Category Archives: Recent Case Law

An odour of alcohol, bloodshot eyes, and slurred speech are grounds for a screening device demand, but not the breath demand.

R. v. Rideout [2013] N.J. No. 458 – a Newfoundland and Labrador Provincial Court Judge has ruled that while the officer had grounds to make an ASD demand, his grounds to give the breath demand were objectively deficient. The certificate of the qualified breath technician was therefore excluded as there was no evidence that the accused’s ability to operate a motor vehicle was impaired, even to a slight degree. The charge was dismissed. As a reminder, this is a Provincial Court decision, so it has no binding effect, but I have included it in the blog post for informational purposes on the continuing technical nature of impaired driving investigations.

A five year member of the Royal Newfoundland Constabulary noticed a vehicle being operated without tail lights at 02310 hours, so he stopped the vehicle. He approached the driver’s side window, which was down. He noted a smell of alcohol coming from the inside of the vehicle. As he got down lower, he determined that there was a strong smell of alcohol coming from the driver. He indicated the driver’s eyes were bloodshot and his speech was slurred when the driver was looking for his licence, but his speech was not slurred during any other conversation. The driver also had difficulty locating the registration. As a result of these observations, he asked the driver to go to the police vehicle.

He placed the driver in the rear of the police car and noticed a stronger smell of alcohol coming from the driver. He decided to dispense with a demand for an ASD and made a breath demand instead. He stated that his grounds for doing so were: (1) strong smell of alcohol; (2) bloodshot eyes; and (3) slurred speech. The officer could not recall what he said to the driver re: accompanying him back to the police vehicle. He also did not comment about the nature of the driver’s driving. Under cross examination, he was questioned about his “Impaired Driver’s Investigative Notes.” He noted extreme bloodshot eyes; slurred speech (checked as “stuttering”). He observed that the driver was cooperative and polite. He was neither stumbling, nor staggering. His face was flushed. The driver stated that he had approximately four beer.

The defence argued that there were no subjective grounds and no objective grounds for the demand. She argued that the totality of the circumstances did not indicate that Mr. Rideout’s ability to drive was impaired by drugs or alcohol. There was nothing in his pattern of driving to indicate impairment. She cited in support of her argument R. v. Bernshaw, [1995] 1 S.C.R. 254, par. 24; R. v. Foley, [2010] N.J. No. 136 (NLPC), per Skanes P.C.J.; R. v. Rose, [2003] N.J. No. 215 (NLPC), per Gorman P.C.J.; and R. v. White, [2004] N.J. No. 21 (NLSCTD), per Leblanc J. She argued that it might be arguable that subjective grounds to give the breath demand may have existed. However, objectively, the grounds were clearly not there. The officer had no recollection of what he said to Mr. Rideout as the reasons for going back to the police vehicle. There was no entry in his notes with respect to this. She argued that the officer violated the principles outlined in R. v. Mann, [2004] S.C.J. No. 49 for investigative detention; that the purpose for placing Mr. Rideout in the police vehicle was to further the investigation. Therefore, Mr. Rideout’s rights pursuant to s. 9 and s. 10 (a) were violated.

The Crown argued that there were indeed reasonable grounds to give the breath demand. He cited in support the Supreme Court of Canada decisions in R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, R. v. Aucoin, 2012 S.C.C. 66, [2012] 3 S.C.R. 408, R. v. Orbanski, [2005] 2 S.C.R. 3, R. v. Shepherd, 2009 SCC 35, along with the Ontario Court of Appeal decision in R. v. Bush, [2010] O.J. No. 3453. He said that the officer clearly had subjective grounds to give the breath demand. He said there was a strong smell of alcohol which became stronger when Mr. Rideout was placed in the police vehicle. He also cited that Mr. Rideout had “extreme bloodshot eyes.” The Crown acknowledged that there was no erratic driving. He was relatively silent with respect to the discussion about slurred speech. He made no comment about Mr. Rideout’s ability to walk as he went back to the police vehicle.

Whether reasonable and probable grounds exist for the breath demand is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered. (See R. v. Shepherd, supra, at par. 21). At par. 23, McLachlin C.J. and Charron J. for the court, said:

…the officer need not have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving “over 80” before making the demand. He need not demonstrate a prima facie case for conviction before pursuing his investigation.

The Provincial Court judge ruled that an assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driving scorecard with the list of all the usual signs of impairment and counsel noting which ones are present or absent. (See R. v. Bush, [2010] O.J. No. 3453, par. 56; R. v. Costello (2002), 22 M.V.R. (4th) 165 (ONCA); R. v. Censoni, [2001] O.J. 5189 (ONSupCtJus)). Reasonable grounds in the content of a s. 254 (3) breath demand is not an onerous threshold. It must not be inflated to the content of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom (R. v. Censoni, supra, at par. 43). The test is whether, objectively, there were reasonable and probable grounds to believe the suspect’s ability to drive was even slightly impaired by the consumption of alcohol. (R. v. Stellato, 1993 CanLII 3375 (ONCA) affirmed [1994] 2 S.C.R 478).

Judge J.G. Walsh said it is important to distinguish between operating a motor vehicle after consuming some alcohol and operating a motor vehicle after consuming alcohol such that one’s ability to operate a motor vehicle is impaired. (R. v. Stellato, supra). The indicia noted by the officer unquestionably gave him grounds to make an ASD demand. However, the indicia that he noted for giving the breath demand fall short of meeting the objective standard. He indicated that he observed a smell of alcohol that got stronger when Mr. Rideout was placed in the rear of the police vehicle. He also said that Mr. Rideout’s eyes were bloodshot. The references to slurred speech were limited by the officer to the short discussion about the request for his driver’s licence. It was noteworthy, said the judge, that the discussion about the tail lights being off did not lead to any notice of slurred speech.

Therefore, the judge concluded that the officer’s grounds for giving the breath demand were only sufficient to have made an ASD demand and were, objectively, insufficient to have gone directly to the breath demand. There was no notice of erratic driving. There was no notice of any difficulty in walking or coordination. There was only a very brief reference to slurred speech. There was no reference to Mr. Rideout’s eyes being glossy in addition to bloodshot. There was no reference to Mr. Rideout’s face being flushed. Objectively, while the “checklist” approach has been rejected by a number of courts, as noted earlier, the judge said he would have expected more indicia of impairment than offered by the officer in his evidence.

As a result, the judge concluded that there were insufficient grounds to make the breath demand. Therefore, the certificate of the certified breath technician was inadmissible. Finally, with respect to the s. 253(1)(a) offence, the judge was not satisfied on the evidence that Mr. Rideout’s ability to operate a motor vehicle was impaired even to a slight degree and he was left with more than a reasonable doubt. That charge was dismissed.

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Police are not entitled to search a blackberry incident to arrest.

R. v. Mann 2014 BCCA 231 – this was an appeal from a conviction by a judge without a jury of multiple charges related to a kidnapping. The appellant was charged as the third kidnapper in a kidnapping that occurred in 2006. He appealed his conviction on three grounds (ground two is what I will be discussing in this blog post). The appellant claimed the trial judge erred in finding the searches of two BlackBerry devices seized during his arrests were valid under the common law power of search incident to arrest. The police downloaded the full contents of the BlackBerrys without obtaining a search warrant. The appellant argued these warrantless searches violated his right to be free from unreasonable search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms.

