Episodes
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In this episode, Mike discusses the Ontario Superior Court of Justice decision R. v. Kusi, 2024 ONSC 6248 where an officer searched a vehicle before towing it as being “apparently abandoned” under Ontario’s Highway Traffic Act. After removing the cover of what turned out to be the vehicle’s electrical fuse box, the officer discovered fentanyl. Was this a valid inventory search? Or did it exceed the scope and was it conducted in an unreasonable manner as claimed by the defence?
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In this episode, Mike discusses the Ontario Court of Justice decision R. v. Hoggar, 2024 ONCJ 546 where an officer found drugs, a loaded handgun and extended magazines after arresting a man for PPT, towing his vehicle to a private garage, searching more than an hour later, all while using a K9 to sniff it and dismantling its door panels. No exigent circumstances existed nor did the officer obtain a search warrant. Did the delay and manner in which the warrantless search incident to arrest was conducted render it unlawful? Or was there some reasonable basis for the officer to do what he did?
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In this episode, Mike discusses the Supreme Court of Canada decision R. v. Sabiston, 2024 SCC 33 where police arrested a known gang member for possessing stolen property. He was seen walking in a high gang crime area while wearing a bullet-proof vest that looked just like the type worn by police. After searching the man, a sawed-off shotgun was found in his backpack. Despite concluding the arrest was unlawful and police conduct breached s. 8 (unreasonable search or seizure) and s. 9 (arbitrary detention) of the Charter, the trial judge found the police had enough suspicion to detain the man and could have searched him for safety anyway. Since the gun was discoverable through an otherwise lawful means (although not exercised), the evidence was admissible under s. 24(2) and the man was convicted of several weapon related offences. Listen to learn how Canada’s top court felt about all of this?
Saskatchewan Court of Appeal ruling
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In this episode, Mike discusses the Court of Quebec decision R. v. Hennigar, 2024 QCCQ 4849 where police entered an apartment on the invite of a co-habitant to recover a loaded pistol she had found while cleaning a closet. Could the co-resident validly consent to the police entry in the accused's absence ? Could the police conduct also be justified as a safety search? Or was a warrant required? Listen for the answers to these and other questions as they may help inform your future decision making.
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Buffong, 2024 ONCA 660 where police received a tip from a confidential informer that an individual would be at a Thunder Bay bus station — with money and a handgun — intending on travelling to Toronto. When police went to the bus station, they saw a man matching the description provided by the tipster and took steps to detain him. When an officer reached out to pat the man down, he felt something metal in a satchel the man was wearing. The satchel was removed from the man and opened, leading to the discovery of a loaded pistol and bundles of cash. Was the man's detention lawful even though the credibility of the tipster was unknown? Was the search of the satchel — after it had been removed from the man — properly conducted within the scope of a safety search incident to investigative detention? Listen for the answers to these and other questions that arose during this case.
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In this episode, Mike discusses the Manitoba Court of Appeal decision R. v. McKenzie, 2022 MBCA 3 where a man was seen running while clenching the left side of his body with his elbow. When the officer called out to the man, the officer recognized him as a gang member. The man reacted by picking up his pace, leading the officer to suspect the man might have a weapon concealed between his left arm and his body. After a short foot pursuit, the officer pinned the man against a house and opened his fanny pack, seeing a handgun — which turned out to be loaded and stolen. Drugs and cash were also found in the man's jacket. Was the man's initial detention for a weapon's offence lawful? Was opening the fanny pack — even before patting it down — reasonable? And what if the officer had more than one reason for the search — to look for drugs or a weapon? Would a dual purpose render what the officer did in this case unreasonable?
Trial court rulingThanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Khandakar, 2024 ONCA 620 where the driver of a vehicle changed their mind and wanted to provide an ASD breath sample after being arrested for refusing to do so. Just when does an unequivocal refusal to provide an ASD sample constitute the actus reus for a refusal charge? How much time does a driver have to change their mind?
s. 320.15 (1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.s. 320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol ... in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person ... (b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose ...
Criminal Code provisions:
Trial court ruling
First level appeal ruling
BC's Alco-Sensor FST Operator's ManualThanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses Statistics Canada's most recent crime data and highlights the increase of assaults against peace officers.
