her sister had found what they believed to be child pornography on the home computer. They had found it in 2011.

Later that day, a police officer arrived at the family home without a warrant. Gravelle allowed the officer to enter. Gravelle signed a consent form authorizing the officer to take the home computer, which was located in the basement, a shared space in the home. The officer testified that he sought Gravelle’s consent because he did not believe he had reasonable grounds to obtain a warrant to search the home and seize the computer. The computer was owned and used by both spouses. Reeves was in custody on unrelated charges when the computer was taken by the police.

The police detained the computer without a warrant for more than four months, but did not search it during this time. They failed to report the seizure of the computer to a justice, as required by s. 489.1 of the Criminal Code, during this period. In February 2013, the police finally obtained a warrant to search the computer and executed it two days later. The police found 140 images and 22 videos of child pornography on the computer. Reeves was charged with possessing and accessing child pornography.

Reeves succeeded on a pre-trial application to exclude evidence based on a breach of his s. 8 Charter rights. The application judge found that Reeves had a reasonable expectation of privacy both in his home and its contents, including the computer. He found that Reeves’s rights were violated through the warrantless search and seizure of the computer from the home because he did not consent, by retaining the computer for four months without reporting the seizure to a justice and that the ITO relied upon to secure the warrant to search the computer was insufficient, so the warrant should have been denied. The judge found that the Charter-infringing conduct was serious as was the impact on Reeves’s Charter-protected interests and ordered that the evidence be excluded. As a result of the exclusion of evidence, the Crown’s case was gutted and an acquittal was entered. The ONCA found that while Reeves was a joint owner of the home, he had a minimal reasonable expectation of privacy in it as he could not access the home without his partner’s consent, she had revoked her consent, and he was in custody at the time. Seizing the computer did not interfere with Reeves’s heightened expectation of privacy in it or imperil any of his legitimate interests. Reeves’s partner could consent and her consent was valid as it was voluntary and informed. As a result, the evidence was admissible and a new trial was ordered.

Before I get into the SCC’s decision here, recall for a moment the R. v. Vu 2013 SCC 60 decision, which essentially ruled that:

[i]f, in the course of a warranted search, police come across a computer that may contain material for which they are authorized to search but the warrant does not give them specific, prior authorization to search computers, they may seize the device but must obtain further authorization before it is searched (para. 3; see also para. 49).

So, part of the issue here was no statutory or common law authority could have justified the computer seizure in this case. If the police had had a warrant to search the home, Vu would have justified the seizure — but not the search — of the computer. The key issue in this case, then, was whether the police officer could rely on the consent of Reeves’s spouse to take the shared computer from their home?  To a lesser degree, whether the police infringed Reeves’s Charter rights by (1) entering the shared home without a warrant; and (2) taking the shared computer without a warrant.

The SCC said that, in short, the issue of whether police entry into a shared home with the consent of one resident violates the Charter raises complex questions that require a considered response, and they would be best answered in a case that directly turns on this issue, with the benefit of full submissions. Therefore, in this case, the legality of the police entry did not affect the legality of the taking of the computer.

At para. 47:

“…in light of the deeply intimate nature of information that can be found on a personal computer, Reeves’s subjective expectation of privacy was objectively reasonable. His spouse’s consent could not nullify his reasonable expectation of privacy in the computer data. Indeed, both the Crown and the Court of Appeal appear to have recognized that Reeves had a reasonable (although diminished) expectation of privacy. While Reeves’s reasonable expectation of privacy in the computer was limited, given that he shared control over the computer with his spouse, it still suffices to trigger the protection of s. 8 of the Charter …. Indeed, “[a] reasonable though diminished expectation of privacy is nonetheless a reasonable expectation of privacy, protected by s. 8 of the Charter” ….

The SCC then turned to the alternative proposition that underlied the Crown’s argument — that Reeves’ Charter rights were waived by Gravelle’s consent. The presumptive warrant requirement for seizures captured by s. 8 of the Charter is not triggered if Reeves’s Charter rights were waived. The Crown’s argument that there was no seizure within the meaning of the Charter when a party with an equal and overlapping privacy interest provides consent would effectively permit the consenting party to waive the privacy rights of the other parties. This would be inconsistent with the Court’s decision in R. v. Cole 2012 SCC 53, said the SCC (the third-party consent doctrine – although a person may not have exclusive control over the home and computer, control does not need to be exclusive to support a reasonable expectation of privacy. By assuming the reasonable risks of shared living, a person does not assume the risk that the police can enter a shared home and seize its contents at the sole discretion of a co-resident).

