It would be impossible to properly appreciate the investigative process without first establishing an understanding of the real-life forum in which it occurs. That forum is the criminal justice system and in particular, the court system. The investigative process also exists within the statutory rules of law, including the Canadian Charter of Rights and Freedoms, and case law rulings adjudicated by the courts. Considering the existence of these conditions, obligations, and case law rules, there are many terms and concepts that an investigator needs to understand to function appropriately and effectively within the criminal justice system. The purpose of this chapter is to introduce some of the basic legal parameters and concepts of criminal justice within which the criminal investigation process takes place. These include:

1. Fundamental justice and the Charter of Rights and Freedoms
2. Roles of the judges, the prosecutors, the defence, and the police in the justice system
3. The burden of proof
4. Belief beyond a reasonable doubt
5. Reasonable grounds for belief
6. Proof within a balance of probabilities
7. The adversarial system
8. Statutory law
9. Common law (Case law)
10. Actus Reus and Mens Rea
11. Prima facie case, elements of the offence, and the information
12. Duty to investigate and use of discretion
13. Arrest and detention of a suspect

Topic 1: Fundamental Justice and the Charter of Rights and Freedoms

Criminal justice systems exist to protect society using a broad range of laws and regulations designed to define, control, and prohibit unacceptable behaviour and conduct. The behaviour and conduct to be prohibited or controlled can range from criminal acts of terrorism and murder, to infractions of a minor nature, such as exceeding the speed limit or watering one’s lawn outside of permitted time periods. These laws and regulations can result in a variety of sentences, restrictions, and interventions to personal freedom or penalties against offenders. In Canada, penalties can range from life imprisonment with no parole eligibility for 25 years, to fines, probation, or a warning. As a core principle in the application of any of these laws, there are strong social values that reflect the expectations of citizens who live under the protection of the laws. Citizens expect and demand that the law be enforced and administered fairly and in a manner that respects their rights and freedoms as individuals. This expectation most particularly pertains to any person suspected of or charged with an offence.

These values and expectations of fairness have origins dating back to ancient Rome and of English common law, which eventually defined the principles of “natural justice,” now more commonly referred to in Canada as “fundamental justice” (Dostal, 2012h).

At the core of these principles of “natural justice” or “fundamental justice,” some basic operational imperatives have been established to guide the outcomes of the justice system and ensure fundamental justice for persons charged for an offence. For example, one who alleges an offence to have taken place must prove it, the person accused of an offence has the right to see the evidence against them, the person accused has the right to answer to the charge and provide a defence, the trier of fact (i.e. most commonly a judge) must not be biased, and the trier of fact must base their decision upon evidence and must articulate the evidence considered when the decision is handed down. Further entrenching these principles of “fundamental justice,” the Canadian Charter of Rights and Freedoms Sections 7–14 was enacted into law in 1982, replacing the existing Canadian Bill of Rights (Government of Canada, 2015).

Excerpt from Charter of Rights and Freedoms Sections 7–14, “Legal Rights”: 

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12. Everyone has the right not to be subjected to any cruel and unusual treatment or  punishment.

13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

14. A party or witness in any proceeding who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter (Government of Canada, 2015).

As demonstrated by these eight explicit sections of the charter, any person accused of a crime has a significant level of protection from being presumed guilty or from being treated unfairly by the justice system because of an accusation.

In the criminal justice system, police investigators are very often the first point of contact and they hold a primary obligation to respect the rights and freedoms afforded by the Canadian Charter of Rights and Freedoms. The steps that must be taken by an investigator to ensure that the rights and freedoms are protected and the principles of fundamental justice are followed will be outlined in detail later in this book.

Topic 2: The Role of the Judge, the Prosecutor, the Defence, and the Police

As operational players within the criminal justice system, judges, crown prosecutors, defence lawyers, and police all contribute to the process of “natural justice” or “fundamental justice.” Each of these participants has specific and independent roles to play and duties to perform. For example, the role of the police investigator is to gather information, physical evidence, and witness evidence to form the reasonable ground that a particular suspect committed an offence. Once these reasonable grounds for belief have been formed, the evidence can be presented to the Crown Prosecutor to determine if a charge should be laid. The role of the crown prosecutor is to examine the evidence gathered by police investigators. If charges are laid, the crown prosecutor presents that evidence to a judge who will determine the guilt or innocence of the accused based upon the test of proof beyond a reasonable doubt. The role of the defence counsel is to represent the accused through examination of the evidence presented, testing the strength of the evidence presented, and challenging the reasonable grounds for belief. The defence’s goal is to demonstrate that the test of proof beyond a reasonable doubt has not been met.

Many are the occasions where police have identified and arrested the correct suspect, but the evidence collected in their investigation was rejected by the court because procedural rules were not properly applied. These kinds of cases, lost to errors in process or in misunderstanding of the rules, provide valuable lessons for the police investigator who failed; but sadly, they are a disappointing and a negative experience for the victim of the crime and the public who expect investigators to always get it right.

