Filtering by Tag: Charter

Continued Ottawa Police Charter Ignorance and the Lack of Action

Yesterday in yet another example of police ignorance about the scope of their authority and in response to defence counsel Neil Weinstein's submissions an Ottawa Superior Court Judge excluded over an ounce of crack cocaine from evidence.  

The serious issue concerning the Ottawa Police's ignorance about the scope of their authority is nothing new.  Last month I wrote about the lack of officer training following the recent exclusion of a large amount of child pornographyI also have also written about the inadequate response to this issue by Ottawa Police Chief Charles Bordeleau.

This most recent incident began when two police officers detained a group of 8 males in a parking lot for suspected marijuana possession.  The Court found that the police did not have grounds to arrest the males.  Indeed the police officers testified that the males were not under arrest but were only detained for 'investigation'.  Following this investigative detention police officers conducted a thorough search of all 8 males.  The police also searched a nearby car.  Ultimately 31 grams of crack cocaine was discovered in the cars glove box.     

The police officer (an officer with 11 years of service) who searched the males wrongly believed that an investigative detention gave him the right to conduct a full search of all the males and their vehicle. 

The officer was wrong. He was ignorant to the limit of his powers and the scope of his authority.  He acted illegally.  He violated the Charter rights of 8 members of our community.

The officer's action is all the more shocking given that the law on police powers of search and seizure has been crystal clear since 2004.  In the case of R. v. Mann the Supreme Court of Canada ruled:

[P]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.  In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual.  Both the detention and the pat-down search must be conducted in a reasonable manner.  In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police.  The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest, which do not arise in this case. 
The trial judge found that the officer went beyond a protective search when he reached into the appellant’s pocket.   At that point, the purpose of the search shifted from safety to the detection and collection of evidence, and thus became a search for evidence absent reasonable and probable grounds.

The law is clear (and has been clear for almost 10 years) that an investigative detention does not give police carte blanche to conduct a search. 

It is simply astounding that a front line officer, an 11 year veteran of the Ottawa Police Service, could be so woefully ignorant of his powers.

In excluding the evidence the judge commented that the officer's lack of training and ignorance of Charter standards were an important factor in his decision.

This incident contradicts Chief Bordeleau's contention that Charter breaches are exceptional and that there are only a handful of acquittals due to police Charter breaches.

The Chief is wrong.  Charter breaches are not exceptional.  There are not only a handful of breaches a year. 

On the issue of continuing education about the scope of authority and Charter standards the Chief Bordeleau told Andrew Seymour of the Ottawa Citizen that:

Ottawa police officers are not required to take any mandatory refresher training specifically on Charter rights. Instead, Ottawa police rely on a variety of methods to keep officers aware of changes in the law. That can include basic or specialized investigative training, discussions on parade, peer-to-peer training and from computer-based training modules.

Clearly the current approach is woefully inadequate.  Why is Chief Bordeleau not taking a proactive approach to the training of his officers to address this issue. 

Why is Chief Bordeleau twiddling his thumbs while the Charter burns?  

The issue of illegal police searches takes on greater importance given the recent decision by the Supreme Court of Canada in R. v. Vu.   In the case of Vu the Supreme Court upheld the elevated privacy of computers and found that police require a specific warrant to search computers.  The Court commented:

The privacy interests at stake when computers are searched require that those devices be treated, to a certain extent, as a separate place.  Prior authorization of searches is a cornerstone of our search and seizure law.  The purpose of the prior authorization process is to balance the privacy interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs.
This means that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for.  
If [police] wish to search the data, however, they must obtain a separate warrant

How can members of our community have any confidence that their rights will be respected given the lack of formal police training.  

It is simply becoming impossible to ignore the pattern of police misconduct arising from a lack of education regarding their powers and authorities.  