During the police investigation of the kidnapping, the appellant was arrested twice; on June 8 and June 28, 2006. During each of the arrests, a BlackBerry device was seized by police. BlackBerry #1 was submitted for analysis at the RCMP’s Technological Crime Unit in Ottawa on June 13, 2006. The cell phone could not be analyzed because it was password protected. It was submitted for analysis again in July 2008. Data extraction was completed by August 6, 2008. The recovered user data included the text of 72 messages received or sent on June 27 and 28, 2006, 22 of which the Crown relied on in its case against the appellant. BlackBerry #2 was submitted for analysis on July 4, 2006. Data was extracted on August 26, 2006. The data recovered included the text of 269 messages received or sent by the user, 81 of which the Crown relied on in its case against the appellant. No search warrant was sought or obtained with respect to the searches of the two BlackBerry devices.

The defence challenged the lawfulness of the warrantless searches of the contents of the BlackBerry devices. The appellant argued, as he did on appeal, that the common law power of the police to perform a search incident to arrest does not extend to a “highly intrusive” search that risks the collection of private information stored in a mobile communications device such as a BlackBerry. He claimed further that the searches were unreasonable because in the course of extracting data from BlackBerry #1, it was physically destroyed, and because the searches of the BlackBerrys were temporally disconnected from the arrests. The trial judge followed the decision in R. v. Giles, 2007 BCSC 1147, in finding the warrantless searches were lawful searches incident to the arrests. Giles also dealt with a warrantless search of a BlackBerry device seized during the arrest of the accused. In Giles, Madam Justice MacKenzie (as she then was) held that the search did not fall outside the scope of a search incident to the arrest of the accused on serious drug charges. She found the search of the BlackBerry was “akin to looking inside a logbook, diary, or notebook found in the same circumstances” (at para. 56), and “[t]he capacity of this BlackBerry to potentially store volumes of information does not, in my view, change the character of the search from being lawful as incident to the arrest, into a search that required a warrant” (at para. 63).

The appeal to the BCCA started with an analysis that generally requires prior authorization in the form of a warrant, as warrrantless searches are presumed to be unreasonable: Hunter v. Southam, [1984] 2 S.C.R. 145 at 160-161. Where a search is carried out without a warrant, the Crown has the burden of showing, on a balance of probabilities, that the search was reasonable. A warrantless search will be reasonable if it is authorized by law, if the law itself is reasonable, and the manner in which the search was carried out is reasonable: R. v. Collins, [1987] 1 S.C.R. 265 at 278. The power to search incident to arrest without a warrant is a well-established exception to the requirement for prior judicial authorization for a valid search. The Supreme Court of Canada described the principles underlying the power in Cloutier v. Langlois, [1990] 1 S.C.R. 158 and explained them further in R. v. Caslake, [1998] 1 S.C.R. 51.

In applying these principles to the search of smartphones, the courts have considered the individual’s privacy interest in the information contained in such devices, the purpose for the search, and the connection of the search to the arrest in time and distance. Giles was an early case that considered the scope of the power to search incident to arrest in relation to the search and seizure of smartphones. Two years later, in R. v. Polius, [2009] O.J. No. 3074 (S.C.J.), police seized the accused’s cell phone on his arrest, searched the cell phone to find its number, and used that information to obtain a production order under s. 487.012 of the Code to acquire his cell phone records. Justice Trafford of the Ontario Superior Court held that the seizure of the accused’s cell phone on his arrest for counselling murder was not lawful because the arresting officer did not have a reasonable basis to believe that the cell phone may contain evidence of the alleged offence. Justice Trafford went on to consider the scope of the power to search an item seized incident to an arrest. He expressed the view (at para. 41) that a search warrant was required to examine an item beyond a cursory examination. In particular, he found that the deeply personal nature of the information in a cell phone, computer or other electronic device implicated a range of privacy interests protected by s. 8 of the Charter.

The following year, in R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253 (which did not concern a search incident to arrest), the Supreme Court of Canada noted the high degree of privacy afforded to the information in an individual’s computer, stating (at para. 2): “It is difficult to imagine a search more intrusive, or invasive of one’s privacy than the search and seizure of a personal computer.” Next chronologically, the Ontario Court of Appeal considered the scope of a search incident to arrest in relation to cell phones in R. v. Manley, 2011 ONCA 128 and R. v. Fearon, 2013 ONCA 106. In both cases, the Court considered, but neither adopted nor rejected, Trafford J.’s views expressed in Polius on the necessity of a warrant to conduct more than a cursory search of a cell phone. These cases were decided after the trial judge’s ruling in this case. R. v. Fearon2013 ONCA 106, raised similar issues. In that case, police arrested the accused for armed robbery and seized a cell phone. The arresting officer examined the contents of the cell phone (which was not password protected) and found incriminating photographs and a text message. The cell phone was searched further during the night and the next morning as the investigation continued, but no more evidence was found. Months later, the police obtained a search warrant to search the phone again. The trial judge held the police reasonably believed the examination of the cell phone contents would yield relevant evidence, and concluded there had been no breach of the accused’s s. 8 Charter right. On appeal, Justice Armstrong upheld the trial judge’s conclusion that the cursory search of the cell phone immediately following the arrest was a lawful search incident to arrest (at para. 57). He had more difficulty with the later examinations of the contents of the cell phone at the police station, and expressed the view that police should have obtained a warrant for these further searches. He deferred to the trial judge’s findings, however, that the examination of the cell phone’s contents at the police station was connected to the search at the scene of the arrest (at para. 58).

All of these cases were thoroughly canvassed in R. v. Hiscoe, 2013 NSCA 48, where Justice Oland commented (at para. 59):

In the result, the decisions of the Ontario Court of Appeal in Manley and Fearon neither approved – nor rejected – the approach in Polius. When the judge here gave his voir dire decision, there were two main lines of authority: one based on the British Columbia decision in Giles which upheld a full search of cell phone contents without a warrant, and one based on the obiter dicta in the Ontario decision in Polius which supported only a cursory search before a full search, if warranted. There were no decisions of any Canadian appellate court of persuasive authority.

The trial judge held that police violated the accused’s s. 8 Charter right. He determined that police were authorized to conduct a cursory review of the appellant’s text messages upon arrest and later that day, but concluded the full content download or “data dump” was beyond the scope of a search incident to arrest. The trial judge found that the month delay between the seizure of the phone and the full data retrieval “reduces any connection with the arrest” (Hiscoe at para. 63 quoting R. v. Hiscoe, 2011 NSPC 84 at para. 86). The Court of Appeal upheld the trial judge’s ruling. Justice Oland for the Court emphasized the individual’s interest in the protection of his or her right to privacy from “unjustified state intrusions” (at para. 69), with particular reference to the impact of changing technology (at para. 70).

In R. v. Vu2013 SCC 60, [2013] 3 S.C.R. 657, released after Hiscoe, the Supreme Court of Canada reiterated the heightened privacy interests individuals have in the contents of computers and cell phones, echoing Morelli (at paras. 39-44), and held (at para. 45):

The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches.

