Tricks, Trash and Privacy
- February 14, 2020
- Heather Ferg
Canadian constitutional law is replete with tricks and schemes conjured by the police to elicit incriminating statements, gain access to private information and seize physical evidence from unwitting targets. The police may passively surveil our daily activities or stage chance encounters with undercover officers. They can pose as almost anyone and blend into daily life. Hundreds of thousands of dollars may be spent to orchestrate elaborate Truman Show type ruses to groom and manipulate a target for months on end.
Although many police techniques involve intrusions into areas that intuitively feel “private,” s 8 of the Charter of Rights and Freedoms, which protects Canadians against unreasonable search or seizure, may not be engaged. The contours of the law may be illustrated by two related topics: (1) the doctrine of abandonment; and, (2) the legal distinction between tricks and dirty tricks.
1. Taking Out The Trash
Garbage can be a treasure trove of clues about one’s health, finances and personal habits. When an item is left in a public trashcan or set out on a curb for collection, the usual assumption is that it will be taken off for municipal waste processing. Not necessarily.
As decided by the Supreme Court of Canada in Patrick, state actors are free to dress up as garbage collectors and then seize and comb through our trash. This investigative technique, known as a “garbage grab,” is routine – particularly in drug investigations. The items seized can paint a vivid picture of the lives of a home’s occupants. In addition to discarded food, consumer products and medications, investigators look for documents that might establish proof of occupancy and financial status. In drug cases, they will also be on the look out for so-called “score sheets” that record drug transactions, discarded packaging materials they can swab and sandwich baggies with their corners nefariously snipped off.
In law, it does not matter if the garbage bags are still technically on private property. Once an individual has done everything required to commit their garbage to the municipal collection system, it is abandoned in the eyes of the courts. Any ongoing expectation of privacy (i.e. the assumption that the garbage will be anonymized by being mixed with everyone else’s) is apparently not objectively reasonable. (p 582) Put plainly, picking through someone’s garbage does not qualify as a search for s 8 purposes.
Discarded items may also be a source of one of the most private types of personal information: DNA. While practically, officers must take care to ensure specimens are collected in a manner that avoids tainting, human secretions, clippings, shedding and exfoliation are all fair game when they are naturally sloughed off or thrown away.
In Delaa, undercover officers set up at a gas station and pretended to conduct a “gum survey.” They had their target chew four pieces of gum and then spit them into Dixie cups to “avoid littering.” In an “impromptu move” one of the female officers also offered him a taste of the lollipop in her mouth. He sucked on it and returned it to her. DNA was recovered.
In Love, the police were attempting to obtain a DNA sample from a person of interest in a homicide investigation. Two young undercover officers befriended him. The hope was that through “friendly intimacy” they would somehow obtain a sample of his bodily tissue. The three of them adventured around British Colombia, travelling and partying. On one occasion, they threw a party to watch pornography. The hope was that they could induce “masturbatory fantasies” and Mr Love would take matters into his own hands. The ploy was unsuccessful, but luckily for the police, Mr Love ended up blowing his nose some time later. The tissue was seized and the operation terminated.
Mr Love brought a number of Charter motions and several aspects of the investigation were found to be problematic. The actual seizure of the tissue did not violate the Charter because it had been discarded in a wastebasket.
2. The “Dirty Tricks” Doctrine
Just as s 8 will not protect us from carelessly leaving our DNA lying around, it will not protect us from unwittingly allowing state agents into our private lives.
In Canadian law, undercover operators can pretend to be almost anyone. They can use disguises, cover stories and fake scenarios to manipulate targets. They can develop deep and intimate (albeit insincere) emotional connections with unsuspecting dupes. When the state uses false pretenses to insert itself into someone’s life, the constitutional implications of the scam are typically assessed using s 7 principles rather than s 8.
Section 7 of the Charter guarantees everyone the right to life, liberty and security of the person and the right not to be deprived except in accordance with the principles of fundamental justice. Section 7 will be violated where state conduct is so egregious that it constitutes an abuse of process.