Statistics Canada Data by Policing District/ZonePolice Reported Crime in Canada, 2023 (CSI) infographicUnderstanding and Using the Crime Severity Index Police-reported Information Hub: Selected Crime IndicatorsPolice-reported Information Hub: Criminal ViolationsPolice-reported Information Hub: Geographic Crime ComparisonsPolice-reported Information Hub: Homicide in CanadaIncident-based crime statistics, by detailed violations, Canada, provinces, territories, Census Metropolitan Areas and Canadian Forces Military PoliceCrime severity index and weighted clearance rates, Canada, provinces, territories and Census Metropolitan Areas
LinksThanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Attard, 2024 ONCA 616 where police — investigating a serious motor vehicle collision — seized the accused’s car, removed its event data recorder (EDR) and extracted the data, all without judicial authorization or consent. Was this warrantless conduct lawful? Could the data be used in court at the accused’s trial on a charge of dangerous driving causing bodily harm? The trial judge didn’t think so. Listen to find out what the Ontario Court of Appeal had to say when it weighed in on the matter.
Trial court Charter ruling
Trial court acquittal
R. v. Fedan, 2016 BCCA 26
R. v. Major, 2022 SKCA 80Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the OECD Survey on Drivers of Trust in Public Institutions – 2024 Results: BUILDING TRUST IN A COMPLEX POLICY ENVIRONMENT OECD. The OECD (Organization for Economic Co-operation and Development) asked people in 30 countries about how much they trusted 11 public institutions, including the courts and judicial system, national parliament, news media and police. Just how did the police stack up against these institutions? Listen to find out.
OECD countries — Australia, Belgium, Canada, Chile, Colombia, Costa Rica, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Latvia, Luxembourg, Korea, Mexico, Netherlands, New Zealand, Norway, Portugal, Slovak Republic, Slovenia, Spain, Sweden, Switzerland and the United Kingdom.
OECD website.
Trust in different public institutions, other people and media.
OECD Survey on Drivers of Trust in Public Institutions - 2024 Results — Country Notes: Canada.
OECD (2022), Building Trust to Reinforce Democracy: Main Findings from the 2021 OECD Survey on Drivers of Trust in Public Institutions, Building Trust in Public Institutions.Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Cameron, 2024 ONCA 231 where police — responding to a home invasion style robbery — detained a man leaving the scene in a vehicle. Was taking his keys to prevent his flight reasonable as an incident to investigative detention? Was telling him the police were “investigating a serious incident that happened in the area” sufficient to comply with s. 10(a)? Was moving him several kilometres away from the stop and then advising him of his right to counsel — some 11 minutes after his initial detention — a s. 10(b) breach? Listen for the answer to these and other questions.
Trial court Charter ruling.
Sentencing decision.Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Brown, 2024 ONCA 453 where police executed a Feeney warrant to arrest a man as part of the multi-jurisdictional investigation of a gang suspected of criminal activity, including trafficking in drugs and firearms. The warrant did not authorize a no-knock entry but police used a ram to break down the door without prior announcement anyways. A trial judge found the dynamic entry breached the Charter and stayed some, but not all of the charges, under s. 24(1). Was the partial stay of proceedings warranted or would something else suffice to address the damage done to the integrity of the justice system occasioned by the police misconduct? What lessons can you learn from this case?
— R. v. Brown, 2022 ONCJ 597 (lower court decision)
— Project Sunder press conference
Also check out Episode 26 — House arrest or home invasion? Fundamentals, frustration & Feeney — and Episode 57 — Dynamic entries & no-knock no-nos — for more on entries to a dwelling house.Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the Supreme Court's 2023 Year in Review. How do last year's stats stack up against previous years? What does it mean for a decision to be unanimous? And how often does the court disagree on the outcome of a case?
