ENTER OR NOT HERE I COME? THE TENTATIVE (AND NOT SO TENTATIVE) VIEWS IN THE REEVES DECISION

Finally, a SCC decision where the concurring judgments discuss at length what they say they won’t discuss at length. It’s refreshing to read a decision that is so SCOTUS in approach – an Opinion – and two concurring Opinions at that. In R v Reeves2018 SCC 56, the newest decision from the Supreme Court building on the vast case law in the area of s. 8 of the Charter, the two concurring decisions by Justice Moldaver and Justice Côté take up an issue “benched” by the Justice Karakatsanis’s majority decision. In deciding Steeves has a reasonable expectation of privacy in a shared computer, the majority deems it unnecessary to decide the ancillary issue of whether the police entry into the home shared by the Reeves and his partner was legally justified in the first place.

This situation particularly resonates for me as a professor teaching 1Ls fundamental criminal law concepts. The cases I teach are rife with “we will get to that another day” sentiment. In JA[2011] 2 SCR 440, for example, both the majority of the then Chief Justice McLachlin and the dissent of Justice Fish leave open the Jobidon issue of consensual sexual activity that involves bodily harm. Again, in Mabior[2012] 2 SCR 584, Chief Justice McLachlin, after referencing sexually transmitted diseases other than HIV throughout the judgment, disappointedly states that “Where the line should be drawn with respect to diseases other than HIV is not before us” (at para 92).  

The majority in Reevestries to employ a similar yet different tactic to deflect a decision on the issue. Instead of the tantalizing suggestion that there will be some case on the horizon which will engage the issue squarely on, Justice Karakatsanis suggests the issue may be present but assessing it is unnecessary because there was a s. 8 violation in taking the computer and, in any event, Reeves’s counsel conceded the entry was lawful (paras 20 to 21). Furthermore, and here is the brush off, the issue raises “competing considerations” and to proceed without “full submissions” would be imprudent (at para 23). As an aside, Justices Côté and Brown, in their dissent in Trinity Western University,2018 SCC 32, took this same tack on the sticky issue of the standard of review as they declined to comment on the Doré/Loyola framework“in the absence of full submissions” (at para 266).

Despite this firm “no,” Justice Karakatsanis continues to explore the complexities inherent in such a decision (paras 24 and 25). That it invokes the intersection of the public and private spheres of our lives. That it highlights the nuances apparent in how we live those lives, raising questions of where and when our privacy becomes shared and if privacy amounts to mere physical space. I have explored the multi-verse of privacy and space in a previous blog posted on my Ideablawg website entitled, “Taking a Quick Survey of the Legal Landscape Through the Intersection of the Public and Private Living Space.” Overlaid is the societal desire to maintain public safety through the investigation of crime.The issue is, as suggested by Justice Karakatsanis, “complex” and requires a “considered response.” 

Yet, the presence of “competing considerations” is exactly why the concurring justices decide to give a response, considered or otherwise. For Justice Moldaver, a tentative response is better than none. In his view, direction from the Court is needed, albeit not binding direction. Justice Moldaver often gives advice to lawyers and trial judges when the issue requires it. For instance, in R v Rodgerson,[2015] 2 SCR 760, Justice Moldaver, offers some street-smart advice on how to run a murder case before a jury. In Reeves, Justice Moldaver does something different – he anticipates the issue as an issue and, in a forthright, make no bones about it manner, he states his “purpose in writing this concurrence is to express some tentative views on the issue of police entry into a shared residence” (at para 71). But that’s not all, the reason for writing something that is not a ruling, that is not a decision, that is not really even true obiter dicta as it is “tentative,” meaning he has not really made up his mind, is to fill a gap that is “a matter of considerable importance to the administration of criminal justice — and one which Parliament has to date left unaddressed.” This statement alone packs a wallop as Justice Moldaver anticipates an immediacy that cannot wait until another day. The matter is so pressing that it cannot wait for full submissions and cannot wait until he has fully formulated his opinion. This is, in other words, a matter of critical importance. It must be said.

Interestingly, “tentative views” have been offered in the Supreme Court previously. In eight SCC decisions such “tentative views” have been expressed. In the oldest such decision, St. John and Quebec R Co v Bank of British North America and the Hibbard Co1921 CanLII 574, Justice Anglin is not expressing a tentative view as much as he is making it clear that the tentative view he had of the case was not dispelled through oral argument (p 654). The other seven SCC decisions do express tentative views on matters on the basis those issues were “not raised before us” as with Justice Cartwright dissenting in Smith v The Queen[1960] SCR 776) and Justice La Forest in Tolofson v. Jensen; Lucas (Litigation Guardian of) v Gagnon[1994] 3 SCR 1022.

An instance where “tentative views” matter, as they presage the binding ruling and have precedential impact, is in R v Bernard, [1988] 2 SCR 833. In that case, Justice Wilson’s concurring decision (at para 93 to 95), on the constitutionality of the Leary Rule limiting the effect of intoxication on mens rea, ultimately became the majority ruling of Justice Cory in R v Daviault, [1994] 3 SCR 63 (see also R v Penno,  [1990] 2 SCR 865 and R v Robinson[1996] 1 SCR 683). Not only did Justice Wilson’s opinion become law but it caused Parliament to hastily respond by adding s. 33.1 of the Code.

The “tentative views” presented in Reevesby Justice Moldaver are well-thought out and do not seem tentative at all. His analysis of the basis for the police officers’ entry into the shared home with the consent of Reeves partner is based in principle and on an application of years of case authority building upon police officer’s common law ancillary duties. In his 27-paragraph discussion on the issue, he deftly “tentatively described” (at para 96) the police common law duty to enter a residence to take a witness statement for purposes of an investigation. He sketches out five criteria to ensure the authority is carefully circumscribed through a practical and common-sense approach to the potential intrusive situation (at para 96). Despite his belief that his comments require fuller attention in the future, he continues the opinion with his further belief that his scenario for common law entry by the police, without reasonable grounds to believe an offence has been or that evidence will be found of an offence, is nevertheless constitutional (at para 97). He draws upon case authority which permits intrusive police action, in certain contained circumstances, based on reasonable suspicion. He concludes in paragraph 99, that as his criteria for entry is specifically constrained that it “may well meet s. 8’s reasonableness requirement.” Again, the discussion is not that it “will” meet or that it “does” meet but that it “may well” meet. The virtue testing is left for another day.

But the issue is not really left on the corner of the bench. In paragraphs 100 to 102, Justice Moldaver then applies his “tentative articulation of the lawful authority under which the police could enter a shared residence” to the facts of the case. He assumes his formulation is constitutional and finds it “quite possible” that up to the time of actual seizure of the computer, Reeves’s s. 8 rights remain intact. To add to this speculative brain-worthy exercise, Justice Moldaver decries the paucity of the record as it does not contain sufficient facts to properly determine the outcome of all of the five criteria formulated as part of the test.

