Continued Ottawa Police Charter Ignorance and the Lack of Action

November 8, 2013

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.