Legal Issues

In most cases date, time and location are not contentious legal issues.  The types of investigations where date, time and location become important to your case are…

• Historical Offences – reliability of memory over passage of times
• Frauds – ascertaining the accuracy of dates, and location where documents are produced or signed
• Children – ability to comprehend time
• Mental Illness – reliability
• Elderly Victims – consider taking a KGB (sworn affidavit) from an elderly victim as it is not uncommon for the mental health of elderly victims to decline after a violent crime.
• Inaccurate Time stamps – video or documents that contain wrong time stamp

35. (1) A person is not guilty of an offence if

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

(i) is about to enter, is entering or has entered the property without being entitled by law to do so,

(ii) is about to take the property, is doing so or has just done so, or

(iii) is about to damage or destroy the property, or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

(i) preventing the other person from entering the property, or removing that person from the property, or

(ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d) the act committed is reasonable in the circumstances.

No defence

(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

No defence

(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

It is not uncommon to have defence at trial, alleged that either the victim or accused were impaired by drug or alcohol at the time of the incident. If the victim is drunk it will be to diminish their credibility as a witness. If the suspect is drunk it will be done to suggest that they did not have the intent to commit the offence.  Police often don’t document  the issue in a report because it is not relevant to the case, however, defence counsel often will still raise the issue at trial, and will muddy the water around the issue of impairment based upon lack of documentation. It is an “argument of absence” but it still seems to work.

Full, Frank and Fair disclosure of all parties’ level of impairment, including sobriety, should be documented.

Police must be actively engaged in work that would fit the legal definition of duties as defined in common law and in the BC Police Act in order to be engaged in the “execution” of duties.

Common Law Duties

1. Preserve the peace
2. Protect life & property
3. Prevent Crime
4. Enforce The Law
5. Apprehend offenders

Statutory Police Duties

Police Act Section 26(2)

The duties and functions of a municipal police department are, under the direction of the municipal police board, to

(a) enforce, in the municipality, municipal bylaws, the criminal law and the laws of British Columbia,

(b) generally maintain law and order in the municipality, and

(c) prevent crime.

Police Act Section 34(2)

The municipal police department, under the chief constable’s direction, 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.

Consideration must be given to identity at three points in the investigation. It is not uncommon for defence to question identity even if there is a very brief break (VCB) between the offence, and the point of arrest. Address the identity of the accused at the following three points in the investigation.

• When and how is the accused identified as the person who committed the crime?
• How is the person arrested identified as the same person who committed the crime?
• Who will be able to ID the suspect in court (Do you have good suspect description notes?

“Matching Descriptions”

Police often ID the accused by saying that he “matched the description” of the suspect. This is NOT sufficient to link the accused to the crime. If you have ID’ d the suspect based upon description articulate the following

• Clearly articulate the details of the description of the suspect provided by the witness or dispatch (or observed in the video)
• Clearly articulate the details of the description of the party you arrested
• Compare the “similarities” between the two (or more) descriptions and explain why these similarities (and perhaps other factors) provided you with reasonable grounds for arrest or reasonable suspicion for detention

Intention – Intent – Defence will claim actions were careless, accidental or by an impulsive reflex action.  Document the facts which support deliberate intent on the part of the accused.

Knowledge – Defence will claim accused had lacked knowledge of a key element. For example…

• The accused did not know the other party was a police officer
• The accused did not know the credit card was stolen
• The accused did not know the guns were in his car

Wilful Blindness – When anticipating a defence argument regarding a “lack of knowledge” police should consider using the term “wilful blindness” to express an obvious lack of common sense, and a choice to remain ignorant, in the face of the facts you articulate

Recklessness – Seeing the risk but still taking the chance

Section 34 – Self Defence

34. (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances.

Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person’s role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person’s response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

No defence

(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully

Plain English – Factors from Section 34

Describe the type (nature)of the force used

• Pushing, slapping, closed fist, threats etc.
• Number of strikes
• Duration of incident

Describe how dynamic was the situation

• Sudden and violent, vs. slow and simmering
• Were options other than violence pursued

Describe the person’s role in the incident;

• Did the victim consent
• Did the victim provoke the incident

Did any parties use or threaten to use a weapon?

Describe the size, age, gender and physical capabilities of the parties involved

Is there a history between the parties?

• Previous incidents Reported/Unreported, nature of these incidents
• Describe the nature of the relationship
• What were the events leading up to the incident

Was the use of force proportional to the factors of the situation?

Did (or may) any of the parties claim self defence, defence of property  (Section 34 or Section 35 CCC)

1. Objective facts in support of claim