According to the SCC, Reeves had a reasonable expectation of privacy in the shared computer, and his rights had not been waived. Accordingly, the taking of the computer by the police constituted a seizure within the meaning of s. 8 of the Charter. This warrantless seizure was not reasonable because it was not authorized by any law. The seizure therefore violated Reeves’s rights under s. 8 of the Charter. Given the seriousness of the state conduct and of its impact on Reeves’s Charter-protected interests, the application judge was correct in concluding that the admission of the evidence would bring the administration of justice into disrepute. The evidence was excluded and the acquittal restored.

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Godoy – 20 years later – misunderstood or misapplied?

Uniformed officers in R. v. Pireh 2018 ABPC 291 responded to a complaint from a person who resided in a condo complex. The complainant heard what sounded like people were being thrown around and there was yelling, banging, and thrashing going on in the unit; it sounded like they were throwing each other around, but the complainant wasn’t sure if it was fighting or playing. Other information obtained was a smell of marihuana coming from the place. The complainant also believed that there were four people living in that suite. No children that they knew of lived there, and the occupants that lived there were adult males in their early 20’s.

On arrival, police had a conversation with the complainant, whom the police had to contact to gain access to the condo complex. At that time, the complainant indicated that it sounded like the males were fighting in the suite. It sounded like they were being thrown up against the walls. The complainant identified the exact suite where the sound was coming from.

As police approached the door to the suite, it was silent. There were no sounds coming from the suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. Police knocked at the condo door, and it answered by Pireh, but he simply cracked the door open just enough for him to poke his head out. The officer wasn’t able to see inside the suite. He identified himself and advised Pireh that due to a concerned neighbour that heard what sounded like a physical confrontation in his suite, that they were there to check on the welfare of everyone in the suite.

Pireh was not forthcoming with information and didn’t want police to have access to the suite. Pireh stated that he was just playing around with his cousin, but didn’t want police to come in. The officer advised him that due to the complaint of sounds of people being thrown around into walls and thumping and banging, they were there to check on the welfare of everyone in the suite to ensure nobody was in any medical distress or injured. Again, Pireh didn’t want to let them into the suite. The officer then advised Pireh that they were coming into the suite based on their common law duty to ensure nobody in the suite was in any kind of medical distress or in need of any assistance. At that point, Pireh opened the door and officers entered the suite.

As soon as officers entered the suite, they identified a male as Pireh’s cousin, Eskandar, standing in the hallway. Pireh went into the living room area. An officer followed Pireh into the living room area to discuss what was going on, and to ensure no one was in any kind of need. Both Pireh and Eskandar “appeared sober, calm, no injuries.”

Pireh stood next to the couch and white coffee table in the living room area. Almost immediately, an officer noticed what appeared to be a black handgun on the white coffee table. At that time, the officer grabbed the gun to secure it and verify it was a real firearm. When he picked the gun up, he was able to verify it was a real firearm. He ejected the magazine and found 7 rounds of 9mm ammunition in the magazine. He then worked the action to eject any live round from the chamber. No live round was ejected. He then made the firearm “safe.” There was no trigger lock on the gun and it was not secured in any kind of container. The handgun was a 9mm Smith and Wesson. The serial number was defaced. After making the gun safe, he placed it on the kitchen counter.

After telling his partners that he had found a live handgun, officers arrested Pireh. After Pireh was arrested, and having been informed that 4 males lived in the suite, officers carried on searching the suite to ensure there were no other people that may be injured were there. Officers then searched the laundry room, and then entered a bedroom. No other people were found. The bedroom was messy with piles of clothes everywhere. On exiting the bedroom, an officer noticed a dresser against a wall with some of the dresser drawers partially opened. Inside one of the drawers he noticed a bundle of money wrapped in a rubber band and two clear plastic bags containing what appeared to be crack cocaine (one of the plastic bags was later determined to contain 24.3 grams of crack cocaine. The other bag contained 7 grams. The combined weight was 31.3 grams). Police applied for and later returned to the suite to execute a CDSA search warrant – less than 30 grams of marihuana was also found, and some documents in the name of the other tenants of the condo. Pireh was charged with 11 offences relating to the handgun, readily accessible ammunition, and drugs.

