Legal Issues In Policing

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In this episode, Mike looks at R. v. Myers, 2022 NSCA 69, another inventory search case, this time released by the Nova Scotia Court of Appeal. Listen to find out what the province's highest court said about whether the search of a passenger's personal belongings fits within the scope of a vehicle inventory search.

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In this episode, Mike uses the case of R. v. Robertson, 2022 ONSC 5795 to discuss traffic related  stops under provincial legislation for regulatory and road safety reasons. Does an officer’s testimonial declaration of purpose dictate a factual finding of purpose? If not, what happens? Listen and learn.

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In this episode, Mike provides an outside look at  Surrey's transition from the RCMP to the Surrey Police Service. In 2018 Brenda Locke, now the new mayor of Surrey, ran as a candidate for city council with the Safe Surrey Coalition which made the following promise: "We will also on Day 1 initiate the process to establish local Surrey Police Force that will be better able to deal with gang and gun crimes." Four years later,  in 2022, Locke ran with the Surrey Connect Team with the vision to "keep the RCMP" and "stop the independent police service."  Is this a case of playing politics with public safety? Mike gives his two cents worth. 

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In this episode, Mike discusses a question he was asked recently and uses the Saskatchewan  Court of Appeal decision R. v. Ratt, 2020 SKCA 19  to inform his response. Police officers, and judges, must be careful not to confuse or conflate what justifies an investigative detention or arrest with what constitutes detention or arrest in the first place.  An officer’s intention to detain or arrest is not determinative of whether a detention or arrest in law has occurred. The relevant time to determine whether the requisite subjective and objective grounds exist for a detention or arrest is not at the time the officer makes the decision to do so, but at the time of the actual detention or arrest.  So even though an officer might not have the  objective  grounds necessary when they make their decision, they may acquire the necessary objective grounds by the time the detention or arrest was actually effectuated. Listen and learn how this all plays out.

Notable Quote:

"Intention alone does not attract a finding of unconstitutionality.  It is not until that subjective intent is accompanied by actual conduct that it becomes relevant.  We would otherwise have the Orwellian result that Charter breaches are determined on the basis of what police officers intend to do, or think they can do, not on what they actually do.  The Charter protects us from conduct, not imagination, and even a benign motive may not justify objectively unreasonable police conduct." - Supreme Court of Canada (R. v. Clayton, 2007 SCC 32 at para. 48)

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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Francis, 2022 ONCA 729 where police arrested a man on an outstanding arrest warrant and searched the vehicle he was driving, discovering a loaded pistol and drugs in the process. This was followed up with a strip search at the police station and more drugs were found. Was a search of the vehicle as an incident to arrest proper when the basis for the arrest was an outstanding arrest warrant and there was no urgency because the arrestee was in handcuffs sitting in the back of a police car? Was the strip search at the police station justified even though a pat-down did not disclose anything concerning? Listen and learn how this all played out.

Compare R. v. Santana, 2020 ONCA 365.

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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Ahmed, 2022 ONCA 640 where police officers detained the occupants of a vehicle matching the description of one suspected of being involved in gunfire. When an officer leaned in the car through its open door and lit up its interior with a flashlight,  he saw a firearm partially sticking out from under a seat. It turns out the gun was loaded and had an extended magazine containing 26 rounds of 9 mm ammunition. Was the search of the vehicle lawful as an incident to investigative detention? 

Here are some quotes from the Ontario Court of Appeal that might help you answer this question:

Investigative Detention: “The requirements for a justifiable investigative detention are twofold: (1) police officers must have reasonable grounds to suspect that the specific person is implicated in the criminal activity under investigation; and (2) the decision to detain must be reasonable on an overall assessment of all circumstances.” 

Protective Search: “The law is clear that the police have the power to briefly detain individuals for investigative purposes and to conduct a limited pat-down or safety search incident to that detention. When an officer has reasonable grounds to believe that their safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual.” 

Plain View: “There are four criteria to be applied: (i) The officer must be lawfully positioned relative to where the item is found; (ii) the nature of the evidence must be immediately apparent as constituting a criminal offence; (iii) the evidence must have been discovered inadvertently; and (iv) the item must be visible without any exploratory search.” 

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In this episode, Mike discusses the BC Court of Appeal decision R. v. Chen, 2022 BCCA 296 where it is considered a “best practice” for a police affiant to educate an authorizing judge about how the law operates in an application to intercept private communications. Although an affidavit may satisfy the requirements that trigger the exception to investigative necessity under s. 186(1.1) of the Criminal Code, it would seem a police affiant is now being asked to school a judge by drawing their attention to  the law as it applies. If that's what it takes, I suppose this "advice" should not be ignored or you may run the risk of having your authorization struck down. 

_______________________
Criminal Code

s. 186 (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Exception for criminal organizations and terrorism offences
(1.1) Notwithstanding paragraph (1)(b), that paragraph does not apply where the judge is satisfied that the application for an authorization is in relation to

(a) an offence under section 467.11, 467.111, 467.12 or 467.13;

(b) an offence committed for the benefit of, at the direction of or in association with a criminal organization; or

(c) a terrorism offence.

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In this episode, Mike discusses the BC Supreme Court decision R. v. Castle, 2022 BCSC 1292 where a police officer conducted a pat-down search of a cyclist who was riding his bike at night without a helmet or lights on his bike. Not only did the officer pat-down the cyclist, he removed a small box from the cyclist’s front hoodie pocket, opened it and discovered drugs. Were these pat-down, pocket and box searches justified as an incident to detention?

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In this episode, Mike responds to a listener's question about a wife's surreptitious "search" of her husband's cell phone on which she locates child pornography, prints off screen shots of the images and brings them into the police station to report what she found.  The Alberta Court of Appeal  decision of R. v. King, 2021 ABCA 271 is used as a basis for discussion as it appears to address similar circumstances.

A quick note on s. 8 Charter search and seizure law:

• Not every form of examination conducted by the police (government) will constitute a "search"’ for Charter (constitutional) purposes.  
• Only  state examinations constituting an intrusion into a person's reasonable expectation of privacy (REP) will amount to  a "search" within the meaning of s. 8 of the Charter.
• State intrusions  into a reasonable expectation of privacy (searches) are  permissible if they are “reasonable”.  
• A search will be reasonable  if it is authorized by a reasonable law and carried out in a reasonable manner.

SEARCH = POLICE + INTRUSION + REP 

The lower provincial court ruling for the King case can be found here.

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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Williams, 2022 ONCA 596 where a panel of three  judges had to determine whether the arrest of the accused, prompted by informer information, was based on reasonable grounds. Listen for yourself and see how the Appeal Court applied the 3 C's to assessing the RELIABILITY of the information provided:

1. Was the information provided by the informer COMPELLING?
2. Was the informer  CREDIBLE?
3. Was the information CORROBORATED by police investigation prior to making the decision to conduct the arrest/search?

Also check out R. v. Williams, 2014 ONCA 908.

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