Category Archives: Interesting Read

Can police charge you with impaired driving if you drunkenly drift down a river on a raft or canoe?

In April 2017, Ontario Provincial Police laid impaired driving charges against a 37-year-old man (David Sillars) who was allegedly drunk and tipped a canoe on the Muskoka River near Bracebridge.  An eight-year-old boy who was in the canoe was swept over a nearby waterfall. Emergency crews tried CPR, and took the boy to the hospital, but he later died of his injuries.

Here are some links to a couple of the news articles around this incident: https://nationalpost.com/news/politics/canada-set-to-remove-drunk-canoeing-as-an-impaired-driving-offence;

https://globalnews.ca/news/3365913/boy-8-dies-after-canoe-capsizes-near-bracebridge/;

https://globalnews.ca/news/4569883/toronto-man-on-trial-for-impaired-operation-of-a-canoe-causing-childs-death/

The impaired driving legislation that went before Parliament in September-October 2017 sought changes to the definition of a vessel so that it “does not include a vessel that is propelled exclusively by means of muscular power.”  That didn’t sit well with the Canadian Safe Boating Council, who testified before the House of Commons committee studying the bill. This meant canoes and kayaks and other “vessels” propelled exclusively by muscular power would not be considered as “vessels” under the Criminal Code. During the Justice Committee hearings, a number of different agencies, including the Canadian Safe Boating Council, made submissions against this exclusion. The proposed definition excluding “vessels” propelled exclusively by muscular power was negatively reflected in a number of media reports provided by the Crown. Statistics were provided in the CSBC’s submissions, which reflected the increase in the number of non-motorized vessels propelled exclusively by muscular power. Ultimately, the exclusion of “vessels” exclusively propelled by muscular power was removed from the final draft of the definition of “vessel,” which was presented to Parliament for ratification.

Fast forward to this month, R. v. Sillars 2018 ONCJ 816. Sillars was charged with impaired operation of a vessel causing death, operating a vessel with more than 80 mg of alcohol in 100 ml of blood, and dangerous operation of a vessel. He was also charged with criminal negligence causing death. One of the key issues raised by both counsel respecting the first three charges was whether a canoe is included in the term “vessel” contained in Part VIII — Offences Against the Person and Reputation. Both counsel were in agreement that s. 214 CC does not provide a comprehensive or complete definition of “vessel;” in fact, it does not provide any definition at all. It would have been a simple task for Parliament to clearly indicate in s. 214 a comprehensive and inclusive definition of the term, “vessel,” yet it did not (the definition does include a “hovercraft”).

The case is an interesting read for someone that wishes to know more on the judge’s reasoning, but in essence the judge said at para. 31:

It is my view, the danger of harm is equally present whether a person is operating a canoe or a motor boat with a 5 hp. motor or a 150 hp. motor and their ability to do so is impaired by alcohol, however slight. Operating a canoe while impaired is sufficiently morally culpable to warrant the stigma of a criminal sanction. The danger of harm is to the person or persons operating the canoe, or the passengers in the canoe or other persons operating small vessels in the vicinity or those coming to assist when an emergency occurs as a result of the person operating the canoe being impaired, over 80 or operating dangerously.

It was the judge’s finding that the term “vessel” contained in s. 253(1)(a), s. 253(1)(b), and s. 249(1)(b) CC includes a canoe. At para. 60:

Consequently, for all of the reasons set out in these reasons it is my view Parliament intended to include vessels propelled exclusively by muscular power, including canoes, in the Criminal Code offences of impaired operation of a “vessel,” operating a “vessel” with greater than 80 mg alcohol/100 ml of blood and dangerous operation of a “vessel.”

“…any kind of activity involving the use of a vessel, including those propelled exclusively by muscular power, is inherently dangerous given the activity is on water, where the depth of the water is usually greater than a person’s height and the proficiency of members of the public respecting their ability to swim is considerably varied” (Sillars, at para. 48).

“…Certainly the purpose of the Criminal Code offences being considered here is to protect members of the public travelling on Canada’s waterways from harm, the operators themselves, passengers in the “vessel,” other operators of “vessels,” with or without passengers and anyone providing assistance when an emergency occurs as a result of the consumption of alcohol or drugs or both” (Sillars, at para. 57).

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A novel 9-0 SCC judgment upholding a New Brunswick liquor law that incidentally restricts the transport of Canadian-made alcohol from Quebec across New Brunswick’s border.

I will post more of the decision soon, but for now here is a quick link for those interested in a case brief: https://www.thelawyersdaily.ca/articles/6351?utm_source=rss&utm_medium=rss&utm_campaign=section

 

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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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The Nova Scotia Court of Appeal has overturned the verdict of a jury, declaring it “unreasonable”

R. v. Murphy 2014 NSCA 91 – a jury found the accused guilty of possession of drugs for the purpose of trafficking. He appealed, alleging that the verdicts were unreasonable or not supported by the evidence. The appeal was allowed, the verdicts quashed, and acquittals entered.

