Poor Training or Rogue Police
An Ottawa man (represented by Anne Weinstein) was recently acquitted after an Ottawa Judge excluded a substantial amount of child pornography found by the Ottawa Police during a November 2010 search; the Court found serious charter violations. Both the Ottawa Citizen and Ottawa Sun reported on the case.
Troublingly there seems to be a systemic problem in the Ottawa Police force with officer training and education.
Police officers are instilled with extraordinary powers, including the ability on reasonable grounds and with prior judicial authorization to search the most private areas of our life and seize our property.
Part of the social bargain in granting police extraordinary power is that there must be confidence that police know the scope of their power. Police forces must be held to the highest training and educational standards. Ignorance and negligence cannot be tolerated.
As reported by the Ottawa Citizen in the above case the judge found that:
“[T]he Charter breaches in this case were multiple and each one more serious than the last because the breaches were due to carelessness, negligence and/or a wilful or flagrant disregard for the law and established Charter standards”
The Judge found that in November 2010 the Ottawa police executed a search warrant for a firearm. In the course of that search the police accessed and searched numerous electronic devices, ultimately discovering child pornography. The searching officer, Det. Paul MacKillop testified that he followed police practice and that he did not know he should have applied for a warrant before searching the digital devices.
According to the Ottawa Citizen the Court found that Det. MacKillop was wrong about the scope of his power:
“There was no state of confusion of the law concerning the privacy interest and the necessity of a warrant to search a personal computer found in a bedroom in November 2010.”
It incomprehensible that a detective does not know the scope of his authority. It is astonishing that the Ottawa police don’t appear to educate officers who are granted authority to search private residences.
As recent as 8 months before Det. MacKillop’s illegal search the Supreme Court of Canada considered computer privacy. In R. v. Morelli, a case dealing with the search of electronic devices, the Supreme Court said the following:
"The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause."
"It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search and seizure of a personal computer."
"The repute of the administration of justice would nonetheless be significantly eroded, particularly in the long term, if such unacceptable police conduct were permitted to form the basis for so intrusive an invasion of privacy as the search of our homes and the seizure and scrutiny of our personal computers."
If in November 2010 the state of the the law was not unclear then why are Ottawa police not better trained in appropriate Charter standards?
Unfortunately this does not seem to be an isolated incident. Three years ago an Ottawa judge made the following comments in one of my cases:
"In this case, I am particularly troubled that a sergeant of the Ottawa police force, an officer with 30 years experience, an officer who is in charge of guiding and supporting other officers and providing advice to constables, an officer who works in general uniform patrol on the streets of Ottawa, is not aware that an accused's right to counsel are engaged on detention. This is particularly troubling given that the officer said he was unaware of the need to advise detained individuals of right to counsel.
This comes 15 months after the Supreme Court of Canada has clearly decided the issue. As stated at paragraph 133 of R. v. Grant:
"We add that the Court's decision in this case will be to render similar conduct (referring to detained individuals not being advised of right to counsel) less justifiable going forward. While police are not expected to engage in judicial reflection on conflicting precedents, they are rightly expected to know what the law is."
If this was one month later, if this was two months later, I would not be as troubled, but this is 15 months later and shows, in my view, a lack of systematic education of officers in positions such as Sergeant Merriman. In this case the sergeant said he had no training on this aspect of the law since these important decisions. He did indicate he may have had some training since 2004, but was not able to give any details.
As indicated, this raises a concern whether there is a systematic lack of training in the Ottawa police force."
Based on the above and other examples of similar findings I would wager that this is the tip of the iceberg.
The public should be asking: What training do Ottawa Police receive on their lawful authority? Why are officers not aware of important court rulings that impact on their duties, obligations, and scope of authority?
Recently I was told that an Ottawa police officer, who a court previously found committed serious Charter violations which lead to the exclusion of evidence, testified that he would do it again if given another chance. This testimony was given in a proceeding alleging a similar Charter breach.
Perhaps officers are well trained; perhaps some officers just don't care.
At the end of the day there is no satisfying answer. I am not sure what is worse: a systemic problem with Ottawa Police training or rogue officers who don’t care.