What's that bulge in your pocket?

Investigative detention is undoubtedly one of the most complex and troubling area of the law for police officers.  The ever changing face of the law in this area and the infinite number of scenarios that exist make it difficult for officer's to understand and properly apply the law.  Likely this is one of the reasons by these detentions are usually one of the top generators of complaints by the public.

Fortunately - or perhaps not - the Supreme Court is set to reconsider investigative detention in R v Aucoin, 2011 NSCA 64. 

Brendan Aucoin was stopped by the police because the plate on his car was registered to a different kind of car.  After speaking with Aucoin during the stop the officer noted an odour of alcohol.  As a result he made a roadside demand.  Aucoin sat in the backseat of the officer's cruiser with his feet outside the car to provide the demand.  He passed, but did have alcohol in his system.  Given he as a newly licenced driver he was in violation of the Motor Vehicle Act which required newly licenced drivers to have zero BAC.  As a result the officer decided to give him a ticket.  The officer decided it would be safest to put Aucoin in the backseat of the cruiser to issue the ticket as the vehicle was being towed and there was a lot of traffic. 

Before placing him in the cruiser the officer did a pat down for safety reasons.  During the pat down search the officer felt something in Aucoin's pocket.  Aucoin said it was Ecstasy.  He was arrested.  A subsequent search revealed cocaine.

At trial Aucoin sought to exclude that evidence arguing that the officer was not entitled to do the search.  The trial judge dismissed the motion citing the seminal decision of R v Mann, 2004 SCC 52.

Aucoin appealed.  The appeal was dismissed.  The Court of Appeal held:

The issuance of the motor vehicle ticket to Mr. Aucoin was the final step of Cst. Burke’s investigation into Mr. Aucoin’s breach of the MVA. He had a duty to complete this stage of the process. He had to do this in a situation where he had essentially no back-up, it was late at night, he needed the light in the front seat of the police car to write the ticket, he could not place the appellant in the car he had been driving because it was being removed, and because it may be a continuing offence given the alcohol in the appellant’s blood, and he was concerned the appellant may take off if left on his own outside the police car. In such circumstances, the brief detention of the appellant in the back seat of the police car is within the scope of the doctrine of investigative detention and is reasonable.

Having decided to place Mr. Aucoin in the back seat of the police car, it was also reasonable for the officer to do a pat-down search to ensure that the appellant had no weapons that he could use to harm the officer or himself [paras 26-27]; [emphasis added].

Importantly the court noted that this practice would not necessary be permitted in every circumstance.  But, in the present case, where the officer articulated the basis for the search - that he had safety concerns and was effectively on his own late at night, the search was justified.

This case seems to be largely a reply of Mann and if so, Aucoin's appeal should be dismissed. 

DGM

Pending & Prominent: Reviewing Crown discretion

I wrote about the case of R v Gill, 2011 ONSC 1145 in Mack's Criminal Law Bulletin and have blogged about it on two occasions: Exercising, or is it excising, Crown discretion; Protecting the Quasi-Judicial Function of the Crown.  That case was argued before the Ontario Court of Appeal on Thursday.  We will see if they agree with my conclusion:

The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601. 

DG Mack

News: MCL Blog New Home

Welcome to the new home for Mack's Criminal Law Blog (MCLB). MCLB will continue as it has in the past providing up-to-date and insightful commentary on recent criminal law cases of interest to criminal law practitioners and judges. On this new site - Mack's Criminal Law - readers will have access to companion sites including a law enfrocement blog and forensic science page.

I hope you enjoy and come back often!

News: High profile trials and social media

Social media seems to be expanding exponentially; the outlets seem almost limitless - Twitter, Facebook, LinkedIn, Tumblr, Reddit, StumbleUpon, Delicious and Digg - just to name a few.  This ever growing world of social media is now regularly intersecting with the criminal justice system.  Reporters are now tweeting, facebooking or sending Diggs from the courtroom, providing up-to-the minute information.

Two current cases are good examples of how social media is providing almost instant access to more information than has ever been available before - one is the Ottawa trial of Kevin Gregson charged with first-degree murder in the killing of Ottawa police officer Eric Czapnik; the other is the London trial of Michael Rafferty charged with first-degree murder in the killing of 8 year old Tori Stafford. 

In the Gregson trial there was actually a ruling from the judge permitting reporters to tweet about the case: see Ottawa Citizen Article by Gary Dimmock.  Now regular tweets keep the public informed and up-to-date about each day, witness and key moment of the trial: see for example Catherine Lathem tweets.

Similarly in the Rafferty trial, the London Free Press offers updates throughout the day. 

Is it too much?  Does everyone want or need to hear all these details, get all this information; have it provided in all these different outlets and media sources?  To be certain, media attention and information about criminal trials is good for the criminal justice system.  The more media attention, the more information provided and the more accessible that information is the more informed and involved the public will be in the criminal justice system.  Media attention also triggers debate, healthy debate, about the criminal justice system.  Check out, for example, the number of comments and re-tweets of Christie Blatchford's article, "Incredibly, defence tries to blame Tori's mom" - in which she criticizes, or at least comments upon the defence "slyly" placing some responsibility on Tori's mom.  You may not like what she has to say, you may totally agree with it - regardless, her article has got people talking, about the criminal justice system, trial tactics and lawyers.  Finally, it is certainly better to have more voices discussing and reporting upon a case; the more insight, the more information, the more likely it is the public will see the truth, understand the system and hold it and those working within it accountable.

