Category Archives: Criminal Law

Police Note Taking: Part 1 of 3

This is the first of three posts about police note taking.

In this, Part 1, I discuss the importance of good police note taking in the context of telling the story of the case in evidence in a criminal trial.

Introduction

In 13 years as a prosecutor I dealt with hundreds of police officers during pre-trial interviews and at trial. These officers ranged in experience from new recruits to senior members. Many impressed me with their professionalism and dedication. They exemplified the reality that modern policing calls for intelligent, dedicated professionals who are capable of doing a difficult job in a way which gets results and withstands scrutiny in the arena of a criminal trial. These officers usually had certain characteristics which I believe contributed to their success at giving credible evidence in court. One characteristic they invariably shared was good note taking habits.

The importance of good police note taking

Good police note taking is important for two reasons. First, it invariably bolsters the credibility of the police officer giving evidence. Second, it promotes the proper administration of criminal justice by facilitating the proof of facts.

Conversely, sloppy police note-taking can be devastating to the credibility of the officer giving evidence and seriously, if not fatally, undermine the successful prosecution of the case.

The role of good police note taking in the telling of the story of the case 

The prosecution evidence in a criminal trial is like a multi-chapter story. If one or more of the chapters of the story is missing, it provides defence counsel with opportunities to argue that the judge or jury should accept some alternative interpretation of what the chapters mean, one which will undoubtedly involve a reasonable doubt as to the guilt of the accused. Also, if too many chapters are missing, invariably the story as a whole does not make sense and the prosecution fails. Each police officer giving evidence contributes to the development and understanding of the story which forms the basis for the prosecution evidence.

The challenge for a prosecutor is to put the case together, thereby telling the story of the case in evidence. The challenge for defence counsel is to take the case apart and show the story of the case is missing some or all of one or more chapters, such that it doesn’t make sense, creating reasonable doubt as to the guilt of the accused. One way defence counsel can raise a reasonable doubt is through cross-examination of the police officer about personal diligence, or competence, or both, in note taking.

Next time…

Next time, in Part 2, I will discuss the classic way in which a poor police note taker can expect to find his or her credibility under attack in a criminal trial. In Part 3 I will discuss the effect sloppy police note taking can have on the outcome of a criminal trial.

[Note: This post is the first part of an article I authored for the Canadian national policing magazine Blueline; re-printed with permission in The Notebook, newsletter of Atlantic Women in Law Enforcement.]

Police expert evidence about blind couriers inadmissible

In February 2014, the Supreme Court of Canada released its decision in R. v. Sekhon 2014 SCC 15. It’s a case which involved the importation into Canada of 50 kg of cocaine. Border officers found the stash in a concealed compartment in a truck Mr. Sekhon was driving. The compartment was opened by a fob in Mr. Sekhon’s possession.

Mr. Sekhon was charged with importing cocaine and possessing it for the purpose of trafficking. He was convicted based in part on the evidence of a police officer’s opinion evidence about blind couriers (also known as blind mules). Mr. Sekhon appealed, first to the BC Court of Appeal, then to the Supreme Court of Canada. The result? Seven judges of the highest court said some aspects of the police officer’s opinion evidence about blind couriers was improper.

What are blind couriers?

They are people who are unknowingly used by others to carry drugs. It’s one reason airport notices warn about leaving your bags unattended.

The Crown witnesses at Mr. Sekhon’s trial included a senior police officer who had been involved in about 1,000 cases of importing cocaine over his 33-year career. The police officer testified as an expert on some aspects of the drug trade and provided his opinion about certain evidence in Mr. Sekhon’s case. When the police officer was testifying the prosecutor asked him about blind couriers. Ever encounter any blind couriers in those 1,000 cases? The answer the police officer gave? He’d heard of them, but never had one in any of his cases. In other words, the police officer testified there is no such thing as blind couriers.

The trial judge convicted Mr. Sekhon of importing cocaine and possessing it for the purpose of trafficking. In doing so, he relied partly on the police officer’s evidence about blind couriers.

