With policing, everything should be ‘premediated’

In closing arguments at the Braidwood Inquiry this past week, the lawyer for Poland suggested that the RCMP officers talked about using a taser before they arrived on scene to the incident. He called what they did a premediated action which resulted in excessive force.

What the lawyer fails to understand (even though he is an ex-police officer) is that it is vitally important to discuss with other officers your plans before you arrive on scene, especially for dangerous situations. If you are working with a partner, it is crucial to ensure that both officers understand what each other is thinking as they arrive on scene. For instance, “ok, if he does this, we’ll do this, etc. ok?” or “You take this side, I’ll take the other, if they exit, we’ll challenge them”. This communication protects the safety of the officers involved and often is a mental rehearsal or refresher for those attending of the safest way to approach a situation.

To say that talking about an incident before you get there is wrong creates an erroneous belief that we must be treating an incident like it is in court before police even attend (i.e. dont’ talk to other witnesses). In some serious situations, you don’t have the opportunity to have a huddle during the situation to figure out what you’re going to do next. You have to trust that the other officer is going to make the same decisions based on similar training or a pre-incident communication.

The four officers have taken lots of scrutiny during their testimony at the inquiry and it’s not my intention to add to that. However, when asked if they discussed using the taser before they arrived, they should have said “Yes. I discussed all options with my partners, including the most serious so we could be most prepared for the incident.” Of course in hindsight, we can say what should have been said, but all in all, officers should not be made to feel at fault for discussing and planning options for their courses of action before arriving on scene.

Other officer bloggers have similar thoughts…

Braidwood Recommendations

The Braidwood Inquiry is wrapping up in BC. For those that didn’t know, it is the inquiry into the taser death of a polish immigrant at the Vancouver Airport. A few months ago, the judge released some interim recommendations regarding taser use in Canada. Despite that the whole of the inquiry has been media sensationalized, there were some useful recommendations to come out of it.
http://www.braidwoodinquiry.ca/report/
One of the more useful recommendations is stricter standards on the use of tasers. In the recommendation, tasers should only be used in situations where bodily harm has been caused or is imminent. This would prevent the taser from being used in other circumstances (non cooperative people) which seems to develop the most public and media scrutiny. Police officers sometimes are their own worst enemy when it comes to decision making regarding the taser.

I do like how Braidwood acknowledges that the taser still has use in Canadian policing and that he also talks about how policing Canada’s streets is much different now than 30 years ago. Although critical of the nation’s police forces training, records keeping, rules of use and accountability regarding taser deployment, he still seems sympathetic to those who do the job and make decisions quickly to protect public safety.

I look forward to reading his final report. There do need to be changes in how the taser is used in Canadian policing. What is unfortunate is its villification by the media. I find it interesting that if someone is shot by the police and killed, it receives much less media attention than if someone dies after being tasered.
see: http://www.cbc.ca/canada/british-columbia/story/2009/09/19/bc-fatal-police-shooting.html

What an incredibly dangerous precedent

I’d have to say I’m a bit concerned with a recent decision in Quebec by a jury in what USED to be a capital murder offence. The case was the trial of a man for killing a police officer during a botched drug raid. Two officers were actually shot in the raid by this man, one died. The accused was charged with 1st degree murder, attempted murder, and drugs and weapons charges. With last weeks decision, all were acquittals or dropped by the crown. Upon hearing this on the radio, my mouth also dropped in shock. Here we have a dead officer, a maimed officer and the general public and police community in shock at the verdict.

What was it? Well, from media accounts, it was a dynamic entry of a SWAT team into a house executing a search warrant. In a dynamic entry, no announcement is made by the entry officers. Sometimes explosive or distractionary devices are used to surprise any occupants and prevent them from destroying evidence or escaping before an arrest can be made.

In this case, upon entry, the officers were faced with gunfire from the drug dealing occupant. In the trial, the defence argued that the defendant did not know the entry officers were police, thinking he was being robbed of his drugs and shot the officers as a result. The jury BELIEVED this argument and acquitted him of murder. Also, the trial judge ruled in camera that the search warrant was not valid. This however was not revealed to the jurors, who decided on their own. This decision sets an incredible precedent to any criminal — indicating they can shoot anyone entering their home, including police. I just don’t buy the argument that the accused did not realize the person entering his home was an officer until after he was on the ground, that is incredible. Also what is incredible, is that this man survived the ensuing entry team. I’m surprised there wasn’t just a fatality inquiry rather than a trial for this cop-killer.

