Criminal Law News: More COVID Changes
By Geoffrey Read
Check The Marshall Project article by Eli Hager, published in partnership with USA Today, that you can find at https://www.themarshallproject.org/2020/07/20/your-zoom-interrogation-is-about-to-start for a look at how COVID-19 is changing how police question suspects and witnesses. It’s American but one would expect that Canadian police are reacting similarly. It’s reported that police departments are rapidly changing how they conduct interrogations because during a pandemic, being within six feet of a stranger—especially for a prolonged period of time in a small, under-ventilated space—can be deadly. Police have traditionally extracted confessions by getting right up in the suspect’s face in confined interrogation rooms but now they are increasingly conducting interviews of suspects, witnesses and victims out in the street and six feet apart, instead of indoors.
Incidentally, let’s start calling them interrogations rather that the milder “interviews” that the police invariably use. Remember that when they speak to their witnesses and alleged victims they use a “soft” room with homey furniture, windows and so forth, but when it comes to suspects or accused it’s the windowless “hard” room with barren walls and spartan furnishings. Police use euphemisms to help their case, like when they say they “assist” the accused they’ve just frog-marched to the police car, or describe their forcible entries as “dynamic”. Nomenclature matters, so don’t acquiesce to the police vocabulary when advocating for your client.
Whether they’re doing it by telecommunications like ZOOM or a couple of metres apart on the street or at opposite ends of conference tables, Mr. Hager reports that some police miss physical proximity that they rely on to intimidate suspects into ostensible tell the truth, or to read their facial expressions and eye contact for what they claim are clues as to whether they are lying, not to mention the masks that are now largely required during interrogations which further hamper this sort of nonverbal information-gathering. Interrogators are taught to present known facts—to tell the suspect that it is known that they were at a certain place at a certain time—and then to see if the person reacts by finger-tapping, toe-tapping, looking away, or getting evasive or angry, but without those signals it can be more difficult to know where to go with the next question.
On the other hand, Mr. Hager notes that studies have shown police are not as good at reading as they think they are and that there is expert opinion that this conventional wisdom about interrogations, widely taught at police academies and passed down among cops, is mostly pseudoscience. He quotes James L. Trainum, a former long-time homicide detective in Washington, D.C., and an expert and consultant on interrogations and confessions as saying “Police have a confirmation bias going on: They’re looking at a suspect as a suspect. A person could be experiencing anxiety for a completely different reason, like the fact that they are being interrogated by the police.”
Mr. Hager makes the point that beatings that were once a legally acceptable interrogation method gave way to the prevailing Reid interrogation technique in which the interrogator starts with the assumption of a guilt and then work to corner the suspect physically and psychologically. It was pointed out in the April 2017 Journal that Wicklander-Zulawski & Associates, one of the largest police consulting firms in the United States, announced that it will stop training detectives in the method and only use it to educate police on the risk and reality of false confessions. Mr. Hager now reports that it is accelerating its ongoing transition to teaching more non-confrontational methods of questioning suspects, quoting Wicklander vice president of operations Dave Thompson as saying that cops were historically trained to invade someone’s physical space to increase their anxiety: “That style was hopefully already beginning to be eradicated, but what’s happening with COVID is accelerating that”. He noted that manipulative tactics meant to make interviewees feel physically vulnerable and therefore dependent on their interrogator’s mercy are more likely to make them feel they need to make a false confession.
Now, more outdoor interrogations could mean more public oversight of police which in turn promotes ethical conduct and accountability. Chief Inspector Frank Vanore In Philadelphia says the department’s practice now is to take many statements in the field with a body camera recording, in order to preserve people’s statements and that “We’ll probably continue this practice even after the pandemic is over, because we’re getting to question people on the scene when their memory is fresh and before they clam up about coming in to talk to us”. He noted the main exception is in the most sensitive cases that need to be inside to be sure of confidentiality. Likewise, greater reliance on videoconferencing between the rooms of a police station should leave little legal excuse for not recording and thus let courts to see for themselves just what was said and whether a confession was fairly obtained, not to mention that the police can use their best interrogators even when they can’t be there in person.
The provincial and federal Crown have revised their policies for a lot of offences to reduce the incidence and the severity of prosecution. This started when the pandemic hit and has now been reduced to writing. The principal driver was – and no doubt remains - to alleviate the congestion in the courts wrought by the postponement of cases due to Covid-19 and to mitigate the adverse effects of the resulting delays.