The judge examined that emergency calls can originate from a number of different sources. In many cases, there is evidence of a 911 call, or 911 hang-up call, that may relate to both domestic and non-domestic situations, originating from complainants both inside and outside a private residence. Absent there being a 911 call, the police agency in question had created a list of priority calls, categorized in terms of seriousness and immediacy, as priority # 1, # 2 and # 3 calls. Again, these calls may relate to both domestic and non-domestic situations, and originate from complainants both inside and outside a private residence. Finally, according to the evidence adduced in this case, the agency had created a list of codes to identify a particular situation (i.e., code 1014 – causing a disturbance) that may or may not be ongoing, and may relate to domestic and non-domestic situations, originating from complainants both inside and outside a private residence.

In terms of applicable legal principles, the trial judge drew no distinction between a 911 call and a priority # 1 dispatch call. In the circumstances of this case, the police treated them in the same way as requiring an immediate response to an emergency situation. As well, in terms of applicable legal principles, the judge drew no distinction between a call to the police originating from inside a private residence and a call originating from outside the residence. As the judge cited, an informed caller from outside the apartment describing the nature of the emergency is a more reliable justification for a concern about the health and safety of the occupant of the apartment than is a disconnected telephone call. In the judge’s view, the  analysis relating to 911 calls, and analogous 911 calls, was equally applicable to the police responding to an outside complaint of a code 1014 – causing a disturbance call. In determining if an immediate police response to an emergency situation was required, the court had to examine all the surrounding circumstances, including the context of the complaint, and the situation at the residence on arrival by police.

The judge found that the complaint received by the police in this case was not a 911 emergency call, or a priority # 1 complaint or a domestic situation. Police were not certain that it was, and when viewed along with the totality of the evidence, evidence in this regard was not reliable. The complaint in this case was a police response to an outside, code 1014 – causing a disturbance call, placed by a neighbour who lived in the same building as the accused. Based on the totality of the evidence, the judge accepted that the police had an honest belief that they were entitled to enter the accused’s suite to ensure the safety of everyone that may have been in the suite.

At paras. 136-137:

“The difficulty in this case is that the police only had limited information as to what an outside third party said she heard going on in the suite. The credibility and reliability of the complainant could not be tested because she did not testify in the voir dire. When the police attended at the building and approached the door to the accused’s suite, it was silent. There were no sounds coming from the accused’s suite. Contrary to the information provided by the complainant that there was a smell of marihuana coming from the suite, when the police arrived, they did not smell marihuana coming from the suite. When the accused answered the door, the police described both him and Eskandar… “appeared sober, calm, no injuries. Although the police could not see into the suite, there is no evidence that anything was going on in the suite at the time.”

“When viewed objectively, the limited information available to the police as to what may have been going on in the accused’s suite, what they saw at the scene, and their conversation with the accused at the door, did not give rise to an emergency situation that would entitle this Court to view the code 1014 – causing a disturbance call as analogous to a 911 call. This case boils down to a complaint made by a disgruntled neighbour about sounds… “people being thrown around, yelling, thumping and banging, isn’t sure if it’s fighting or playing…” coming from the suite occupied by the accused and three other males in their 20’s, no women or children or anyone being in distress mentioned.”

The judge ruled that the Crown had failed to satisfy the court on the balance of probabilities that the police had reasonable grounds to enter the accused’s suite pursuant to their common law duty to ensure the safety of everyone that may have been in the suite. Therefore, the entry by police into the accused’s suite and search was not authorized by law and violated section 8 of the Charter.

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Warrantless tracking or “pinging” of a cell phone…

R. v. Day [2018] N.J. No. 370 – police were engaged in a police chase of a vehicle. The police stopped the chase when it seemed dangerous but determined the owner of the vehicle (Romaine Fudge – no relation). The owner said the vehicle was loaned to Day and Keefe, an individual known to the police and wanted on an arrest warrant. Keefe was known to be the driver of the vehicle. The police obtained Day’s cell phone number from the owner and requested that OCC conduct a cell phone ping to determine Day’s location. The police did not seek a warrant to authorize the search. The police made several pings. The police later located the vehicle at the owner’s residence. Keefe and Day had returned the vehicle and left on foot. There was no evidence that Day was suspected of having committed any offence. Day and Keefe were located and arrested. It was during the arrest of Keefe that Day resisted arrest, assaulted a peace officer, uttered threats to cause death, and breached conditions of an undertaking.