In stark contrast is the decisive concurring decision of Justice Côté. There is nothing tentative about this presentation of the issue. She calls out the majority for declining to consider the issue considering “it was ably argued by the parties” and impacts the s. 24(2) analysis (para 105). Justice Côté takes the issue head on and makes quick work of years of carefully crafted s. 8 principles. She boldly finds that police can and should be entitled to enter a shared residence, without a warrant, based on the consent of one party alone. She does so in 13 paragraphs without the need to formulate or constrain police authority. She does so by focusing the s. 8 lens not on the accused but on the valid, subsisting and present consent of the co-habitant. In Edwards-like fashion she keeps the spotlight on the presence of the consent thereby dissolving the s.8 issue on the basis of an absence of a search or seizure. The entry is simply an everyday matter of invitation and is not the heightened arena of the state intruding into the privacy of a citizen’s life. With a flick of the switch, s. 8 disappears in favour of the down to earth realities of hearth and home. 

By deciding not to decide, the majority set the stage for a showdown but not the quick draw we are used to in reading a Supreme Court decision. Instead, we have in R v Reeves, a slow-motion decision that requires us to patiently await the right case to appear to give an authoritative voice to the tentative one. Let’s hope we don’t need to wait too long.

 

 

 

The Suppression of Riots, Manifestly Unlawful Orders, And The Prevention Of Serious Mischief Under Sections 32 & 33: Episode 37 of the Ideablawg Podcasts on the Criminal Code of Canada

Although sections 32 and 33 pertain specifically to the suppression of riots, these sections continue the various Code protections afforded to a person enforcing the law but with a twist. Section 32 provides for a justification for the use or the ordering of force by a peace officer providing the force is applied in good faith, is necessary on reasonable grounds to suppress a riot and such force is not excessive in the circumstances.  So far, these sections seem familiar and comparable to previously discussed use of force sections. However, the difference is in the added language as sections 32(2) and (3) provide protection for those who obey orders to suppress a riot in both a martial law scenario (subsection 2) and a more general situation (subsection 3).  Subsection 4 protects citizens in the use of force in suppressing a riot in exigent circumstances involving “serious mischief.” Finally, subsection 5, deems the question of whether the order to use force is “manifestly unlawful or not” as a question of law.  

Section 32 reads as follows:

 (1) Every peace officer is justified in using or in ordering the use of as much force as the peace officer believes, in good faith and on reasonable grounds

       (a) is necessary to suppress a riot; and

(b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(2) Every one who is bound by military law to obey the command of his superior officer is justified in obeying any command given by his superior officer for the suppression of a riot unless the order is manifestly unlawful.

(3) Every one is justified in obeying an order of a peace officer to use force to suppress a riot if

(a) he acts in good faith; and

(b) the order is not manifestly unlawful.

(4) Every one who, in good faith and on reasonable grounds, believes that serious mischief will result from a riot before it is possible to secure the attendance of a peace officer is justified in using as much force as he believes in good faith and on reasonable grounds,

         (a) is necessary to suppress the riot; and

         (b) is not excessive, having regard to the danger to be apprehended from the continuance of the riot.

(5) For the purposes of this section, the question whether an order is manifestly unlawful or not is a question of law.

Subsection 1 only provides protection to a peace officer that uses or orders necessary force. Although the term “uses” is self evident, the word “orders” requires further discussion as it relates to subsection 2 and 3 and the protection of those who “obey” such orders to use force. Clearly, the section provides protection not only to those directly involved in suppressing riots but also those who are indirectly involved by giving the order or commands to suppress a riot. Why should this be the concern of a Criminal Code protection? The answer lies in the historical consideration of these sections and are, of course, very much related to the historical view of riots and those preventing them.

For this historical viewpoint, the first place to turn is to James Fitzjames Stephen, British jurist and the “father” of our codified criminal law. As I have discussed in previous blog, Stephen was a staunch supporter for codification of criminal law in England just at the time the Dominion of Canada was developing national laws. Although England did not follow Stephen’s recommendation, other commonwealth countries besides Canada did. In his treatise “A History of the Criminal Law of England, Volume 1,” Stephen devoted a chapter on suppression of riots. Anyone who has a smattering of awareness of the history of England, knows that riotous behaviour appears to be a regular feature of that history. This familiarity with the mob appears to be the catalyst for much of English common law and Canada, at least in this instance, appears to be the beneficiary of this propensity. According to Stephen, every citizen had a right and duty to protect public peace as “violence in all forms was so common, and the suppression of force by force so simple a matter, that special legislation did not seem necessary in very early times.” Despite this belief, as early as the 14th Century, legislation was in place relating to riots and was quite similar in tone and composition to the riot sections found in the Code today. Historically, twelve members of the community comprised the magic number for a riot, which is telling considering twelve is also the number required to constitute a valid jury. However, in the Code, an unlawful assembly under s. 62, which is not necessarily a riot, requires only an assembly of three or more persons. An unlawful assembly becomes a riot, pursuant to s. 63, where that assembly begins “to disturb the peace tumultuously.” But the ability to disperse a crowd through governmental proclamation required the mob equal twelve or more individuals. I will have more to say on this aspect when we arrive at those riotous sections.

In any event, it is clear that suppressing a riot has a long and tumultuous history and therefore the protections required, from preventing a riot to ordering the prevention of riots, are firmly within the Code protection/justification sections. This brief look back also explains why 32(2) applies to those suppressing a riot in accordance with military law as historically, riots, seen as a form of treason against the Crown, were typically suppressed by military force. Protection is required as a riot can turn into a revolution, which can in turn change the government and those supporting the old government by suppressing the riot of the newly formed government might find themselves on the wrong end of the law. Thus, s. 32(2) in certain circumstances can protect those who are merely following and obeying orders. This protection also extends to citizens who assist peace officers in suppressing riots under subsection 3.

The urgency suggested by this obligation to suppress a riot unless the order to do so is “manifestly unlawful” in accordance with the section reflects the historical seriousness with which these potential dangerous gatherings were treated.  However, as indicated in subsection 2 for the militia and subsection 3 for citizens, the justification of following orders is not available if the order is “manifestly unlawful.”  This phrase appears only in this section of the Criminal Code although the word “unlawful” is no stranger to the Criminal Code, typically meaning an act contrary to statute, be it criminal or regulatory. The word “unlawful” has a further meaning when connected to a predicate offence as it then also requires that the underlying unlawful act must be objectively dangerous as per the 1992 SCC DeSousa case. The descriptor “manifestly” is defined in the dictionary as easily understand or recognized by the mind.