Provincially, take a look at the Ontario Ministry of the Attorney General’s “Covid-19 Recovery” policy, effective August 14, 2020, that can be found at page 153 of the Crown Prosecution Manual. You can find it at https://files.ontario.ca/books/mag-crown-prosecution-manual-en-2020-08-14.pdf. Amongst other things, it says:
re charge screening
The Prosecutor should also consider the following: 1. the impact of the COVID-19 pandemic on an accused, victim or witness in light of their age, physical health, mental health or special vulnerability 2. the disproportionate impact of the COVID-19 pandemic on racialized, marginalized, and Indigenous communities (e.g. an increase in the frequency of discriminatory or hate-related offences during the COVID-19 pandemic) 3. the disproportionate impact of the COVID-19 pandemic on vulnerable accused persons, including racialized, marginalized and Indigenous accused (e.g. not having access to accommodations or supports that normally exist) 4. whether the offence was motivated by the COVID-19 pandemic (e.g. taking advantage of closed businesses or people’s fear of infection) 5. whether the charge is an offence against the administration of justice, such as a breach of court order, where the restrictions imposed by the COVID-19 pandemic impacted an accused’s ability to comply with the court order 6. the length, delay and expense of a trial when considered in relation to the seriousness of the offence and specifically taking into consideration the current COVID-19 court restrictions and future limitations on court operations.
The Prosecutor and Crown Attorney or designate should also consider the following factors: 1. impact of the COVID-19 pandemic on the accused, including loss of job, health consequences, additional child-care and education responsibilities, working from home or significant financial constraints 2. the disproportionate impact of the COVID-19 pandemic on vulnerable accused persons, including racialized, marginalized and Indigenous accused (e.g. not having access to accommodations or supports that normally exist) 3. whether the offence was motivated by the COVID-19 pandemic (e.g. taking advantage of closed businesses or people’s fear of infection) 4. frailties in the prosecution e.g. staleness of the case, including the delay in prosecution as a result of the COVID-19 court limitations 5. whether a just result is accelerated by a referral to a community-based sanction taking into particular consideration any delays caused by the COVID-19 pandemic.
In reviewing alcohol impaired driving cases, Prosecutors may consider the impact of the COVID-19 pandemic as an exceptional circumstance justifying the withdrawal of the Criminal Code driving offence in exchange for a guilty plea to the Highway Traffic Act (HTA) offence of careless driving.
Federally, check section 5.13 “Prosecution of Possession of Controlled Substances Contrary to s. 4(1) of the Controlled Drugs and Substances Act” in the Public Prosecution Service of Canada Deskbook. You can find it at https://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/index.html. Amongst other things, it says:
1. Resort to a criminal prosecution of the possession of a controlled substance contrary to s. 4(1) CDSA should generally be reserved for the most serious manifestations of the offence (described in paragraph 3 below).
2. In all instances, alternatives to prosecution should be considered unless they are inadequate to address the concerns related to the conduct, including in the following circumstances:
a. The possession relates to a substance use disorder. In particular, alternatives to prosecution should be pursued where the offender is enrolled in a drug treatment court program or a course of treatment provided under the supervision of a health professional, including those involving Indigenous culture-based programming, peer counselling, and abstinence-based recovery centres;
b. The offender’s conduct arises from a violation of a bail condition and can be addressed adequately through a judicial referral hearing;
c. The offender’s conduct can be adequately addressed through an approved alternative measure or a measure that is consistent with the principles contained in Chapter 3.8 of the PPSC Deskbook governing alternative measures;
d. The offender is an Indigenous person and their conduct can be addressed through an Indigenous restorative justice response; or
e. The offender’s conduct can be addressed through a restorative justice response.
CELL PHONE SEARCHES
The Supreme Court of Canada held in R. v. Fearon that police may, incident to arrest, search a cell phone that is not password-protected or otherwise locked to a limited extent and in accordance with some strict judicially imposed Charter s. 8 requirements. What about password-protected or otherwise locked cell phones?
The American courts have been divided on the question of whether a person can be compelled to disclose the code to access the contents of the phone. Timothy B. Lee recently wrote an article on this, which can be found in the Ars Technica Web site at https://arstechnica.com/tech-policy/2020/06/indiana-supreme-court-its-unconstitutional-to-force-phone-unlocking/.
