Legal Issues In Policing

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In this episode, Mike discusses the BC Court of Appeal decision R. v. Wilkinson, 2023 BCCA 3 where officers chased down a man who fled on foot as they drove by in an unmarked police car late at night in a high crime area. But the officers were not responding to a reported crime nor did they have a specific crime in mind when they took up pursuit.  Was the reasonable suspicion standard justifying an investigative detention met? If you are a proactive police officer who likes to investigate and prevent crime rather than simply react to citizen reports of it, then you will want to listen to this. 

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Today, March 16, 2023, we lost two superheroes, 35-year-old  Constable Travis Jordan (8.5 years of service) and 30-year-old Constable Brett Ryan (5.5 years of service).  Both Edmonton Police Service officers were responding to a family dispute call in an apartment complex at about 12:47 a.m. Upon arrival, the officers entered  the apartment  building, approached the suite, and were shot by a young male suspect. At this time, all indications are that they did not have a chance to discharge their service weapons. Constable Jordan and Constable Ryan were rushed to hospital, where they were both declared deceased. Listen as EPS Chief Dale McFee speaks at a press conference.

Heroes remembered never die!

EPS Press Release.
EPS In Memoriam.
Cst. Ryan and Cst. Jordan Memorial Fundraiser.

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In this episode, Mike discusses a trial tactic apparently used by some defence lawyers to make you feel humiliated while testifying. By knowing what to expect on cross-examination, you can “contemporaneously” keep your cool. If you can’t define contemporaneously, don’t feel less of yourself. Listen and you will understand what I mean. Keep calm and carry on!

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In this episode, Mike discusses the Ontario Court of Justice decision R. v. Maftoon, (2021 ONCJ 583 / 2022 ONCJ 518) in which a patron at an outdoor public swimming pool took matters into his own hands and tried to argue the choices he made were somehow the fault of the police. Did his legal arguments stand up in court? 

Warning: This podcast contains explicit details that may be hard to hear for some listeners.

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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Bond, 2021 ONCA 730 where a police officer resubmitted a search warrant application using the same information even though the warrant had already been rejected by a different justice. Did this amount to impermissible “judge-shopping” or was it a legitimate exercise? You might be surprised by the result.

See also R. v. Duchcherer & R. v. Oakes, 2006 BCCA 171.

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In this episode, Mike discusses the Nova Scotia Court of Appeal decision R. v. Mitchell, 2022 NSCA 77 where a suspect in an intimate partner violence investigation asked a court to stay all 32 charges against him because the police entered his home without a warrant to arrest him. No statement was obtained nor was any evidence found as a result of this entry and arrest. Was the police conduct so egregious that the court granted the request?  Mike also speaks about domestic violence and how times have changed.

Nova Scotia Public Prosecution Service Spousal/Partner Violence
BC Crown Counsel policy on Intimate Partner Violence
Ontario Crown Counsel policy on Intimate Partner Violence

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In this episode, Mike discusses the BC Supreme Court decision R. v. Morris, 2023 BCSC 106 where the court was tasked with determining whether a modified flare gun found in the accused’s pocket was actually a firearm. And that’s not all. Listen to learn whether the judge fell for the “someone snuck it in my pocket while I slept” defence.

Here are some Criminal Code definitions to help understand this case.

"firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm". [s. 2]

"ammunition means a cartridge containing a projectile designed to be discharged from a firearm and, without restricting the generality of the foregoing, includes a caseless cartridge and a shot shell". [s. 84(1)]

"handgun means a firearm that is designed, altered or intended to be aimed and fired by the action of one hand, whether or not it has been redesigned or subsequently altered to be aimed and fired by the action of both hands". [s. 84(1)]

"prohibited firearm means
(a) a handgun that
(i) has a barrel equal to or less than 105 mm in length, or
(ii) is designed or adapted to discharge a 25 or 32 calibre cartridge,
but does not include any such handgun that is prescribed, where the handgun is for use in international sporting competitions governed by the rules of the International Shooting Union,
(b) a firearm that is adapted from a rifle or shotgun, whether by sawing, cutting or any other alteration, and that, as so adapted,
(i) is less than 660 mm in length, or
(ii) is 660 mm or greater in length and has a barrel less than 457 mm in length,
(c) an automatic firearm, whether or not it has been altered to discharge only one projectile with one pressure of the trigger, or
(d) any firearm that is prescribed to be a prohibited firearm". [s. 84(1)]

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In this episode, Mike discusses the Supreme Court of Canada decision R. v. Beaver, 2022 SCC 54  where the court was tasked with determining whether a seasoned homicide detective was justified in ordering the arrest of two murder suspects. The legality of the arrest hinged on whether the detective had the requisite reasonable grounds to believe (1) a crime was committed and (2) the arrestees committed it. You be the judge. And ask yourself, what would you have done in this situation?

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In this episode, Mike looks at the Independent Investigation Office's (IIO's) response to the Clear Statement issued by the BC Prosecution Service (Crown Counsel) explaining its decision not to lay charges against an RCMP officer who shot at and injured a man who was driving a truck erratically  and struck police vehicles. The charges considered included attempted murder, aggravated assault/assault with a weapon, discharge a firearm with intent and reckless discharge of a firearm. Do you think this should have gone to trial? The Crown didn't and for good reason despite the view of the IIO.    

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In this episode, Mike looks at Klassen v. British Columbia (Minister of Public Safety and Solicitor General), 2021 BCCA 294, leave to appeal ref’d 2022 CanLII 1932 (SCC), a civil case involving two people  acquitted in a criminal trial of assaulting a peace officer who then sued the officer and the Province for damages alleging wrongful arrest and Charter breaches.  Does the doctrine of issue estoppel prevent the officer from asserting the arrest he made was lawful, despite a contrary finding by the judge in the criminal trial? And how does Crown's role at the criminal trial play in all of this?  

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