A brief review of case law on the use of the term reveals that the phrase, “manifestly unlawful,” is a term often used in military law in relation to the requirement to follow superior orders, particularly where superior orders are conflicting. Under Article 19.02 of the Queen’s Regulations and Orders for the Canadian Forces (QR&Os) deals with "Conflicting Lawful Commands and Orders" and according to the notes accompanying the QR&Os, it is usually clear if an order from a superior officer, which includes a non commissioned member, is lawful or not. If however it is unclear or the subordinate does not know the law, then the subordinate must obey the command unless it is manifestly unlawful.

Of course the issue then becomes evident to whom? Does the law require the unlawfulness of the order be manifestly evident to the person following the orders – as in a subjective test – or manifestly evident to the reasonable person – as in an objective test? Although, an argument could be made that this determination requires a subjective assessment of the subordinate’s state of mind, according to military interpretation, “manifestly unlawful command or order is one that would appear to a person of ordinary sense and understanding to be clearly illegal,” requiring an objective test albeit in the context of the circumstances of the case. This phrase is important for military law as if a soldier follows a manifestly unlawful command, he or she is liable for his or her actions under civil or criminal law.

In the 2009 Matusheskie case, the Court Martial Appeal Court of Canada considered the term “manifestly unlawful” and found that the threshold for finding an order “manifestly unlawful” was very high. In support of this finding, the Court looked to the SCC discussion of the defence of following superior orders in the Finta case relating to Finta’s war crimes committed in WWII. As Justice Cory explained in Finta, “manifestly unlawful” is an order that “offends the conscience of every reasonable, right thinking person; it must be an order which is obviously and flagrantly wrong.  The order cannot be in a grey area or be merely questionable; rather it must patently and obviously be wrong.” The determination of “manifestly unlawful” is as stated in subsection (5) a question of law.

Finally, the gravity of riots permits citizens, who are unable to secure the attendance of a peace officer, to take into their own hands the suppression of a riot under subsection 4 if the actor believes “serious mischief” will otherwise result. The phrase “serious mischief” is again unique to this section, although of note the term did appear under the pre-2010 Alberta Rules of Court in relation to ex parte motions. Under the old Rule 387 an ex parte motion may only proceed if the applicant establishes that the delay caused by regular proceedings might “entail serious mischief.” The new rule 6.4 considers whether or not “undue prejudice” would be caused to the applicant. In other jurisdictions, the phrase is also used in a similar civil context and refers to “irreparable or serious mischief” caused by not proceeding by way of ex parte motion such as in s. 441(3) - now Rule 6-3(3) - of the Saskatchewan Queen’s Bench Rules. This suggests that the “mischief” or harmful behavior must be dangerous indeed.

Section 33, requires a peace officer and those assisting a peace officer to “disperse” or arrest those persons who do not comply with a proclamation under s. 67 or has committed an offence under s. 68. These sections, which we will discuss more specifically in later episodes, refer to the proclamation or order to disperse, which must be read by a government official, under section 67, where twelve or more persons (recall the 14th Century English laws on riots) are “unlawfully and riotously assembled.” Section 68 refers to offences committed when those ordered to disperse under s. 67 fail to do so.

Sections 32 and 33 are part of English common law history and remind us of a more unstable time when mobs could oust the rule of law. The societal harm when that possibility occurs is neatly reflected in Shakespeare’s historical play, Henry VI Part 2 in Act 4 Scene 2 wherein the line “the first thing we do, let’s kill all the lawyers” is spoken as a call to anarchy and disorder and a reminder to those law abiding members of the audience to take heed.

 

 

 

 

 

 

 

 

Sections 25.1 to 25.4 – Law Enforcement Justification Provisions: Episode 32 of the Ideablawg Podcasts on the Criminal Code of Canada

In this episode we will discuss what is known as the law enforcement justification provisions, proclaimed in force on February 1, 2002, as found under a compendium of sections from 25.1 to 25.4. These sections acknowledge certain police investigatory practices will involve the commission of offences, particularly where officers operate in a covert or undercover capacity. The most well known investigatory technique subject to these sections would be the “Mr. Big” investigations, which have attracted Supreme Court of Canada notice through the recent cases of Hart and Mack. For a further discussion of the many issues arising in such investigations, I highly recommend Mr. Big: Exposing Undercover Investigations in Canada by Kouri Keenan and Joan Brockman, who are from the excellent criminology faculty at Simon Fraser University.

The sections themselves were created in response to the 1999 Supreme Court of Canada decision in Campbell, wherein the court found that police were not immune from criminal liability as a result of unlawful conduct even if it was executed in good faith and to further a criminal investigation. The Court thus called upon Parliament to legislate such protection, which it did under these sections.

Although these sections make provision for investigators to commit offences in the course of their investigatory duties, the sections also create a mechanism for parliamentary and civilian oversight of such exceptional investigatory techniques. Thus, s. 25.1 contemplates a “competent authority” such as the Federal Minister of Public Safety and Emergency Preparedness or, the applicable provincial equivalents such as in the case of Alberta, the Solicitor General and Minister of Justice, who has the authority to designate “public officers” to act in these investigatory capacities. In addition to this designation, there must be civilian oversight or a “public authority”, in accordance with 25.1(3.1) “composed of persons who are not peace officers that may review the public officer’s conduct.” Furthermore, the designating Minister, under s. 25.1(4) must designate such public officers upon the advice of a “senior official,” who is a member of a law enforcement agency and has been so designated to act as a senior official by the Minister. In some ways, this designation process is rather self-fulfilling or circular considering the actual ministerial official who is receiving the advice chooses or designates the advising official. Upon receiving the senior official’s advice, the Minister must make the public officer designation on the basis of “law enforcement generally” rather on the basis of a specific law enforcement activity or investigation. Therefore, such designation must be viewed in the broader context of law enforcement, according to 25.1(4), and not done on a case-by-case basis. As with many ministerial decisions, this is the only articulated criterion for the designation, which leaves such designation open to broad discretion.