Fast forward: five of the seven appeal judges at the Supreme Court of Canada decided the trial judge was wrong to do that. However, they also said it wouldn’t have changed the conviction. So, no new trial, Mr. Sekhon. The other two appeal judges disagreed with their colleagues on this aspect of the case. They would have given Mr. Sekhon another day in court.

Why do we need expert opinion evidence?

It can be invaluable. Used appropriately, it helps a judge or a jury understand the significance of certain evidence. It must be relevant. It must be necessary to help a judge or a jury. It must not be inadmissible for some other reason. And, it must be given by a properly qualified expert.

In cases involving cocaine importation, police officers routinely give expert opinion evidence. They can provide insights about the evidence based on what they’ve learned through training and experience. In such cases expert opinion evidence can really assist a judge or a jury. But, the judge must still do his or her best to ensure that the expert’s testimony remains within the proper boundaries of expert evidence.

Police expert opinions in drug cases aren’t technical or scientific

This is significant. It means police expert opinions in drug cases can’t be challenged in the same way as expert opinions about technical or scientific subjects. For example, you can’t challenge police experts about whether they arrived at their opinions through appropriate technical or scientific procedures. For the most part, the opinions of police experts are based upon on-the-job experience. For this reason alone, it’s very important for trial judges, prosecutors and defence lawyers to ensure they don’t allow the opinions of police experts to substitute for the decisions a judge or a jury has to make. Decisions about things like whether the accused person knew he or she was carrying drugs.

So what was the problem?

In Mr. Sekhon’s case the police officer’s evidence about “blind couriers” effectively enabled the officer to give an opinion on whether Mr. Sekhon knew he was carrying drugs. That question was central to the determination of the guilt or innocence of Mr. Sekhon. And, that opinion was based on the officer’s opinion about the guilt or innocence of other accused persons in past investigations. That was something which was clearly outside the permissible scope of expert opinion evidence.  The Supreme Court of Canada was right to say so.

Court rejects doublethink in sexual exploitation case

In January 2014, the British Columbia Court of Appeal released its decision in R. v. Rich 2014 BCCA 24 dismissing the appeal in a sexual exploitation case of a convicted sex offender seeking to avoid the immigration consequences of his sentence.

Immigration consequences of a sentence of more than two years

Mr. Rich was convicted of sexual exploitation for abuse involving his youngest daughter. He was sentenced to 2 1/2 years in prison. As a non-Canadian who had lived in Canada since a young boy, the sentence meant he was subject to potential deportation. That’s because the provisions then in effect of the federal Immigration and Refugee Protection Act allowed for deportation of non-citizens sentenced to more than 2 years in prison, without any right of appeal against a removal order.

Mr. Rich’s lawyer argued the sentencing judge should have taken the potential immigration consequences for his client into account when deciding the appropriate sentence. So far, so good. The court has previously decided it’s appropriate in BC for a sentencing judge to consider immigration consequences of a particular sentence. Mr. Rich’s problem was that immigration consequences can’t justify a sentence that would otherwise be unfit, and the sentencing judge found a sentence of less than 2 years was not appropriate.

Mental gymnastics

The argument Mr. Rich’s lawyer asked the appeal court to accept went like this. At the time of the hearing of Mr. Rich’s appeal, he had already been in custody for 10 months and was likely a good candidate for parole. If the appeal court replaced the original 2 1/2 year sentence with a suspended sentence followed by probation for 30 months (thereby treating Mr. Rich’s 10 months in custody as probation rather than imprisonment), for practical purposes, it would result in the same remaining punishment, but with 20 months of probation rather than 20 months of parole. This would have avoided any immigration consequences for Mr. Rich.

Wilful blindness, concealment and doublethink

The three appeal judges didn’t buy any of it. Writing for the court, Justice Groberman said that to do so would require the court to engage in an “odd sort of wilful blindness”. In language evocative of George Orwell’s dystopian novel 1984, Justice Groberman said it would be unseemly and inappropriate to engage in “that sort of concealment and doublethink”.