To the crown, please please please appeal this case to the Supreme Court of Canada. We need to vindicate justice, if at least for the sake of the officer’s family. No one should be allowed to shoot a cop in ANY circumstance.

The neverending case that shouldn’t be…

The Cst. Ferguson manslaughter trial has always puzzled me and continues to do so. Back in 1999, Cst. Ferguson was in a life or death struggle with a prisoner in a cell area. The prisoner grabbed his gun and Cst. Ferguson fired 2 shots at the prisoner during the struggle. In the eyes of the court, the first shot was self-defence and the second constituted manslaughter, despite the judge saying it was admittedly from his training. This conclusion by the court baffles me. Although, I only know what I’ve read in the decision and the papers about the case, it seems that Cst. Ferguson was in a life or death struggle (which it is when someone grabs your gun), why does one shot over another differ in a response? What does this say for a trained ‘double tap’ response to a lethal force situation? Are we supposed to wait to see what the first bullet does first, then continue if necessary? You can begin to see the trouble in assessing a deadly struggle in such a way.

Nevertheless, Cst. Ferguson served time in jail for the ‘crime’, was paroled and yet an appeal was just finalized at the Supreme Court level. From the latest appeal, the Supreme Court has said that the trial judge shouldn’t have skirted the mandatory minimum prison term for manslaughter with a firearm due to the circumstances of the case. So, he may be going back to jail? Its not clear. It is certainly a wierd one.

As an aside: it would be interesting to see how many of these cases have appeared in recent years (firearm struggles in cell area, resulting in deaths). Perhaps there needs to be a policy change in Canada where firearms should be locked up before entering all police detention areas. It is the case in prisons throughout the country, but I don’t believe its a standard with the police facilities. (Some have certain areas restricted, but others aren’t clear).

Another media misrepresentation

I’m actually getting tired of talking about these stories, but I feel I should. Too often do we see the media jump to conclusions quickly, talk about subjects they don’t understand and use a short video clip to justify a full sensationalized news story. This is the case yet again with a video from Victoria of an incident that occurred three years ago.

The video is of a detention cell and a youth who was held in cells after being arrested while intoxicated and drunk at party. The video shows the youth having her legs restrained (with a hobble, not a leash as the reporter called it). I haven’t used my leg restraint yet, but would during instances which its necessary, including aggressive arrestees, regardless of their age.  Also, why does the reporter seem that by taking parts of your clothing off is so offensive?  Anything could be used against officers or the subject themselves, such as shoe laces, bra straps, belts, elastic waist bands, ad nauseum.  To the reporter, Kathy Tomlinson: perhaps you should learn about regular police procedures and terminology first before attempting to sensationalize the incident.  Also, why did you only include a short clip from the officer and then have a long story from the girl’s family?

After watching and reading about the story, I can’t help but wonder a few questions: Who released this video? Was it the plantiff in the civil case? For what reason? Due to the timing, it seems the reasoning behind the video release is not for ‘public awareness’ of what occurred, but to benefit somehow the civil suit which begins next week in court. Why did it take 3 years for this story to be released?

There is more to this story than we are lead to believe.

Ban Handguns, now.

With the recent shootings in Toronto, the mayor David Miller has repeated his appeal to the federal government to ban all handguns in Canada. I would support such a ban and I’d like to think that many others would as well.

Handguns have no other purpose than for shooting other people. Despite those that must possess a handgun for workplace use, such as police or military, I can see no reason why anyone must own a personal use handgun. Handguns lack any social purpose other than nefarious ones — unless of course you’re from the States — where they appear as their own living, breathing ‘entity’. We must resist falling into the influence from the US culture and the outrageous arguments from gun lobbyists about self-defence and rights under their constitution. The bottom line is that we aren’t the US, nor do we want to be.

When I was younger, we lived in a country which had a ban on personal ownership of all guns. Even as a young kid, I felt safe walking around on my own, taking the train to school — it was a society that we generally felt secure. The only persons who could legally possess guns were the police, but I imagine there was an illegal trade as well. We’re not going to prevent all handguns from entering the country by illegal means and the criminals would find their own ways to get handguns. However, at least they wouldn’t be able to steal guns from private citizens, borrow from a legitimate owner or order them through the States.