Day argued that her rights under s. 8 of the Charter were violated. The Crown admitted that the pinging of Day’s cellphone was a warrantless search but argued that it was necessary for officer safety because Keefe had a history of violent and unpredictable behavior.  To officers not familiar to this provision of the Code, Section 492.1 sets forth the grounds upon which the police may obtain a warrant for a tracking device such as a cell phone at subsection (2):

A justice or judge who is satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under this or any other Act of Parliament and that tracking an individual’s movement by identifying the location of a thing that is usually carried or worn by the individual will assist in the investigation of the offence may issue a warrant authorizing a peace officer or a public officer to obtain that tracking data by means of a tracking device.

Section 487.11 of the Criminal Code states:

A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

As you can see, Section 487.11 does not reference subsection 492.1(2). The question remains as to whether, in the absence of a warrant and the statutory authority pursuant to section 487.11, the police may rely on a common law authority to conduct a search in exigent circumstances.

This search (“ping”) was not incident to arrest, but any informed officer will know that there does exist a common law authority to conduct a warrantless search even where, as in this case, that authority is not codified. The issue of exigent circumstances appear to rest on two bases: the first basis relates to the risk of imminent loss or destruction of the evidence or contraband before judicial authorization could be obtained; the second basis emerges where there is a concern for public or police safety.

In the case of Day, the Crown did not allege that the exigent circumstances relied upon by the officer were in relation to the loss of evidence but rather that the exigent circumstances involved a danger to people. The trial judge ruled that although there may have been some risk to the police officers and to the public during the high speed pursuit of Keefe which could constitute exigent circumstances, that risk was eliminated once the chase was discontinued by police and certainly once the vehicle was located at the home of the lawful owner. There was no evidence that the officers themselves were in danger and the statement of one officer that “they (Day and Keefe) might break into someone’s home” while evading police was groundless and speculative. The judge was satisfied that the officer chose to disregard the rights of Day to be protected against unreasonable search and seizure based on the convenience of locating Keefe and for fear, not that he might cause harm, but that he may evade the police.

The use of Day’s cellphone to track Keefe was willful and in reckless disregard of her Charter rights and had a serious impact on her reasonable expectation of privacy. Given that the offences occurred when Keefe was arrested, there was no basis to believe that they would have occurred at all if the breaches were not perpetrated. The judge ruled that the admission of evidence obtained by police subsequent to the breach would bring the administration into disrepute.

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Teacher using concealed camera to make surreptitious video recordings of female high school students – voyeurism?

What defines expectation of privacy for the Criminal Code offence of voyeurism? R. v. Jarvis 2019 SCC 10 was largely about a teacher in a high school who used a covert, miniature camera to take videos of young women’s cleavage over more than a year. It was discovered and he was charged under the relatively new voyeurism offence in the Code. Two essential elements of the offence are that there have to be circumstances that give rise to a reasonable expectation of privacy and the recording has to be done for a sexual purpose. In Jarvis, the recording took place in otherwise “public areas” of the school, so not in washrooms or changing rooms. It also has to be “surreptitious”, but the observation itself was not surreptitious. What was being recorded was largely observed in real-time by the teacher. The recording was surreptitious.

While the trial judge found that the students the accused had recorded were in circumstances that give rise to a reasonable expectation of privacy, he acquitted the accused because he was not satisfied that the recordings were made for a sexual purpose (it’s hard to get my head around that, as the teacher had many, many recordings spanning more than a year of students’ cleavage and chest areas. I’m not sure what other purpose he could have had, but what do I know?). The Court of Appeal unanimously concluded that the trial judge had erred in law in failing to find that the accused made the recordings for a sexual purpose. Nevertheless, a majority of the Court of Appeal upheld the accused’s acquittal on the basis that the trial judge had also erred in finding that the students were in circumstances that give rise to a reasonable expectation of privacy (the court was split on the reasonable expectation of privacy in a “public place” where the young women could generally be observed by teachers and other students). 