Vu did not deal with a search incident to arrest. Justice Cromwell limited his reasons to the scope of the appeal, stating (at para. 63):

… I do not, by way of these reasons, intend to disturb the law that applies when a computer or cellular telephone is searched incident to arrest or where exigent circumstances justify a warrantless search. Rather, these reasons relate to those situations where a warrant is issued for the search of a place and police want to search a computer within that place that they reasonably believe will contain the things for which the search was authorized …

In R. v. Vye2014 BCSC 93, released in January of this year, Mr. Justice Thompson did not follow Giles, Mann and R. v. Dhillon, 2013 BCSC 869 , but, based on the findings in Vu concerning the heightened privacy in computers and cell phones, concluded (at para. 29):

Accordingly, the foundational pillars of the reasoning in Giles–that is, the notion of a cellular phone search being of a lesser order of invasiveness than other highly invasive types of searches, the conclusion that a cellular phone ought not to be treated differently than traditional receptacles, and the assertion of the pointlessness of allowing the police to seize a cellular phone without an accompanying power to search–have been overtaken by the reasoning in the unanimous Supreme Court of Canada judgment in Vu.

The police in Vye searched the accused’s “iPhone 4” three times without a warrant, removing it from the accused’s pocket, doing a cursory search of the device the same day, and conducting a software-aided forensic examination nearly one year later. The accused did not contest the validity of the first two searches, but submitted his s. 8 Charter rights were breached by the software-aided forensic search. The trial judge agreed, finding the search was beyond the power to search incident to arrest because the police had not turned their minds to the permissible scope of the search before it was conducted; the search was unreasonable because it was overbroad; and, based on the reasoning in Hiscoe and Vu concerning the highly invasive nature of the search, the Crown required a warrant to conduct the forensic search of the content of the phone (at para. 8). The trial judge referred (at para. 37) to the ten-month delay between the arrest and the search as showing an absence of exigent circumstances and supporting his conclusion that prior authorization was required. The trial judge said: “[As] prior authorization was feasible … I can see no principled reason not to require the police to obtain a search warrant before conducting such a potentially invasive search as the download of contents of a smartphone seized upon arrest” (at para. 37). He quoted, in further support of his conclusion, the reasons of Justice Dickson (as he then was) in Hunter v. Southam Inc. (at 161): “[W]here it is feasible to obtain prior authorization, I would hold that such authorization is a precondition for a valid search and seizure”.

Back to the case at hand, at the time the trial judge made his ruling in this case, Giles represented the law in British Columbia. No Canadian appellate court had suggested or found that a search of a smartphone incident to arrest, without a warrant, violated s. 8 of the Charter. Since then, the Supreme Court of Canada has recognized the highly invasive nature of searches of cell phones and computers because of the quantity and quality of personal information contained on these devices. Based on these judgments, one appellate court, the Nova Scotia Court of Appeal, and a British Columbia trial judge, have rejected the approach in Giles. Justice R.E. Levine said it seems that downloading the entire contents of a cell phone or smartphone, like the BlackBerrys in this case, seized on the arrest of the accused, after some delay, without a search warrant, can no longer be considered valid under s. 8 of the Charter as a reasonable warrantless search. The highly invasive nature of these searches exceeds the permissible scope for a warrantless search authorized under the common law as a search incident to arrest.

The interest of the state in law enforcement does not justify such a warrantless search. In this case, the searches were carried out more than two years after the appellant’s arrests. The delay itself demonstrates that none of the purposes that justify a warrantless search incident to arrest were relevant. Obtaining a warrant could not have interfered with preserving the evidence or with officer safety. In fact, there is no explanation for not obtaining a warrant except that the nature of the object searched had previously been likened to other objects – logbooks, diaries, notebooks – that had not been considered to give rise to a serious invasion of the accused’s right to privacy.

It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.

In summary, Justice R.E. Levine said the law as it stands today no longer permits police to conduct warrantless searches of the entire contents of an individual’s cell phone. The BCCA offered no comment on the permissible grounds of a “cursory” search, or other difficult questions pertaining to search incident to arrest and cell phones, as they were not before this Court.

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Where a driver admits to having consumed alcohol, even though there is no clarification of quantity or timing of consumption, the admission of alcohol consumption is sufficient to ground reasonable suspicion

R. v. Flight 2014 ABCA 185After playing in a golf tournament, where he consumed alcohol, the accused went for a drive. While driving on a paved rural road, the accused accelerated his vehicle, causing it to fishtail out of control and cross the centre line where it collided with the victims’ vehicle. The driver of the victims’ vehicle died at the scene and the passenger was admitted to hospital. The accused’s vehicle’s Onstar service reported the collision to police. When the police spoke with the accused at the scene, he did not notice anything unusual about the accused’s motor skills or speech and he did not detect an odour of alcohol. After the accused admitted that he had a couple of drinks, the officer made a roadside approved screening device (ASD) demand. Once the accused was in the police car, the officer noted an odour of alcohol. The ASD registered a “fail” and the accused was arrested for impaired driving. At the police station, the accused spontaneously stated that he was driving too fast. He also indicated that he had his last drink some three or four hours earlier. After speaking with two lawyers, the accused provided breath samples that gave readings of .10 and .09. At trial, the Crown called Ms. Patricia Lehmann, a toxicology expert, to provide evidence about the appellant’s blood alcohol concentration at the time of the crash and about the effects of alcohol on driving ability. She estimated a blood alcohol concentration level over the legal limit: between 99 and 147 mg% at the time of the crash.

Among the issues on the appeal was whether an admission of alcohol consumption was sufficient grounds for an ASD demand or whether the officer had to obtain drinking times and calculate or estimate whether there would be alcohol in the system as some Alberta cases had held. The ABCA holds that in most cases, a simple admission of consumption is sufficient (Note that this case also considered the impact of R. v. Chehil [2013] S.C.J. No. 49 which was not a drinking and driving case, but provides important instruction on the reasonable suspicion standard).

Section 254 of the Criminal Code sets out a two-stage scheme to address the dangers of impaired driving: R. v. Woods, 2005 SCC 42 at paras 6 and 30, [2005] 2 SCR 205; see also R. v. Bernshaw, [1995] 1 SCR 254 at paras 20-21, 35 CR (4th) 201. The first stage is set out in section 254(2). This section authorizes a peace officer to demand a roadside ASD sample if the peace officer has a reasonable suspicion that the driver has alcohol in his body. An ASD will show a pass, a warning, or a fail result. This serves an important investigatory, screening function, and permits a peace officer to determine whether further, more conclusive, testing is warranted: Bernshaw at para 20. In normal circumstances, a “fail” result from an ASD is sufficient to provide a peace officer with the requisite reasonable and probable grounds to proceed to the second stage: Bernshaw at para 49. The second stage is set out in section 254(3). It authorizes a peace officer who has reasonable grounds to believe that a driver has committed an impaired driving offence to demand samples for a breathalyzer test. A breathalyzer is a more precise instrument. It permits peace officers to determine the alcohol concentration in a person’s blood, and determine whether the driver’s alcohol level exceeds the limit prescribed by law: Woods at para 3. Because a breathalyzer test is more intrusive, the grounds required to make such a demand are higher.

 The reasonable suspicion standard has both subjective and objective elements. The Supreme Court clarified the reasonable suspicion standard in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 and R. v. MacKenzie, [2013] S.C.J. No. 50, 2013 SCC 50, [2013] 3 S.C.R. 250.