A perfect example of a successful ban on guns is the automatic weapon prohibition. Occasionally, an automatic rifle shows up on the radar during a police seizure, but it is a rare event. Using this as an example to a handgun ban, we could surely reduce the prevalence of handgun crimes to a rareity. Its a long term proposal, but definately worth it to save lives.

In-security with Blackwater

A recent New York Times video report sheds more light on a disturbing incident which occurred in Iraq and involved the private military corporation (PMC) Blackwater. The company’s contractors are alleged to have fired unjustly and indiscriminately at civilians while traveling in an area of Baghdad, causing the deaths of 17 people.

What is most telling for me is the lack of oversight on the actions of military contractors operating in Iraq. Because of their quasi-military role, the private military contractors have relatively no supervision by the government and fall outside of normal military rules of engagement. Further, the US government has allowed any prosecution of Blackwater staff to be very murky and difficult. Aside from the company’s own disciplinary actions, it appears that the ’soldiers for hire’ have no legal controls.

From the initial beginnings of the Iraq War, it is easy to see that the use of PMCs has increased to expontential levels (some believe there are 100,000 private military contractors there, near the size of the official US presence). I wonder why is a special consideration or lack of judicial oversight given to private industry? Why is US government action on controlling these forces so slow? Oh yes, I forgot — the Bush family was involved with PMCs in the past and the current US vice-president was a former CEO of another PMC operating in Iraq, Haliburton.

Not the rest of the story

CBC did a feature on police custody deaths in the past week. Although the media attempts to report the full story regarding these cases, there is often an element of the public that seems to be able to hijack the media for coverage. There is always the voice from families defending the person killed and if the person is a minority, usually representatives of their culture garner significant attention in the media. What is not published is the perspective of the officer, which will be silent until a trial or inquiry. Despite the good intentions of the media, reporting these cases often leads to one-sided accounts, as nothing can be heard from the officer until testimony is made public. Although I do not excuse acts of maliciousness among the police, when reading these cases it is important to consider an officer’s frame of mind at the time of the incident and keep an open mind until the rest of the story comes to light.

Majority report

I was reading the New York Times the other day and came across an interesting video ad for IBM’s contribution to the NYPD.  With a fancy name like “Real Time Crime Centre“, you’d expect the thing to be something out of a sci-fi movie.  After reviewing some of its features — it sounds very interesting.  Part of the problem with police databases is that mining for info usually requires a person going through several non-connected systems to marry up data in order to produce real good investigative intelligence.  In most cases, departments don’t share their info with other departments, making centralized intelligence gathering almost impossible.  The RTCC seems to bridge these gaps — it would be neat to see it in action.

Uncuffing impaired driving

The Canadian Criminal Justice Association recently reviewed a new bill being initiated by the government, which would adapt the current legislation on impaired driving. The new bill introduces some badly needed changes, including increasing penalties, giving officers the power to do field sobriety tests (similar to what are used in the US), bodily fluid tests for drug-driving and also eliminating the ‘drunk’s witnesses’ defence. I think the CCJA is mistaken. I will address their points of contention:

1. First, while the CCJA supports the notion of creating an offence for operating a motor vehicle while in possession of certain controlled substances, such legislation must take into account the lawful excuse of those legally possessing such substances for whatever reasons (for example, legally prescribed Schedule IV drugs or medicinal marijuana). Bill C-32 arguably does so; however, such legislation should also remain consistent with existing practices regarding the treatment of those in possession of controlled substances. Bill C-32 does not do that. For example, Bill C-32 makes no distinction between any of the drug Schedules. Given that we already legally consider the possession of different types of controlled substances worthy of different punishments, it is inconsistent to consider all controlled substances the same, as does the proposed legislation.

It is legal to possess liquor — but not legal to drive while consuming it. Why should drugs be any different, no matter who is legally allowed to possess it.