The BC Court of Appeal was right to accept the argument Mr. Rich’s lawyer asked them to accept. Judges, lawyers, accused persons and anyone else who might be interested must be able to read the decisions of our courts and understand why a particular case has been decided in a particular way. We must all be able to know why a particular sentence has, or has not, been imposed. Engaging in the kind of mental gymnastics urged upon the appeal court in this case would not have been good for justice.

Drug charges: Doda tea poor man’s heroin

Doda tea, also known as poor man’s heroin, is illegal in Canada. It’s derived from the opium poppy and contains substances like morphine, codeine and thebaine. That means it’s prohibited under Schedule 1 of the federal Controlled Drugs and Substances Act, along with the most dangerous other illegal drugs like heroin, cocaine and methamphetamine.

Doda is produced by grinding dried opium poppy husks to create a tea-like substance. It’s consumed like tea, and is popular with users because of its effects. But, like other narcotics, it’s also potentially addictive.

Most people in Canada probably haven’t even heard of doda. Yet, it’s reportedly very popular with many members of the South East Asian community, particularly in Toronto and Vancouver, where users apparently buy it under the counter from certain local shops.

Supply is down, prices are up

So where do the dried opium poppy husks used to make doda tea come from? They have traditionally been imported into Canada from places with favourable growing climates, such as Arizona in the southern United States. However a crackdown by law enforcement in recent years has squeezed supply, which has meant higher prices for the end consumer, and potentially lucrative profits for those who are willing to risk operating along the chain of distribution.

More law enforcement and prosecutions?

Despite all this, there haven’t yet been many prosecutions for doda-related offences in Canada. One reason could be a general lack of awareness within the law enforcement community. But if doda is as dangerous as experts claim, that might change. If it does, there could be more law enforcement and prosecutions for doda-related offences.

Canadian prostitution offences unconstitutional

In December the Supreme Court of Canada released it’s much anticipated decision in Canada (Attorney General) v. Bedford 2013 SCC 72 in which it found three Canadian prostitution offences unconstitutional. The three Criminal Code offences involve keeping  a brothel, pimping and communicating in public about sex for sale. The high court gave the government a year to make changes. It it doesn’t, those activities will no longer be illegal in Canada.

A number of people have asked me if this means prostitution is now legal in Canada. They’ve all been surprised to learn that prostitution – the sale of sex for money – wasn’t an offence before the Bedford case, so the decision hasn’t changed anything in that regard.

The Bedford case actually concerned the prostitution-related offences regarding brothels, pimping and communicating in public about sex for sale. The nine appeal judges unanimously found each of the three offences unconstitutional because they violate a prostitute’s Charter right to security of the person in a way that is contrary to the principles of fundamental justice. The federal government didn’t seriously attempt to justify the violation.

Basically, the court accepted the argument that these provisions put the safety and lives of prostitutes at risk, and are therefore unconstitutional.

The context within which the decision was made is obviously important. Prostitution, although legal, clearly poses significant danger to prostitutes. Indeed, the decision makes several references to the case of notorious serial killer Robert Pickton in support of this seemingly uncontentious proposition.

“Keeping a common bawdy-house”

This is the offence that prohibits keeping a brothel. It was found to prevent a prostitute’s ability to do in-calls – in which clients attend at prostitutes’ residences (regarded by prostitutes as the safest environment within to engage in prostitution); when more dangerous out-calls – in which prostitutes attend at clients’ residences, are permitted.

“Living on the avails of prostitution”

This is the offence that prohibits pimping. It was found to prevent a prostitute’s ability to hire services such as security for out-calls – things like a professional driver (although the decision notes the offence even prevents the hiring of business services such as accounting).

“Communicating in a public place”

This is the offence that prohibits prostitutes and their customers from communicating in a public place about the sale of sex for money. It was found to prevent a prostitute’s ability to screen for “bad dates”.

So what does it all mean?

The court gave the government a year to make changes to the offences. If the government declines to do so, these activities will no longer be criminalized. If it does make changes, it will be interesting to see what form they take.

In the meantime, prostitution remains legal. I don’t anticipate any police or prosecutorial enthusiasm for investigating or laying charges for these offences, and criminal defence lawyers who did a lot of these types of cases will need to consider broadening the scope of their practices.