Category Archives: Police News

An Act to Amend the Criminal Code – R. v. Shoker Follow-up

S.C. 2011, c. 7, “Response to the Supreme Court of Canada Decision in R. v. Shoker Act,” allowing for drug test conditions in probation orders, will come into force on March 31st, 2015: Order in Council: P.C. 2014-1449; SI/2014-105.

The proposed amendment (s. 732.1(3)(c)) and the proposed additions (ss. 732.1(3)(c.1), (c.2); 732.1(7-12); and 732.11) are already included in the 2015 Criminal Code, so I won’t post them here. Just advising of the “coming into force” date.

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

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

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

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

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

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

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Threshold Officer “Safety Search” – first appeal of it’s kind to the SCC

R. v. MacDonald 2014 SCC 3 – in 2009, the accused (MacDonald) was employed in the oil and gas industry. His employment required him to spend time in both Calgary and Halifax. On the evening of December 28, 2009, MacDonald entertained a co-worker and his co-worker’s friend at his Halifax condominium. Some alcohol was consumed during the evening as MacDonald and his colleague, who was about to replace him in Halifax, discussed work.

Later in the evening, the caretaker of MacDonald’s building received a noise complaint regarding loud music reverberating from MacDonald’s condo.  The caretaker went to the condo, heard the loud music and knocked on the door. He received no response. Just as he was about to leave, he saw MacDonald’s guests leaving the condo and saying good night. At this point, the caretaker asked MacDonald to turn down his music. MacDonald, swearing at him, refused to do so.

The caretaker contacted the Halifax Regional Police and asked them to deal with the complaint about the noise issue. A constable went to the building and, together with the caretaker, approached MacDonald’s condo. The constable knocked on his door and asked him to turn his music down or off. MacDonald swore at her and slammed the door shut.  The constable contacted her sergeant, who arrived at the building approximately a half hour later. The sergeant, the constable, and the caretaker went to the condo and the sergeant tried to get MacDonald to answer the door by knocking on it and kicking it, and also shouted that he was from the Halifax Regional Police.

About five minutes later, MacDonald opened the door, but only about 16 inches, enough for the officers to see the right side of his body and face. The sergeant noticed something “black and shiny” in MacDonald’s right hand that was in a shadow and was partially hidden by his right leg. He believed it might be a knife. He twice asked MacDonald what was behind his leg, gesturing toward his right hand. MacDonald did not respond.

Wanting to get a better look at what MacDonald had in his hand, the sergeant pushed the door open a few inches further. The resulting light enabled him to identify it as a handgun. He yelled “gun!” and quickly forced his way into the condo. After a brief struggle, he was able to disarm MacDonald.  The gun that MacDonald was holding when he opened the door was found to be a 9mm Beretta, a restricted firearm. It was registered to him. The gun was loaded.

MacDonald was charged with numerous offences, three of which are relevant here: handling a firearm in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Code; unlawfully having in his possession a weapon for a purpose dangerous to the public peace, contrary to s. 88(1); and possessing, in a place, a loaded restricted firearm without being the holder of an authorization or a licence under which he may possess the said firearm in that place, contrary to s. 95(1) of the Code.

At trial in Nova Scotia Provincial Court, a voir dire was held to determine whether MacDonald’s right to be secure against an unreasonable search guaranteed by s. 8 of the Charter had been violated when the sergeant pushed the door to the condo open a few inches further to ascertain what he was holding. Judge Digby found that there is an exception that permits an officer to enter a home to ensure his or her safety, particularly where, as here, the intrusion is minor. He concluded that “there is no Charter breach and the burden is on the accused to prove on a balance of probabilities that there is a Charter breach”.  After weighing all the circumstances, Judge Digby found MacDonald guilty of the charges under ss. 86(1), 88(1), and s. 95(1) of the Code.  Judge Digby sentenced MacDonald to three years’ imprisonment (two years in a federal penitentiary for the s. 86(1) charge, three years concurrent for the 88(1) charge, and three years concurrent for the 95(1) charge).

The Nova Scotia Court of Appeal upheld the convictions under ss. 86 and 88, but overturned the one under s. 95. On the latter conviction, the NSCA acknowledged that pursuant to s. 17 of the Firearms Act, S.C. 1995, c. 39, MacDonald’s licence did not extend to his Halifax residence. However, the court found that MacDonald should be acquitted on the basis of an honest but mistaken belief that it did extend to the condo.  The NSCA also reduced MacDonald’s sentence to 32 days in custody, a two-year term of probation, a prohibition on possession of weapons for five years, and forfeiture of the firearm.

The appeal to the Supreme Court of Canada focused on three issues.  The main issue that I will discuss (I will briefly mention the other two) focused on whether MacDonald’s right under s. 8 of the Charter to be free from unreasonable search and seizure was violated and, if so, what was the appropriate remedy?  At first glance, it would appear that this case was decided in favour of the police actions in this case, but as you will see from the decision, it is not necessarily a “win” for us in the police world.