Perhaps the one downside to the abundance and accessibility of social media is when it impacts on those making decisions in some criminal trials: jurors.  In an article in the Wall Street Journal, Juror's Tweets Upend Trials, Steve Eder reports about cases in the United States where verdicts have been overturned due to improper access to social media by jurors.  Eder also reports that defence counsel in a case in California are seeking a juror's Facebook records in pursuit of an appeal of their convicted client.

Albert Einstein once said, information is knowledge; I agree.  Tweet, Reddit, Blog, Facebook, so long as you're not a juror!

 

DG Mack

New & Notable: Identification case

Identification cases are some of the most contentious criminal prosecutions; this is especially so where the identification includes an eye-witness identification.  Cases such as R v Tebo, 2003 CanlII 43106 (Ont CA) and R v Holmes, 2002 CanLII 45114 (Ont CA) are examples of cases overturned due to concerns about the frailties and dangers of convictions based on such evidence.  

While these cases offer helpful insight into the dangers and limits on eye-witness identification ever case is unique and their ratios are sometimes misunderstood or misapplied.  The recent ruling in R v Manley, 2011 ONCA 128 is illustrative.

On November 11, 2006 a music store in Trenton was robbed by a man with a shotgun.  At the time of the time of the robbery there was present the owner, a salesperson and a customer.  The owner and salesperson gave descriptions of the robber.  The salesperson and customer were unable to pick Manley out of a lineup.  The owner did not view a lineup.

At trial the salesperson and customer testified that Manley had "very similar" features to the robber [para 9].  The owner, who had not been shown a lineup, testified at trial that he had recognized the robber during the preliminary hearing:

Yes.  Um, when I was at the…the last time I was in court we had, um…–you were asking questions similar to what we are now.  Um, but at that time I was asked, “Can you identify him”, and I was the distance away I am now, from behind you.  And at that point I was unable to see the features that I had recognized at the robbery.  But on going out of that courtroom, I was as close to him as the jurors are to each other, as I walked past him, and then I recognized him [para 7]. 

With respect to evidence of the salesperson the trial judge offered the jury the following: 

That’s not identification beyond a reasonable doubt for sure, but is that, when taken with all of the evidence, sufficient for you to come to a conclusion as to whether the accused was or was not the perpetrator? [para 18].

 With respect to the evidence of the owner the trial judge offered the jury the following:

[Y]ou heard her explanation about why she didn't identify him during the preliminary inquiry but did later. How reliable is that identification? Even if she's telling the truth, is it reliable? How much does that tip the scales either way in your deliberating as to whether identity has been proven beyond a reasonable doubt? [para 19].

Manley was convicted and appealed.  On appeal Manley complained about the charge to the jury on the identification evidence; relying on Tebo and R v Hibbert, 2002 SCC 39, he argued that the charge should have instructed the jury that the evidence was of worthy of virtually no weight. 

In rejecting that ground of appeal the Court of Appeal offered the following:  

In my view, it would have been preferable had the trial judge given a stronger warning about the nature and weakness of the in-dock identification evidence...However, I am not able to say that, in the circumstances of this case and reading the charge as a whole, the manner in which the trial judge instructed the jury on this issue amounted to an error of law.

Here, the in-dock identifications – if indeed they amounted to in-dock identifications – were qualified...  

The trial judge did warn the jury in general terms about the dangers of eyewitness and in-dock identification evidence, and I am not persuaded that the shortcoming in his instruction that I have identified amounted to a reversible error of law in the circumstances of this case.

I am satisfied that the jury would have appreciated from the manner in which the case was presented by the Crown and from what they were told by the trial judge that, standing on its own, the identification evidence was weak, and that it had to be assessed on the basis that it amounted to no more than one small piece of a much larger puzzle [paras 21 and 23-25].

DG Mack

News: Latest issue of MCLB, preliminary hearings

Preliminary hearings are an interesting part of the criminal justice system. They are the source of much litigation and despite recent efforts by Parliament to curtail their scope and length, they appear to be more complicated and prolix than ever - at least in my experience.

Check out the latest Mack's Criminal Law Bulletin, published on Westlaw's criminal source database, for my thoughts on preliminary hearings.

While you are at it, sign up for a free trial subscription.

DG Mack

News: Child exploitation Legislation comes into force

The Federal government continued its battle against child exploitation in December.  On December 8, 2011 Bill C-22 came into force enacting provisions as set out in An Act respecting the mandatory reporting of Internet child pornography by person who provide an Internet service and related Regulations.

It applies to Internet service providers, including email providers and social networking sites.  The new legislation requires those identified providers to do the following:

• "report tips they receive regarding Web sites where child pornography may be publicly available to the Canadian Centre for Child Protection; and
• notify police and safeguard evidence if they believe that a child pornography offence has been committed using an Internet service that they provide.

The Department of Justice's announcement and backgrounder provide further information.

DG Mack

News: Two years less a day for Luangpakham

Sommit Luangpakham was sentenced today to two years less a day by Justice Monique Metivier [see report by Norman Jack and Anna Drahovzal; see also CBC report].  Luangpakham was convicted by a jury of, inter alia, dangerous driving and failing to remain after he struck and injured five cyclists (Mark White, Cathy Anderson, Robert Wein, Rob Harland and Hilary McNamee) on January 19, 2009 while driving his van in Kanata [see David Hollingsworth's review of the evidence of the cyclists in his blog Personal Injury and Accident News]. 

The sentence also included a one year driving prohibition.  

DG Mack