In Chehil, Justice Karakatsanis J. emphasized that the reasonable suspicion standard is a lower standard than that of reasonable and probable grounds, as it engages the “reasonable possibility, rather than probability” of crime: para 27. She cautioned that courts should avoid confusing the two standards: Chehil at para 27; see also MacKenzie at para 84. She summarized the proper approach as follows at para 29:

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience […]. A police officer’s grounds for reasonable suspicion cannot be assessed in isolation [citations omitted].

However, peace officers are not under a duty to undertake further investigation to “seek out exculpatory factors or rule out possible innocent explanations”: Chehil at para 34. The hallmarks of the exercise are “common sense, flexibility, and practical everyday experience”: MacKenzie at para 73.

The reasonable suspicion standard is designed to strike a balance between an individual’s privacy interests and the public interest in enabling law enforcement to investigate crime: Chehil at para 22. Any suspicion must be grounded in “objectively discernable facts, which can then be subjected to independent judicial scrutiny”: Chehil at para 26. The requirement that a peace officer’s suspicion be objectively reasonable provides needed rigour to the standard, and prevents indiscriminate breaches of privacy interests: Chehil at para 25.

The central issue in the case at hand can be framed as follows: where a driver admits to having consumed alcohol, but there is no clarification about the quantity or timing of consumption, is the driver’s admission alone sufficient to ground an objectively justifiable, reasonable suspicion that the driver has alcohol in his body? There are two divergent lines of authority which have developed in Alberta on this very point: the first line of authority stems from R. v. Thomas, [2008] A.J. No. 1121, 2008 ABQB 610, 461 AR 216 and R. v. Dunn; R. v. Bouvier, 2007 ABPC 160, [2007] A.J. No. 664 [Thomas/Dunn]. The second stems from R. v. Hnetka, [2007] A.J. No. 806, 2007 ABPC 197, 426 AR 254. Several decisions have lined up on either side of the issue: see R. v. Nanooch, [2010] A.J. No. 1167, 2010 ABPC 331 at paras 15-29, 37 Alta LR (5th) 259.

The Manitoba Court of Appeal recently considered these divergent approaches in R. v. Mitchell, [2013] M.J. No. 161, 2013 MBCA 44, 291 Man R (2d) 231. Writing for the Court, Monnin JA was not prepared to say that a simple admission of alcohol consumption will always, in and of itself, be sufficient to provide a reasonable suspicion. However, he noted that there will rarely be a need for a peace officer to obtain an alcohol consumption history from a driver before forming a reasonable suspicion.

In the case at hand, the ABCA agreed with the conclusions of the Manitoba Court of Appeal in Mitchell. In most cases, the admission of consumption alone, without further information about the amount and/or timing of consumption, will be sufficient to ground an objectively reasonable suspicion. Police officers should not be required to inquire into alcohol consumption history with a driver at the roadside.

[W]here, as here, the police have arrived to the scene of a serious motor vehicle accident … [i]t should be no surprise to anyone that in such a situation, an investigating officer would inquire about alcohol consumption. If the inquiry had not been made, there may be a suggestion that the police did not conduct a thorough investigation. The appellant responded in an unqualified manner that he had “a couple of drinks.” In these circumstances, it is reasonable to infer that he was referring to alcoholic drinks and that his consumption was relatively recent.

In the view of the ABCA, the wording of section 254(2) suggests that the admission of alcohol alone will, generally, ground an objectively justifiable, reasonable suspicion. That section provides that a peace officer can make a roadside ASD demand where he “has reasonable grounds to suspect that a person has alcohol or a drug in their body and that person has, within the preceding three hours, operated a motor vehicle”. As noted by this same Court in R. v. Gilroy (1987), 79 AR 318, 3 MVR (2d) 123, the test for reasonable suspicion in section 254(2) is based on consumption alone, not its amount or effects.

Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R. v. Kimmel, [2008] A.J. No. 1120, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.

Like Monnin JA at the Manitoba Court of Appeal, however, the ABCA did not go so far as to suggest that an admission of alcohol consumption alone will always be enough to meet the reasonable suspicion threshold. Again, each case must be decided on its own facts and the constellation of relevant factors must be examined in their totality. The police are entitled (and, indeed, required) to react to circumstances as they develop. All of the circumstances known to the officer at the relevant time must be considered together, not in isolation.

In summary, the ABCA concluded that:

“In most cases, admission of consumption alone will be sufficient to ground an objectively reasonable suspicion. Reasonable suspicion is a low standard. Police officers are not required to inquire into an alcohol consumption history with a driver at the roadside. However, each case must be assessed on its own facts. Police officers must respond to information as it unfolds.”

“This conclusion is also grounded in practicalities. To require peace officers to conduct a roadside calculation of likely current impairment based on common elimination rates is unrealistic and does not reflect the practical realities of a roadside stop, nor the two-stage scheme that Parliament has established in section 254: see Dunn at para 15. Parliament created a framework for ready-use in the field. Turning it into a standard difficult to apply would thwart Parliament’s will.”

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The Supreme Court of Canada has ruled that we need a warrant to obtain subscriber information matching to an IP address from an Internet service provider

R. v. Spencer 2014 SCC 43 – Mr. Spencer, who lived with his sister, connected to the Internet through an account registered in his sister’s name. He used the file-sharing program LimeWire on his desktop computer to download child pornography from the Internet. It was Mr. Spencer’s use of the file-sharing software that brought him to the attention of the police and which ultimately led to the search at issue in this case. The Saskatoon Police Service, by using publicly available software, were searching for anyone sharing child pornography. The officer could access whatever another user of the software had in his or her shared folder. In other words, he could “see” what other users of the file sharing software could “see”. He could also obtain two numbers related to a given user: the IP address that corresponds to the particular Internet connection through which a computer accesses the Internet at the time and the globally unique identifier (GUID) number assigned to each computer using particular software. The IP address of the computer from which shared material was obtained was displayed as part of the file-sharing process. There was little information in the record about the nature of IP addresses in general or the IP addresses provided by Shaw to its subscribers.

The officer generated a list of IP addresses for computers that had shared what he believed to be child pornography. He then ran that list of IP addresses against a database which matches IP addresses with approximate locations. He found that one of the IP addresses was suspected to be in Saskatoon, with Shaw as the ISP. The officer then determined that Mr. Spencer’s computer was online and connected to LimeWire. As a result, he (along with any LimeWire user) was able to browse the shared folder. He saw an extensive amount of what he believed to be child pornography. What he lacked was knowledge of where exactly the computer was and who was using it.

To connect the computer usage to a location and potentially a person, investigators made a written “law enforcement request” to Shaw for the subscriber information including the name, address and telephone number of the customer using that IP address. The request, which was purportedly made pursuant to s. 7(3)(c.1)(ii) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (PIPEDA), indicated that police were investigating an offence under the Criminal Code, R.S.C. 1985, c. C-46, pertaining to child pornography and the Internet and that the subscriber information was being sought as part of an ongoing investigation. Investigators did not have or try to obtain a production order (i.e. the equivalent of a search warrant in this context). Shaw complied with the request and provided the name, address and telephone number of the customer associated with the IP address, Mr. Spencer’s sister. With this information in hand, the police obtained a warrant to search Ms. Spencer’s home (where Mr. Spencer lived) and seize his computer, which they did. The search of Mr. Spencer’s computer revealed hundreds of child pornography images and over a hundred child pornography videos in his shared LimeWire folder. Mr. Spencer was charged with possessing child pornography contrary to s. 163.1(4) of the Criminal Code and making child pornography available over the Internet contrary to s. 163.1(3). There was no dispute that the images found in his shared folder were child pornography.