Topic 3: The Burden of Proof

For a police investigator, it is important to understand that matters under investigation can end up being presented in a criminal or civil court of law. Each of these court venues requires and applies a different burden of proof to the evidence presented. It is entirely possible that a police investigator will be called to present evidence of their investigation in either type of court. For instance, it is possible in cases, such as a motor vehicle crash, that the evidence collected by the police for a criminal court charge of Impaired Driving or Dangerous Driving could be used in a civil court trial where an injured victim sues the impaired driver for damages resulting from their injuries or the loss of their vehicle.

The criminal court is the one most commonly encountered by police investigators. These courts hear cases investigated under the Criminal Code and under Federal, Provincial, and Municipal Statues. Cases can cover offences ranging from personal and property offences to those covered under Municipal Statutes. For criminal courts, judges or judges and juries use the burden of proof described as “proof beyond a reasonable doubt” to determine if they will convict or acquit an accused person. Civil courts take responsibility for making decisions in relation to matters where one party is seeking a non-criminal judgement, damages, or a decision against another party. These can be cases related to personal injury cases, contractual disputes, divorce proceedings, and contested wills or estates. In these cases, the parties involved are referred to as the plaintiff and the defendant. The plaintiff is the party that initiates the civil court action, and the defendant is the party against whom the civil action is filed. In these civil actions, the burden of proof considered by the court is described as “proof within a balance of probabilities.” This is a much lesser test than proof beyond a reasonable doubt as the court seeks to determine, on the balance of probabilities, which side is most likely correct.

Topic 4: Proof Beyond a Reasonable Doubt

Proof beyond a reasonable doubt is the standard measure of proof that the criminal court will apply when determining if evidence presented by the prosecution is sufficient to convict the person charged with an offence. If the evidence is sufficient, and the burden of proof has been satisfied, the court may convict the accused. In these cases, the onus to prove all the elements of the charge rests completely with the prosecution. The accused person is not required to prove that they are innocent.

The Supreme Court of Canada has outlined the concept of proof beyond a reasonable doubt suggesting that it should be explained to juries as follows:

The standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence (R v Lifchus, 1997).

• The burden of proof rests on the prosecution throughout the trial and never shifts to the accused.
• A reasonable doubt is not a doubt based upon sympathy or prejudice, and instead, is based on reason and common sense.
• Reasonable doubt is logically connected to the evidence or absence of evidence.
• Proof beyond a reasonable doubt does not involve proof to an absolute certainty. It is not proof beyond any doubt, nor is it an imaginary or frivolous doubt.
• More is required than proof that the accused is probably guilty. A jury which concludes only that the accused is probably guilty must acquit.

The Supreme Court of Canada emphasized in R v Starr, that an effective way to explain the concept is to tell the jury that proof beyond a reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities.” It is not enough to believe that the accused is probably guilty, or likely guilty. Proof of probable guilt, or likely guilt, is not proof beyond a reasonable doubt (R v Starr, 2000).

It is important for investigators to understand that “proof beyond a reasonable doubt” is a different test from what they are required to meet when considering the value of evidence during their investigation. Later in this book, we will examine the importance of collecting, documenting, and properly preserving as much evidence as possible to assist the court reaching their belief beyond a reasonable doubt.

Topic 5: Reasonable Grounds to Believe

Reasonable grounds to believe, sometimes referred to as reasonable and probable grounds to believe, is the test a police investigator must apply when considering the evidence to exercise their powers during the investigation of an offence. Establishing reasonable grounds to believe that a person is responsible for an offence allows the investigator to exercise powers that are provided under the criminal code. These are the powers to arrest with or without a warrant, the power to search and seize evidence with or without a warrant, and the power to swear an information against a person once reasonable grounds to believe have been established.

Forming reasonable grounds for belief is a subjective thinking process. It is arguably the most important thinking processes an investigator will undertake. It is a thinking process based upon the consideration of information, evidence, and facts the investigator has collected during their investigation. These reasonable grounds for belief must be based upon the investigator’s assessment of the information and evidence available to them at the time the decision to act is made. Evidence of guilt discovered after an action (such as when an arrest or a search has taken place) cannot be used to retroactively justify that action of arrest or search. As such, when the court considers if the investigator was correct and justified in forming reasonable grounds to believe based upon the evidence available at the time of the action, the judge will think about the nature of the evidence the investigator has described in their testimony.

Justice Cory in R v Storrey (1990) provided a very common sense deliberation to be applied in determining if the investigator had reasonable grounds to believe:

The Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest. (R v Storrey, 1990)

Reasonable grounds to believe is a very important concept for an investigator to understand, and it must not be confused with the more onerous test of “proof beyond a reasonable doubt” (R v Starr, 2000), which is the test the court will use in weighing the evidence to determine if a conviction for the offence is justified. Confusing these two levels of belief is an error sometimes made by investigators, and it can cause an investigator to hesitate because they do not believe they have reached the adequate level of belief to take action.

It is fortunate that this lesser level of belief, reasonable grounds, is available for police investigators because it requires that police articulate only a subjective belief in the information and evidence available to them at the time of their investigation. It allows police investigators to form reasonable grounds of belief based on physical evidence they have seen, records they have reviewed, and hearsay information acquired from witnesses. In situations where time is of the essence to protect life and safety, protect evidence, or to bring a situation under control, it does not require the investigator to undertake any validation of the information they are relying on. The information may be taken at face-value.

