POLICE INVESTIGATIONS 101  

Charter Breaches Alleging Poor Police Training – Respond to Them By Documenting Each Minute Spent Studying (Including the Time Spent Reviewing this Document) 

Gilles Renaud | Ontario Court of Justice 

Introduction

Defence counsel are fond of telling judges: “Absence of evidence is not Evidence of Absence”. I heard this often as a judge in cases involving the search of a home disclosing all the paraphernalia of drug trafficking, but without any hint of unlawful substances ever being in the home. The Crown would argue that this suggests bad luck by the police in that all the narcotics had been disposed of and the new “product” had not yet arrived, prior to the bust.  Thus, “the evidence of absence” of something typically found, which suggests criminal conspiracy.  The defence response is: “absence of evidence means just that: there is no evidence, and since the prosecution must prove all elements of the crime and as not done so, there is no reason to conclude that anything criminal was at hand, or ever present.  This scenario describes a typical defence response to a Crown argument.

 

This brief paper discusses the reverse situation: a Defence challenge to a Crown argument that the police complied with the Charter by suggesting that the absence of evidence of proper “training” received by the police is, in fact, evidence of absence of training.

 

Discussion

 

This mindset about presenting arguments respecting “absent” or “unknown” information is now becoming quite common in Defence Charter applications in respect of any number of issues, ranging from holding off from questioning a detainee until a lawyer is consulted to strip-searches conducted by opposite-sex officers.  For example, I was told quite often “… the police not only flagrantly breached my client’s right to call a lawyer, but the cross-examination also shows clearly that they received next to no training on their duty to facilitate access to a lawyer!”  And, that this lack of training (or absence of evidence of training) shows a “bad faith” element that serves to justify exclusion of evidence after a Charter breach.  This “defence du jour” is quite effective as it often displaced police testimony away from what the officer did to what they were instructed to do during their training, but could not recall. In practice, defence will quote a certain case (out of thousands) and ask the officer if they were told about it, to then probe details of the general training, to great advantage as the officer has no aide-memoire.

 

In my experience, the officers responded in general terms, and no one ever has a document setting out when a subject was taught, and for how long, and when refresher courses or continuing guidance was issued because of this new case, etc.  Indeed, I recall a veteran detective telling me he spent 30 minutes reading a new policy directive while waiting for a lawyer to call, a good use of time, but I question whether this was recorded anywhere though he could remember it as it took place the day before his testimony.

 

In short, whatever correct actions were undertaken by the officer is attacked at trial at two levels: firstly, by the general suggestion that this or this ought to have been attempted, or avoided, and secondly, that the inability to recall when and for how long this was the subject of training resulted in these errors. Ultimately, this feeds into the Charter s. 24(2) argument supporting exclusion of evidence based on inadequate training.  It is an extension of the O.J. Simpson defence song: “If the glove don’t fit, you must acquit…” along these lines: “If the police don’t care to learn, teach them a lesson and boot the case!”

 

Hence, the prescription I suggest to remedy the apparent illness of inadequate information being provided to a judge is to craft a record of your career-long history in training. Yes, write out all that you have received by way of education and training, including reading this paper.  It must include topics and times in detail and should be available when you testify and not just “I took the senior investigator’s course that took three days…” that you cannot then recall when asked. (The Crown’s office will provide advice about disclosure.)  As a result, you will be able to set out your efforts at keeping “up to date” and this form of professionalism reflects well of you and of your police force - your own devotion to being compliant with the ever-evolving judgments is to your credit.

 

Conclusion

 

Obviously, Charter-based issues are quite difficult and challenging, and you ought to enhance your ability to demonstrate good faith, in both your training and wish to comply with the procedures mandated by the Charter, by having clear and convincing proof that your training is not just adequate or sufficient, but that it was excellent!

 

 


[1]        A Justice of the Ontario Court of Justice for 28 years, from January 1995 to May 2023.  Formerly a member of the Bar of Ontario from 1983 to 1995, including service as a prosecutor with the Department of Justice (Canada) and as an Assistant Crown Attorney (Ontario).