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Williams, 2024 ONCA 508 where an officer searched a vehicle after arresting its passenger on an outstanding warrant, finding drugs under his seat — including cocaine and fentanyl. The officer testified the search was a “search incident to arrest”, but no further questions were asked of him and nothing more was said. The accused did not challenge the constitutionality of the search at trial but, after being convicted of two PPT counts and breaching his bail, he argued before an appellate court that there was no basis for the search because the arrest was made pursuant to a warrant. Did the Court of Appeal take up the accused’s challenge? And what lesson can the police learn from this ruling?Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the Ontario Court of Appeal decision R. v. Williams, 2024 ONCA 69 where police — relying on CPIC — arrested a man for breaching a no-contact condition of his undertaking and, following a search of his vehicle, found a loaded handgun. It turned out an exception to the no-contact condition was in play (i.e., there was no breach) but the police failed to check a different and easily accessible database which would have alerted them to its applicability. Were the grounds for arrest objectively reasonable? Should the police have blindly relied upon the CPIC entry? Would a search incidental to this arrest be lawful? These are just some of the questions to be addressed in this episode.Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the BC Court of Appeal decision R. v. Donovan, 2024 BCCA 213, where an officer claimed a search — resulting in the discovery of GHB and methamphetamine — was to inventory an impounded vehicle’s contents. Defence argued the evidence found during the inventory — a search related to concerns extraneous to the criminal law — should not be admissible in a criminal trial. Was the accused right? Or could the evidence discovered during the inventory search be used in a criminal prosecution?Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike shares his response to the criticism levelled against a police officer who, after arresting the driver of a vehicle for PPT, had the vehicle towed to the police station and searched it without a warrant. Did the distance and delay of the search — from the place and time of arrest — render a search of the vehicle outside the permissible scope of the common law doctrine of search incident to arrest? Can the police move a vehicle to properly search it? Or must a search incident to arrest follow immediately on the heels of an arrest?
References: Hunter v. Southam, [1984] 2 SCR 145; Fleming v. Ontario, 2019 SCC 45; R. v. Stairs, 2022 SCC 11; Allen v. Alberta (Law Enforcement Review Board), 2013 ABCA 187; R. v. Caslake, [1998] 1 SCRT 51; R. v. Stillman, [1997] 1 SCR 607; R. v. Saeed, 2016 SCC 24; Cloutier v. Langlois, [1990] 1 SCR 158; R. v. Lim (No. 2), 1990 1 CRR (2d) 136; R. v. Nolet, 2010 SCC 24; R. v. Stebeleski, 2007 MBCA 1; R. v. Condon, 2006 BCCA 318; R. v. Washington, 2007 BCCA 540; R. v. Asp, 2011 BCCA 433; R. v. Frederickson, 2018 BCPC 296; R. v. Bakal, [2019] O.J. No. 6839 aff'd 2021 ONCA 584; R. v. Andrews, 2004 MBCA 60. Most of these cases can be found at canlii.org.Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the BC Court of Appeal decision R. v. Vu, [1998] Docket: CA023384 (BCCA) where police suspected a man of dealing in illegal weapons but thought they did not have enough grounds for a warrant to search his house. Police then placed a phone call to the man telling him they had a search warrant and were on their way to his house. Police watched the man as he exited his house with a garbage bag, put it in his truck and drove way. He was subsequently arrested and his truck was searched, revealing illegal weapons, drugs, and jewelry. Could the police use the man’s response to the phone call as part of their reasonable grounds for arrest? Was the search of the truck lawful?
Here's Vu's sentence appeal if you're interested.Thanks for listening! Feedback welcome at [email protected]
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In this episode, Mike discusses the case law classic R. v. Poole, 2015 BCCA 464 where police — from inside their cruiser — spoke to a pedestrian standing on the street. After asking some questions and obtaining his name, he was checked on CPIC, which revealed an outstanding warrant for the man's arrest. Police stepped from their car, arrested the man and searched him, finding a loaded, cocked handgun in his pants. At just what point was the man detained? Was it — as the man claimed — when he was accosted by police and asked for his name? Or was it when the warrant was executed and he was actually arrested? Just when does an interaction with police morph into a detention triggering Charter rights under ss. 9 and 10?
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In this episode, Mike discusses circumstantial evidence and alternate theories to guilt that may inferentially arise, even without an accused testifying. Just when does an inference cross the line from the speculative to the rational? Does common sense have anything to do with it? Or will any conceivable hypothetical or imaginative conclusion inconsistent with guilt suffice in raising a reasonable doubt? And how can understanding the inference drawing process prompt you to be a better investigator?
Examples referenced — R. v. Dautruche, 2024 ONCA 426, R. v. Williams-Senior, 2024 ONCA 175, R. v. MacAdam 2024 ONCA 13, R. v. Pyne, 2023 ONCA 714.
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