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Edmonton Criminal Lawyer Ziv >  Blog
19 October
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Detention

Posted by Rory
in detention

Psychological Detention

R. v. Wong 2015 OJ No 5049

The Canadian Charter of Rights and Freedoms says “everyone has the right on arrest or detention  …  to retain and instruct counsel without delay and to be informed of that right;”

The Decision

In a recent Ontario Court of Appeal decision, R. v. Wong [2015] ONCA 657 the Court reaffirmed the proposition that detention includes psychological detention and not only physical detention. In the Wong decision a fully dressed police officer entered into an apartment with the consent of the accused. He started noticing some drug related items but didn’t arrest or formally detain the accused.

The Court concluded that as the interaction between Ms. Wong and the officer continued, the officer’s conduct became “increasingly authoritative”.  The detention in this case crystalized when the officer asked questions like “what’s going on here” “if the scale was for baking where are the baking supplies” “I could arrest you for being in possession of drug paraphernalia” .

The Court then also re-emphasized that “without delay” means “immediately” and therefore at the moment Ms. Wong was detained she was required to be informed of her right to counsel, immediately, and because this did not happen all subsequent evidence found (statements and drugs) were ruled inadmissible.  The Court concluded:

In this case, the officer did not know what the law was. He did not understand the circumstances giving rise to detention and he did not appreciate either his responsibilities or the appellant’s rights. The appellant’s rights were trammelled in his search for evidence. The administration of justice would be brought into disrepute by the admission of the evidence, and, in my view, it should have been excluded.

Conclusion

As a criminal defence lawyer who often utilizes the Charter in defence of clients’ it is sometimes very difficult to analyze when a police interaction with a person has become a de facto detention of arrest.  It is critical to know when this Rubicon has been reached because as Wong demonstrates, if evidence is gathered without proper Charter compliance then evidence could be excluded.

 

 

13 October
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Pat-Down Searches

Posted by Rory
in Pat-Down Searches

Pat-Down Search

Until 2004 the scope of police powers regarding their authority to do pat-down searches was uncertain.

In fact, as a law student I particularly found this area of the law especially interesting. Since 2004, the contours and limits of pat-down law have been for the most part well defined. Some recent cases have re-ignited the scope of the pat-down search.

1993

Up until 1993, in Canada, a police officer had no power or authority to conduct a pat-down search on a person unless they had reasonable and probable grounds to arrest that person for an offence. I have no doubt that as a matter of routine, pat down searches were conducted all the time, under the genuine concern for officer safety or perhaps as a ruse or guise to search for evidence. In the latter case such a search would really have been conducted on nothing more than suspicion, an educated guess based on “officer experience”.  In any, event prior to 1993 a bright line existed in the law: detention of a person and search was only permissible if a police officer had reasonable and probable grounds to arrest a person.  In 1993 in a case called R. v. Simpson (1993) 12 O.R. (3d) 182 the Ontario Court of Appeal decided that the police did not have what they termed “articulable cause” a term borrowed from U.S. jurisprudence to stop and do a pat-down search on the individual they were stopping. In that case, police followed a suspect from a known drug house. They stopped his vehicle, and did a “pat-down” search located narcotics. The Court excluded the evidence and held that the police did not have articulable cause to stop and search for investigative purposes which they defined as:
. . . a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.

Although Mr. Simpson was acquitted, this decision ushered a new era in Canadian police enforcement. For the first time, a Canadian Court recognized a police power that fell below the status quo level “reasonable and probable grounds”.

2004

In 2004 the Supreme Court of Canada rule on a case R. v. Mann 2004 SCC 52 and endorsed the Simpson decision but replaced the terminology of articulable cause with “reasonable grounds”. The Court held that a pat-down search was permissible but only to the extent necessary to secure officer safety. A police first had to genuinely feel it necessary to conduct a pat-down search for his/her safety. Second, the search would not allow him to search pockets or objects on a person that were non-threatening. For example, a handbag may be searched or patted down but unless an hard object is felt inside the bag there would be no reason to open up the bag.

