New & Notable: Old Mother Hubbard & the Police can go to the Cupboard but not the Computer

Police obtained a warrant authorizing the search of a residence for evidence of theft of electricity, including documentation which would identify the owners or occupants of the residence. The Information to Obtain a Search Warrant (“ITO”) stated that police would be looking for, among other things, “computer generated notes” but it did not specifically reference computers nor did the warrant authorize the search of computers. While executing the search, police found marijuana, two computers and a cell phone. Police examined the computers and cell phone and found evidence that Thanh Long Vu was the occupant of the residence. He was charged with marijuana production, possession and trafficking as well as theft of electricity. Vu successfully argued at trial that his s. 8 Charter rights were violated and that the evidence should be excluded. He was acquitted. The British Columbia Court of Appeal found that there had been no s. 8 breach and overturned the acquittal. The Supreme Court of Canada agreed with the trial judge in her finding that there was a s. 8 breach when the police searched the computers and the cell phone but found that the evidence should not have been excluded pursuant to s. 24(2) of the Charter. The appeal was therefore dismissed and the Court of Appealʼs order for a new trial stands: 2013 SCC 60.

Issue #1: Whether the warrant authorizing a search for ownership or occupancy documentation was properly issued

Justice Cromwell, writing for a unanimous Court, gave relatively short shrift to the argument accepted by the trial judge that because the officer who swore the ITO didnʼt specifically state in the ITO that he had reasonable grounds to believe that documents evidencing ownership or occupancy would be found within the house, the ITO could not support a search warrant for such documentation. He found that the issuing justice was entitled to draw an inference that such reasonable grounds existed and that the informant on the ITO did not have to state the obvious. Accordingly, the warrant to search for such documentation was properly issued and the search for it did not violate s. 8 of the Charter.

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New & Notable: Use of Drug Sniffing Dogs - The Reasonable Suspicion Standard Elucidated

Two RCMP officers were monitoring traffic from their marked cruiser on the Trans-Canada Highway just west of Caronport, Saskatchewan. Benjamin MacKenzie was travelling in a car on that highway a mere two kilometres per hour over the posted speed limit but the officers observed the front of the vehicle pitch forward as it rapidly decelerated as it passed by the cruiser. The officers went after the vehicle intending to deliver a warning about speeding. By the time the officers had caught up to the vehicle, they found it pulled over on the side of the road.

 

Mr. MacKenzie apologized for speeding and promised to slow down. Unfortunately for Mr. MacKenzie, things took a bad turn because the police officer dealing with him made a number of the observations that would culminate in the officer deploying his drug-sniffing dog.  The officer believed that MacKenzie might be involved in an offence under the CDSA. The officer observed that:

  • MacKenzie’s hands were shaky—trembling when he handed over this licence and registration.
  • He was sweating—beads of sweat were forming on his forehead.
  • His breathing was very rapid and his carotid artery was pulsing very rapidly. This rapid breathing did not decrease even after he used his asthma medication. Indeed, his nervous reaction continued even after he was advised that the reason for the investigation was minor speeding infraction.
  • This level of nervousness was extremely high given the nature of the investigation.
  • The pinkish colour of MacKenzie’s eyes was suggestive of possible marijuana use.
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New & Notable: Here's to Auld Lang Syne, when it was actually cold on New Year's Eve...

It was unusually warm on New Year’s Eve 2010.  This added to the celebratory air around Spadina and Queen Streets in Toronto as revellers walked in light jackets or no jackets at all.  Not so, Rowan Atkins.  Three officers driving down Spadina in an unmarked van noticed him walking because he was wearing a heavy, baggy winter coat over a hoodie and he was withdrawn, hiding in the crowd and skirting the walls of buildings as he walked.  The officers were suspicious and stopped to talk to him.  After being called over by the officers, Mr. Atkins took a couple of steps towards them but then started running.  After a brief foot pursuit the police discovered the likely reason for Mr. Atkins change of heart; the loaded handgun he was carrying.  The trial judge ruled that Mr. Atkins’ s. 8 and 9 Charter rights were not infringed.  The Ontario Court of Appeal agreed:  2013 ONCA 586.

One officer initiated contact with Mr. Atkins by calling “hey” to him out of the window of the unmarked van.  Mr. Atkins glanced back but kept walking.  The van moved further along the street and the officer called “hey buddy” a little louder.  Mr. Atkins then turned towards the officer and she waved for him to come over.  She then got out of the van with another officer, both in full uniform.  Mr. Atkins took steps towards them as though he was going to speak with them but then ran.

The Court of Appeal endorsed the trial judge’s finding that at the time Mr. Atkins decided to run; he knew full well that it was the police who had summoned him.