Four of the seven SCC justices said that the officer’s action of pushing the door open further constituted a “search” for purposes of s. 8 of the Charter. The action went beyond the implied licence to knock on the door (as cited in R. v. Evans [1996] 1 S.C.R. 8) and constituted an invasion of M’s reasonable expectation of privacy in his home.  However, although the officer’s action constituted a search for s. 8 purposes, that search was reasonable because both stages of the Waterfield test were satisfied. The first stage was satisfied because the warrantless search fell within the scope of the common law police duty to protect life and safety and the second, because the search constituted a justifiable exercise of powers associated with the duty.

R. v. Waterfield [1963] 3 All E.R. 659 (C.A.) requires the court to consider:

(1) whether the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law; and

(2) if this threshold test is met, whether such conduct involved an unjustifiable use of powers associated with the duty.

The 4 justices said to determine whether a safety search was reasonably necessary, and therefore justifiable, a number of factors must be weighed to balance the police duty against the liberty interest in question. These factors include: the importance of the duty to the public good; the necessity of the infringement for the performance of the duty; and the extent of the infringement. The duty to protect life and safety is of the utmost importance to the public good, but an infringement on individual liberty may be necessary when, for example, the officer has reasonable grounds to believe that the individual is armed and dangerous. That infringement will be justified only to the extent that it is necessary for the officer to search for weapons. In other words, and as this Court recognized in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, the powers of the police are limited. Courts must consider not only the extent of the infringement, but how it was carried out. Restraints on safety searches are particularly important in homes, where such searches can often give the police access to a considerable amount of very sensitive personal information.

In this case, these 4 justices said that the officer had reasonable grounds to believe that there was an imminent threat to public and police safety and that the search was necessary to eliminate that threat. The manner in which he carried out the search was also reasonable. The trial judge found that the officer pushed the door open no more than was necessary to find out what M had behind his leg. The officer twice asked M what he had in his hand but received no answer. In these circumstances, it is hard to imagine a less invasive way of determining whether M was concealing a weapon and thereby eliminating any threat. It followed that M’s rights under s. 8 of the Charter were not violated.

As for a s. 95 Criminal Code conviction, these 4 justices said that the Nova Scotia Court of Appeal erred in requiring the Crown to prove that M knew that his possession and acquisition licence and authorization to transport the firearm did not extend to his Halifax home. That requirement was inconsistent with the rule, codified in s. 19 of the Code, that ignorance of the law is no excuse. Section 95 is a mens rea offence, but does not include knowledge of unauthorized possession. Rather, knowledge of possession, together with intention to possess in a particular place, is enough.  In this case, M’s subjective belief that he could possess the firearm in his Halifax home was a mistake of law and that mistake was no defence. Therefore, M’s s. 95 conviction must be restored and the matter remitted to the Nova Scotia Court of Appeal both for sentencing and for assessing the constitutional validity of the mandatory minimum sentence under s. 95.

So, at first glance, it would appear that the case was decided in favour of the police action in this case (rightfully so).  However, what is interesting to note was the “language” used by these 4 justices in reaching the majority decision, a language that was noticed by the other 3 justices in this case.  The minority agreed to the decision of the majority and would dispose of the case as the majority proposed, except for the language used.  I will elaborate on the latter.

The minority (3 justices) said that every day, throughout this country, police officers put their lives and safety at risk in order to preserve and protect the lives and safety of others. In return, they are entitled to know that when potentially dangerous situations arise, the law permits them to conduct minimally intrusive safety searches to alleviate the risks they face. That is the fundamental bargain we, as a society, have struck with the police, and it is a fundamental commitment upon which the police are entitled to rely.

The commitment of which we speak was acknowledged by the SCC in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59. Mann recognized a limited police power to search without a warrant solely for protective purposes where a police officer has reasonable grounds to suspect a threat to his or her safety or the safety of others. The majority in this case purported to apply Mann. Respectfully, however, it did not. Instead, it rendered Mann redundant, depriving police officers of the limited search powers they need to protect themselves and the public in fluid and often-unpredictable situations of potential danger.

The minority said that in the instant case, while they agreed with the majority on all three issues in this case, including MacDonald’s claim under s. 8 of the Canadian Charter of Rights and Freedoms, they part company with their colleagues on the proper interpretation of Mann. Their colleagues asserted, relying on Mann, that officers are only empowered to conduct “safety searches” where they have reasonable grounds to believe an individual is armed and dangerous (paras. 39 and 44). With respect, they did not agree with that conclusion. In their view, Mann decided that officers may conduct safety searches when they have reasonable grounds to suspect an individual is armed and dangerous.

The minority said that the case law revealed that the rationale justifying the police power to perform protective searches is the protection of public or officer safety. It seemed to them that such a power is a necessary corollary of the duties imposed on the police, two of which include: the duty to preserve the peace and to protect life and property. Police officers cannot be asked to intervene in dangerous or fluid situations and, at the same time, be denied the authority to take protective measures when they reasonably suspect their own safety is at risk, especially when there is a suspicion weapons are present.  As the minority put it, R. v. Chehil 2013 SCC 49, reasonable suspicion again was the language used by the SCC.  Further, the minority said, most significantly in R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, as Abella J. explained, the two accused were detained because the police had a “reasonable suspicion” they were in possession of firearms and “as a result, the lives of the police officers and of the public were at risk” (para. 46). Those very safety concerns, without more, justified searches of the accused incidental to their detention (para. 48). In other words, the officers were entitled to conduct a minimally intrusive search for safety purposes because they had reason to suspect that the accused were armed and dangerous.