2. Second, Bill C-32 will require that enormous resources be directed towards enforcement. While arguably noble in intention, the reality of such resources being made available consistently across the country is questionable. As the proposed legislation calls for trained officers to conduct tests as to whether a person is impaired by a drug or a combination of alcohol and a drug, said officers will need to be trained and available at all times. Certainly, officers are already trained to recognize signs of impairment (and can legally act upon said recognition to temporarily remove drivers from the road, protecting our citizens); however, this legislation will require that specifically trained ‘drug recognition experts’ (DREs) be available and called upon for their expertise¹. It also requires that a ‘qualified medical practitioner’ be available for taking blood samples. While in many urban settings such requirements may not pose an issue, in Canada’s many rural jurisdictions there will certainly be difficulty securing these DREs and qualified medical practitioners. Indeed, some areas will unquestionably go without access². Furthermore, in these regions the possibility then arises that a situation could occur where, due to a lack of a specific DRE and/or qualified medical practitioner, drivers who would now be removed from driving will actually be allowed to continue on their way.

The first part of their response is a somewhat moot point. All officers are trained in recognizing drug impairment, due to their experience and the sheer number of individuals they deal with that are drug-influenced . On the job training would be fairly easy, if we were given a few tools to work with (sobreity tests). I think the CCJA is puffing up the definition of ‘DRE’. All officers could be DREs and without much difficulty. In addition, there are ‘breath technicians’ now, why not add a drug component to their training for testing urine? Blood is only taken in the most serious of incidents, why is such an importance being put on ‘qualified medical technicians’? When blood is taken as a sample in the current context, it is usually for those who are confined to the hospital (after a serious accident). There’s nothing saying this wouldn’t (or couldn’t) be the case for drug impairment.

3. Third, Bill C-32 authorizes the taking of bodily fluids to test for the presence of alcohol or a drug. This authorization without a warrant may well fail a Canadian Charter of Rights and Freedoms challenge, given the potential for violations of privacy and personal security rights. The proposed enforcement measures must take into account probable court challenges on the basis of illegal search and seizure, arbitrary detention, protection against self-incrimination, and the right to counsel. Furthermore, legislation already exists allowing the issuing of warrants to obtain blood samples where an accused has committed an offence under section 253 of the Criminal Code of Canada and the person has been involved in an accident causing bodily harm or death (see CCC256).

Urinating in a cup is much less invasive than the taking of blood from a needle. Forcing someone to blow into a device (as currently done) is probably more invasive than waiting for the person to perform a bodily function and then collecting it. I think this legislation takes that into account.

4. Fourth, testing bodily fluids for the presence drugs is problematic at best. Current BAC measurement equipment is considered to be reliable and consistent. The same cannot be said for devices meant to test for the multitude of potential drugs that might cause impairment. Indeed, devices testing for some substances may not detect others. Those same devices may, however, detect substances commonly found in legitimate medications, indicating legal impairment where there is none. We currently have a set BAC standard at which operation of a motor vehicle is considered illegal (0.08). Again, no such standards exist for the mass of potentially impairing drugs. It is likely that people react differently to similar drug use and may or may not actually be impaired with the same ‘level’ of substance in their systems. For example, individuals on regular drug regimes may not be qualitatively impaired even with a blood substance level that is equal to or greater than another person who is considered to be impaired.

As has been noted, there is no scientific consensus on threshold drug concentration levels in the body that cause impairment, affecting one’s ability to drive. Again, unlike breathalyzer tests used for alcohol, there are no objective tests to measure drug-impairment. Additionally, some drugs can be detected in the body long after their effect has worn off. For example, in the case of marijuana, THC can linger in the body for up to four weeks after consumption and have no clear relationship to impairment and the ability to drive (Ashbridge, July 2006). Given that there is no scientifically proven impairment threshold, and that Bill C-32 does not propose a ‘legal limit’ for drug-impairment (as in the 0.08 limit for alcohol use), the question arises as to at what point law enforcement officials can press charges or consider an individual legally ‘drug-impaired’.

The danger of the proposed legislation here lies in the inconsistency of test results, the lack of existing technology to reliably measure and indicate legal impairment, and the nebulous concept of a legal blood limit for the various substances that might cause impairment. Given the potential ease of the defence against such vague testing³, successful court challenges against such test results will likely be many, negating much of the reasoning for implementing such measures.

Olympic atheletes are tested for drugs in their system, through urine samples. How can this technology not be available to the government for use? Although the CCJA has a point with unestablished ‘legal limits’, we must remember that with the majority of these cases, we are dealing with illegal drugs. Simple consumption of these drugs could be made to be an infraction. Also, I could see developing a legal limit for drugs to be problematic in itself, as many drugs have different effects. However, by making it illegal to have ANY illegal drug in your system while driving would be sufficient to protect the public. We must remember that in some European countries — ANY amount of alcohol in your system while driving is illegal.