At trial, Mr. Spencer sought to exclude the evidence found on his computer on the basis that the police actions in obtaining his address from Shaw without prior judicial authorization amounted to an unreasonable search contrary to s. 8 of the Canadian Charter Rights and Freedoms. The trial judge rejected this contention and convicted Mr. Spencer of the possession count. On appeal, the Saskatchewan Court of Appeal upheld the conviction for possession of child pornography, agreeing with the trial judge that obtaining the subscriber information was not a search and holding that even if it were a search, it would have been reasonable. The court, however, set aside the acquittal on the making available charge on the basis that the trial judge had been wrong to require proof of positive facilitation of access by others to the material. A new trial was ordered on this charge.

At the core of the appeal to the SCC was the Acceptable Use Policy (last updated on June 18, 2007) that provided that Shaw was authorized to cooperate with law enforcement authorities in the investigation of criminal violations, including supplying information identifying a subscriber in accordance with its Privacy Policy. The provision reads as follows:

You hereby authorize Shaw to cooperate with (i) law enforcement authorities in the investigation of suspected criminal violations, and/or (ii) system administrators at other Internet service providers or other network or computing facilities in order to enforce this Agreement. Such cooperation may include Shaw providing the username, IP address or other identifying information about a subscriber, in accordance with the guidelines set out in Shaw’s Privacy Policy. [Emphasis added.]

The SCC said that Section 7(3)(c.1)(ii) PIPEDA allows for disclosure without consent to a government institution where that institution has identified its lawful authority to obtain the information. But the issue was whether there was such lawful authority which in turn depends in part on whether there was a reasonable expectation of privacy with respect to the subscriber information. PIPEDA thus cannot be used as a factor to weigh against the existence of a reasonable expectation of privacy since the proper interpretation of the relevant provision itself depends on whether such a reasonable expectation of privacy exists. Given that the purpose of PIPEDA is to establish rules governing, among other things, disclosure “of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information” (s. 3), it would be reasonable for an Internet user to expect that a simple request by police would not trigger an obligation to disclose personal information or defeat PIPEDA‘s general prohibition on the disclosure of personal information without consent.

The identity of a person linked to their use of the Internet had to be recognized as giving rise to a privacy interest beyond that inherent in the person’s name, address and telephone number found in the subscriber information, said the SCC. The police request to link a given IP address to subscriber information was in effect a request to link a specific person to specific online activities (in this case, child pornography). This sort of request engaged the anonymity aspect of the informational privacy interest by attempting to link the suspect with anonymously undertaken online activities, activities which were recognized by the Court in other circumstances as engaging significant privacy interests. In the totality of the circumstances of this case, there was a reasonable expectation of privacy in the subscriber information. The disclosure of this information could amount to the identification of a user with intimate or sensitive activities being carried out online, usually on the understanding that these activities would be anonymous. A request by a police officer that an ISP voluntarily disclose such information amounted to a search. Without the subscriber information, the search warrant could not have been obtained and the search of the residence was therefore unlawful.

The intervener, the Director of Public Prosecutions, raised the concern that recognizing a right to online anonymity would carve out a crime-friendly Internet landscape by impeding the effective investigation and prosecution of online crime. In light of the grave nature of the criminal wrongs that can be committed online, this concern cannot be taken lightly. However, in the view of the SCC, recognizing that there may be a privacy interest in anonymity depending on the circumstances failed short of recognizing any “right” to anonymity and did not threaten the effectiveness of law enforcement in relation to offences committed on the Internet. In this case, for example, it seemed clear that the police had ample information to obtain a production order requiring Shaw to release the subscriber information corresponding to the IP address they had obtained.

The SCC concluded that the police request to Shaw for subscriber information corresponding to specifically observed, anonymous Internet activity engaged a high level of informational privacy:

[A] reasonable and informed person concerned about the protection of privacy would expect one’s activities on one’s own computer used in one’s own home would be private … In my judgment, it matters not that the personal attributes of the Disclosed Information pertained to Mr. Spencer’s sister because Mr. Spencer was personally and directly exposed to the consequences of the police conduct in this case. As such, the police conduct prima facie engaged a personal privacy right of Mr. Spencer and, in this respect, his interest in the privacy of the Disclosed Information was direct and personal.

As the SCC ruled in R. v. Plant, [1993] 3 S.C.R. 281, the Court, dealing with informational privacy, stressed the strong claim to privacy in relation to information that is at the “biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state”: p. 293. Importantly, the Court went on to make clear that s. 8 protection is accorded not only to the information which is itself of that nature, but also to “information which tends to reveal intimate details of the lifestyle and personal choices of the individual”.

Section 487.014(1) of the Criminal Code provides that a peace officer does not need a production order “to ask a person to voluntarily provide to the officer documents, data or information that the person is not prohibited by law from disclosing”. PIPEDA prohibits disclosure of the information unless the requirements of the law enforcement provision are met, including that the government institution discloses a lawful authority to obtain, not simply to ask for the information: s. 7(3)(c.1)(ii). On the Crown’s reading of these provisions, PIPEDA‘s protections become virtually meaningless in the face of a police request for personal information: the “lawful authority” was a simple request without power to compel and, because there was a simple request, the institution is no longer prohibited by law from disclosing the information.

The SCC said “lawful authority” in s. 7(3)(c.1)(ii) of PIPEDA must be contrasted with s. 7(3)(c), which provides that personal information may be disclosed without consent where “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records”. The reference to “lawful authority” in s. 7(3)(c.1)(ii) must mean something other than a “subpoena or [search] warrant”. “Lawful authority” may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law: Collins. As the intervener the Privacy Commissioner of Canada submitted, interpreting “lawful authority” as requiring more than a bare request by law enforcement gives this term a meaningful role to play in the context of s. 7(3) and should be preferred over alternative meanings that do not do so. In short, the SCC said that neither s. 487.014(1) of the Code, nor PIPEDA, creates any police search and seizure powers.

Following the Grant test, given the uncertainty in the lawfulness of the police request before this case was heard here, the SCC dismissed the appeal by defence, affirmed the conviction on the possession count, and upheld the Court of Appeal’s order for a new trial on the making available count. Going forward, after this decision by the SCC, it is clear that short of where the information is required to prevent imminent bodily harm (exigent circumstances), or some other lawful authority, we will need a warrant (production order) to obtain subscriber information matching to an IP address from an Internet service provider.

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Breath tests not taken “as soon as practicable” where police contacted duty counsel, on his own volition, after accused waived counsel.

R. v. Sharma, [2014] O.J. No. 1289 – this case out of Ontario raised a couple of key issues that should serve as a reminder to those officers practicing poor “note-taking” habits.  

