Legal Issues In Policing

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In this episode, Mike responds to a listener's question about the validity of a penile swab. The Supreme Court of Canada decision of R. v. Saeed, 2016 SCC 24 is discussed as well as academic and reference material in the area of penile swabs and DNA collection.

Croatian Medical Journal - Analysis of DNA Evidence Recovered from Epithelial Cells in Penile Swabs

Journal of Forensic and Legal Medicine - Assessing the presence of female DNA on post-coital penile swabs: Relevance to the investigation of sexual assault

Harborview Medical Center - Suspect Evidence Collection Guidelines Sexual Assault

Royal College of Pathologists of Australasia - Evidence Based Forensic Sampling Standards

Manitoba Law Journal - Persistence and Variability of DNA: Penile Washings and Intimate Bodily Examinations in Sex-Related Offences

Faculty of Forensic & Legal Medicine - Recommendations for the collection of forensic specimens from complainants and suspects

Statistics Canada 2021 police reported sexual assault

Sexual assault: Is classified by level in the Criminal Code into three separate categories—depending on the nature and severity of the incident—including level 1, assault of a sexual nature that violates the sexual integrity of the victim; level 2, sexual assault with a weapon or causing bodily harm involves sexual assault with a weapon, threats to use a weapon or causing bodily harm; and level 3, aggravated sexual assault involves sexual assault that wounds, maims, disfigures or endangers the life of the victim.

Sexual assault Level 1 - 33,521 reported offences (+18% from 2020)
Sexual assault Level 2 - 598 reported offences (-5% from 2020)
Sexual assault Level 3 - 123 reported offences (-13% from 2020)

Statistics Canada notes that "the number of sexual assaults reported by police is likely a significant underestimation of the true extent of sexual assault in Canada, as these types of offences often go unreported to police." 

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In this episode, Mike highlights recent public opinion polls amongst Canadians and how they view police officers when compared to other actors in the legal system. You might be pleasantly surprised! Mike also uses a recent OPCC decision as an example of how the media failed to cover the ultimate outcome of a complaint against two officers accused of racial profiling. The allegations against the officers made headlines but their vindication was met with silence.

OPCC Appointment of retired judge
s. 117 Review - Notice of Adjudicator's Decision


 

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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Sillars, 2022 ONCA 510 where a panel of three  judges had to determine whether a canoe was a vessel such that the impaired operation and testing provisions of the Criminal Code applied. Also examined in this episode is the extent to which the right to counsel under s. 10(b) of the Charter is suspended for ASD demands at the hospital when the requisite suspicion is formed bedside. It is important to understand that the law has been amended since the facts that led to this decision arose. The Criminal Code ASD demand provisions at the time of Sillars and today are referenced below for your convenience.

Law at the time of Sillars (2017)

• Testing for presence of alcohol or a drug

s. 254 (2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol ... (b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

• vessel includes a machine designed to derive support in the atmosphere primarily from reactions against the earth’s surface of air expelled from the machine.

Law today (July 2022)

• Testing for presence of alcohol or drug

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug ... (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose ... .

• Mandatory alcohol screening

320.27 (2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

• conveyance means a motor vehicle, a vessel, an aircraft or railway equipment. 
• vessel includes a hovercraft.

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In this episode, Mike discusses the Quebec Court of Appeal decision R. v. Leventis, 2022 QCCA 291  where a panel of three  judges had to determine whether an arrest for drug possession was justified based on an anonymous tip of drug trafficking, along with suspicious observations, when viewed through the lens of the officer's experience. Also examined in this episode is the extent to which an anonymous tip is scrutinized and the role an officer's experience plays in the reasonable grounds analysis. 

"Experience is the hardest kind of teacher. It gives you the test first and the lesson afterward.” ~ Oscar Wilde

Note: The court's decision was rendered in French and additional details were taken from the trial court's rulings.

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In this episode, Mike discusses the BC Court of Appeal decision R. v. Choi, 2021 BCCA 410 where a panel of three  judges had to determine whether a search conducted of a drug arrestee while he was booked into police cells amounted to a "strip search" such that the guidelines enunciated by the Supreme Court of Canada in Golden ought to apply. The arrestee's challenge to his sentence appeal (R. v. Choi, 2022 BCCA 90) will also be briefly reviewed.

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In this episode, Mike discusses the Supreme Court of Canada decision R. v. Tim, 2022 SCC 12. In it, Canada's top court had to decide: (1) whether a police officer’s mistake of law rendered an arrest unlawful and therefore  arbitrary under s. 9 of the Charter;  (2) if so, whether the subsequent searches of the arrestee were authorized by law under s. 8 of the Charter; and (3) if there were Charter breaches, whether the evidence, including a loaded pistol and fentanyl, should be excluded under s. 24(2). You might be surprised by the outcome. 

Additional details about this case were found in appeal documents.

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In this episode, Mike discusses the Alberta Court of Appeal decision R. v. Bidlock-Hawkins, 2022 ABCA 201 where, during a Charter voir dire, a trial judge concluded the police had used excessive force and then had to decide an appropriate remedy under s. 24 of the Charter. This episode may help you understand how s. 25 of the Criminal Code applies to your conduct in a criminal trial in which you are not a defendant but a Crown witness. 

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In this episode, Mike discusses the Ontario Court of Appeal decision, R. v. Smith, 2022 ONCA 439 where police arrested the accused for drug possession, towed his vehicle back to the station and pried open a locked box - described as a safe - in which heroin, fentanyl and meth were found inside. Was prying open the "safe" without a warrant proper? Learn how  you can protect your warrantless searches of vehicles and containers found inside as an incident to arrest from Charter challenge. 

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In this episode, Mike discusses the Nova Scotia Supreme Court decision R. v. Arsenault, 2022 NSSC 149  involving a vehicle  inventory search in which a loaded handgun was found in a glovebox and uses it as a basis to take a deep dive into these type of searches and how you can protect your searches from Charter challenge. 

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In this episode, Mike discusses the Supreme Court of Canada reasoning in R. v. Ali, 2022 SCC 1 and the standard required to justify a strip search incidental to an arrest.

"Where a strip search is conducted as an incident to a person’s lawful arrest, there must be reasonable and probable grounds justifying the strip search, in addition to reasonable and probable grounds justifying the arrest. These grounds are met for the strip search where there is some evidence suggesting the possibility of concealment of weapons or other evidence related to the reason for the arrest."

See also R. v. Golden, 2001 SCC 83.

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