5. Fifth, by clarifying the evidence an accused can introduce to raise doubt that they were impaired as indicated by BAC results, Bill C-32 takes a potentially dangerous step towards blindly trusting mechanical devices to determine guilt or innocence. While the so-called ‘two beer defence’⁴ might be unpopular, the ability to raise reasonable doubt is essential to ensuring fairness. In addition, restricting such evidence may pose issues relating to guaranteed presumptions of innocence.

While currently a defendant can call on witnesses to testify that he or she had drunk only small amounts of alcohol, or that he or she was drinking at a rate at which the alcohol consumed would have been absorbed and eliminated by the accused’s body, Bill C-32 will limit the use of such “evidence to the contrary” to evidence tending to show that the breathalyzer was malfunctioning or was operated improperly, and that the concentration of alcohol in the accused’s blood would not have exceeded 80 milligrams of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed⁵.

While some argue that C-32 will remove a legal loophole, others note that limiting available evidence to the contrary actually eliminates a legitimate safety valve and reduces judicial discretion⁶. Indeed, by limiting the ability to raise a reasonable doubt through evidence to the contrary to circumstances where there is evidence of machine malfunction or operator error, Bill C-32 weakens the presumption of innocence. The accused will otherwise not be allowed to testify to their consumption in order to defeat the presumptions in s. 258. While we recognize the high degree of accuracy and reliability of breathalyzer machines being utilized by police, we note that no machine or operator is perfect. There remains the probability that circumstances will arise where the machine malfunctions or the operator is in error but the defense is unable to lead evidence on either of these points. In those cases, innocent accused may be convicted due to the limitations that Bill C-32 places on the presumption of innocence and the right to full answer and defense. By limiting the available defenses and strengthening the presumptions created to facilitate prosecution, Bill C-32 increases the likelihood of convicting innocent people. The Canadian Criminal Justice System, like any other, is a human one. We should not allow convictions to be based on a machine, without permitting the accused to respond, no matter the machine’s reliability and accuracy.

Yes, the bill limits defences. I think that’s the point. Much like limiting the amount of scrutiny on a rape victim by a defence lawyer, we should also limit the amount of biased information that a ‘witness’ can provide for an impaired driver. Does it not seem ironic that we are counting on the accuracy of an intoxicated friend, colleague or party-goer over that of a non-biased scientific equipment test? I again challenge the CCJA to sit in court and listen to the testimony of friends at a party and their evidence provided. Frankly, it makes a mockery of the justice system to allow such testimony any weight in determining the accused’s level of intoxication. How often were you at a party and counted the amount of drinks that a fellow drinker beside you had? Did you also watch what they ate, took measurements on their weight and tolerance level? Or perhaps followed them home to see how much they drank along the way home while driving? If the issue was whether he or she drank or not, that would be fine. But a general partygoer, with no knowledge of what is going to happen in the future (an impaired driving charge) cannot honestly provide accurate evidence. Unfortunately, this ‘defence’ is a tactic well-honed and squeezed into admissibility in court. It is because of this ‘defence’ that impaired driving legislation has relatively no teeth in Canada. I’m not sure whether who’s to blame though, the courts for believing it and accepting it — or the defence lawyers who initiate this audacity.

6. Finally, Bill C-32 proposes to increase penalties for impaired drivers. Current legislation is adequate in this regard. Impaired drivers who cause bodily harm are already subject to considerable imprisonment. Those who cause death are liable to imprisonment for life, and S. 253(a) of the CCC already includes reference to impairment by alcohol or drugs. As such, it is unclear how Bill C-32 would improve on the current legislation.

Impaired drivers aren’t receiving adequate sentences, despite law being available for them. That, inherently is the problem. Sometimes, if one were to look at a person’s historical criminal record, more often than not, you see a steady decline in actual sentencing of prison time and monetary fines — for conditional sentences, probation and time served. I would challenge the CCJA to find any instance where a person was sentenced to life for impaired causing death.  For non-death incidents, I believe the most severe sentence was handed out recently, as only six years — even after multiple past convictions of impaired driving.