I will summarize this case in point form in order to get to the key issues:

  • 11:42 p.m. – The defendant’s car approached the R.I.D.E spot check.
  • 11:43 – The police Constable read the defendant the approved screening device demand.
  • 11:45 – The defendant registered a “fail” and was arrested.
  • 11:48 – The defendant was read her rights to counsel and waived her rights.
  • 11:50 – The defendant was read the breath demand.
  • 12:02 – The defendant was transported to the police station.
  • 12:15 – The defendant arrived at the police station.
  • 12:16 – Brought through booking.
  • 12:19 – First bathroom trip.
  • 12:23 – The defendant was escorted to the report room.
  • 12:30 – The police constable placed a call to duty counsel.
  • 12:39 – Duty counsel called back and a conversation occurred between the defendant and the duty counsel lawyer.
  • 12:41 – The defendant exited the privacy booth and went to the breathe room.
  • 12:47 – First breath sample was taken from the defendant.
  • 1:12 a.m. – Second breath sample was taken from the defendant.
  • Note: there was a second bathroom trip at some point between 12:23 and 1:12.

This case hinged on two issues, which essentially was decided by the officer’s notes, or in this case, the lack thereof. The defendant originally waived her right to consult with a lawyer. The police constable testified that the defendant later changed her mind about speaking with a lawyer, and as a result, he contacted duty counsel for her to obtain legal advice. The police constable did not include in his notes that the defendant changed her mind on exercising her right to speak to counsel. On this issue, the police constable testified purely from memory. The defendant testified that she never requested to speak to duty counsel. She explained that she never did change her mind on this point and that the police officer acted on his own volition and certainly not at her request.

The judge relied upon R. v. Davidson, [2005] O.J. No. 3474, which addressed the issue where police occasioned a call with duty counsel, on their own volition, after a clear waiver of right to counsel was given by the accused. Dawson J. held in Davidson at para. 21:

“If the waiver is clear and unequivocal it is not reasonable, as a matter of law, for the police to contact duty counsel, thereby delaying the administration of the breath tests.”

In the case at hand, the officer testified that the defendant had changed her mind with regards to right to counsel at the station, upon being given her right to counsel a second time. For these reasons, the police constable put the accused on the phone with duty counsel. This did not appear anywhere in his notes. The Honourable Justice Aston J. Hall said that the case law is quite clear that absence of notes by a police officer in relation to pivotal issues diminishes the weight attached to their evidence, as discussed in R. v. McGee, [2012] O.J. No. 523 at para. 66. Duncan J. in R. v. Zack, [1999] O.J. No. 5747 (Ont. C.J.) held that:

“In this day of full disclosure, it cannot be an acceptable explanation for an officer to say ‘I did not note it because I would remember it’.”

Feldman J. in R. v. Lozanovski, [2005] O.C.J. 112, 64 W.C.B. (2d) 630 at page 3 said the following:

“It is important to the proper functioning of the judicial fact finding role that significant facts be recorded by the police and not left to the whim of memory.”

In R. v. Odgers, [2009] O.J. No. 2592 at para. 16, Fournier J. stated:

“It goes without saying that the absence of notes on an important factor is relevant to an officer’s credibility. As a result, the courts have on occasion been reluctant to attribute much weight to evidence adduced viva voce by an officer, in the absence of corroborating written references in that officer’s notebook.”

The absence of notes is clearly relevant to the officer’s credibility, as the Court of Appeal stated in R. v. Fisher, [2005] O.J. No. 1899:

“[T]he notes, and in particular the absence of the important fact as to the origin of the odor of alcohol, were relevant to the officer’s credibility.”

Wright J. in R. v. Hayes, [2005] O.J. No. 5057 at para. 9:

“For an officer to come to court and simply say I have an independent recollection doesn’t cut it in this court. Not in front of me. Not in front of Justice Duncan and I suspect probably not in front of very many judges anymore.”

The Honourable Justice Aston J. Hall said for the police constable to come to court and testify that he simply did not record in his notes, something as important and significant as right to counsel, because he was multi-tasking was concerning and he could not place any weight on his viva voce evidence that the defendant asked to speak to duty counsel. On the other hand, said the judge, the defendant gave her evidence in a straightforward manner and her recollection of events, other than the disputed with respect to “change of mind “regarding right to counsel, was largely consistent with the officer’s version of events. In light of these reasons, the judge said he had no reason to disbelieve the defendant’s evidence, and he accepted the evidence of the defendant and found that there was a clear and unequivocal waiver with respect to her right to counsel and that she never changed her mind with regards to this waiver.

Justice Hall said where the delay occasioned by the call to duty counsel is unreasonable, it is effectively unexplained. In these circumstances, the defendant clearly and unequivocally waived her right to counsel without ever changing her mind. Therefore, the eighteen minutes delay in administering the breath test was unreasonable and effectively unexplained. The eighteen minutes was a substantial amount of delay in light of the two hour guidelines, said the judge, and therefore the breath tests were not administered “as soon as practicable” and cannot be relied on by the crown under the presumption of identity.

Justice Hall found the defendant not guilty of impaired driving and not guilty of over 80.

 

 

 

 

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Police failure to return or report items seized to a Justice of the Peace as soon as practicable constitutes a breach of an accused’s rights under s. 8 of the Charter

For those officers that may feel “knowledge” of the law is not vital to the job or an investigation, here is another example to dispel the myth.

R. v. Garcia-Machado 2014 ONCJ 81 – on August 25, 2012, after attending a party, Mr. Garcia-Machado drove his Volkswagen Golf off the road, where it collided with two trees before coming to a stop. Mr. Garcia-Machado was carrying two passengers: his friend Mr. Carson Cameron sat in the front and Mr. Carson’s friend Ms. Katheryn Alphonso sat in the rear. Able to leave the car under her own steam, Ms. Alphonso ran home to call for help. She sustained a puncture wound to her knee that required stitches. Mr. Cameron sustained a concussion and a serious fracture to his lower right leg which required surgery and a long period of rehabilitation. Mr. Garcia-Machado suffered a broken femur. Both men were knocked unconscious by the impact and had to be extricated from the car by firefighters using the “jaws of life” before being taken to hospital. Using a search warrant, police seized a sample of Mr. Garcia-Machado’s blood and his medical records from the hospital on August 28, 2012. These were submitted to the Centre of Forensic Sciences (“CFS”) and a toxicologist was able to use them to come to the opinion that Mr. Garcia-Machado was “Over 80” at the time of the accident and that his ability to drive would have been impaired by alcohol. On October 26, 2012, Mr. Garcia-Machado was charged with Impaired Driving Causing Bodily Harm and “Over 80” Causing Bodily Harm. On December 17, 2012 and for the first time, police made a report to a Justice of the Peace concerning the items seized from the hospital.

The Ontario Court of Justice ruled that the police failure to return or report the items seized to a Justice of the Peace (in this case) as soon as practicable, contrary to section 487(1)(e) of the Criminal Code, constituted a breach of the accused’s rights under s. 8 of the Charter:

“In this case, the [four-month] delay was caused by the officer’s ignorance of the law and that of his fellow officers (including superiors), and his failure to consult the appropriate section of the Criminal Code. It was also the result of improper training and his decision to prioritize other investigations and to accommodate his shift work.

In this case, based on the authorities and the highly personal and private information at issue, I find that the police failure to report to a justice as soon as practicable rendered the otherwise valid search unlawful and unreasonable, contrary to s. 8 of the Charter.”

The blood sample and hospital records seized in the drinking and driving case were excluded under s. 24(2) where the police conduct was the result of “an apparent systemic and negligent failure to comply with the report and return provisions of the Criminal Code in the face of clear law requiring compliance.”