Establishing reasonable grounds to believe and taking the action of making an arrest or conducting a search will not necessarily be the precursor to collecting enough evidence to lay charges. In some cases, an arrest is made because reasonable grounds existed and, after additional information and evidence are accessed, it becomes clear that the person is not guilty of the offence. Consequently, the process of laying a charge does not take place and the person is released. Remaining open to the outcome of determining innocence is truly a test of objectivity for investigators. This objectivity can sometimes be difficult to achieve when there is serious pressure to capture a dangerous offender. The mistake of being too quick to proceed with charges, or even discounting and ignoring evidence that indicates innocence, is a trap that has led many investigators to the end their careers under accusations of lost objectivity or even incompetence (Pennington, 1999).

When charges are laid, objectivity can become a key issue at the trial and the defence may demand that the investigator provide an accurate account of evidence that was considered or ignored in the thinking process to establish their reasonable grounds to believe. Forming reasonable grounds is a process that should be undertaken with careful consideration of the facts. Forming reasonable grounds requires a diligent intent to remember the facts, keeping in mind that an articulation of the subjective analysis used in forming reasonable grounds for belief may be required as testimony in a court.

This degree of self-awareness is a critical step in building the thinking skills to become a good investigator.  With these thinking skills in mind, tools will be provided later in this book that can assist an investigator with the practice of thinking through investigations using a step-by-step process.

Topic 6: Proof Within a Balance of Probabilities

As mentioned above, the balance of probabilities is the civil court standard of proof that is less onerous than the criminal court standard of proof beyond a reasonable doubt. For something to be proven within a balance of probabilities means that it is more likely than not to have occurred. On a scale of equal balance, if the likelihood is more than 50% that something occurred, the test of being “within a balance of probabilities” has been met. In most cases, if the criminal test of proof beyond a reasonable doubt has been met, that same evidence presented at a civil trial is likely to meet the required threshold of being within a balance of probabilities (Allen, 1991). It is important for a criminal investigator to understand that, even though there may not be enough evidence to meet the requirement for a criminal charge or establish proof beyond a reasonable doubt, the evidence may still be successful in establishing civil liability within a balance of probabilities. The possibility of civil action makes it important for investigators to remain diligent in collecting and preserving evidence, even if they believe there will not be a criminal charge proceeding.

Topic 7: The Adversarial System

In the trial of a person charged with an offence in a criminal court proceeding, the judge will hear the evidence and arguments presented by both the prosecution and the defence. The prosecution and the defence exist in court in an adversarial relationship with the onus resting with the prosecution to prove the facts of the case beyond a reasonable doubt. The defence may challenge the evidence, question the testimony and the credibility of witnesses, and present alternate theories of events or evidence, where the accused person could be considered not responsible or sometimes less responsible for the alleged offence. The facts required to be proven will vary depending on the offence being alleged; however, the prosecutor’s task to achieve a conviction requires that every element of the charge is proved beyond a reasonable doubt.

As an investigator, you will often work in partnership with the prosecutor assembling evidence to be presented in court. However, once in court, the police are merely witnesses for the court and do not play active role in the prosecution of an accused. Police investigators are not adversaries to the defence or the accused and should not consider themselves as such. Very often in court, a police investigator will have their evidence aggressively challenged by the defence lawyer in a very adversarial manner, and it will certainly feel as if the investigator is being challenged as an adversary. It is sometimes even a defence strategy to provoke the police investigator into a confrontation where they take an adversarial stance against the defence of the accused. In these cases, it is important for an investigator to remember that their credibility as an objective investigator can be compromised by the demonstration of an adversarial attitude or demeanour in court. This is not to say that an investigator must be submissive to the defence — providing evidence in an objective, respectful, and balanced manner is the key.

To share some advice once provided to this writer by a seasoned senior investigator:

“Your job ends on the court house steps. Do your investigation and take your evidence to court. Give your testimony and your job is done. Let the court make their decision and the case is done. If you allow yourself to take ownership of every decision the court makes, you will not last as an investigator. Let your job end on the court house steps” (Fookes, 1973).

Police investigators are officers of the justice system, independent to the crown prosecutor’s office. Police investigate and collect the evidence, and the crown prosecutor presents the evidence collected by the police to the court. The crown prosecutor does not and should not direct or interfere with police investigations. In Canada, this concept of independent functions between the police and the prosecutor’s office is sometimes misunderstood. This misconception can sometimes happen due to our exposure to the American justice system where district attorneys, as prosecutors, do become very involved in directing the investigative processes in American jurisdictions.

Topic 8: Statutory Law

Statutory law is written law enacted by different levels of government. These written laws regulate the conduct of citizens. Laws are enacted with escalating levels of authority from the three levels of government in Canada. The most serious laws are the domain of the federal government, which takes responsibility for controlling criminal conduct under the Criminal Code of Canada, as well as criminal conduct ascribed to be of national concern under a broad spectrum of other federal statues, such as:

1. The Criminal Code of Canada
2. The Controlled Drug and Substances Act for drugs offences
3. The Fire Arms Act for the control of firearms and restricted weapons
4. The Canadian Environmental Protection Act for environmental offences
5. The Canada Revenue Agency Act for Income tax offences
6. The Canadian Customs and Border Services Act for border security

Statues, such as the Motor Vehicles Acts or the Liquor Control and Licencing Acts, are enacted by the provincial governments, and these laws vary somewhat from province to province. Each province has discretion to independently regulate issues, such as speed-limits or minimum drinking age, reflecting the cultural tolerances and social norms of their jurisdiction. At the lowest level, municipal governments enact by-law statues exclusive to their local concerns, such as parking or littering laws.