In September of 2008, the police executed search warrants for three locations: a storage locker believed to be rented by the accused; a home in one location, and one for an apartment in another location. The police arrested the accused when they searched the home. No drugs or any relevant evidence was found in the home or the storage locker.  In the apartment, police found $290.00 in cash in a kitchen cupboard; empty Ziploc bags containing an unknown white residue; score sheets with names and dollar amounts; a thermos under the kitchen cupboards containing two bags of cocaine, each weighing approximately 29 grams; 26 hydromorphone pills (in an unmarked pill bottle) were found in the master bedroom dresser drawer; a digital scale; 14 grams of cocaine in the nightstand beside the bed in the master bedroom, along with a white mixing bowl; $1,315.00 in cash in a safe in the master bedroom; .4 grams of cocaine in a man’s jacket in the hall closet.

The Crown called six witnesses. One was a police officer, qualified to give expert opinion evidence. Four police officers testified about their involvement in the investigation. The sole civilian witness was the property manager of the apartment building. When police search the apartment, the door to the apartment was ajar. They entered. An officer described finding “an older gentleman” asleep on the chesterfield in the living room. An officer determined his identity and released him without charge. Defence called one witness; the sister of the accused.

The property manager identified the accused as the tenant for the apartment from 2006 to the early fall of 2008. She asserted that he lived there by himself, except he did have a girlfriend who stayed with him for couple of weeks in 2006, until she got an apartment of her own in the building. She described how the accused came to her office in 2006 with another male. The lease was in the other male’s name, with the accused listed as an occupant. The rent was paid by automatic withdrawal from the other male’s chequing account.  Twice, the payment ‘bounced’. Both times, the accused paid the property manager in cash to replace the dishonoured payment from the other male’s bank account. The first time was in July of 2006 ($525.00); the second was in May of 2008 ($525.00 plus $25.00 for the NSF fee). The receipt for this latter cash payment was introduced as an exhibit. The property manager described that she had occasion to speak with the accused when she was cleaning the halls, and that a few times “he got locked out and he came over and I had to go over and open his apartment to let him in”. She said she saw him coming and going. During the cross-examination, the property manager said that she did not live in the same building, nor socialize with the accused; she simply saw the accused as she was going about her duties as manager or if there was a problem. In addition, she confirmed that the first time the police contacted her about the events of 2006 to 2008 was in November of 2012.

The defence’s sole witness, the sister of the accused, testified how she had lived at the home (not the apartment) until she was 20 years of age, and then moved away for 26 years. There was some confusion about dates. She said she returned in 2007 when her mother underwent surgery, but came home permanently in July of 2009, and was present when the police conducted the search of the home and arrested her brother. In any event, she testified that she was familiar with the apartment in question as being the residence of the other male, a friend of her brother. To her knowledge, the accused had never resided there. She did visit the apartment in 2006 with the accused and their mother. She said they went to the apartment as that was where the accused kept his two cats, and the other male let them in.

The Crown asked the jury to conclude that the accused lived in the apartment and therefore had control over its contents including the drugs, which they could infer he had knowledge of, in light of their location in the apartment and value. Defence urged the jury to find a reasonable doubt that he was in possession of the drugs. Counsel was highly critical of the quality of the police investigation: the long delay in contacting the property manager; there had been no police surveillance connecting the accused to the apartment; nor fingerprints, documents, or anything else that connected the accused to the apartment, let alone the drugs. In essence, it was the absence of evidence that mandated a reasonable doubt. The jury convicted Murphy of possessing those drugs for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. The Honourable Justice Cindy Bourgeois (as she then was) was the trial judge. Mr. Murphy was at that time fifty years of age, with no prior conviction. Justice Bourgeois sentenced Mr. Murphy to 36 months’ incarceration.

I won’t get into the legal framework for the appeal as that is a jurisdictional concern for the courts to be concerned with, and not us as officers. The NSCA said the case against the accused was entirely circumstantial. No one saw him exercise any acts of control over the drugs, nor was he in actual possession of them. However, criminal liability for possession of drugs can attach if an accused is proven to have constructive or joint possession of them.  Section 2 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 directs that possession means possession within the meaning of subsection 4(3) of the Criminal Code. Section 4(3) of the Code creates three ways a person can be found to be in possession: personal possession; constructive possession; and joint possession. The formal language used is as follows:

  • 4(3) For the purposes of this Act,
    • (a) a person has anything in possession when he has it in his personal possession or knowingly
      • (i) has it in the actual possession or custody of another person, or
      • (ii) has it in any place, whether or not that place belongs to or is occupied by him, for the use or benefit of himself or of another person; and
    • (b) where one of two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the possession of each and all of them.

This was a case of constructive possession, according to the NSCA. That is, the Crown asserted that the accused knowingly had the drugs at the apartment for his use or benefit. To state the obvious: there was no direct evidence that the accused knew the drugs were in that apartment. To convict the accused, the jury must have rejected the evidence of the accused’s sister and accepted the evidence of the property manager, that the accused was living in the apartment by himself. From that fact, and that fact alone, the jury must then have inferred that he knew of the presence of the drugs found in the master bedroom and under the kitchen cupboard and had control over them; from the decision, the jury must of done so.