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Standard Condition on Officer Release Undertaking Restricting Travel Outside of the Province Considered

R. v. Thompson 2013 NSPC 124 – a Nova Scotia Provincial Court Judge heard an application under s. 515.1 of the Code (variation of Undertaking) to vary a Form 11.1 undertaking which required, among other things, that the accused remain within the Province of Nova Scotia.  The accused’s job required him to travel outside the province of Nova Scotia.  Officers have been called to task over recent years by simply “checking off” a release condition because it is an option for them to do, without thinking or articulating that the condition is necessary (e.g. the standard “Keep the Peace and be of Good Behaviour” clause, or a curfew clause that is not justifiable in the case).

The authority of the police to release persons arrested with or without warrant, upon terms of Form 11.1 undertakings, is set out in sub-ss. 499(2) (when the arrest is made with a warrant) and 503(2.1) (covering arrests without warrant) of the Code. The two provisions are identical, and state as follows:

… [T]he peace officer or officer in charge may, in order to release the person, require the person to enter into an undertaking in Form 11.1 in which the person undertakes to do one or more of the following things:

(a) to remain within a territorial jurisdiction specified in the undertaking;

(b) to notify the peace officer or another person mentioned in the undertaking of any change in his or her address, employment or occupation;

(c) to abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the undertaking, or from going to a place specified in the undertaking, except in accordance with the conditions specified in the undertaking;

(d) to deposit the person’s passport with the peace officer or other person mentioned in the undertaking;

(e) to abstain from possessing a firearm and to surrender any firearm in the possession of the person and any authorization, licence or registration certificate or other document enabling that person to acquire or possess a firearm;

(f) to report at the times specified in the undertaking to a peace officer or other person designated in the undertaking;

(g) to abstain from

(i) the consumption of alcohol or other intoxicating substances, or

(ii) the consumption of drugs except in accordance with a medical prescription; or

(h) to comply with any other condition specified in the undertaking that the peace officer or officer in charge considers necessary to ensure the safety and security of any victim of or witness to the offence.

The NSPC considered R. v. Morales [1992] S.C.J. No. 98 at paras. 35-40, which said that bail is structured to get the accused to return to court as required, prevent the commission of further offences, and prevent the commission of offences against the administration of justice; public safety and evidence preservation are implicit in this.  The NSPC said that in order for bail to be reasonable, it makes sense that the conditions of bail must be reasonable. A condition imposed upon the liberty interests of a person admitted to bail that is not connected reasonably to one of the constitutional purposes of the bail system is, in effect, not constitutionally compliant.

It followed, according to the court, that the automatic inclusion in Form 11.1 bail of a condition that the accused remain within the territorial jurisdiction of the province is not lawful, as it has the effect of making mandatory a condition that is clearly optional under paras. 499(2)(a) and 503(2.1)(a) of the Code.  As per the NSPC:

The imposition of such a condition would be constitutionally compliant only if the officer processing the release were to have sufficient grounds to believe that the accused would pose a flight risk. In none of the Form 11.1 bail-variation applications that I have heard has that been the case, which leads me to have concern that this condition is being imposed in many cases improperly.

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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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Permitting police officers to consult with counsel before their notes were prepared was an anathema to the very transparency that the legislative scheme aimed to promote.

Wood v. Schaeffer 2013 SCC 71 – This was an appeal by Officers Wood, Pullbrook and Seguin from the Ontario Court of Appeal judgment which set aside a decision confirming their right to consult with counsel before their notes on incidents referred to the Special Investigations Unit (SIU) are prepared.

On June 22, 2009, Mr. Minty was shot to death by Cst. Seguin of the Ontario Provincial Police (“OPP”). That evening, Cst. Seguin had been dispatched to investigate an alleged assault committed by Mr. Minty on a door-to-door salesman. When Cst. Seguin arrived at the scene, he approached Mr. Minty. Mr. Minty walked quickly toward Cst. Seguin. He had a knife in his hand. Cst. Seguin instructed Mr. Minty to put down or drop his weapon. Mr. Minty ignored these commands and “charged at Cst Seguin with his arm extended and the knife pointing at the officer” (SIU Report, A.R., vol. III, at p. 661). Cst. Seguin shot Mr. Minty five times.  Cst. Seguin reported that shots had been fired and additional officers arrived at the scene. Sgt. Burton, Cst. Seguin’s senior officer, told all of the officers in the area that the SIU might consider them to be witnesses to the incident and instructed them not to make any further notes until they had spoken with counsel.  On October 14, 2009, Mr. Scott, the Director of the SIU (the “SIU Director”), provided his report on the incident to the Attorney General. In his report, the SIU Director found that Cst. Seguin “had a reasonable apprehension of imminent death or grievous bodily harm” from which he could not escape and concluded that “the lethal force used was not excessive” in the circumstances (SIU Report, A.R., vol. III, at p. 661).  The SIU Director noted in his report that he would be raising several issues of concern with the OPP Commissioner. Among them, the SIU Director included his concern that all witness officers had been instructed not to write up their notes until they had spoken to counsel.

On June 24, 2009, Mr. Schaeffer was shot and killed by Cst. Wood of the OPP. Cst. Wood and Acting Sgt. Pullbrook had traveled by boat to a rocky peninsula on Osnaburgh Lake to investigate a reported theft. When they arrived at the peninsula, the officers approached Mr. Schaeffer, questioned him, and attempted to detain him. According to the officers, Mr. Schaeffer physically resisted and pulled a knife out of his pocket. Both officers retreated as Mr. Schaeffer advanced towards them. Mr. Schaeffer did not comply with commands to drop the knife. At that point, Cst. Wood shot Mr. Schaeffer twice in the chest, killing him.  After the shooting, Det. Sgt. Wellock was assigned to attend the scene. Before leaving the detachment, she instructed another officer to tell Cst. Wood and Acting Sgt. Pullbrook not to communicate with each other and not to write any notes until they had spoken to counsel. Cst. Wood and Acting Sgt. Pullbrook retained the same lawyer as their counsel and spoke to him, separately, several hours after the shooting. Their lawyer advised both officers to refrain from completing their notes and to provide him with a draft set of notes for his review. Both officers completed their notebook entries two days after the shooting, on June 26, 2009, after counsel had reviewed their draft notes.  On September 25, 2009, the SIU Director provided his report on this incident to the Attorney General. He concluded that he could not form reasonable and probable grounds to believe that that Cst. Wood had committed a criminal offence because he could not “place sufficient reliance on the information provided by Cst Wood or Acting A/Sgt Pullbrook to decide what probably happened” (A.R., vol. III, at p. 516). The SIU Director expressed specific concern over the manner in which Cst. Wood and Acting Sgt. Pullbrook completed their notes. The SIU Director wrote:

This note writing process flies in the face of the two main indicators of reliability of notes: independence and contemporaneity. The notes do not represent an independent recitation of the material events. The first drafts have been “approved” by an OPPA lawyer who represented all of the involved officers in this matter, a lawyer who has a professional obligation to share information among his clients when jointly retained by them. Nor are the notes the most contemporaneous ones — they were not written as soon as practicable and the first drafts remain in the custody of their lawyer. I am denied the opportunity to compare the first draft with the final entries. Accordingly, the only version of the material events are association lawyer approved notes. Due to their lack of independence and contemporaneity, I cannot rely upon these notes nor A/Sgt Pullbrook’s interview based upon them for the truth of their contents.

