POLICE INVESTIGATIONS 101

“Rounding up the Usual Suspects” and Other Elements of Cross-Examination Demonstrating Poor Training

Justice Gilles Renaud | Ontario Court of Justice

Introduction 

This working paper addresses an issue that arises often in cross-examination: defence suggesting that the officers investigated in accordance with fixed guidelines as opposed to responding to the situation as it arose.  In other terms, the officer applied some coaching to the effect of subjectively “rounding up the usual suspects”, the famous phrase uttered at the start of the movie “Casablanca”, as opposed to responding in an objective fashion to objective evidence that might suggest criminal behaviour.

Discussion

A simple illustration will serve as the foundation for the discussion of this subject. Assume a coach officer is supervising your work as a novice patrol officer, after your return from the Police College in your jurisdiction where you received detailed instruction on the function and operation of the Approved Screening Device.  In focusing your attention on important issues such as ensuring your safety and the period that must be respected if the person to be tested was smoking, you are told: “No one gets more than 4 attempts.  After the third, everyone is given a final warning and if you do not get a (Pass) result, you charge them!”.

This scenario is taken from my experience of a dozen years as either a busy defence lawyer or as a full time Assistant Crown Attorney and in numerous cases as a judge in which I heard some variation of this theme.  In effect, I often heard a peace officer testify to this effect, with only the number of chances being different.  On rare occasions, the prosecutor and / or police officer have almost bragged how generous they were in not having charged the “testee” after three strikes. 

The defence might raise this subject in cross-examination to test the limits of the judgment or discretion that the officer exercised.  Typically, the officer would be asked questions to remind them of their oath and the presumption of innocence and then be asked how many hours of training they received at the Police College and in-house, and typically the response is vague. Indeed, to my mind, these replies were often not satisfactory as the responses seemed imprecise and highly subjective, in the sense of “It was dealt with in detail”, but with no times or hours of instruction.  I do not recall a police witness pointing to a document or guide in their possession of even a one-page “how to” set of notes.

That said, the defence counsel would then point out that it is the officer’s duty to arrest once in possession of correct legal grounds suggesting the offence of refuse or fail to comply was made out.  The officer having necessarily agreed with the suggestion, counsel then pointed out that the Criminal Code does not contain a set number of tests to be attempted for the “roadside”, in contrast to the other breath-taking instruments that are located at the police station.  Once the officer agreed, or stated that they were not aware of how many times one must provide a breath sample at the station into an Intoxilyzer, for example, the defendant’s counsel would focus great attention on why the first three samples, let us say, were not suitable.  No matter how detailed the officer’s responses were, the lawyer generally went on to suggest that “my client did not obviously play games or refuse as you” allowed a further test, up to and until the final waring test. 

I pause to note that the cross-examination at this point often embraces a great deal of success for the defendant in that the police officer will not have made notes after each of the attempts. Accordingly, the suggestion that one test “failure” got mixed up with another, even as between different test subjects, is often advanced with success. I pause to note that this observation may no longer be correct in the future if the officer can provide evidence from a body-worn camera.

At all events, the Court is then confronted with a challenge in cross-examination focusing on the fact that the subject of the tests was dealt with unfairly in that the investigator did not act in an objective fashion.

Conclusion

In the final analysis, the investigator is on thin ice if they impose requirements that are not found in the Criminal Code, such as the number of times a person may attempt to provide a suitable breath same in an approved instrument. Fairness and logic go hand in hand with justice and a proper administration of justice. 

[1]                       A Justice of the Ontario Court of Justice for 28 years, from 1995 to 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).