The SCC ruled that… “Privacy”, as ordinarily understood, is not an all-or-nothing concept, and being in a public or semi-public space does not automatically negate all expectations of privacy with respect to observation or recording. Rather, whether observation or recording would generally be regarded as an invasion of privacy depends on a variety of factors, which may include (these are not word for word how the SCC listed them):

  • a person’s location – the fact that the location was one from which the person had sought to exclude all others, in which she felt confident that she was not being observed, or in which she expected to be observed only by a select group of people may inform whether there was a reasonable expectation of privacy in a particular case.
  • the form of the alleged invasion of privacy – was it an observation or recording? Given that recording is more intrusive on privacy than mere observation, a person’s expectation regarding whether she will be observed may reasonably be different than her expectation regarding whether she will be recorded in any particular situation. 
  • the nature of the observation or recording – relevant considerations may include whether the observation or recording was fleeting or sustained, whether it was aided or enhanced by technology and, if so, what type of technology was used, etc.
  • the activity in which a person is engaged when observed or recorded and the part of a person’s body that is the focus of the recording – relevant considerations may include whether the observation or recording targeted a specific person or persons, what activity the person who was observed or recorded was engaged in at the relevant time, and whether the focus of the observation or recording was on intimate parts of a person’s body.
  • any rules, regulations or policies that governed the observation or recording in question – although formal rules, regulations or policies will not necessarily be determinative, in this case, there was a school board policy in effect at the relevant time that prohibited the type of conduct engaged in by the teacher.
  • the relationship between the person who was observed or recorded and the person who did the observing or recording – relevant considerations may include whether the relationship was one of trust or authority and whether the observation or recording constituted a breach or abuse of the trust or authority that characterized the relationship. This circumstance is relevant because it would be reasonable for a person to expect that another person who is in a position of trust or authority toward her will not abuse this position by engaging in unconsented, unauthorized, unwanted or otherwise inappropriate observation or recording.
  • the purpose for which the observation or recording was done – for example, if a patient disrobes to allow a physician to view her breasts or other sexualized parts of her body for the purpose of receiving a medical diagnosis, the patient cannot complain that the physician has breached any reasonably held expectation of privacy by performing the diagnostic procedure. However, if the diagnostic procedure turns out to be a pretext on which the physician relies in order to view the patient for a non-medical purpose — whether sexual or otherwise — the patient’s privacy will undeniably be violated. The SCC said that sexual purpose, as an element of the offence in s. 162(1)(c), must be established beyond a reasonable doubt for the offence to be proven. In some cases, depending on the entire context, observation or recording may not breach expectations of privacy despite having a sexual purpose. In such cases, the offence in s. 162(1) will not be made out. In other cases, observation or recording may be an obvious breach of privacy regardless of its purpose, and it can ground a conviction under s. 162(1) if the other elements of the offence are made out.
  • the personal attributes of the person who was observed or recorded – considerations such as whether the person was a child or a young person may be relevant in some contexts.

Because Jarvis’ videos were of teenage students, were recorded by their teacher in breach of the relationship of trust and of a formal school board policy, were shot at close range, were of high quality and were focused on the bodies of students, Jarvis acted contrary to the students’ reasonable expectations of privacy. The Court entered a conviction and remitted the matter for sentencing.

I suspect after this case, we will see more court cases and discussions around what is an expectation of privacy in generally public places? We’ll also have to think hard about what role technology plays in privacy, particularly where CCTV cameras are said to be largely equivalent to real-time recordings. This will impact our investigations in the months and years to come. As cited in para. 62 of the Jarvis decsion:

“This is not to say that any person who appears in any public place retains a reasonable expectation that she will not be recorded by anyone for any reason: some types of visual recording in public places are to be expected. Rather, it is to emphasize that there is a fundamental difference between mere observation and recording and that this difference is part of the context that must be considered in analyzing reasonable expectations of privacy.”

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It was just a matter of time – do you recall the Patrick (2017) decision?

“Do you have anything on you?”An all too often posited question by us to an arrestee.

To save readers the time in recalling R. v. Patrick (2017) BCCA 57 (application for leave to appeal dismissed by SCC), the BCCA ruled that an officer’s narrowly tailored questions motivated solely by safety concerns are permissible to a detainee about to be frisk searched (the question must be specific to address safety-based concerns and not an attempt on our part to use the search power conferred by Mann as a subterfuge for evidence gathering). The court went on to say that nothing compels a detainee to answer such a question (see my previous post on this case for more details).