I have a statutory responsibility to conduct independent investigations and decide whether a police officer probably committed a criminal offence. In this most serious case, I have no informational base I can rely upon. Because I cannot conclude what probably happened, I cannot form reasonable grounds that the subject officer in this matter committed a criminal offence. [Emphasis added; A.R., vol. III, at p. 517.]

The courts examined the relevant Police Services Act and Regulations in this matter. The proper interpretation of the regulation lay at the heart of this appeal. The entitlement to counsel under s. 7(1) and the duty to make notes under s. 9(1) and (3) are of particular importance. These provisions read as follows:

7. [Right to counsel] (1) Subject to subsection (2), every police officer is entitled to consult with legal counsel or a representative of a police association and to have legal counsel or a representative of a police association present during his or her interview with the SIU.

9. [Notes on incident] (1) A witness officer shall complete in full the notes on the incident in accordance with his or her duty and … shall provide the notes to the chief of police within 24 hours after a request for the notes is made by the SIU.

(3) A subject officer shall complete in full the notes on the incident in accordance with his or her duty, but no member of the police force shall provide copies of the notes at the request of the SIU.

The Supreme Court of Canada ruled, in part:

Permitting police officers to consult with counsel before their notes were prepared was an anathema to the very transparency that the legislative scheme aimed to promote. When the community’s trust in the police was at stake, it was imperative that the investigatory process be, and appear to be, transparent. Manifestly, the legislature did not intend to provide officers with an entitlement to counsel that would undermine this transparency. The SIU’s governing Regulation hewed closely to the specific recommendations of those tasked with proposing reforms. Read in the full light of its history and context, it was apparent that the Regulation was not meant to afford officers an entitlement to consult with counsel before they completed their notes. Nor was such an entitlement consistent with an officer’s duties under the legislative scheme. Such an expansive understanding of the entitlement to counsel impinged on the ability of police officers to prepare accurate, detailed, and comprehensive notes in accordance with their duty. Permitting consultation with counsel before notes were prepared ran the risk that the focus of the notes would shift away from the officer’s public duty toward his or her private interest in justifying what had taken place. This shift would not be in accord with the officer’s duty. The public trust in the police was, and always had to be, of paramount concern. This concern required that officers prepare their notes without the assistance of counsel. Consultations with counsel during the note-making stage were antithetical to the very purpose of the legislative scheme. An officer’s notes were not meant to provide a “lawyer-enhanced” justification for what had occurred. They were simply meant to record an event, so that others, like the SIU Director, could rely on them to determine what happened. The Court of Appeal was correct in finding that police officers were not permitted to have the assistance of counsel in the preparation of their notes. However, the Court of Appeal erred in finding that police officers were entitled to receive basic legal advice as to the nature of their rights and duties prior to completing their notes. Even the perfunctory consultation contemplated by the Court of Appeal was liable to cause an “appearances problem”. Because the initial consultation was privileged, the public would have no way of knowing what was discussed. However, officers were free to consult with counsel after they have completed their notes and filed them with the chief of police.

Of interest, the SCC also made reference to several other decisions in which police note-taking was at issue.  For example, in their 1993 report to the Attorney General of Ontario on charge screening, disclosure, and resolution discussions, a committee made up of experienced counsel and police officers and led by the Honourable G. A. Martin, observed that:

[T]he duty to make careful notes pertaining to an investigation is an important part of the investigator’s broader duty to ensure that those who commit crimes are held accountable for them.

[I]nadequate note-taking, while it can hamper the conduct of the defence, also risks hampering an investigation and/or a prosecution. In short, inadequate note-taking does a disservice to both an accused and the community, [which] is entitled to expect that innocent people will be acquitted and guilty people properly convicted. [Emphasis added.]

In another instance, the Honourable R. E. Salhany considered the significance of police notes in the course of a public inquiry into a death caused by an off-duty officer. He explained the importance of notes in this way:

[Note-making] is not a burdensome task that police officers must reluctantly undertake because they were taught to do so at their police college. It is an integral part of a successful investigation and prosecution of an accused. It is as important as obtaining an incriminating statement, discovering incriminating exhibits or locating helpful witnesses. The preparation of accurate, detailed and comprehensive notes as soon as possible after an event has been investigated is the duty and responsibility of a competent investigator. [Emphasis added.]

The importance of police notes to the criminal justice system is obvious. As Mr. Martin observed of properly-made notes:

The notes of an investigator are often the most immediate source of the evidence relevant to the commission of a crime. The notes may be closest to what the witness actually saw or experienced. As the earliest record created, they may be the most accurate. [p. 152]

The SCC also made reference to the Ontario Police College, Basic Constable Training Program — Student Workbook (2008), at p. 2, since these incidents happened in Ontario:

Your notes are made from independent recollection and are your link to the past. They are there to assist you to gather the facts and details and to properly record events, observations and performances experienced during general duty functions and investigations … . [I]t is your responsibility to maintain an up-to-date record of what you have done, seen, heard, smelled, or touched during your tour of duty.

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Sections 210, 212(1)(j) and 213(1)(c) of the Criminal Code are inconsistent with the Charter. The declaration of invalidity should be suspended for one year.

(Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72 – for those of us following this case, I have included a short summary of the decision. 

The Supreme Court of Canada stated, in part:

The three impugned provisions, primarily concerned with preventing public nuisance as well as the exploitation of prostitutes, do not pass Charter muster: they infringe the s. 7 rights of prostitutes by depriving them of security of the person in a manner that is not in accordance with the principles of fundamental justice. It is not necessary to determine whether this Court should depart from or revisit its conclusion in the Prostitution Reference that s. 213(1)(c) does not violate s. 2(b) since it is possible to resolve this case entirely on s. 7 grounds.

… [T]he negative impact of the bawdy-house prohibition (s. 210) on the applicants’ security of the person is grossly disproportionate to its objective of preventing public nuisance. The harms to prostitutes identified by the courts below, such as being prevented from working in safer fixed indoor locations and from resorting to safe houses, are grossly disproportionate to the deterrence of community disruption. Parliament has the power to regulate against nuisances, but not at the cost of the health, safety and lives of prostitutes. Second, the purpose of the living on the avails of prostitution prohibition in s. 212(1)(j) is to target pimps and the parasitic, exploitative conduct in which they engage. The law, however, punishes everyone who lives on the avails of prostitution without distinguishing between those who exploit prostitutes and those who could increase the safety and security of prostitutes, for example, legitimate drivers, managers, or bodyguards. It also includes anyone involved in business with a prostitute, such as accountants or receptionists. In these ways, the law includes some conduct that bears no relation to its purpose of preventing the exploitation of prostitutes. The living on the avails provision is consequently overbroad. Third, the purpose of the communicating prohibition in s. 213(1)(c) is not to eliminate street prostitution for its own sake, but to take prostitution off the streets and out of public view in order to prevent the nuisances that street prostitution can cause. The provision’s negative impact on the safety and lives of street prostitutes, who are prevented by the communicating prohibition from screening potential clients for intoxication and propensity to violence, is a grossly disproportionate response to the possibility of nuisance caused by street prostitution.”

In other words, the SCC found Sections 210, 212(1)(j) and 213(1)(c) of the Code to be inconsistent with the Canadian Charter of Rights and Freedoms and hence are void.

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