The senior official or advisor to the Minister has broader powers permitting the temporary designation of a public officer without the competent authority, under s. 25.1(6), under exigent circumstances, wherein it is not feasible to have the competent authority or Minister perform the designation and where the public officer would be justified in the circumstances in acting contrary to the Criminal Code. The circumstances of such a designation are set out under 25.1(7) and the justification for such conduct as found under 25.1(8), being that the senior official believes on reasonable grounds that “the commission of the act or omission, as compared to the nature of the offence or criminal activity being investigated, is reasonable and proportional in the circumstances, having regard to such matters as the nature of the act or omission, the nature of the investigation and the reasonable availability of other means for carrying out the public officer’s law enforcement duties.”  In such exigent circumstances the senior official must notify the Minister of this action “without delay.” This requirement, I would suggest, seems rather contradictory. The purpose of the notification would be to ensure that such actions are not taken without the knowledge of the Minister but in order to effect such awareness, notification would only be fulfilled if in fact the Minister receives the missive and reads it. If the Minister is available to review such a document, one wonders why the Minister is not in the position of making the actual decision, considering the availability of instantaneous electronic communication.

In any event, there are further restrictions on the public officer’s ability and authority to act outside of the Criminal Code. Under subsection (9), further restrictions pertain to instances where the public officer is involved in activity that would be likely to result in loss of or serious damage to property or where a person is acting under the direction of the public officer in accordance with subsection (10). In these specific circumstances, the public officer must not only comply with the circumstances of justification under subsection (8) but must also comply with the further justifications listed under subsection (9). Thus, the public officer must also be personally authorized in writing to act or if such written authorization is not feasible, the officer must believe on reasonable grounds that the acts are necessary to “preserve the life or safety of any person, prevent the compromise of the identity of a public officer acting in an undercover capacity, of a confidential informant or of a person acting covertly under the direction and control of a public officer, or prevent the imminent loss or destruction of evidence of an indictable offence.” This broad authority and justification to commit criminal offences is tempered by the limitation to the section under subsection (11) that there is no justification for “the intentional or criminally negligent causing of death or bodily harm to another person; the wilful attempt in any manner to obstruct, pervert or defeat the course of justice; or conduct that would violate the sexual integrity of an individual.” Section 25.1 also reiterates that all other protections to a police officer in the Code are available and that despite the extraordinary powers under the section, officers must still comply with the rules of evidence.

When a public officer does in fact commit an offence or direct others to do so in accordance with s.25.1, there are further oversight requirements such as under s.25.2, the public officer must file a written report with the senior official as soon as feasible after the commission of the said acts. An annual report is compiled by the competent authority or Minister and made public regarding the previous yearly activities outlining the number of emergency designations made by senior officials’ and the number of written authorizations made by the senior officials under 25.1(9)(a), the number of offences committed by officers as a result, the nature of the conduct being investigated and the nature of the acts committed by the designated officers. However, such report must still preserve the confidentiality, must not compromise ongoing investigations, must not prejudice an ongoing legal proceeding and must generally be not contrary to the public interest. Such annual reports are available online.

For instance, the RCMP publishes such reports through the Public Safety website. Although the 2012 Report is available online, the 2013 Report has not as yet been published most likely as the report must be first tabled in the House of Commons and the Senate for approval. However, provincial reports are available such as the 2013 report from British Columbia. Alberta does not publish a stand-alone report but publishes the information as part of a larger report on the state of the Ministry as a whole. This means the information is not clearly accessible but is found under the heading in the report entitled “Annual Report Extracts and Other Statutory Reports.” The actual 2013 “report” consists of three lines indicating three instances of illegal conduct committed while investigating “homicide and missing persons” and resulted in “minor damage to a vehicle.”

In the previous 2012 Report there were five instances of illegal conduct wherein the officers created the “illusion” of a break in, committed property damage and participated in activities of a criminal organization. This description creates more questions than answers as it is not a crime to create an “illusion” of a crime and it is only those acts contrary to the Criminal Code, which must be reported. If in fact a crime was committed by this “illusion,” for example, if the conduct amounted to a public mischief, then the report should specify the exact crime as opposed to the circumstances in which it was done. Of course, the sections do not provide immunity for certain criminal acts, no matter in what circumstances they are committed, such as an obstruct justice. Therefore, the information needed to provide the appropriate oversight for this activity must be detailed in a transparent and accountable fashion. Similarly, the fact that the officers participated in activities of a criminal organization is unclear considering some of those activities could no doubt be specifically identified as commission of crimes. Compare this to the BC Report, which although brief, contains much more information, such as the number of times the emergency designations were used. Certainly, none of these reports have any information on how the oversight requirements of the provisions, as in the review by the “public authority” or civilian oversight committee, are fulfilled. Considering the Hart and Mack decisions and the Courts concern with the use of investigative techniques, which mimic criminal organizations, such reporting should be reconsidered by government authorities. Additionally, in light of the importance of this oversight function and the fact there is no prior judicial authorization required, the published information should be standardized by the Federal Government and subject to civilian oversight scrutiny.

As with electronic interceptions of private communications, under s. 25.4, within a year after committing the justified offence, the senior officer, who receives the public officer’s written report, must notify “in writing any person whose property was lost or seriously damaged as a result of the act or omission” unless such notification would compromise or hinder an investigation, compromise the identity of an officer or informant, endanger the life or safety of another, prejudice a legal proceeding or be contrary to the public interest. Of possible concern is the exception to notify for reasons of prejudicing a legal proceeding as such prejudice may be in the eye of the beholder. In other words, such non-disclosure may prejudice the accused’s trial, even though disclosure would prejudice the prosecutor’s case. It seems more appropriate, in matters that are before the court, for a judicial authority to balance the prejudicial effects in order to determine whether or not notice should be given. This would be more consistent with Charter rights of disclosure of the Crown’s case to the defence.

Finally, it should be noted that there are provisions, which require a legislative review of these sections within three years of the sections coming into force. The first report of such review was presented in 2006.  One of the concerns raised in the report was the lack of prior judicial authorization for some of the activity. There are other concerns raised but the Committee “lacked sufficient evidence to come to any firm conclusions” and the sections remained unchanged. Indeed the report was entitled “interim” report, although I was unable to locate a “final” one.

It is important to note the paucity of information on the civilian oversight aspect of these sections. There is no reporting of or information pertaining to the composition of the “public authority” contemplated by these sections and the findings of this oversight committee. There was an interesting paper presented at CACOLE conference, which is the Canadian Association for Civilian Oversight of Law Enforcement, in 2002 after these sections were proclaimed in force. The paper presents an excellent overview of the proposed regime and the rationale as well as discussion of similar regimes in other countries such as England and Australia. The impact on civilian oversight was minimal, meaning that there were few or no complaints arising out of the sections. However, the paper does propose some recommendations to the oversight bodies to help reinforce the import of the sections by establishing a code of conduct or policies relating to good faith of police officers and the conduct required by police officers who are authorized to use such extraordinary powers. Certainly, this kind of oversight is being done by individual boards and commissions but is not nationally mandated. Thus, another recommendation is for the Federal Government to integrate the oversight of these activities into the relevant civilian oversight of the participating law enforcement agencies. Certainly this would strengthen public confidence in the system and provide transparency in a rather obscure area of law enforcement. Of note, is the Australian regime, which uses legislation similar to our criminal code provisions, but has added protections involving stringent code of conduct for officers and the use of prior judicial authorization. Certainly the Australian experience involves a far more robust public auditing and monitoring system than here in Canada.  Of particular note is the Australian Annual Report on such activities, known as “controlled investigations,” which is far more detailed than the reporting seen in Canada.