The Criminal Code of Canada is the most important and instructive federal statute for investigators. It provides police investigators with their authorities to use force, make arrests, enter private property, search for and seize evidence, and to lay charges against offenders. The wording of the Criminal Code of Canada is very clear regarding the types of action and conduct that constitute criminal offences. The Criminal Code also is generally clear about the rules for when and how a police officer may use force, arrest a suspect, enter private property, search and seize evidence, and lay a criminal charge against a suspect. However, there remains a significant amount of subjective interpretation in the code that must be done in the mind of an investigator to effectively use the various stated authorities to enforce the law. This need to interpret statutory law exists because of case law decisions and the common law precedents that have been established from those case law decisions.

Topic 9: Common Law (Case Law)

Common law is law that is not written down as legislation or a statue and is based on rulings and precedents of past cases to guide judges in making later decisions in similar future cases. It cannot be found in any statute or body of legislation, but only in past decisions. It is flexible and adapts to changing circumstances.

Fulfilling the role of a police investigator requires an understanding of specific statutory authorities, along with the case law and common law definitions for utilizing those authorities. Statutory authorities provide powers for arrest and use of force, powers for entry to private property, and powers to search for and seize evidence. Case law and common law are procedural in nature. They help define limits within statutory authorities and dictate the way the law is administered by the court. By extension, case law and rules of evidence define the way police investigations should be conducted, the way suspects should be treated, and the processes for collecting evidence and preserving it for court. The ability of an investigator to properly interpret and follow these statutory laws, case laws, and rules of evidence, can play a large part in determining if the evidence from an investigation is accepted or rejected by the court.

Case law and common law exist because, over the years, the courts have continually found that applying statutory law cannot happen without interpretation and consideration of exceptions. Critical points of subjective analysis, deciding issues of fairness to the accused, and balancing the need to protect society from criminal conduct have caused the courts to interpret how the law should be applied. These interpretations, when accepted by the judicial system, become precedents and sometimes even doctrines of law. Many of them directly comment on the matters an investigator should consider when making specific decisions to take action. With these stated matters of case law in mind, investigators are called upon to subjectively interpret the circumstances, evidence, and information relating to an event, and to determine if the specific facts and circumstances will meet the tests that allow action to be taken.

Many of an investigator’s interpretations and subsequent actions can be critical to the court accepting the evidence collected when the case goes to court, such as:

• Using physical force, up to and including deadly force
• Forming reasonable grounds to detain or arrest suspect
• Entering private property with or without a warrant
• Using the rules of exigent circumstances to protect life and safety of person or evidence
• Using discretion to take actions, other than charges, when an offence has been committed

In addition to these case law decisions, common law also provides several doctrines of law that define consistent rulings of the courts when making assessments of the evidence being presented in relation to some specific common issues. A doctrine is established through repeated application of the same legal precedents, and there is an expectation that the lower courts will respect the application of these legal precedents in stated cases of the higher courts. Knowing these doctrines, and considering how the court might apply them to the evidence being presented, assists investigators on the proper ways to collect evidence that will best inform the court.

The Common Law Doctrine of Necessity

Under criminal law, the defence of necessity can be invoked by the defence in cases where the accused seeks to provide a rationale that committing the offence was the unavoidable result of some serious circumstance beyond his or her control. In considering this defence, the court will apply a very strict standard in order to meet the conditions prescribed in the common law doctrine of necessity (Gecker, 1989). It is important for an investigator to know the criterion that the court will apply, in-as-much as it will allow the investigator to seek out evidence that either supports or negates the necessity defence. The leading case in Canada for such a defence is R v Perka where Justice Dickson described the rationale for the defence as a recognition that:

A liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience.

However, it must be “strictly controlled and scrupulously limited.” and [sic] can only be applied in the strictest of situations where true “involuntariness” is found. Three elements are required for a successful defence:

1. the accused must be in imminent peril or danger
2. the accused must have had no reasonable legal alternative to the course of action he or she undertook
3. the harm inflicted by the accused must be proportional to the harm avoided by the accused

The peril or danger must be more than just foreseeable or likely. It must be near and unavoidable.

At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable.

With regard to the second element, if there was a reasonable legal alternative to breaking the law, then there can be no finding of necessity. Regarding the third element requiring proportionality, the harm avoided must be at least comparable to the harm inflicted (R v Perka, 1984).

Clearly, the standard for the defence of necessity sometimes requires the interpretation of complex issues. This interpretation determines if the circumstances and evidence fall within the ascribed definitions to be considered necessity. This interpretation is the job of the court assessing the evidence to reach their belief beyond a reasonable doubt.