In assessing whether state conduct rises to an abuse, the courts draw a distinction between regular tricks and dirty tricks. The origins of this analysis are found in Rothman v The Queen; a pre-Charter ruling of the Supreme Court of Canada. There, Justice Antonio Lamer held that “the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules.” Rather, resorting to tricks and deception may be necessary when dealing with “shrewd and sophisticated criminals.” What the Courts should suppress, however, is conduct that shocks the conscience of the community. (p 697)
In the post-Charter era, the common law dirty tricks doctrine has largely been subsumed by s 7 and the jurisprudence governing the doctrine of voluntariness. Trickery and distasteful state conduct will only rise to an abuse of process where it is egregious, seriously undermines trial fairness or undermines the integrity of the justice system. Once there is a finding of abuse, the question turns to remedy and the case usually turns on whether the impugned conduct is bad enough to warrant a stay of proceedings.
In Rothman, the court gave examples of tricks that would shock the community. They included pretending to be a prison chaplain to take confession, pretending to be a duty counsel lawyer or injecting a diabetic with truth serum by pretending it was insulin.
While police conduct has been challenged in numerous cases since Rothman, the vast majority of these challenges have been unsuccessful. Two examples are the Ontario case of R v Welsh and the British Colombia case of R v Haevischer. Welsh involved targeted trickery and Haevisher involved the targeted manipulation of witnesses.
(a) The Fake Obeahman
In Welsh, an undercover officer posed as an Obeah spiritual advisor as part of a homicide investigation. Obeah is a belief system commonly practised in the Caribbean that is centered on mysticism and spiritualism. According to the evidence at trial, an Obeahman is a practitioner of the faith who counsels believers, prescribes and conducts rituals, and is thought to be able to bridge and influence the natural and spirit words. (paras 25-30)
In the course of the investigation, the police targeted Pinnock and Robinson who were persons of interest in the homicide. They also targeted Robinson’s mother to gain access to the suspects. The fake Obeahman’s role was to elicit statements and stimulate conversation on a wiretap.
The fake Obeahman police officer met Mrs Robinson after the police staged an accident involving her car. He spoke with her numerous times and gained her trust. He offered her spiritual services and indicated he could protect her and her children. He wore black gowns and lit candles during their meetings. He used elaborate props such as eggs with red dye to simulate blood and they conducted “rituals” at the murder scene.
Following the rituals, the police left a dead crow on Mrs Robinson’s front porch to demonstrate that the fake Obeahman’s powers were working. She was also given a white handkerchief to use as a “protective device” against the police. She was later pulled over in a staged traffic stop and when she took out her handkerchief, the officer who stopped her pretended to be so sick that she had to help him back to his cruiser. (para 34)
The narrative developed by the fake Obeahman was that an evil spirit had been created when the deceased was killed and the spirit was trying to harm Robinson, Pinnock and Mrs Robinson. The spirit was working to send the authorities after them and the Obeahman was working to counter it. In the final scenario of the investigation, Mrs Robinson was arrested. Robinson was told by the fake Obeahman that the reason for his mother’s arrest was that she had not given him information that he asked for. He told Robinson that he needed to provide more information to avoid falling victim to the same evil. Robinson provided more information and was subsequently charged with murder.
At trial, the admissibility of the statements to the undercover officer were challenged on a number of grounds including freedom of religion, the right to equality and the “dirty tricks” doctrine. None were successful.
On appeal, the Ontario Court of Appeal found that any interference with freedom of religion was “trivial or insubstantial” and no equality rights had been violated. On the “dirty tricks” argument, the court held that the relationship between the fake Obeahman and the accused did not qualify as a “priest-penitent” relationship because of the “corrupt purpose” underlying their dealings. The court reasoned that because the parties did not reach out to the Obeahman “to fulfill a religious purpose or spiritual need” but rather, in the hope he would “use his powers to thwart the police and the justice system,” the situation was not akin to the confessional example in Rothman. (paras 101-106)
The court did not provide a detailed analysis or explore the potential nuances of the test for a corrupt purpose. Nor did the court discuss how it would apply where an arguably sincere spiritual ritual also happened to insulate an accused from prosecution. For example, it is not clear how the exception would operate if an undercover bishop were to take the confession of a priest where that priest knew full well that his confession would result in the incidental perk of his immediate transfer out of the jurisdiction. In any event, the appeal from conviction was dismissed.
