Legal Issues In Policing

In this episode, Mike discusses the New Brunswick Court of Appeal decision R. v. Morrison, 2024 NBCA 54 where a trial judge personally called two police officers to get more information about a case he was presiding over? Was this out-of-court contact off-side? Or was the judge simply clarifying what he heard in court? Should the serious charges facing the accused be stayed? What would you do if a judge called to ask questions about a case? And what happened to the judge? Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike celebrates the Charter's 42nd birthday! On April 17, 1982 -- when the Canadian Charter of Rights and Freedoms came into force. Listen to learn about some of the early discussion on the s. 8 (unreasonable search or seizure) and s. 9 (arbitrary detention) rights and how you can use the Supreme Court's interpretive framework to Charter proof your actions. Also check out the Constitutional Policing Seminar Series Mike will be presenting! Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the Manitoba Court of Appeal decision R. v. Devos, 2024 MBCA 23 where police made a demand for breath samples following a single vehicle rollover where a 15-year-old passenger was killed. Did the officer have the required reasonable grounds for the breathalyzer demand? And what happens when judges don’t see all of the facts the same way? Can evidence be reasonably subject to different interpretations? And would the officer’s grounds stand up even when some of what the officer relied upon was discounted? Check out the JIBC Police Academy — International Use of Force Expert Conference — April 23-26, 2024. Last chance to register is April 16. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the Saskatchewan Court of Appeal decision R. v. Maurer, 2024 SKCA 20 where a K9 was stabbed after police tried to arrest a man for sexual assault. Despite an acquittal on the sexual assault charge, the man was convicted at trial in provincial court for resisting arrest (s. 129(a)), injuring a law enforcement animal (s. 445.01(1)) and carrying concealed weapons (s. 90). Was the man’s arrest lawful such that the police were in the execution of their duties? Does the legality of an arrest even matter? Does a person have the right to resist an unlawful arrest? Find out what an appeal court had to say. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the New Brunswick Court of Appeal decision R. v. Morrison, 2024 NBCA 35 where police conducted an inventory search of a vehicle they towed from a bar parking lot. Did a request to be on the look out for the vehicle, having earlier been involved in a high-speed chase with the RCMP, taint the inventory search ? Or could police have other investigative reasons in mind when inventorying the vehicle and its contents. Did the police go too far in searching a book bag found on the front seat or a soft case found under it? And did the discovery of any drugs taint the issuance of a search warrant and render the search unreasonable under s. 8 of the Charter? Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses recent survey results from polling about the amount of confidence or trust Canadians have in various institutions, including the school system, media, parliament, the justice system and courts, and the police. Just how did the police stack up against these other institutions? No surprises here. Check out the results for yourself. Confidence in institutions and the media, 2023 — February 2024 Confidence in Canadian Institutions (infographic) — November 2023 Institutional Confidence: Canadians’ and Americans’ Perspectives — November 2023 Experiences of discrimination in daily life among Chinese people in Canada, and their perceptions of and experiences with the police and the justice system — August 2023 Note-able quotes: "Any one can hold the helm when the sea is calm.” — Publilius Syrus “A ship in harbor is safe, but that is not what ships are built for.” — John Shed “A smooth sea never made a skilled sailor.” — Franklin Roosevelt Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses dynamic entries and the legal standard for deviating from the long standing common law rule of "knock and announce" by looking at two recent Ontario Superior Court decisions, R. v. Russell, 2024 ONSC 529 (watch the police entry here) and R. v. Harper, 2024 ONSC 925. Learn about the origins of the rule and how the Supreme Court of Canada explained it more than a decade ago. Would you be prepared to justify an unannounced hard entry should you need to? Or would you be in the same position as the officers in the cases discussed? Check out the JIBC Police Academy — International Use of Force Expert Conference — April 23-26, 2024. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