Beyond Clayton, the SCC has on at least three distinct occasions expressed that Mann authorized a protective search incidental to investigative detention on the basis of reasonable suspicion. First, Binnie J., writing for himself and the Chief Justice in R. v. Kang-Brown 2008 SCC 18, [2008] 1 S.C.R. 456, referred to “the Court’s decision in Mann to lower the bar from reasonable and probable cause to reasonable suspicion in the context of a warrantless search” (para. 62 (emphasis added)). In R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408, at para. 44, n. 3, the majority expressly declined to endorse the minority’s assertion that Mann required a reasonable and probable grounds standard for pat-down searches. And, lastly, only a few months ago, in an opinion joined by every member of today’s majority, the minority said that Mann authorized “limited searches accompanying investigative detentions” on the basis of “reasonable suspicion” (Chehil, at para. 22, n. 1).

The minority said that this case could have been, and ought to have been, resolved by extending the logic of Mann. First, the sergeant, while lawfully engaged in his duties, had a reasonable suspicion that MacDonald was armed and dangerous. Second, in response to that reasonable suspicion, the sergeant’s conduct, pushing MacDonald’s door open a few more inches, was “no more intrusive of liberty interests than [was] reasonably necessary to address the risk” (Aucoin, at para. 36, quoting Clayton, at para. 31). Accordingly, the search was reasonable for purposes of s. 8.  The minority stressed that in cases such as the one at hand, the “Mann standard” for protective searches, as properly understood, does not empower an officer to engage in random searches based on a whim or a hunch. Rather, the officer’s suspicion that the individual is armed and dangerous must be reasonable having regard to the totality of the circumstances.

To be sure, on the facts as found by the trial judge, the minority said that the sergeant’s suspicion that MacDonald was armed and dangerous was reasonable. The context of the encounter with him indicated a degree of hostility toward the building staff and police. To begin, MacDonald dismissed the building caretaker’s attempts to turn down the music in what the trial judge diplomatically characterized as an “undiplomatic manner”. He showed “some evidence of intoxication”. When the constable attended on the scene, MacDonald “proceeded to shut the door requiring the constable to remove her foot from the threshold, telling the constable to fuck off or words to that effect” (p. 6). The trial judge accepted that the sergeant saw a “black and shiny” object in MacDonald’s hand. Significantly, “[i]t was concealed behind [his] right leg”. Moreover, the sergeant thought “it might be a knife” (p. 249). In these circumstances, the sergeant had reason to suspect that MacDonald, who had been acting in a hostile and aggressive fashion, was armed and dangerous, but he surely did not have reasonable grounds to believe that he was armed and dangerous.

The minority said that due to the language of the majority in this case,

Today, our colleagues impose a standard requiring that an officer have reasonable grounds to believe an individual is armed and dangerous before a “safety search” is authorized, effectively overturning the search power recognized in Mann and a decade of subsequent jurisprudence in the process.  We should be clear about the consequences of the majority’s decision: officers are deprived of the ability to conduct protective searches except in circumstances where they already have grounds to arrest. As of today, officers are empowered to detain individuals they suspect are armed and dangerous for investigatory purposes, but they have no power to conduct pat-down searches to ensure their safety or the safety of the public as they conduct these investigations. In our view, a police officer in the field, faced with a realistic risk of imminent harm, should be able to act immediately and take reasonable steps, in the form of a minimally intrusive safety search, to alleviate the risk.


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Apple’s iMessage impossible for police to intercept

If you are under the same impression as me, I have been told by various officers in the field and tech gurus alike that the iPhone does not have a secure encryption like the Blackberry does and this is why police agencies in Canada recommend the latter for use in the field as the preferred issued cell phone.

CNET has just published a report based on an internal USA Drug Enforcement Administration document that messages sent with Apple’s encrypted chat service are “impossible to intercept,” even with a warrant.  The DEA was conducting a criminal investigation and warned that because of the use of encryption, “it is impossible to intercept iMessages between two Apple devices”.

The DEA’s warning, marked “law enforcement sensitive,” was the most detailed example to date of the technological obstacles — FBI director Robert Mueller has called it the “Going Dark” problem — that police face when attempting to conduct court-authorized surveillance on non-traditional forms of communication.  The DEA says that “iMessages between two Apple devices are considered encrypted communication and cannot be intercepted, regardless of the cell phone service provider.” But, if the messages are exchanged between an Apple device and a non-Apple device, the agency says, they “can sometimes be intercepted, depending on where the intercept is placed.”

For further reading: sage-encryption-trips-up-feds-surveillance/

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