Filtering by Tag: Police

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. 

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.

Presumption of Innocence and DNA

In a recent interview Conservative Justice Minister Peter McKay floated the idea of seizing DNA samples from people who have been accused but not found guilty of a crime.  As reported by the Globe and Mail McKay said:

"I know there’s always privacy considerations in the backdrop to this and it has to be balanced in the bigger picture... But I think that, you know, the timing of the taking of DNA is something that could very well emerge in the future as another issue of importance."

The presumption of innocence forms the bedrock of our judicial system.  It is the golden thread that runs through all criminal law.  If McKay's vision comes to pass it will represent yet another erosion of the presumption of innocence.

Currently the Identification of Criminals Act allows the photographing and fingerprinting of most people accused of criminal offences.  Indeed this forms the justification used by the proponents of pre-conviction DNA sampling. 

In short, the simplistic logic is that a DNA sample is just the modern version of a finger print.  This narrow view misses the point.

The Identification of Criminals Act's primary purpose is to confirm the identity people charge with a serious offence.   Fingerprinting fulfills the purpose of the act.  The taking of DNA for this purpose would be surplusage. 

Quite simply, the taking of DNA would not be to identify the accused but to run the DNA information through databases to further other investigations.  This is not the primary purpose of the Identifications of Criminals Act.

The Supreme Court discussed the issues in R. v. Beare; R. v. Higgins :

"Fingerprints serve a wide variety of purposes in the criminal justice system. These include linking the accused to the crime where latent prints are found at the scene or on physical evidence; determining if the accused has been charged with, or convicted of other crimes in order to decide whether, for example, he should be released pending trial or whether he should be proceeded against by way of summary conviction or indictment; ascertaining whether the accused is unlawfully at large or has other charges outstanding; and assisting in the apprehension of an accused should he fail to appear. As well, fingerprints taken on arrest are used to identify prisoners with suicidal tendencies, sex offenders, career criminals and persons with a history of escape attempts so that they can be segregated or monitored as may appear appropriate.

Fingerprints are also of great assistance in the judicial process. Thus in addition to their utility in positively identifying an accused, they may also assist the Crown in determining the punishment it should seek by revealing, for example, whether the accused is a first offender or otherwise. This, of course, will be of assistance to the court in imposing an appropriate sentence."

The Supreme Court  went on to find that the taking of fingerprints valid because it did not represent a penetration into the body or the removal of a substance from the body:

"It seems to me that a person who is arrested on reasonable and probable grounds that he has committed a serious crime [...] must expect a significant loss of personal privacy. He must expect that incidental to his being taken in custody he will be subjected to observation, to physical measurement and the like. Fingerprinting is of that nature. While some may find it distasteful, it is insubstantial, of very short duration, and leaves no lasting impression. There is no penetration into the body and no substance is removed from it."

Clearly the taking of DNA is more intrusive and very different in nature than the taking of a fingerprint.

The power to fingerprint incident to arrest for an indictable offence has its roots in and exists at common law.  The existence of a common law authority to fingerprint persons in lawful police custody is supported by the decision of the Supreme Court of Canada in R. v. Stillman  In that case the Court was careful to distinguish the taking of fingerprints on the one hand from the taking of blood samples or hair samples.

DNA is not a modern version of a fingerprint.  DNA is the building blocks of who we are as individuals.  DNA contains information about our intimate personal characteristics.  Its extraction requires intrusion into our body.  Its nature is ripe for misuse.  

There are currently institutional problems with the retention of fingerprints of individuals ultimately found to be not guilty.  Quite simply once the state has an innocent persons fingerprints there is an uphill battle in ensuring the prints destruction. 

It does not strain the imagination to conceive of the privacy problems with the state having DNA samples of any citizen ever charged with a crime. 

Demonstrating the rankest example of simplistic (and circular) logic employed by proponents of pre-conviction DNA seizure, Calgary's Chief of Police Rick Hanson told the Calgary Sun:

“There’s a thousand reasons that people would say no and there’s only one reason to go ahead with it and that’s because it’s the right thing to do in this day and age,"

Logic like this has no place in any rational dialogue.  It may be politically advantageous for Mr. McKay to suggest a pre-conviction DNA databank.  It may even assist in solving some crimes.  Against the 'thousands of reasons to say no' this does not justify DNA sampling of the presumed innocent (and in many cases factually innocent). 

The purpose of laws in a free and democratic society should be to liberate and to maximize freedom.  McKay's proposal is overly intrusive and antithetical to those ideals.


Ottaw Police, Mr. Skof, and the Ombudsman

Today in the Ottawa Citizen, Ottawa Police Association president Matt Skof wrote that the Ontario Ombudsman's comments about the police reaction to last weeks video of a violent arrest were out of line.  However, it is Mr. Skof who misses the mark and upon examination his argument draws little water.  The Ombudsman is correct: lose lips sink ships.

On to Mr. Scof response. He first says: 

"It is always tempting to render instant opinions on events even though only a fragment of the circumstances of volatile situations may have been recorded."