The question, of course, was the evidence of the property manager as to the occupancy of the accused sufficient to permit the jury, acting judicially, to find the charges proven beyond a reasonable doubt? Put another way, would a trier of fact, without more, be entitled to infer that the accused knew of the presence of the drugs found in the master bedroom and under the kitchen cupboard in a thermos and had control over them? In this case, the Crown commented that a trial judge would not likely have convicted.

The Honourable Duncan R. Beveridge, speaking for an unanimous NSCA, said if the accused were the sole occupant, why is it that the Crown did not produce a shred of evidence that the accused’s belongings were present in that apartment, such as documents, bills, clothing, personal effects–something. The only reference to personal effects was to a set of car keys and a jacket. The jacket was in the hall closet (.4 grams of cocaine was seized from one of its pockets). The police did not seize the jacket. There were no photographs introduced of the jacket or of the closet where it was found. There was no evidence that it was a man’s or woman’s jacket, or whether there were other clothes present. The Crown led no evidence about where the car keys were found, just that an officer seized them. If the accused were the sole occupant, surely the car keys were his, and the Crown could have led evidence tending to establish this fact, said Justice Beveridge. The accused was not present, so it is a matter of common sense that he would have had his car keys with him, if he owned a car. Someone else was present and asleep at the time. There was no admissible evidence as to explain why he was present, and what he was doing there. There was evidence that the police searched the accused (and the premises where he was located) when he was arrested. If he were the sole occupant of the apartment, why did the police not find a set of keys to that apartment?

Justice Beveridge said there was lacking any of the usual evidence that demonstrated regular occupancy or connection to the drugs. In light of all of those circumstances, Justice Beveridge concluded that with all due respect, the jury reached its verdict in a non-judicial manner and the only basis upon which the jury could find knowledge and control was to draw an inference, which in this case was of insufficient weight from which to infer knowledge and control. The evidence led by the Crown in this case simply did not permit a reasonable trier of fact to draw an inference that the accused had the requisite knowledge and control over the contents of the apartment in September of 2008.

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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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Are clones “plants” for the purposes of s. 7 of the Controlled Drugs and Substances Act?

R. v. Machula 2014 ONCJ 461 – Machula plead guilty to one count of Production of Marihuana, contrary to s. 7 of the Controlled Drugs and Substances Act. A sentencing hearing was then held to establish the number of plants produced by the accused. This was relevant of course due to the various minimum sentences that apply depending on the number of plants.

During the search, officers found 398 three to five inch clones, plus 23 mature plants in the basement. Outside, they located an additional 32 three to five inch clones. It was agreed that the 430 three to five inch clones were cuttings from the mature plants which had been placed in soil, watered, fertilized, and situated under grow lights. They were all in individual peat moss pots.

The issue was whether a clone is a plant as that term is used in s. 7(2)(b)(iii) of the CDSA. Mr. Machula testified that some clones had been cut and planted some two to three weeks earlier and he agreed that they would have root systems. He said, however, that he had cut new clones and put those in pots just two days prior to the search. He said those would not yet have grown roots. He did not say how many recently cut clones there were.  The defence argued that in order to be a plant, there must be a root system. In other words, that a cutting from a mother plant stuck in a pot of dirt is not a plant.

There is no definition of plant in the CDSA. The Crown’s expert testified, that while there was a dispute for legal purposes as to what constituted a plant, he expressed the opinion that:

“A plant was an organism which had or has, the ability to sustain life through photosynthesis. Once a cutting had been planted in some sort of suitable substrate, it became a plant…It was not necessary for a plant to have roots.”

The Crown’s expert included a dead plant within his definition. The defence witness expressed the opinion that a plant was a viable vegetative entity that is capable of sustained and independent life. A cannabis cutting became a plant once it had developed a good root system which was viable in the sense that the cutting was capable of maintaining photosynthesis through it.

The Court decided that a plant “included a cutting which had struck or established roots.” It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a part of that plant. This meaning also included a dead plant. Thus, the existence of roots, whether alive or dead, is what distinguished a cutting which had become a plant from a cutting which was simply a piece of the mother plant.

Ontario Court Justice R.G. Selkirk then examined the definition of “propagate” and believed that this definition describes the process of cloning whereby a piece of the mother plant is inserted into soil, watered, etc. in the hopes a viable plant will ensue.

“The act of cutting a piece of the mother plant off and treating it with a root hormone, as Mr. Machula did here, and placing it in soil which is watered and fertilized and placed under grow lights fits well within the common usage of the words cultivate or propagate. This requires the cutting to be something more than just a piece or a part of the mother plant. It requires evidence of efforts to grow that piece into a mature plant by placing the cutting into soil and providing it with the necessities for growth such as water, nutrient and light.”

Justice R.G. Selkirk said this definition was appropriate because it avoids mere pieces or parts of the mother plant without anything more falling into the definition of plant, but captures pieces being cultivated or propagated into mature marihuana plants whether or not there are roots. It captures the recently started grow operation which still has all the inherent dangers and risks of a grow operation.

“I will define a marijuana plant as a substance analysed to be contained in Schedule II which is being cultivated or propagated or harvested. Pursuant to that definition, the existence of roots is irrelevant…”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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