If an investigator has discovered sufficient evidence and has reasonable grounds to believe an offence has been committed, there are sufficient grounds to lay the charge. In serious cases, where harm to persons, or significant property damage has occurred, police investigators do not have the discretion to consider if an accused person should be afforded the defence of necessity due to the complexity of the issues. In lesser cases, for instance where a police officer stops a car for speeding and the driver shows that they are speeding to get a critically injured person to the hospital, a police officer might use discretion and accept the excuse of necessity to forgo the speeding ticket. Conversely, if an accused person made the decision to cut a lifeline that caused a mountain climber to fall to his death to save himself from being pulled over the edge, that decision of necessity needs to be made by a judge in a court of law.

In serious cases, it is important for an investigator to remember that their job does not include making any final interpretation regarding the defence of necessity, even if evidence of necessity may exist. The investigator’s task is restricted to recognize and collect all evidence that may assist the court to make their decision on the issues of necessity. This would include recognizing and collecting evidence to show:

1. The nature of the danger being imminent or not
2. Evidence of other legal alternatives or actions that were available to the accused
3. Evidence that might indicate the danger was either avoidable or unavoidable
4. Evidence to demonstrate the anticipated harm from the threat, compared to the harm resulting from the accused’s action

Doctrine of Recent Possession

The doctrine of recent possession refers to the possession of property that has been recently stolen. It permits the court to make the inference that the possessor of the stolen property had knowledge that the property was obtained in the commission of an offence, and, in certain circumstances, was also a party to the initial offence (R v Terrence, 1983; & R v Kowlyk, 1988). When considering whether to make the inference of recent possession, the prosecution must consider all the circumstances (R v Abernathy, 2002). This includes common sense factors, such as the amount of time that passed between possession and the offence (R v Gagnon, 2006). Factors to consider whether the possession was recent include the nature of the object, the rareness of the object, the readiness with which the object can and is likely to pass to another, and the ease of identification. To achieve an inference, the Crown must establish that the accused was found in possession of the item and that the item was recently stolen without an explanation (R v Gagnon, 2006). When the accused is found in recent possession without explanation, the prosecution can draw the inference and make the presumption that the accused had a role in the theft or related offences. The defence can present an argument to counter the presumption by providing evidence of a reasonable explanation (R v Graham, 1974).

Doctrine of Wilful Blindness

Wilful blindness, also called ignorance of the law or contrived ignorance, is something the court will consider when an accused provides a defence claiming that they were not aware of the facts that would make them either criminally or civilly liable for a criminal offence or a civil tort. As an example, this can arise where a person has purchased an expensive item of stolen property for a very small price, then attempts to defend against a charge of possession of stolen property by claiming that they did not to know the item was stolen and/or did not know the true value of the item. In applying the doctrine of wilful blindness, the court will carefully examine the circumstances to determine what the accused should have known or if the accused should have inquired further.

The Supreme Court of Canada articulated the thinking behind the assessment of wilful blindness in R v Briscoe:

“Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries” (R v Briscoe, 2010).

The manner in which the court should examine these issues is further expressed in Sansregret v The Queen, [1985] 1 S.C.R. 570 and R v Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in R v Jorgensen (at para. 103):

“[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge? Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating.”

As the Court explained further in Sansregret v The Queen (at p. 584):

“…while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing to inquire when he knows there is reason for inquiry“ (Sansregret v The Queen, 1985).

For an investigator who anticipates that wilful blindness may become an issue at trial, it is important to recognize the need to gather the additional evidence that might demonstrate the accused knew or should have known the nature of the offence taking place, and deliberately failed to inquire.

Topic 10: Actus Reus and Mens Rea

To recognize the types of evidence that need to be collected with respect to various offences, an investigator must become intimately familiar with the concept of actus reus, which is a Latin term definable as “the guilty act” or “the criminal act,” and the concept of mens rea, another Latin term meaning “guilty mind” or “the intent to commit a crime.” For any specific offence, the actus reus will be described by the wording of the statute that prohibits the conduct. For example, for the offence of theft, under the Criminal Code of Canada, the guilty act of theft, and variations of what constitute theft, are described in detail under section 322 (Criminal Code, 1985, s 322(1, 2)) of the Criminal Code of Canada:

Theft 322. (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.

The definition of the offence of theft provides a broad range of actions that will constitute the guilty act of theft. It defines items that can be stolen as anything, whether animate or inanimate. It includes conversion of the use of an item as being a theft, and it even defines the time a theft is completed, saying theft occurs when a person merely begins to cause something to be movable. For an investigator to collect evidence to prove the guilty act of theft, these definitions create a range of activities where evidence can be collected to illustrate a theft has occurred; but, just proving one of the actions that define the guilty act of theft occurred is insufficient because theft is one of the criminal offences that requires the act to be intentional. This is where the concept of mens rea comes into play.

The concept of mens rea seeks to determine if the accused person had the intent to commit the offence. Going back to the wording for the offence of theft, you will see that the words “with intent” are part of that offence wording. The words “with intent” allow that if a person takes someone’s property by accident or without the intent to steal, the offence of theft is not completed. For an investigator, this is an important concept because with this term, there is an added obligation to look for evidence that can assist the court in determining if the accused did in fact have the intent to commit the offence.