It may very well be that these changes will not happen until and unless the Courts become involved. To date there have been some Charter applications to declare the sections unconstitutional. These applications have been dismissed at the trial level and such arguments have not been made at the appellate court level. The Honourable Mr. Justice Curtis of the British Columbia Supreme Court considered Charter arguments relating to these sections in the Lising case. In that decision, Justice Curtis found the sections were not contrary to s. 7 of the Charter as the sections were not constitutionally overbroad or vague. On the further s. 7 issue of whether or not the lack of prior judicial authorization renders the sections unconstitutional, Justice Curtis ruled that in the extraordinary circumstances of section 25.1, prior judicial authorization is not warranted and in fact impede the intention of the sections. As Justice Curtis stated “The ultimate goal of Parliament in enacting s. 25.1 is the protection of everyone’s right to “life, liberty and security of the person”. This line of reasoning may presage similar arguments, which may be made on the anticipated federal government anti-terrorism efforts that will give CSIS enhanced powers of investigation.

It will be useful to monitor the status of these provisions considering the enhanced national security concerns and the impact of the Hart and Mack cases on the “reverse sting” or “Mr. Big” operations. Yet again it will be the courts who will need to balance the rights of the individual to be free of state interference with the collective right to live in a secure and safe society.

 

 

Section 25 of the Criminal Code Part II: Episode 31 of the Ideablawg Podcasts on the Criminal Code of Canada

In the previous episode, I introduced section 25 of the Criminal Code as a protective measure for those persons enforcing or administering the law and those persons assisting in such activities. Under subsection (1), the section permits the use of force and justifies it if the authorized person acts on “reasonable grounds” and the authorized person uses no more force than is necessary to affect his purpose. Thus, when an authorized person steps outside this reasonable and necessary protection, the force would be considered excessive. However, this justification is qualified under subsection (3) when the force used is “intended or likely to cause death or grievous bodily harm.”

Although, subsection (3) discusses the scenario when the authorized person is not protected under s. 25, in actuality, the subsection establishes when an authorized person would be justified in using, for the want of a better term, “deadly” force. Such force is justified if the authorized person “believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.” However, subsection (3) adds a qualifier to subsection (1), where the force is intended to cause death or grievous bodily harm. In those heightened circumstances not only must the force be reasonable and necessary for the enforcement and administration of the law but it must also be used in the context of a reasonable belief on the part of the authorized person that using such force was necessary to protect himself or others under his protection from death or grievous bodily harm. This qualifier is itself subject to (4) and (5). Thus, under subsection (4) such force is justified where the authorized person is arresting someone in circumstances outlined under the subsection. Further, such force is justified against an inmate who is escaping from the penitentiary if the authorized person believes on reasonable grounds that any of the inmates pose a threat of death or grievous bodily harm and the escape cannot be reasonably prevented by less violent means.

There is a large amount of case law on whether the authorized person falls outside of this section and therefore the force is excessive and not justified. The courts have tended to interpret this section generously and to the benefit of the authorized person using the force. For instance, the court recognizes that in the determination of whether or not the force used was reasonable and necessary, the court must not assess the situation through the “lens of hindsight” but must take into account the immediacy of the decision in light of the heightened emotional and stressful circumstances typically surrounding the event. However, the issue of excessive force is a nebulous one driven by factual considerations. Interestingly, though the court is cautious not to be  “a Monday morning quarterback,” many of these cases involve expert evidence not only on appropriate use of force training but also on the ultimate issue as to whether the force used in the case was in fact excessive. By elevating these cases to almost a scientific interpretation of events, the admonishment not to view the cases through the “lens of hindsight” seems to obscure rather than elucidate. A case-by –case determination, applying the relevant legal principles, seems like a more judicious approach.

I don’t intend to go through the case law on this issue in this blog but I would like to point out how the use of force as authorized under this section has impacted areas both outside of criminal law and in criminal law but in a non-traditional basis. The issue of use of force has greatly impacted tort law and civil litigation against police officer and police services. Some of these cases relate, not just to individual officers but also to the concept of use of force in the tactical decisions made by the police. Thus, in the Alberta Court of Appeal case of Webster v. Wasylyshen from 2007, the court considered whether or not the use of the tactical team in the search of the plaintiffs’ home amounted to excessive force. The Court, in that case, found the use of the team was not an excessive use of force “given the need for public protection in the circumstances known to the police.” Excessive use of force by the police is also an issue, which tangentially finds relevance in certain Charter cases where a violation of Charter rights requires an exclusion of evidence under s. 24(2) as the officers’ excessive use of force shows bad faith on the part of the police resulting in the administration of justice being brought into disrepute. Such an argument was accepted in the dissenting decision of the Supreme Court of Canada 2010 Cornell case.  Further, excessive use of force has been used as a mitigating factor on sentence, where an offender is being sentenced for offences but in which the officers were found to be using excessive force.

Although some form of section 25 has been in the Criminal Code since its inception, the section has continued to be tested by the courts in many differing areas of law. The issues raised under this section will no doubt give rise to further advancements in the test to be used in determining excessive use of force and the circumstances in which the court will make such a finding as the world moves into the digital age and the image finds prominence in the courtroom setting. Instead of “dueling” use of force experts the courts will be faced with “dueling” videotapes emanating from citizen cell phones and officers body worn cameras. These new evidentiary tools will, I suggest, push the evidentiary limits of the law in this area and will, I suspect, provide a whole new area of case law in this area.

 

 

Section 25 – The Use of Necessary Force In Law Enforcement Part One: Episode 30 of the Ideablawg Podcasts on the Criminal Code of Canada

As a result of the release of the Iacobucci Report on the Toronto Police Service’s response to people in crisis precipitated partly by the Sammy Yatim incident and the recent Michael Brown incident in Ferguson,  never before has the issue of necessary use of force in law enforcement been so prominent in the public forum. Although much of the present media focus has been around body worn cameras for police to monitor and record police practice relating to the use of force, the Iacobucci Report actually goes further and recommends a “zero death” policy, meaning “no death of the subject, no death of the officer involved or of any member of the public.” Whether or not that is possible is a debate for another day but for our purposes, we need to face the reality that force can be used and is authorized under section 25 of the Criminal Code.