2015

Some recent cases have questioned the police practice of doing pat-down searches when investigation persons for impaired driving offences. See for example R. v. Schwab 2015 AJ No 903. Simply, if a motorist is transported to a police vehicle for a screening test (assuming that transport is valid), what gives a police officer the right to conduct a pat-down search on the person as a matter of practice?

Certainly, we have not heard the end of the pat-down search issue in relation to impaired driving cases. I will eagerly await an Appellate case and post if one becomes available.

 

08 October
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Defence of Intoxication

Posted by Rory
in Defences

The Defence of Intoxication

For most crimes, the fact that a person voluntarily consumed alcohol/drugs  and became so drunk that they did not intend to commit the particular crime alleged of, would not absolve them of liability. There are however a specific set or subset of crimes where the defence of intoxication could in fact play a part in nullifying or reducing a person’s liability. These types of offences are known as specific intent offences and include offences like murder or theft.

From Murder to Manslaughter

A murder charge could be reduced to manslaughter, a lesser offence, if a jury was left in doubt as to whether the accused intended to cause death or cause bodily harm with the subjective foresight of death. In other words, if a person was so drunk that they did not intended to kill a person through his or her actions then intoxication could assist a person.

In R. v. Steinhauer 2015 ABCA 3 the Alberta Court of Appeal concluded that a new trial was necessary because the trial judge failed to instruct the jury that the defence of intoxication was a live issue and could reduce the charge from murder to manslaughter.

Theft and Intoxication

Reluctantly[1] judges have acquitted individuals who were so drunk that they did not form the requisite intent necessary to steal. However, I wouldn’t hold my breath on trying to run this type of defence too often. While the defence is available for theft type offence judges have also set the bar very high in applying the defence[2].

Conclusion

The defence of intoxication remains a viable defence in Canada and should not be discounted in certain circumstances.

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[1] A judge made these comments: “ I cannot leave this decision without expressing my feeling of dissatisfaction at the result. The accused has escaped conviction because the Crown has been unable to rely as it normally does upon certain presumptions for proof of an essential fact to each charge. It has been unable to do so because of diminished capacity self-induced by the accused. Society cannot protect itself against such anti-social activity with its present machinery. New procedures are apparently necessary to prevent individuals such as this accused from benefiting from their own wrongful acts.” see R. v. Bucci [1974] NSJ No. 211
[2] See R. v. Drader 2009 ABPC 360.

07 October
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Refusing to provide a breath sample

Posted by Rory
in Impaired Driving

Refusing to Provide a Breath Sample

When stopped by police and asked to provide a breath sample into an approved screening device, should you comply?

As a general rule the answer to this question is “yes”. A police officer requires very little grounds to demand that you provide a sample of your breath into an approved screening device. The law currently in Canada states that all that is required for him/her to have grounds to demand a sample of your breath into an approved screening device is reasonable suspicion to believe there is alcohol in your blood.

How does the officer form this suspicion? There can be many different ways depending on the circumstances.

Admissions

Firstly, the officer may simply ask “have you had anything to drink”. If the answer is yes and this answer can be linked temporally to your driving then that would be enough grounds. In the leading case in Alberta R. v. Flight 2014 ABCA 185 at paras 58 and 61 the following law was pronounced:

In this way, Hnetka is distinguishable on its facts. The driver in Hnetka said that he had something to drink “a while ago.” Where a driver qualifies an admission of consumption temporally, this alone may not be sufficient to ground a reasonable suspicion: see R v Kimmel, 2008 ABQB 594 at paras 34-35, 459 AR 95. Each case must be assessed on its own facts.

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

Indicia

If a motorist does not admit to drinking an officer may still be able to smell alcohol on a motorist’s breath. If the officer is able to convince the trial judge (and on this point he usually can, although, my office has had success in convincing a judge that the officer was mistaken on what he smelled) that he smelled alcohol then that would be enough.  Other indicia would include and accident; slurred speech; blood shot eyes; poor balance and co-ordination etc. etc.