In June of this year another Ottawa Judge excluded evidence due to police ignorance and entered an acquittal (R. v. Ahmed, [2013] O.J. No. 4717].  In that case the court said:  

It is clear on the evidence introduced in this hearing that Constable Cutts misunderstood his legal authority. He did not fully understand the authority given to him under the Trespass to Property Act and did not appreciate that the fact that someone looked suspicious was not sufficient grounds for detention. In these circumstances the breach of the Applicant's Section 9 and Section 10(b) rights was not a technical one. While the facts would not substantiate a finding of bad faith, the court cannot make a finding of good faith where ignorance of the law has been clearly demonstrated.
[T]he police officer had no reasonable and probable grounds to believe that the Applicant had committed an offence; a breach of his charter rights should be considered a serious Charter violation. In Grant the Supreme Court made it clear that with the clarification of the law, ignorance of the law would be less justifiable in the future. It has been four years since the Grant case was decided by our Supreme Court. Police officers should be familiar with these charter principles by now.
With each case that impugns the training and actions of the Ottawa Police the Chief's position and blind adherence to the status quo becomes more and more untenable.

When police act without authority they are acting illegally.  When police act illegally and violate the rights of citizens we are all worse for it.  Ignorance of the law is not an excuse for an accused and it should not be a shield for police misconduct. 

There are not a 'handful' of violations a year.  The Chief's willful blindness to this fact and his reluctance to take action is simply inexcusable. 

Ottawa Police, The Charter, and Chief Bordeleau's Large Hands

On October 12 the Ottawa Citizen published an editorial asking if Ottawa Police work is reckless due to a lack of training in Charter values.  It appears the Citizen agreed with me on the issue of lack of police training - I posted an eerily very similar opinion on October 10

It remains shocking that Ottawa police officers not required to undergo formalized continuing eduction with respect to their powers and scope of authority.

Today in an interview with the Ottawa Citizen's Andrew Seymore, Ottawa Police Chief Charles Bordeleau maintained that he was satisfied with his officers' Charter training.  In explaining the recent acquittals due to Charter breaches the Chief said:

“Search and seizure is extremely complicated and becoming more complex” 

Does this very statement not make the case for improved mandatory continuing education for Ottawa police officers?  Complexity of the law should not be a shield to education but the reason for it.

Bordeleau went on to say that Charter breaches are exceptional and that there are only a handful of acquittals due to police Charter breaches.

This protectionist reaction misses the point.  

Chief Bordeleau must have very large hands; Charter breaches are not exceptional.  There are numerous reported cases in addition to the ones quoted by the Ottawa Citizen and in my prior post.  For example in 2011 an Ottawa judge made the following comments in excluding a large amount of cocaine:

A private residence is sacrosanct. It is trite law that 'a man's home is his castle' and that residents are free from state interference when they are in their homes. That right is not without its limits. Police may enter a house with permission, when they have a judicially authorized warrant, or when there are exigent circumstances. In this case, none of those circumstances existed. When Jacobs and Edgar entered the residence on Edenvale Drive, they committed an egregious breach of one of the most important rights possessed by the citizens of this country - the right to privacy in one's own home. The public would be horrified

An egregious breach of one of the most important rights possessed by citizens of this country.  The public would be horrified.  But the status quo is fine for Ottawa's Chief?

Examples such as the one above are not so uncommon as to be dismissed.  Judicial findings such as the one quoted above make up only the tip of the iceberg as victims of Charter violations are often not charged with any criminal offence - especially when no evidence is discovered.  Additionally, many charges are withdrawn by the Crown prior to trial due to Charter Breaches.  

That the Ottawa Police Chief would be satisfied with his officers training is simply not acceptable.

In his interview with the Citizen Chief Bordeleau said that Ottawa police officers are not required to take any mandatory training specifically on Charter rights and the force relies on "specialized investigative training, discussions on parade, peer-to-peer training and from computer-based training modules."

These methods of training don't seem to be working given an Ottawa judges 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.

What is the downside of giving officers additional training - There is none.  The Chief may be satisfied with the state of his officers training but that does not mean the public should be.

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.