We should first note the section descriptor – “Protection of Persons Acting Under Authority.” The section therefore is not a “use of force” section as we tend to describe it but a section focused on protection of those administering or enforcing the law. The protection afforded by the section precludes attaching criminal liability to the authorized person’s actions. Also note that the section covers all “persons” who are acting under authority and not merely the police. Thus, private citizens benefit from this protection as well. In fact, let’s look at the first part of s.25(1) as it lists the “persons” so protected as follows:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

 (b) as a peace officer or public officer,

 (c) in aid of a peace officer or public officer, or

              (d) by virtue of his office,

 

As is with most sections in the Code, the section is both narrow and broad scope. It is narrow as the persons protected must be acting under authority or as required by law. It is broad as the act can be “anything.” Furthermore, the person so authorized, as already mentioned, may be a private citizen or a law enforcement officer as per the definition of “peace officer” and “public officer” under the s.2 definitions. The section also includes those persons aiding law enforcement and those individuals acting “by virtue of his office,” meaning a person who is acting in a position of a public nature. Now, lets look at the complete subsection 1:

Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

                  (b) as a peace officer or public officer,

                  (c) in aid of a peace officer or public officer, or

                  (d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

 

 

Thus, the protection against imposing criminal liability is limited and only protects the actor if he or she “acts on reasonable grounds.” If the person does act on reasonable grounds then he or she is “justified” in his authorized actions and “in using as much force as is necessary” for effecting that purpose.  This section outlines a common law defence of justification. I have discussed justifications in previous blogs and podcasts but I will provide a refresher. Justifications (and excuses) are defences, which are available after the essential elements of a crime, both the prohibited act and the criminal intention, have been proven. Thus, these defences are a concession to human frailty and a recognition that people are, well “human,” and may act contrary to the law in special circumstances. These special circumstances usually involve exigent circumstances whereby the person has no choice but to act in a manner inconsistent with the law. In the case of justifications, which are defences of the person and property, the offender, by raising the defence, is challenging the “wrongfulness” of the act. In other words, the act is a crime in name only as the circumstances require that the offender be absolved of any criminal responsibility. Thus, the conduct is not wrong as the offender is justified in using force. Of course, flowing from this argument is the requirement in every justification that the force applied be no more than necessary to repel the perceived harm. This brings us full circle to this section as a “use of force” section and the emphasis on whether or not the force was “excessive” in the circumstances.

It is useful to compare the wording of subsection (1) to the old defence of the person sections. I say, old, as the previous sections 34 to 42 were repealed and replaced by the new sections 34 and 35. In the old section 34, which provided for self-defence against an uprovoked assault where death or grievous bodily harm is not intended, an accused was justified in using force that is “no more than is necessary” to defend himself. As you can appreciate, self defence for a non-authorized person is restricted and the admonishment is to minimize the use of force to what is only required. In contrast section 25 is permissive as the authorized administrator of the law is permitted to use as much force as is required to fulfill his duty. The new section 34 does not use the same language but instead requires that the act be “reasonable in the circumstances.”  The “nature and proportionality” of that response, under the new section, is only one factor in determining the reasonableness of the act in the circumstances of the case. In contrast, section 25 only offers a list of factors in determining the reasonableness of the authorized person’s actions, where the force is “intended or likely to cause death or grievous bodily harm.”

Another similar section, which protects persons in authority, is section 43 concerning the correction of a child. In that section, a schoolteacher, a parent or a person standing in place of a parent is justified in using force to correct a child if the force “does not exceed what is necessary under the circumstances.” Again, this section appears to restrict as oppose to permit. This section does not contain a list of factors in considering the necessity of the actions.

The history of the section also sheds some light on the protection afforded by the section. Originally, the precursor to section 25 covered a number of sections. For example the present s. 25 not only applies to an arrest but also refers to the use of force in executing a warrant, in incarcerating a sentenced offender and in preventing an escape from a penitentiary. In fact, historically, these scenarios were part of the use of force protection but were found in separate sections. For example, in the original 1892 Code under Part II “Matters of Justifications or Excuse,” arguably similar subject matter is covered in the multiple sections from 15 to 44, which comprise over half of the sections found under that Part. There were some changes by the 1905 Code but major changes, as in the compression of the bulk of these sections (essentially sections 15 to 37 from the 1892 version), did not come until the numerous amendments in the 1950s, which resulted in major changes to the 1953-54 Code. It is in this version that the various sections were combined and re-enacted as section 25.

How does the present iteration compare with the 1950s version? The first part of the present section, under (1) to (3), is substantially identical to the version used half a century ago. In other words, no changes have been made to the essential elements of this legal protection. However, significant changes were made to the latter part of the section under subsections (4) and (5) as a result of the 1994 amendments to the Code. Those changes brought in the list of “factors” to assist in the determination of the justifiability of using force “ that is intended or is likely to cause death or grievous bodily harm to a person to be arrested.” In the next podcast we will look at these changes more closely as well as the general issue of excessive use of force under the section.

Part One of the Supreme Court of Canada’s Decisions In The Sniffer Dog Cases: Don’t Throw Out The Principle With The Bath Water!

Question: When is a legal principle clarified by unanimous court but when the principle must subsequently be applied, unanimity goes out the window? Answer: When the Supreme Court of Canada delivers a much anticipated and needed decision on an issue, which, depending on the outcome, may change the face of police investigatory practice. That is the case, of course, in the two sniffer dog decisions in Chehil and MacKenzie, which were supposed to clarify the standard of “reasonable suspicion.” However, instead of the much-needed direction from the Court, the Supreme Court of Canada leaves us with a ruling that fails to clarify. As we all know, legal principles do not live in a vacuum and if they cannot be applied consistently and with some prediction, then the principle becomes a tool of the law and not the rule of law.

Still, the cases do tell us something, about which I have consistently written: that a seemingly objective standard is a fallacy as it is applied through the subjective sensibilities of the assessor, the judge, and in the context of facts, which themselves are founded on a subjective view of the receiver. Chehil and MacKenzie are cases in point: Chehil sets out the principle, to which everyone on the Court agrees, while MacKenzie applies it through the judicial lens. Unfortunately, the judicial lens is of varying strengths and degrees: not everyone on the Court sees matters the same way. The decision is therefore a fractious one. If our Supreme Court of Canada cannot agree then how can the majority, written by Justice Moldaver as I predicted, find the trial judge, who heard the evidence, is wrong. Can one even be wrong when applying an objective reasonable person standard? Are there two reasonable people? Do we even know how a reasonable person thinks? Ah, there’s the rub and there is the tautology: objective standards are only as good as the facts behind them.