In the case of a theft, evidence of intent may be part of the observed actions of the accused, such as where a shoplifter is seen stuffing store merchandise into their pockets and then walking out the nearest exit of the store without paying. In such a case, it would not be enough for the investigator to show that the accused removed the property from the store. The act of concealing the items in the pockets is critical to demonstrate the intent to commit the offence. So, for offences where the term “with intent” forms part of the wording of the offence, the investigator needs to look for those extra pieces of evidence to demonstrate intent to the court.

It should be noted that intent does not form part of the wording for all offences. There are some offences where intent is not required. These are called a “strict liability offence” in Canada, and, with these offences, it only needs to be shown that the guilty act occurred. Some less serious offences, like speeding or failing to stop at a stop sign, are “strict liability” offences, and the investigator does not need to show that there was intent to commit the offence. There are also more serious strict liability offences, such as criminal negligence causing death or bodily harm, where proof of intent is not required. For offences sometimes called “crimes of omission,” it is only necessary to find evidence showing that the accused failed to meet the standard of care that is expected, and that they acted in a reckless manner. In other words, their reckless disregard caused or allowed the harm to occur.

Criminal Negligence

219. (1) Everyone is criminally negligent who

(a) in doing anything, or

(b) in omitting to do anything that it is his duty to do,

shows wanton or reckless disregard for the lives or safety of other persons.

Definition of “duty”

(2) For the purposes of this section, “duty” means a duty imposed by law (Criminal Code, 1985, s 219).

Even though intent in not a required element for this kind of charge, careful investigation of the evidence could elevate the offence from criminal negligence causing death or bodily harm to assault or even murder, if evidence of intent can be demonstrated. To demonstrate this point, let us examine a case where three men go hunting together and each is carrying a rifle. A shot is fired and one of the men is killed. The investigation of this death reveals that the shooter had been drinking heavily and was walking along with his loaded rifle and the safety on the rifle was off. The muzzle of his rifle was pointed in the direction of the victim walking beside him. The shooter confesses that he stepped over a log, tripped, and the gun discharged killing the victim. This evidence of drinking, the safety being off, and pointing a gun at the victim might support a charge for criminal negligence causing death.

Further investigation results in a statement from the third hunter who states that the victim and the shooter were business partners, and they had been arguing all morning over how they should divide the assets of the business they were selling. At one point, the shooter was heard telling the victim, “Be reasonable or I will just get rid of you and keep it all for myself.” This statement could be interpreted as an indication of motive and perhaps even intent to kill, and could be enough to elevate the criminal negligence causing death to a charge of murder. Hence, Actus Reus and Mens Rea become core concepts of investigative thinking. As the investigation proceeds, the investigator will undertake an ongoing process of evidence collection, offence recognition, and theory development to determine if an offence occurred, how the offence occurred, and why the offence occurred or is there evidence of intent. These concepts and the thinking to conduct theory development and evidence collection will be discussed in greater detail in the proceeding chapters of this book.

Topic 11: Prima Facie Case, Elements of the Offence, and the Criminal Information (Charge)

It is the job of the crown prosecutor to present evidence to the court that proves a prima facie case. Prima facie means at first sight and is the minimum amount of evidence required to prove each element of the formal charge against the accused. The elements of the offence include proving the specific acts alleged in the offence, such as assault or robbery; however, the elements of the offence also include other critical facts that a police investigator must consider to collect the correct evidence. It is the presentation of evidence that, if believed, would establish each of the elements necessary for the prosecution to succeed. In assessing whether a prima facie case is made, a judge does not decide whether the evidence is likely to be believed; but merely whether, if it were, it would establish the necessary elements for a conviction (Legal Information Institute, 2016).

The formal charge against a person in Canadian criminal law is called an ‘Information’, and there are specific elements or facts within that information that need to be proven. The information is a document sworn by a police officer alleging that the offence has taken place and accusing a person of that offence. The standard wording of a criminal information is as follows:

In the above Information, the elements that need to be proven to establish a prima facie case are:

1. The identity of the accused person named on the information
2. The date or time frame in which the offence occurred
3. The place where the offence occurred (establishing this place is within the jurisdiction of the presiding court)
4. The action or actions taken by the accused person that will show they committed the offence contrary to the law

In court, this information or charge becomes the first document for consideration by the judge. This information, also known as a criminal charge, is read to the accused on their first appearance in court and after the reading of the charge, the judge will ask the accused person to enter a plea of either guilty or not guilty. If the plea is guilty, the judge will hear circumstances of the offence that will determine the sentence or the penalty for the offence. If the plea is not guilty, the judge will determine if the offence is one that should be heard by a judge-and-jury or a judge alone; and, if it is one of the serious offences where the option for judge-and-jury is available, the accused will be asked to decide which type trail they would prefer. Having received a plea of not guilty, the judge will then schedule a trial date.

When the trial begins, the prosecutor will present evidence to establish the truth of each element of the information beyond a reasonable doubt. Because the court system is an adversarial system, the defence lawyer may challenge any piece of the evidence presented with the goal of not allowing the prosecution to prove one or more of the required elements to make out the prime facie case. The prime facie case is complete when sufficient evidence is presented to prove each element of the charge before the court. If any one element of the information is not proven, the prima facie case is not established beyond a reasonable doubt and the court will make a ruling of not guilty.