Unfortunately Mr. Scof's initial objection to the Ombudsman's comments misses the point and displays a lack of objectivity.  It is perfectly appropriate to voice an opinion on videos such as this one or the G20 video of police beating protestor Adam Nobody

As I wrote last week the Ottawa Market video should cause concern.  At the very least there is enough context to raise serious questions and merit investigation.

Mr. Scof also says:

"[W]e were astonished that, based on such little evidence, Marin would conclude that the “Ottawa police’s ship is sitting right beside the Titanic on the floor of the Atlantic Ocean.” Likening the efforts of the police to maintain the peace in Ottawa’s entertainment district in the evening to the sinking of the Titanic is inappropriate and insulting. This is not an isolated example of Marin’s propensity to rush to judgment on matters involving police. "

Mr. Skof miss-characterizes the Ombudsman's comments.  He was not likening the efforts of the police to maintain the peace in Ottawa’s entertainment district in the evening to the sinking of the Titanic.  His comments were that lose lips sink ships.  This comment was obviously in relation to senior Ottawa police officers defending and justifying the actions captured on the video before there had been a complete investigation.

According to the Ottawa Citizen the Ombudsman actually said:

"Loose lips sink ships,” Marin said. “Ottawa police’s ship is sitting right beside the Titanic on the floor of the Atlantic Ocean right now. 
“I think the officer under investigation right now deserves to be investigated properly.” 

Clearly these comments relate to lose lips compromising the investigation and actions of senior officers jeopardizing the investigation.  

Mr. Skof unfairly recasts these comments to play the victim.  This is not about, as Skof says, "efforts of the police to maintain the peace in Ottawa’s entertainment district in the evening."  This is about taking a violent arrest  to which there can be legitimate concern seriously and making sure any investigation is not contaminated.

Mr. Skof then resorts to a classic appeal to authority: The Ombudsman is not a police officer and could never know what it is like to be a police officer so he should not or cannot provide comment   This argument does not assist Mr. Skof in making his point - it only serves to expose logic fallacy and the weakness of his argument. 

Mr. Skof then suggests that the violence in the arrest was appropriate: 

"As the officers were intervening to subdue the person using the weapon, one officer was assaulted by a bystander. In this instant the nature of the response changed from one violent person to two or potentially more violent people. In the circumstances, being surrounded by bar patrons near closing time, the officer’s choice of force was highly appropriate and resulted in fulfilling the primary mission assigned to those officers." 

At the time the officer repeatedly struck the individual there were three officer on top of one grounded civilian.  Why, as Mr. Skof suggests was the officer use of force appropriate, because the officer was punched, because there had been previous violence. because the situation was stressful?  These are not reasons for the violence on the video.   

Mr. Skof demonstrates why the Ombudsman made the comments he did.  There has been a rush to justify the police action (as Mr. Skof does in his response).  The point is there should not be a concerted effort to justify the violence, especially not by senior officers and at the very least not prior to a proper investigation.

Mr. Skof's reactionary justification in the days after the incident was unfortunate.  It is more unfortunate that he is now playing the victim and miscasting the Ombudsman's comments.  This matter is serious.  The Ombudsman is right, any comments from senior officers risk jeopardizing an investigation. 

Lose lips do indeed sink ships but perhaps that is the goal.

The Right Not To Be Identified

Christie Blatchford wrote a thoughtful piece yesterday on the lasting impacts innocent accused face after they have been exonerated. 

The major impact an innocent accused faces is publication of their identity.  When an accused is charged with an offence it is not unusual for the police to public identify them.  For example, the Ottawa police post news releases that identify many persons who are charged with offences (police do not post releases when these people are found not guilty).  Police publication is just the beginning not the end of the problem of stigmatization as identification continues throughout the court process.  

It is common for media to publish names of accused persons and details of the allegations.  Sadly, as Ms. Blatchford points out there is less media attention paid to acquittals then there is to charges and convictions.  When media do report on acquittals it is often less visibly placed than when they reported on the initial allegations.        

Once an accused is identified the proverbial cat is out bag and onto the internet.  The mere fact that an individual is charged is enough to ruin a good name - even if the charges are eventually found to be untrue.

There is relatively little that can be done to mitigate the potential damage of publication.  There is no protection for an accused in the criminal code.  Irronically the only time  publication of an accused name is prohibited is when the publication may identify the victim.  

This is a situation that must be addressed given the new realities of the internet and permanence of information.  

As Justice Minister Peter MacKay tours Canada trumpeting victims' rights little is being done to asist in mitigating or preventing damage to an innocent accused.  

There must be action on this issue.  

The starting point of course is that accused persons whose names are published are presumed innocent.  The name of an accused should not be published until the presumption of innocence is removed unless there exist exceptional circumstances.     

There should also be financial relief for individuals who are found to be not guilty.  As governments cut back on legal aid and financial assistance, more accused are forced to the brink of financial disaster to clear their name.  At a minimum litigation costs should be tax deductible.   

As millions are poured into victim services, accused persons are left named, branded, exposed, and financially devastated.  There must be action to give meaning to the presumption of innocence.  

Being found not guilty is a hollow victory indeed when it comes at the expense of ones good name at the cost of financial ruin.