Fast forward, in R. v. Fead [2018] A.J. No. 1573, before the officer proceeded with the search subsequent to the arrest of Fead for officer safety, he made an inquiry of her as to what she might have in her possession. The officer had no memory of what he asked her (he made very few notes and had little memory). He provided various possibilities including, “Do you have anything that would hurt me, poke me, stab me?” “Do you have anything on you?” Do you have anything that I need to be aware of, “Do you have anything on you that you should be concerned about?”

Whatever the officer said to her, she responded by acknowledging she had cocaine and syringes in her shoe. The trial judge answered the question of whether it was a narrowly tailored question as to anything in the possession of the detainee that might cause injury to the officer solely motivated by safety concerns in the officer’s favour.  The ABQB disagreed.

The trial judge found as a fact the officer asked “Do you have anything on you?”, but the ABQB ruled that the court record does not support such a finding; therefore, it was an error on the face of the record. It was impossible to conclude the officer asked a narrowly tailored question with respect to officer safety. The officer did ask something, but in his evidence in chief said he had no specific recollection of the question. He testified as to his normal practice as to “anything that would hurt me, poke me, stab me.” He fairly acknowledged it could have been “Do you have anything on you I should be concerned about?” or as broad as “Do you have anything on you?” Interestingly, the syringes could be a response to a safety inquiry, but the cocaine to an evidence collection inquiry. As the ABQB did not know what the officer said, the reasonableness test in Patrick could not be applied.  

The reasonableness test you ask? Well, would a reasonable person consider the question narrowly tailored as to whether a detainee has possession of anything that might injure the searching officer rather than an inquiry to collect evidence? The ABQB found that the warrantless search was unreasonable and a breach of section 8 of the Charter. The evidence should have been excluded.

Lesson for us?  Keep the question specific to address safety concerns in these types of situations; notes, notes, notes…..and if an officer relies on his or her “common practice” as opposed to notes or memory, be prepared to be asked for more evidence respecting your standard practice to further support the reliability of your evidence in this regard, such as how long and how often you have used this standard practice, and how long you have been a police officer, etc.  If defence can show the unreliability of your evidence of common practice (sometimes you do this, but there are times you do that), it won’t fare well for your testimony.

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A “Prosper Warning” at this point in law enforcement should not be a foreign concept…

In R. v. Roberts 2019 YKTC 2, an officer responded to a complaint of a possible impaired driver. Following the traffic stop, the officer effected her arrest for impaired driving. As per legal procedure, the officer provided her with her Charter right to legal counsel. She stated that she understood her Charter right to counsel and said that she wished to speak to legal counsel. She said that she did not wish to speak to a Legal Aid lawyer; however, she did not specify a particular lawyer that she wished to speak to. She also did not say that she wished to make a call to a lawyer right away.

Roberts was taken back to the Detachment, a drive of approximately three or four minutes. There was no discussion en route in regards to Roberts speaking to legal counsel. Upon pulling into the Detachment, the officer told Roberts that he would take her to the interview room in order to allow her to contact counsel. Roberts stated that she did not want to call a lawyer anymore. The officer then directed Roberts into the interview room, where he asked Roberts again whether she wished to call a lawyer. Roberts stated for a second time that she did not want to speak to a lawyer. This was approximately one and one-half minutes after first stating that she did not wish to speak to a lawyer, and 11 or 12 minutes after initially stating that she wished to speak to a lawyer.  There was no further discussion or comment by either Roberts or the arresting officer in regard to the issue of legal counsel. After the second time that Roberts said “no” to speaking to legal counsel, the officer felt that she had made up her mind. He said that he did not feel like he should force legal counsel on her if she did not want it.  Roberts provided samples of breath, which exceeded 80mg%.

The arresting officer testified that since the arrest of Roberts, he has learned what a Prosper warning is (this post is meant to educate, not to show this officer in a bad light), and although he had been an officer in excess of 10 years at the time of this occurrence, this was the first case that he had faced this issue of the need to provide a Prosper warning. He said that he had never previously been instructed about the need to provide a Prosper warning when an individual under arrest changes their mind after making an initial request to speak with legal counsel. He said that it was his understanding that he was not the only police officer who was unaware of the need to provide a Prosper warning in such circumstances. 

My fellow officers, Prosper has been the law since 1994. This was not a recent change in the law that could excuse ignorance of it. The expectation is that as officers, we will understand the law as it was stated in Prosper and act in compliance with the requirements of the law.  As an educator in law enforcement, one of my primary duties is to ensure that officers enforcing the laws in Canadian society have an acceptable level of understanding of the fundamental principles governing the actions of those acting on behalf of and in the name of the “State”.