If the above seems like a rant, well I suppose it is: the decisions, when read together are puzzling. Moldaver’s MacKenzie decision is even more so when read against the trial judge’s reasons. Unfortunately, one cannot get beyond the admonition of the trial judge when he found it possible “that the observations of the accused claimed to have been noticed by Cst. Sperle were enhanced after the drugs were located.” This kind of after the fact decision-making seems to permeate the SCC decision too but understandably so as in fact there were drugs found and the accused was a drug courier. But what we must all keep in mind is the purpose of the Charter is not to exonerate criminals but to provide oversight when the awesome powers of the state are used,  in whatever circumstances. Just as innocent people may come under scrutiny in a criminal investigation, as pointed out by Madame Justice Karakatsanis in Chehil, so too seemingly guilty people will benefit from inappropriate state intrusion. This is what safeguards our fundamental principles in a free and democratic society.

It is in this context that we must review and analyze these cases. In part two of my case comment, I will do just that.

 

 

The Fearon Case: A Question Of Common Law Police Powers

Everyone has at least one of these: a cell phone, a smart phone, a tablet, or a mini-computer. What they have in common is their portability. We carry these devices around as we carry our wallets and purses. They are our most prized and most used possessions. Add WiFi or 4G to these and we have instant access to information: no longer are we armchair travelers on the Internet but we are travelers on the Internet. Indeed, with WiFi service being offered on long-haul flights in the USA, we are travelers traveling on the Internet. However, although these technological wonders have opened unexplored vistas for us, it has also opened an unbidden Pandora’s Box of legal issues, particularly in the area of criminal law.

In a prior posting, Can Criminal Law Keep Up With The Digital World?, I discussed the mounting technological impasse between investigation of crime and privacy rights. As the government rushes toward the new technological era, it seems those using this technology as an aid to their criminal activities, seem to be further ahead. The Courts, too, have been slow to offer guidance on these issues, resulting in uncertain and obfuscated laws. With the new judgment from the Court of Appeal for Ontario, R v Fearon, the law appears to be as clear as mud.

Let’s start with the media’s representation of this case, which by the way, involves a police search of an arrested person’s cell phone revealing information and photographs pertinent to the alleged crime. This is best described through the headlines used such as: OK for police to search cell phone if no password, says court or Ontario judge rules police can search non pass code-protected cell phones or better yet, Cell phones: No password, no protection: Why the Ontario court is right, and bad guys should get passwords. This emphasis on password protection seems overly simplistic. Even the articles suggesting the case is all about privacy rights seem to miss the mark. However, the articles on warrantless searches do come closer but not quite close enough in my view.

What Fearon raises does involve password protection, privacy rights, and warrantless searches but the issue is the extension of the common law right of the police to search incident to arrest. The Fearon case is all about the common law, how the common law can apply to present law conditions, and how the present law can be extended by the past. Incidentally, much of our present law is, in fact, merely a modification of previous law through the use of precedent and analogy. For a further discussion of the use of precedent and metaphors in law, read my previous posting Blog As Graffiti? Using Analogy and Metaphor In Case Law.

Police authority and the power to act can be found in legislation, by agreement, and in common law. The primary source of investigative power is found in the Criminal Code but the supreme law of Canada, the Charter of Rights and Freedoms through sections 7 to 13, has circumscribed and greatly impacted those powers. Police can also act upon agreement or consent of an individual. Although this power must be clearly and unequivocally given, the “ask and you will receive” police power permits consensual searches without a warrant.

Finally, the police have common law powers to effect an investigation. Common law, is unwritten law created through custom and practice and comes to us through the English common law tradition. Much of the common law has in fact been translated into written rules and has therefore become statutory but much has not. Case in point is the police powers found in the common law.

Historically, the police power to search incident to arrest is a common law power. Also a common law power is the police authority to enter a private dwelling place when in “hot pursuit” of a suspect. Common law, although historical, is subject to change. Custom and practice change and thus the common law must evolve with these changes in order to be relevant and responsive to societal needs. Thus, the police common law power to search incident to arrest has evolved into the police power to not only search an accused incident to arrest but to search the offender’s vehicle as well. This search incident to arrest must be connected to the arrest and there must be an articulable reason for it such as a reasonable prospect that the officer will find evidence of the commission of the crime or for police officer safety.

Another common law power to search and seize is known as the “plain view” doctrine. This common law principle permits a warrantless search and seizure where police are lawfully at a location and the contraband is in plain view to the police. In this instance the police do not need reasonable and probable grounds to believe that the item would be present but the police cannot be previously aware of the evidence and must come across it “innocently” or inadvertently. This power does not permit a full search of the location. 

This brings us back to the Fearon case and his cell phone. The argument advanced on appeal did raise the issue of the police common law powers but only on the issue of the police power to search incident to arrest. Plain view was not considered as although the phone itself was found in plain view, it was not contraband. Although the information found on the phone was evidence of a criminal offence, it was not found inadvertently but was found as a result of a purposeful search of the contents of the phone. One wonders if the plain view doctrine might have been engaged if the home screen of the phone showed an incriminating picture or text. That, however, was not the case in Fearon.

The question posited on the issue of search incident to arrest was whether or not the search went beyond what is considered a search incident to arrest. The Fearon court referred to two previous Ontario cases: the 2009 Polius case from the Ontario Superior Court of Justice, which found only a “cursory” search was permissible where the search was incident to arrest and the Court of Appeal for Ontario Manley case from 2011, which permitted a search of a cell phone, incident to arrest.

In Manley, the cell phone search revealed a photograph of the gun used in the robberies for which the offender had been just arrested. The “cursory” search of the phone was considered valid as the officer had done so in order to establish ownership of the cell phone as the accused was known to have stolen cell phones in the past. The search was for no other purpose and the photograph was found before the officer established ownership of the phone. Finding the incriminating photograph, in other words, was like finding contraband in plain view. A warrant was later requested to do a complete search of the phone. It should be noted that the robberies were completely unrelated to stolen cell phones and therefore the suggestion that the search was connected to the crime is questionable. In any event, the Court in Fearon preferred to follow the Manley case, believing it similar in facts and actions to Fearon.