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New & Notable: The right to be informed does not ensure a protected reaction

Joseph Savard had a thing for PK, the teller at his bank. So much so that when she transferred branches he did too. Savard also had a thing for 16 year old NF who bagged his groceries at the Loblaws. When NF left, Savard focussed his attention on 16 year old TC. Neither PK, NF nor TC were interested in any kind of relationship with Savard, but this did not deter him in the least. Savard wrote a letter to TC outlining his sexual interest in both her and NF. TC immediately went to the police. Savard was arrested and charged with criminal harassment of TC.

 

Savard then contacted PK by letter confessing his sexual interest in her and seeking her assistance in dealing with his recent charge. That letter also impliedly threatened that TC’s parents would never see their daughter again. PK went to the police. Savard was charged with criminally harassing PK and NF.

Following a trial in the Ontario Court of Justice Savard was convicted and sentenced to time served of 17 months followed by three years of probation. The trial judge declined to impose a mandatory weapons prohibition and refused to make an order for Savard to provide a sample of DNA. The Crown appealed the sentence; Savard appealed the convictions: 2013 ONSC 2208.

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Current & Curious: When you are driving around with a gun in your pants you would be well advised to keep within the speed limit!

Courtney Newell was charged with possession of a loaded handgun and marijuana. The only issue at trial was whether the police infringed Newell’s Charter rights: 2012 ONSC 2947.

 

Two Toronto police officers were patrolling a neighbourhood on bicycle where there had recently been several complaints about young people smoking marijuana in the area. At about 10 am they heard tires squealing. Both saw a Ford Focus travelling at a high rate of speed and with music blaring. There were children and pedestrians in the area; they decided to investigate.

Newell was the driver. No one else was in the car. Police approached and asked Newell for his license and registration, to which Newell responded that the vehicle was a rental in his fiancée’s name. Officers informed Newell of why he was being stopped and noticed that that Newell was sweating heavily, shaking and appeared nervous. Officers were able to confirm that the vehicle was a rental.

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New & Notable: Recognizing the need for a real world Charter...

Tiffany MacMillan was drunk. She was driving a boat. She killed someone. The events that ensued thereafter and the actions of the police resulted in a violation of her rights under section 10(b) of the Charter. The trial judge thought there were also breaches of sections 8 and 9 as well. The trial judge also thought the breaches were so serious that the evidence should be excluded. The trial judge was wrong on both accounts: 2013 ONCA 109.

 

MacMillan was driving a boat. She had a significant amount of alcohol in her system when she was doing so – her BAC some 3 hours later was 170 mg of alcohol/100 ml of blood.

As a result of the incident the OPP were called. Cst Ariss arrived on scene around 5:30 pm. Upon arrival Ariss noted paramedics on scene and a body covered with a sheet on the shore. There was also a young woman, MacMillan, siting at the end of the dock; she was crying and appeared distraught.

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Pending & Prominent: SCC to consider ISP privacy

The Supreme Court of Canada has granted leave to appeal from the decision of the Saskatchewan Court of Appeal in Spencer: 2011 SKCA 144. The appeal will provide the Supreme Court with the opportunity to clarify whether there exists a reasonable expectation of privacy in certain basic information held by Internet service providers (ISPs). Spencer was released concurrently with Trapp: 2011 SKCA 143. Together, they are the leading appellate authorities in this area of the law.

 

Matthew Spencer used a popular file-sharing program called “LimeWire” to obtain a large number of files containing child pornography. He kept these files in a shared folder on his computer. Others similar users of the file-sharing program could view and download these files.

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Current & Curious: Is the merit of a prosecution a factor in determining unreasonable delay?

Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.
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New & Notable: Respecting and protecting 911

Michael Purcell was charged with various drug offences including production and possession for the purpose of trafficking.  At trial Purcell brought an application to have evidence discovered by a police search of his home excluded due to a breach of section 8.

 

The search was conducted in response to a 911 call. Murray J dismissed the application: 2012 CarswellOnt 7187 (SCJ).

 

On December 26, 2009 a 911 call was placed from Purcell's residence. It was 2:04 am; the dispatcher could hear a male and female voice arguing in the background. There was yelling and swearing.

 

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New & Notable: Successful, albeit unconstitutional reliance on a "hunch"

Nicolaas Bruyere was driving in his car with a passenger. They had some cocaine in the car. The police stop him. The police thought that another fella, Hyatt, was in the car. The police believed that Hyatt had just been involved in a drug deal at a nearby hotel. Hyatt was not in the car. The trial judge found that the stop was a section 9 violation but admitted the evidence under section 24(2). Bruyere appealed; the Ontario court of appeal allowed the appeal and ordered a new trial: 2012 ONCA 329.
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