TRIGGER WARNING: This episode contains graphic content of animal cruelty which may shock, offend or upset. In this episode, Mike discusses the Newfoundland and Labrador Court of Appeal decision R. v. Picco, 2023 NSCA 33, an animal cruelty case involving the treatment of four beagles. When authorities found the dogs, they were in “deplorable condition”, “emaciated”, “starving” and “near death”. You can see one of the dogs for yourself. Despite their condition, the trial judge found the dogs were not “suffering”, an essential actus reus element of a crime their owner was charged with. Did the trial judge’s ruling hold up on appeal? Or was the judge way off the mark? Listen to discover the answer to these and other questions. s. 445.1(1)(a) Criminal Code — Causing unnecessary suffering Every one commits an offence who (a) wilfully causes or, being the owner, wilfully permits to be caused unnecessary pain, suffering or injury to an animal or a bird. Beagle Paws Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses R. v. Isaac, 2022 MBPC 73, where police acted on the tip of a confidential informer reporting a man with a particular name would be attending a particular area, at a particular time, by a particular mode of transportation with drugs and cash? When police arrived at the location within the anticipated time, they saw the man as described, arrested him and found methamphetamine and cash. Did the police have the necessary grounds for the arrest? How does a court assess the reliability of source information? What if the tip had been anonymous? Listen to discover the answer to these and other questions. You might also want to check out R. v. Jir, 2010 BCCA 497, another case discussed in this episode. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the Nova Scotia Court of Appeal decision R. v. Arsenault, 2024 NSCA 10, an update to a case featured in E3| Inventory searches. Things that make you go hmmm? This case involved a vehicle inventory search in which a loaded handgun was found in a glovebox and was seized without a warrant. Was this warrantless seizure lawful? Listen to find out what Nova Scotia's top court said when it weighed in on the matter. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses R. v. Zacharias, 2023 SCC 30 a case involving a traffic stop that led to an investigative detention for a drug offence and the deployment of a sniffer dog. When the dog signalled the presence of drugs, the driver was arrested and the vehicle was searched incidental to arrest. This led to the discovery of more than 100 lbs. of marihauna along with other evidence including $12,600 in cash. Further arrests for PPT and possessing proceeds of crime followed as did transport to the police detachment for booking. Did the officer have enough to detain the driver and use the K9? If he didn’t, could the hit by the dog still be used to justify the arrest that followed? Or would the arrest also be unlawful and everything else that followed breach the Charter? And if the Charter was infringed, would the evidence be excluded? Listen to discover the answer to these and other questions. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses R. v. Noor, 2022 ONCA 338 where police responded to a 911 report of a man flashing a gun in the waistband of his pants. When police approached the accused — a man matching the suspect description found in the area — he appeared startled and quickly walked away. The man resisted police efforts to detain him and a violent struggle ensued. In the process of overcoming his resistance, police saw the butt of a handgun inside his jacket pocket. Was this encounter an investigative detention or an arrest? Did the police have the necessary grounds to physically restrain the accused? Was the degree of force used to control him reasonable? Was the seizure of the handgun lawful? Listen to discover the answer to these and other questions. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the case law classic R. v. Baddock, 2008 BCCA 48 where a police officer, acting on a tip about a dial-a-doper, called a drug line and arranged for a meet. When a car arrived at a pre-arranged location but left within minutes, the officer suspected it was the drug dealer's car and pulled it over. Listen to find out what the officer did next to elevate his suspicion to what he believed were the grounds needed for an arrest. Did the judge agree with the officer? And what did the Court of Appeal think about all of this? Perhaps you may find this officer's tactic useful in your next drug investigation. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the case law classic R. v. Murphy, 2006 Docket: C42133 (ONCA) where a police officer, acting on a tip about a man with a gun, saw the accused reach into his shirt and appear to be holding a gun tucked into his loose pants as he ran across the street. The accused was arrested, and in the course of a search incidental to arrest, police discovered cocaine and a handgun tucked into his pants. Did this tip — which the court treated as coming from an anonymous, untested informer — provide enough grounds for an arrest which prompted the search incidental to it? Or was more required? Mike looks at these and other questions. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the case law classic R. v. Williams, 2013 ONCA 772 where a police officer, acting on an anonymous tip about a man with a gun, approached the accused and asked if he was armed. When the accused did not answer, bladed his body, motioned for his waist and did not follow directions, police grabbed his arms, lifted his t-shirt and saw the butt of a handgun. The man was then arrested, searched and police recovered the loaded pistol and drugs. Did the anonymous tip provide enough suspicion for an investigative detention? Did the actions of the police exceed what was reasonable and amount to a de facto arrest? Did the lifting of the t-shirt go beyond the pat-down type search incidental to an investigative detention authorized in R. v. Mann? Was it the equivalent of a strip search? Mike looks at these and other questions. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the BC Supreme Court decision R. v. Gallant, 2023 BCSC 1786 where a police officer testified he saw drugs in view during a traffic stop. Did the judge buy what the officer was selling? Did it help that some of what the officer said about the accused didn't match what was captured on video? What happen's when an officer's candour is challenged on cross-examination? Listen and learn. Your credibility, case and career may count on it. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

TRIGGER WARNING: This episode contains graphic content, including violence, suicide and death which may shock, offend or upset. In this episode, Mike discusses BC's Independent Investigations Office (IIO) and their most recent annual report. Are BC police notifying the IIO of only the cases that should be reported to them? Or are too many events being reported, including those that clearly do not fall within the IIO's mandate? What does the annual report tell us and should the criteria used for IIO notification be revisited? And how do notifications to the IIO stack up to Ontario's Special Investigations Unit (SIU) reporting? Files mentioned: IIO Case 2020-290 (Surrey RCMP) IIO Case 2022-018 (VicPD) IIO Case 2023-066 (VPD) IIO Case 2023-124 (Duncan RCMP) Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the Saskatchewan Court of King’s Bench decision R. v. McDonald, 2023 SKKB 180 where a police officer, as a prelude to placing a driver in the back of a police vehicle, conducted a protective pat-down before obtaining a roadside breath sample. Was this safety search incidental to the roadside breath test procedure reasonable? Or did it amount to a s. 8 Charter breach? Listen and learn. Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the Newfoundland and Labrador Court of Appeal decision R. v. Churchill, 2023 NLCA 26 where a man — ejected from a bar following a fight — was taken into police custody for being intoxicated in a public place. While handcuffed, and sitting in the secure rear seat of a police car parked outside the police lockup, the man told the officer, “I’m going to put my fucking boot in your head”. Did these words amount to an offence under the Criminal Code threatening provision? Did the fact the police officer continued to do his job and booked the man into jail properly raise a reasonable doubt about the required intent when the comment was made? Or did taking the man into custody for public intoxication — and the level of drunkenness required for it — neuter the mens rea component for uttering a threat? Criminal Code: s. 264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat (a) to cause death or bodily harm to any person ... . Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com

In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Whitfield, 2023 ONCA 479 where the police misidentified their arrestee. Did this misapprehension undermine the officer’s reasonable grounds, rendering the arrest unlawful and the subsequent incidental search — and seizure of fentanyl — unreasonable? Or was this mistake inconsequential to the lawfulness of the arrest? And what about police action taken at a time it was supported in the jurisprudence but several years later turned out to be incorrect in law? Can it still be said that the police were acting in good faith? Thanks for listening! Feedback welcome at legalissuesinpolicing@gmail.com