Topic 12: The Duty to Investigate and the Use of Discretion

An appointment as a peace officer and the duties of a police officer in Canada are made under the authority of various provincial police acts and at the federal level under the RCMP Act. The designation of a peace officer under any one of these acts enables the appointed person to exercise the powers and authorities of a peace officer described in those acts, as well as the powers and authorities to function as a peace officer under the provisions of the Criminal Code of Canada and any other federal and provincial statutes. In addition to these powers and authorities to act, persons designated as peace officers also have some limited protection from criminal charges and civil liabilities in cases where they unintentionally make an error or cause injury to a person. These protections from criminal and civil liability are provided under the Criminal Code for some criminal acts and under Provincial Police Acts and the RCMP Act for civil torts. These protections are not available, or can be withheld, where an officer is found to have acted with criminal intent or is found to have been reckless or criminally negligent in the execution of their duties.

So, police officers are endowed with powers and authorities to act as keepers of the peace. For the police, this responsibility is equated to doing their duty. To fully understand what this entails, one must consider these two most critical questions:

• What are those duties?
• Who decides when or if they have been properly done?

These questions have a long history of both philosophical and legal arguments, dating all the back to the origins of policing in England (Reith, 1943). In those early times, the police were predominately considered to be peace-keepers. As such, the neighbourhood “Bobby” would intervene to settle local disputes. Criminal charges were the last resort. This ability of police officers to settle local disputes using their own judgement and discretion became a valued function of policing skills. The use of discretion remains today at the core of community policing, restorative justice initiatives and alternate dispute resolution programs.

The arguments surrounding police use of discretion and alternate dispute resolution are twofold. Some have argued that police with too much discretion will misuse it and become corrupt, while others contend that the justice system will become overloaded with minor cases if the police do not have the discretion to try to resolve some disputes without laying charges (R v Beare, 1988).

“Directly on this point, Justice La Forest J. stated; Discretion is an essential feature of the criminal justice system. A system that attempted to eliminate discretion would be unworkably complex and rigid” (R v Beare, 1988).

Implicitly supporting the ongoing use of discretion, legislators continue to only provide very general definitions regarding what the duties of the police should be. Statements of police duties, such as the following are the norm.

“… (Police Officers) must perform the duties and functions respecting the preservation of peace, the prevention of crime and offences against the law and the administration of justice assigned to it or generally to peace officers by the chief constable, under the director’s standards or under this Act or any other enactment” (Government of British Columbia, 2015).

Even under the Criminal Code of Canada, there is an implied discretion indicating that the laying of an information is a matter of may and not a requirement of will.

Section 504 CCC. Anyone who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged

(a) that the person has committed, anywhere, an indictable offence that may be tried in the province in which the justice resides (Criminal Code, 1985, s 504(1)(a)).

For investigators, this implied discretion to not take the action of laying a charge seems to leave the door open for a great deal of latitude and interpretation. Historically, this has been the case; but recently, there have been several cases where the incorrect use of discretion has resulted in case law providing more prescriptive direction and defined process for the use of discretion (R v Beaudry, 2007).

To examine the use of discretion, R v Beaudry (2007) has been very instructive in defining the criterion for officers. The brief facts of the case are as follows: the accused, Sgt. Beaudry, was a Quebec police officer who stopped a vehicle on September 22, 2000. The driver turned out to be intoxicated. Upon discovering that the driver was also a police officer whom he had met on a previous occasion, Sgt. Beaudry decided not to demand a breathalyser test from the driver. Sgt. Beaudry believed the driver to be depressed and stated that he was using discretion to give him a chance. Sgt. Beaudry was charged with and convicted of obstruction of justice. The court ruled that he had improperly used his discretion by allowing favouritism. Ultimately, the Supreme Court of Canada’s ruling clarified some of the limitations that they would assign to police discretion. It stated:

“discretion is not absolute. Far from having a carte blanche, police officers must justify their decisions rationally.”

In R v Beaudry, SCC ruled that the justification or using discretion must have three elements:

1. It must be an informed decision, based on evidence that constitutes reasonable ground
2. There must be concrete reasons for the decisions to use discretion that are not based on favouritism or bias
3. The officer must have both a subjectively and objectively honest belief in the reason for using the discretion, and the judge must determine that the officer’s belief reflected reality (R v Beaudry, 2007).

In addition to these three elements, the Supreme Court also stated that:

“Justification for discretion has to be proportional to the offence and has to be in the interest of public safety” (R v Beaudry, 2007).

From the R v Beaudry (2007) ruling, a set of seven principles were outlined and these principles serve as guidelines for police use of discretion in Canada:

1. Discretion is vital to the operation of the criminal justice system. Not all offenders must be charged.
2. The police still have discretion, but it is not absolute, it is limited.
3. Limited discretion means discretion must be proportional to the seriousness of the offence.
4. Use of discretion must be justified with concrete reasons.
5. Improper use of discretion does not automatically constitute “Obstruct Justice.”
6. A simple error of judgement is not “Obstruct Justice.”
7. “Obstruct Justice” is committed when discretion is disproportionate, unjustified, and intended to obstruct, pervert, or defeat the course of justice (R v Beaudry, 2007).