To that end, please be aware that the requirement to provide a Prosper warning is triggered when a detainee who has indicated that they wish to exercise their Charter right to counsel, then changes their mind. Taken one step further, a Prosper warning is required when a detainee who has asked to speak to legal counsel, has then taken further steps to contact counsel, but has been, through no fault of their own, frustrated in those attempts and then changes his or her mind. And, as in this case, even in circumstances where the detainee changes his or her mind about speaking to legal counsel prior to making any actual efforts to do so, a Prosper warning is nonetheless required (some provincial “Charter cards” name the Prosper warning such things as “Confirmation of waiver of rights to counsel”, etc., but are nonetheless Prosper warnings).

There are also several decisions across our country (some I have posted on) that have found Section 10 Charter violations where, following an ambiguous response such as “Not right now” (Munro, Ontario case), “Maybe later” (Kehoe, Alberta case), or “At this point I don’t want to call a lawyer” (Dyck, another Alberta case), which are not unequivocal and capable of supporting many interpretations, the arresting officer did not seek clarification of the response or give the Prosper warning.

Take my suggestion for what it’s worth, but such responses must be clarified and a Prosper warning given as a “best” practice to reduce such Section 10(b) Charter breaches. At the very least, in such cases it may be a good practice of re-advising detainees of the right to counsel, and stating to the arrestee something to the effect that, “If you change your mind at any time tonight during this whole process that you want to talk to a lawyer, just let myself or any other officer know and we’ll make sure you get in contact with a lawyer, okay?” (as in the R. v. MacGregor 2012 NSCA 18 at para. 7 case).  Recruits that I have instructed are likely glutted with hearing me state the latter.

In the case at hand, the evidence of the breath tests was excluded from trial, and the evidence of the officer’s observations of Roberts after she exited her vehicle at his request was excluded from trial as well. As in this case, reading the Prosper warning to ensure that Roberts’ change of mind and waiver of the right to speak to legal counsel was clear and unequivocal, would likely have taken less than 30 seconds to provide this information to her. Any delay subsequently resulting from Roberts then deciding to exercise her right to speak to legal counsel would be reasonable and in accord with the Charter right to counsel.

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Can an assistance order under Section 487.02 of the Criminal Code be used to compel an arrestee to unlock their cell phone so that the police can search it?

A judge with the Ontario Court of Justice ruled it can’t.  In R. v. Shergill 2019 ONCJ 54, he was charged with a variety of sexual and child pornography offences in relation to his alleged interaction with a 15-year-old girl. Police seized his smart phone, a Blackberry Priv, incident to arrest. They then obtained a search warrant under s. 487 of the Criminal Code to search the contents of the device, but were unable to execute that warrant because the device was password-protected. Police applied for an assistance order because police argued that currently no technology would allow them to access the contents without risking their destruction. As a result, the police saught a further s. 487 warrant with an assistance order, which if granted, would compel Shergill to unlock the device so that the police could search it.

Shergill argued that the order would be constitutionally prohibited because it would compel him to communicate to the police information currently existing only in his mind for the purpose of assisting them in obtaining potentially incriminating evidence against him. That compulsion, he argued, would be a breach of his s. 7 liberty interests and would not be in accordance with the principles of fundamental justice. Compelling him to participate in his own investigation by revealing information known only to him would violate his right to silence and the protection against self-incrimination, both of which are principles of fundamental justice. In short, Shergill argued that a court order requiring him to communicate his thoughts for the sole purpose of providing access to evidence which may be used to send him to jail would be an unprecedented and unconstitutional use of the assistance order power.

The judge agreed with Shergill.  While the judge accepted that the current digital landscape as it relates to effective law enforcement and the protection of privacy presents many challenges, on his best application of controlling authority, he was simply not persuaded that the order sought can issue without fundamentally breaching Shergill’s s. 7 liberty interests, a breach which would not be in accordance with the principle of fundamental justice which says that he has the right to remain silent in the investigative context. The judge felt that the data on the Blackberry, which the police are only able to access and obtain if Shergill provided his password, is derivative evidence (basically, evidence which comes to light as a result of a compelled disclosure) and must be protected by derivative use immunity in order for the proposed assistance order not to fall foul of section 7 of the Charter.

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