While one’s religious beliefs and spiritual practices are undoubtedly intimately private spheres, state interference will not necessarily engage s 8. With respect to s 7, it appears that the exploitation of one’s religious beliefs will be tolerated by the courts so long as one is seeking divine intervention for improper purposes.
(b) Falling For The Right Cop
Suspected criminals are not the only ones vulnerable to targeting and manipulation. Loved ones and associates of persons of interest may become embroiled in large-scale police investigations with serious consequences for their lives and emotional well-being. They can be selected as collateral targets for the specific purpose of exploiting their vulnerabilities and have their lives turned upside down as a result. A particularly outrageous example of this can be found in R v Haevischer.
The police implemented a strategy called “moving witnesses” as part of the investigation into the Surrey Six murders in British Columbia. The police believed that members of the Red Scorpions were responsible for six execution-style killings and developed a plan to target the gang’s “female associates” (i.e. girlfriends) in an effort to shift their loyalties from the group to the police.
The strategy was to create or take advantage of existing stress in the targets’ lives and then “play to their needs and weaknesses (their need to belong, damaged childhoods, insecurities, and addictions)” in the hope they would be “impressed by the right cop” and turn. The plan was that the officers would “dismantle” the womens’ existing relationships and then replace them with their own “close relationships.” The witnesses they “developed” in this fashion were largely required to leave their former lives and rebuild alone. It turned out (surprise, surprise) the witnesses “proved unable to effectively recreate lives for themselves” and “required near constant attention/support.” (para 32)
Sgt Derek Brassington, one of the lead investigators, was responsible for ensuring the safety of one of the women. He developed a “close relationship” with her including a sexual relationship that lasted several months. When his superior, S/Sgt David Attew, found out, there were no repercussions. Rather, S/Sgt Attew condoned the conduct, partied with them and had sex with one of the witness’ friends. S/Sgt Attew also had sexual relations with a second Crown-protected witness.
Two other officers, Cpl Johnston and Cpl Michaud were aware of Sgt Brassington’s relationship and did nothing. They also “engaged in sexual activities” with the witnesses under Sgt Brassington’s protection. When their conduct was discovered, all four officers gave false statements.
Eventually, the Superintendent overseeing the investigation found out about Sgt Brassington’s behaviour. He directed Sgt Brassington to have no further contact with the witness but did not take any other immediate steps. Eventually, the officers were fired and faced criminal charges including breach of trust, obstruction and fraud (in relation to false expense claims). (paras 121-133)
As a result of this and other conduct, the accused brought an application for a stay of proceedings. They argued that this, together with other alleged Charter violations, amounted to an abuse of process that would shock the conscience of the community. The application was unsuccessful.
The court held that there was nothing inherently shocking or abusive in the “moving witnesses” strategy. In coming to this conclusion, Justice Catherine Wedge cited the evidence of an Inspector on the case who described the plan as “aggressive and unorthodox,” but claimed it was necessary because the targets were gang members themselves or had relationships with gang members. The take-away from this ruling appears to be that the police are free to exploit the weaknesses, “damaged childhoods,” addictions and vulnerabilities of anyone they consider “hostile” to their purposes.
With respect to the officer’s misconduct (i.e. the sexual relationships, lying, misuse of funds, etc.), the Justice Wedge characterized the officer’s actions as egregious. She held that while their misdeeds could constitute an abuse of process, a stay of proceedings was not warranted in all of the circumstances. (paras 124-153)
Last month, Sgt Brassington pled guilty to breach of trust and obstruction. He was sentenced to two years less a day to be served in the community.
Tricks and ruses are a staple in effective policing. They can complement excellent investigative work and are often carried out in a thoughtful and constitutionally-compliant manner. However, when the police decide to interfere with your religion or steal your girlfriend, s 8 will not protect you.
In considering the foregoing cases, it is interesting to contemplate the interplay between these cases and the basic underpinnings of human dignity. For better or worse, the state’s conduct reflects our collective values – each case says something about what is or is not “garbage,” what is or is not disposable, and about what kind of collateral carnage will be tolerated as the cost of doing business.
Finally, it is extremely important to remember that absent some scandal or whistle blower, the only cases that see the light of day are the ones in which charges are ultimately laid. This can lead to the false sense that only so-called criminals are targeted or otherwise vulnerable. Not so.