In 2007 following this ruling, in the landmark civil case of Hill v Hamilton-Wentworth Regional Police, the Supreme Court of Canada added an additional rule to the existing Beaudry list of principles:

The decision not to charge an offender cannot be based on the selfish desire to avoid potential civil liability (Hill v Hamilton-Wentworth Regional Police Services Board, 2007).

Topic 13: Arrest and Detention

Arresting or detaining a suspect are two of the most critical actions that a police investigator can take in the process of any investigation. Each is a distinct course of action and offers the investigator strategic advantages to control the investigative environment by:

• Bringing suspected persons under control in secure custody;
• Stopping an offence in progress or preventing an offence about to be committed;
• Enabling the search for items that may cause danger to the police investigator or others;
• Enabling the search for evidence of the offence;
• Establishing the identity of suspected persons; and
• Compelling accused persons to attend court to face charges.

The concept of arrest for police investigators relates to the process of taking a person into custody upon reaching reasonable grounds to believe that an offence has been committed by the person being arrested. There are many statutes, both federal and provincial, that provide the police with powers of arrest. However, the Criminal Code of Canada provides direction for all police investigators in Canada. Section 495 of the Criminal Code of Canada states:

Arrest without warrant by peace officer
Section 495

(1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Limitation
(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law (Criminal Code, 1985, s 495(1, 2)).

As a specific power to take action, arrest provides police investigators with a means to intervene in criminal situations and stop persons in the process of dangerous or unlawful acts by taking them into custody. With any arrest, there is an obligation to bring the arrested person before the court for release or otherwise to release the person but compel them to court by other means, such as a summons or promise to appear.

As a lesser power, the police action of detaining a suspect has evolved in common law to allow police to take a person into custody for a shorter time. This detention can be used where reasonable grounds to believe the person has committed an offence have not yet been established, but there is some evidence or circumstances that point to the person as a suspect in the offence being investigated.

For police investigators, the actions of arrest and detention need to be considered as strategic functions of the investigative process. Making an arrest or detaining the suspect are not final outcomes, but merely strategic steps in the process of identifying the offender and gathering sufficient evidence to proceed with a charge. The powers and authorities that exist for police investigators to detain a subject or make an arrest are complex. Detaining a suspect or making an arrest may damage the investigation and threaten the admissibility of evidence flowing from detention or arrest if it is not done on the basis of real facts and circumstances that the officer can adequately articulate to the court.

There is extensive case law that speaks to the issues surrounding both the detention and arrest of a suspect. Case law makes a significant distinction that an investigator needs to consider if they are about to detain or arrest a subject. In the simplest of terms that distinction is:

• To arrest a suspect, a police investigator needs to have reasonable grounds to believe that a person has committed the offence and in contrast,
• To detain a suspect, a police investigator only requires a reasonable suspicion that a suspect is somehow implicated in the offence under investigation.

The distinction between forming reasonable grounds to believe a person has committed the offence and having a reasonable suspicion that a person is somehow implicated in the offence under investigation is a matter of evaluating the evidence available at the time detention or arrest are being considered.

To form reasonable grounds to believe a suspect has committed the offence, the investigator must have evidence that points directly to that suspect. This kind of evidence could be a witness identifying the suspect as committing the offence or strong circumstantial evidence such as fingerprints or DNA connecting the suspect to the scene or the victim. These types of evidence could provide the necessary reasonable grounds to believe the suspect committed the offence. In contrast, reasonable suspicion that a person is implicated in the offence under investigation requires significantly less concrete evidence. An investigator finding circumstantial evidence that points to a person as being implicated can be sufficient to make the detention. In articulating case law, judges have elaborated on the police common law powers to utilize detention as part of an investigation.

In 2004 in the case of R v Mann, the Supreme Court of Canada stated that, in spite of the fact that there is no general power for investigative detention, police may detain a person if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a crime and the detention of that person is reasonably necessary on an objective view of the circumstances. The circumstances to be considered should include the extent to which a suspect’s liberty is interfered with in order for the police officer to conduct the required duties, and the individual being detained for investigation, must be told in simple language about the reason for that detention. The detention must be as short as possible in duration, and detention does not impose any obligation to answer questions. In addition, if a police officer has reasonable grounds to believe his safety or the safety of others is at risk, the officer may conduct and pat-down search on the detained subject and this kind of search is not the same as a search subsequent to an actual arrest (R v Mann, 2004).

With these distinctions for arrest and detention in mind, consider the following scenario to illustrate some of the decision-making an investigator must consider.

Summary

In this chapter, we have outlined and discussed many of the legal rules that must be considered by an investigator to guide their investigative process. In common for each of these legal definitions, concepts, principles, doctrines, and protocols is the need for each to be incorporated into the investigator’s thinking process. The investigator needs to consider the circumstances being encountered and apply the law as it exists specifically to those events. These legal definitions, concepts, principles, doctrines, and protocols form the basis of the knowledge that an investigator needs to incorporate into his or her mental map to successfully navigate the investigative process. An understanding of these issues and their appropriate application will demonstrate for the court that the investigator is aware of their duty to act, their authorities to act, and it will enable the investigator to properly articulate a justification of their action.