The bottom line

A peace officer needs very little to demand a sample of your breath into an approved instrument. Only unless you are convinced beyond certainty that the officer is simply on a pure fishing expedition without any grounds whatsoever can you refuse in law. This course of action is risky. A refusal conviction is akin to an impaired conviction.

05 October
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Citizen’s Arrest

Posted by Rory
in Charter Rights

R. v. Fitl 2015 AJ No 985

This is a case I conducted. The accused was acquitted after drug evidence was excluded.

The accused was at a rave and was subject to a citizen’s arrest. The trial judge found that the arrest was unlawful because the security guards at the rave did not actually see the accused committing an offence. Furthermore, when the police officer asked the accused for identification, this amounted to an unreasonable search or seizure of the accused. An illegal pat-down search and cell phone search was also found.

Canadian Charter of Rights and Freedoms

05 October
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After the fact conduct and the defence of provocation

Posted by Rory
in Defences

The Appellant was convicted of second degree murder. He appealed his conviction. The Ontario Court of Appeal allowed the Appeal  and ordered a new trial?

After the fact conduct

The Appellant buried the body of his girlfriend after he strangled her. The issues that arose were two-fold: Firstly, the trial judge left the jury with the impression that the Appellant’s after-the-fact-conduct (burying the body) could prove that he intended to kill her. The Ontario Court of Appeal concluded that while in some cases after-the fact-conduct could be used as evidence to prove intent, on the facts of this case the trial judge failed to properly instruct the jury that the after-the fact conduct did not necessarily prove intent to kill.

Provocation

The second issue concerned the defence of provocation. The trial judge left the jury with an instruction that larger people should have more self-control than smaller people. The Ont. C.A. said at paras 85-86:

     The appellant’s size and athletic ability are not characteristics that have any inherent relevance to the degree of self-control expected of an ordinary person. Large people or good athletes are not expected to have more or less self-control than small people who are not athletic.

     It is unnecessary to fix the ordinary person with the appellant’s size and athletic ability to properly assess whether the alleged provocative conduct was sufficient to cause an ordinary person to lose the power of self-control.

R v. Hill 2015 OJ No. 4758 (Ont C.A)

28 September
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Search Warrants

Posted by Savvas
in Search Warrants

I often have Edmonton clients who advise me that they have their premises searched but are not shown a copy of the search warrant when they request same. Section 29. of the Criminal Code of Canada says that the police must show a copy of the search warrant when it is feasible to do so. In a recent case the failure of the police to do so resulted in the Court finding the accused’s rights were violated.

See R. v. McCarter BCJ No 871

28 September
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Accident Statements

Posted by Savvas
in Traffic Accident

The Alberta Court of Appeal recently upheld a trial decision where a person accidentally struck and killed a person on an Edmonton Highway who was assisting another motorist with a flat tire. In that case the driver who caused the accident reported the accident to the police and his insurance company as he was required to do so by law. The Crown then sought to use his report against him to prove he was the driver who caused the accident and to obtain a search warrant to seize his motor vehicle.

I could never understand why the case was prosecuted. The Supreme Court of Canada has been very clear that statements that are statutorily compelled cannot be used against an individual. I also question the police tactics in this case. To obtain a search warrant with evidence that they knew was inadmissible was attempt to circumvent the law.

The full case can be found HERE

23 September
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Heading Committees, Leading Corporate Meetings and making Powerful Presentations

Posted by Andrew
in High Pressure, Legal Advice
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Protecting Your Interests, Business, Property & Rights

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We aim to lead in each practice and area of law we work in. Coming from in-depth understanding of the law and the industry, capitalizing on extensive experience, we provide hands-on advice that speaks the language of our client’s business. Whether in aviation, sales and distribution, antitrust, corporate and M&A, finance, employment, energy, IP, litigation, TMT, real estate, or any other area of law, our clients can expect excellence and commitment to their objectives.

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