Leaving aside the efficacy of the Manley decision, the bottom-line of Fearon concludes that a search of a cell phone, as incident to arrest, where the officer is seeking evidence connected to the arrest, is lawful. The difficulty with Fearon comes with the “throw away” line in the Court’s conclusion as follows

This case is not significantly different from Manley.  I cannot conclude, in the circumstances of this case, that the original examination of the contents of the cell phone fell outside the ambit of the common law doctrine of search incident to arrest.  Apparently, the cell phone was turned “on” and it was not password protected or otherwise “locked” to users other than the appellant.  The police officers had a reasonable belief that they might find photographs and text messages relevant to the robbery.  The initial search at the time of the arrest involved a cursory look through the contents of the cell phone to ascertain if it contained such evidence. (underlined for emphasis)

This comment on the cell phone being turned “on” and not locked or password protected to other users seems to have been commented on by the Court without explanation. If the search of the cell phone is permissible under the common law authority of a search incident to arrest as defined in the Supreme Court of Canada case of Caslake, then the fact the cell phone is in the off or on position makes no difference. The emphasis should be on the legitimate connection between the arrest and the incidental search. In Fearon, the search was wholly connected to the investigation of the crime committed by the accused. As explained by Chief Justice Lamer, as he then was, in Caslake,

The authority for the search does not arise as a result of a reduced expectation of privacy of the arrested individual.  Rather, it arises out of a need for the law enforcement authorities to gain control of things or information which outweighs the individual’s interest in privacy.

How then would the fact a cell phone may be locked impact this legitimate interest? It should not, unless the Court found that a cell phone itself has such a high privacy interest to outweigh law enforcement interests. This argument would bring us back to the SCC Cole case and whether, like a personal computer, the information contained on a cell phone touches a person’s biographical core. For a further discussion of this, see my previous blog on the case. However, Fearon did not refer to the Cole case or the issues raised by it.

Interestingly, the Court of Appeal for Ontario in an earlier case from 2011, R v Jones, which incidentally had Justice MacPherson, who was a member of the Court in Fearon, as a panel member, decided on the issue of a plain view seizure of information relating to child pornography during a legal search of a computer for a fraud offence, acknowledged that

Whether the plain view doctrine should apply in circumstances involving a computer search has been a matter of much debate.  The debate has centred on the intrusive nature of computer searches and the somewhat awkward fit between traditional search and seizure concepts and computer technology.

This “awkward fit” appears to be continuing as seen by the Manley and Fearon cases and will continue until we have some clarity from our Supreme Court.

 

 

 

 

 

“Reid” This: Is It Time To Change Police Interrogation Techniques?

Recently, a news story made its way across the Calgary news landscape: Alberta Provincial Court Judge Dinkel ruled an inclupatory statement made by the accused, Christa Lynn Chapple, inadmissible as evidence at the trial. The ruling found the statement was not given freely and voluntary as a result of the police interrogation. The actual ruling was made earlier this summer, but received media attention as journalists connected the decision to a recent field study on police questioning practices.

This study is one of a series of studies on Canadian police practices researched by the psychology department at the Memorial University of Newfoundland. The primary researcher, Brent Snook, associate professor of psychology at the university, also co-authored another published study from 2012 on the training of Canadian police in the “technique” of interviewing witnesses. The same Memorial team, of Snook, MacDonald, and Eastwood, also published an earlier study in 2010 on how Canadian police administer the right to silence and the right to retain and instruct counsel – both are required cautions to be given to an accused in police detention as a result of the Charter and Charter case law interpretation. Eastwood and Snook both published a paper in 2009 on how understandable to the accused the right to silence caution was when actually given by the arresting police officer.

Clearly, this group of researchers has looked long and hard at Canadian police investigatory practices and techniques and are well equipped to comment on police practices generally. Comment, they did - in the opening statement of the police training study paper, the authors find that “Two recent field studies on how Canadian police officers interview witnesses suggest that most interviewers are not employing best practices.”

This deficiency in practice was further identified in the most recent study on police questioning. Specifically, the researchers were concerned with the practice of the police to ask “close-end” or leading questions, which did not permit a free flow of information from the witness. Often, the interrogators “violated the recommended 80–20 talking rule and interrupted witnesses … in almost 90% of the interviews.” Such line of interrogation, which requires the investigator to control the interview and the information flowing from the questioning, does not, in the researchers opinion, allow for accurate and complete statements. A lack of training, supervision, and feedback was identified as the main reasons why the interview practices were so inadequate.

It is this kind of interview technique which was at the core of the Chapple case. Christa Lynn Chapple was an operator of a day home for children and had in her care a young child who subsequently suffered an unexplained head injury. At the time of the incident, Chapple was interviewed twice with no charges laid. A year later, after the police received forensic information from Dr. Matshes, a forensic pathologist, Chapple was arrested for aggravated assault and brought in for questioning. It must be noted, as Judge Dinkel also noted, that Dr. Matshes was under investigation for coming to “making unreasonable conclusions” in his forensic findings. In any event, Dr. Matshes opinion that the injury was done by non-accidental blunt force trauma caused the investigators to believe that Chapple was involved despite the lack of evidence to tie her to the injury and despite her previous denials.

The interview spanned over eight hours. It was an arduous interview in which Chapple tried to exercise her right to remain silent at least 24 times. Each time she attempted to exercise her right, the police interviewer ignored Chapple and immediately took over the interview by talking over her. In this interview the 80-20 rule, also known as the Pareto Analysis, requiring the suspect to speak 80% of the time, while the interviewer spoke 20% of the time, was practically reversed. The interview was peppered with long monologues from the police questioner, leading questions, and a repeated disbelief in the statements of Chapple, when she was actually given the opportunity to say something.

This form of questioning is known as the Reid Technique, a line of questioning formulated by Joseph Buckley in the 1950’s, where the investigator uses control of the witness and lengthy monologues to extract a confession. The technique, as Judge Dinkel described in Chapple, “a guilt presumptive interrogation disguised as truth-seeking interview” where “innocence is not an option.” The interview, according to Judge Dinkel’s findings, “was bent on extracting a confession at any cost.” The cost was, in fact, too high as the statement, taken in utterly oppressive circumstances, was deemed involuntary.

There are fortunately lessons to be learned from the courts when evidence is not admitted. The administration of justice, when faced with such findings of a judge, must rethink the practice or the implementation of a technique to ensure the system does not come into disrepute. Fortunately, Calgary Police Services is doing a review of their practices and training. Hopefully, they will be reviewing the studies of Snook and his team as well.

The Reid Technique is still being used across North America. This is in stark contrast to the studies from Memorial University and in defiance of a global trend to ensure miscarriages of justice, through false confessions, do not occur. The only way we can ensure this will not happen is by preserving and protecting the rights of an accused person, which goes to the very core values of our criminal justice system such as the presumption of innocence.

In previous postings, I have discussed the importance of the presumption of innocence to our criminal justice system. Those postings can be found here and here. In the next posting I will expand on the reason why a statement made by an accused to a person in authority, such as a police officer, must be freely and voluntarily given to be admissible in court. The reasoning, as I will discuss, ties into one of the major “themes” of criminal law: choice.