He was commenting on the Indiana Supreme Court case of Katelin Eunjoo Seo v. State of Indiana, Supreme Court Case No. 18S-CR-595, decided June 23, 2020 and that can be found at https://www.eff.org/document/state-v-seo-opinion. The Chief Justice succinctly the ruling in the first two paragraphs of his opinion:
“When Katelin Seo was placed under arrest, law enforcement took her iPhone believing it contained incriminating evidence. A detective got a warrant to search the smartphone, but he couldn’t get into the locked device without Seo’s assistance. So the detective got a second warrant that ordered Seo to unlock her iPhone. She refused, and the trial court held her in contempt.”
“We reverse the contempt order. Forcing Seo to unlock her iPhone would violate her Fifth Amendment right against self-incrimination. By unlocking her smart phone, Seo would provide law enforcement with information it does not already know, which the State could then use in its prosecution against her. The Fifth Amendment’s protection from compelled self-incrimination prohibits this result. We thus reverse and remand.”
Mr. Lee wrote that:
“The courts are divided on how to apply the Fifth Amendment in this kind of case. Earlier this year, a Philadelphia man was released from jail after four years of being held in contempt in connection with a child-pornography case. A federal appeals court rejected his argument that the Fifth Amendment gave him the right to refuse to unlock hard drives found in his possession. A Vermont federal court reached the same conclusion in 2009—as did a Colorado federal court in 2012, a Virginia state court in 2014, and the Massachusetts Supreme Judicial Court in 2014.”
“But other courts in Florida, Wisconsin, and Pennsylvania have reached the opposite conclusion, holding that forcing people to provide computer or smartphone passwords would violate the Fifth Amendment.
Lower courts are divided about this issue because the relevant Supreme Court precedents all predate the smartphone era...”
He drew specific attention to the U.S. Supreme Court case of United States V. Hubbell (99-166) 530 U.S. 27 (2000) that can be found at https://www.law.cornell.edu/supct/html/99-166.ZO.html.
The key issue was that the prosecutor’s subpoena to Hubbell lacked particularity. It asked for broad categories of documents and relied on Hubbell to figure out which documents met the criteria prosecutors provided. By combing through the documents Hubbell provided, prosecutors were able to find evidence to charge Hubbell with mail fraud and tax evasion. Hubbell argued, and the court agreed, that the prosecution violated his Fifth Amendment rights, since he’d been compelled to provide the evidence used to prosecute him. Indiana’s Supreme Court says the same principle applies when a suspect is compelled to unlock a smartphone. By unlocking her phone, Katelin Seo would be giving prosecutors access to files they didn’t know existed and might not be able to access any other way.
We would do well to be mindful of, and learn from, this developing U.S. jurisprudence, for it was said in Vespoli v. Canada, 1987 CarswellNat 548, 1987 CarswellNat 892,  1 C.T.C. 25,  2 F.C. 125, 15 F.T.R. 128, 8 A.C.W.S. (3d) 6 that
“Finally, the U.S. precedents submitted by counsel for the respondent must be considered in the manner described by Chevrier, J in Hall v. Campbellford Cloth Co.,  O.W.N. 202 at 206 (Ont. High Court):
American decisions ... might be considered, not as binding authority, but as “intrinsically entitled to the highest respect”, as said by Parker J in Doe d DesBarres v. White (1842), 3 N.B.R. 595 (quoted by Ritchie C.J. in Sherren v. Pearson (1877), 14 S.C.R. 581 at 587).”
PRE-TRIAL DETENTION NOT TO EXCEED SENTENCE
Finally, notwithstanding that Hamilton Criminal Lawyers Association members were already told about it by Michael Puskas, it’s such a useful practice case that R. v. G.P., 2020 ONSC 3240 (CanLII) bears mentioning again in the Journal. It was a detention review pursuant to s. 525 of the Criminal Code.
Schreck J. asked (in para. 1) “What happens when there are secondary ground concerns about an accused person but he or she has already spent time in custody that is equivalent to or greater than any sentence he or she would receive if convicted?”. His answer (in para. 3) was “The following reasons explain why I am granting the application. Although I have secondary ground concerns and concerns about the adequacy of the proposed plan, in my view there is a significant risk that if he is not released, the applicant will serve more time in custody than he would be sentenced to if found guilty. The principle of proportionality in sentencing requires that a sentence be as long as necessary to make it proportionate to the gravity of the offence and the moral blameworthiness of the offender, but no longer. In my view, that principle is an important factor in this case which tips the balance in favour of release.”
Geoffrey Read is a sole practitioner in Hamilton. He is certified by the Law Society of Ontario as a Specialist in Criminal Law.
He can be reached at:
20 Hughson Street South, Suite 612