Just as Ms Soapbox was fretting over Prime Minister Harper’s decision to appoint former CSIS director Richard Fadden to the newly created post of National Security Advisor she received an invitation from Assentio Mentium.
Assentio Mentium is a program offered by the U of C law school to engage lawyers, alumni, academics, business people and students on current legal issues.
This month’s offering? Anatomy of a Homicide Investigation. At last! A chance to pull back the curtain and find out what homicide investigations are really like.
Alain Hepner QC
Detective Matt Demarino, a seasoned and highly entertaining investigator, kicked things off with an overview of the investigative process. Assistant Chief Crown Prosecutor Susan Pepper, provided thoughtful comments and Alain Hepner, QC (that rumpled legend of the defence bar) spoke on behalf of the suspect—known in the defence world as the “client”.
It quickly became apparent that in an ideal world a properly conducted homicide investigation serves in justice and protects the suspect’s civil liberties.
The investigation…in an ideal world
A homicide investigation is triggered when uniformed police “push the big red button” after attending at a crime scene and determining a homicide has taken place.
Calgary police believe in “front end loading”. Forty to 200 investigators are sent to the scene. They identify witnesses and take them back to headquarters to be interviewed.
The investigation team members are assigned based on their position “in the chute”. The team includes a team commander who briefs the media and runs interference with senior management, a primary investigator with overall responsibility for the investigation, a file coordinator to manage the documentation including the “disclosure” to defence counsel and a scribe who maintains a chronological record of the investigation.
Investigators lock down the site, visit the nosy neighbours, gather footage from commercial and residential security cameras and obtain warrants to access the crime scene, telephone records, computer files, etc.
The team works out of the Board Room which looks like an ordinary board room but for the graphic pictures plastered on the walls and the TV monitors hooked up to the closed circuit cameras in the interview room.
The interview…in an ideal world
A suspect must be charged or released within 24 hours of his detention. He’s advised of his rights and, if he has an ounce of common sense, calls his lawyer.
He’s interviewed by an interviewer who is “matched” to the suspect in an effort to build rapport (an athletic suspect gets the fit cop not the fat cop). The interview is observed by the 20 or so investigators holed up in the Board Room.
The interviewer presents all the evidence—fingerprints, security camera footage, witness statements—and asks the suspect for an explanation. The objective is to get admissions, large or small, that will unlock the bigger picture.
While it’s legal for interviewers to continue to question suspects even if they refuse to respond, interviewers cannot lie (saying your DNA was found on the body when it wasn’t) or use oppressive tactics to force a false confession.
“No comment”
Ms Pepper, the Crown prosecutor, says suspects naturally want to defend themselves against accusations and provide their side of the story. Defense counsel Mr Hepner strongly advises his clients to say nothing to the police.
Some listen, others don’t. A skillful interviewer can get the accused to describe the homicide, re-enact it on closed circuit TV and offer a video-taped apology to the victim’s family which will be given to the family after it’s presented in court.
A matter of degree
The panelists agreed that an innocent person is rarely charged with murder. The real issue is a matter of degree—first degree, second degree or manslaughter. What a suspect says, how he says it, his little lies and the half-truths will shape the charges he’ll be facing. The “wrong” degree can result in 15 additional years in prison.
A less than perfect world
Unfortunately we don’t live in an ideal world. Homicide investigations go off the rails. Investigators get tunnel vision, mistakes are made, evidence is misplaced, exculpatory evidence is discounted and disclosure to the defence is incomplete.
Recent terrorist attacks have made the real world (or at least our perception of it) more treacherous. The elements of human fallibility and ambition that can drive a homicide investigation into the gutter will be bolstered by Mr Harper’s decision to enact new laws giving the police and security forces greater powers of detention, surveillance and “preventative arrest”.
Not surprisingly the police are on board. RCMP Commissioner Bob Paulson says the law needs to change because the police currently cannot charge anyone who has yet to commit a crime.
Mr Harper is bringing national security under his direct control. He’s appointed Richard Fadden, former head of CSIS, as his new National Security Advisor. Fadden is responsible for domestic and international security. He’s long been focused on old fashioned, low tech lone-wolf attacks.
Fadden is convinced that “the elites” and media see terrorists as “quasi-folk heroes” and view acts of terrorism as instances of “revolutionary charm”. Really???
Harper and Fadden are taking steps to protect dewy-eyed Canadians from themselves; but before they beef up the police state they should ask us whether we’re prepared to pay the price—reduced civil liberties in exchange for the perception of enhanced security.
Not everyone believes the trade-off is worth it. Consider this. Next up on the Assentio Mentium program is The Contemporary Relevance of the Magna Carta. Excellent choice. Has there ever been a better time to reflect on rulers who govern by vis et voluntas (“force and will”) under the doctrine of the divine right of kings?
Susan on the Soapbox 
Thanks, Susan. It was great to see you there!
All the best,
Ian
Dr Ian Holloway QC Professor and Dean of Law The University of Calgary 2500 University Drive NW Calgary, AB T2N 1S4
+ 1 403 220 3347
@LawDeanHolloway
law.ucalgary.ca
Sent from my iPhone
Thanks Ian, it’s not often that you get three great speakers plus breakfast for $15. Unbelievable value!
Thank you Ms Soapbox for sharing the details of a homicide investigation. Very interesting. And lawyers getting a free breakfast? Who knew? Looking forward to your thoughts on the relevance of the Magna Carta (seriously).
Dr. Anonymous, not QC, not Anybody.
Dr Anonymous, lawyers love a free breakfast…and free videos. Thanks for the link!
“…or use oppressive tactics to force a false confession.” Perhaps this is just unfortunate wording, Susan but it rather implies two things. Firstly, it suggests that oppressive tactics necessarily lead to “false” confessions or, secondly, the tacit suggestion that it’s OK to use oppressive tactics to force “true” (as opposed to “false”) confessions. I am relatively certain that you weren’t intending to suggest either!
You might have written, …”or use oppressive tactics to force confessions that will almost always be ruled inadmissible.”
I fully realize that you are simply summarizing the content of the seminar and using “broad strokes” but this stuff is chock full of legal nuance and layers upon layers of jurisprudence. For example, you comment that, ” While it’s legal for interviewers to continue to question suspects even if they refuse to respond, interviewers cannot lie..” Prior to the Charter, the predominant case with respect to evidence gleaned from “forceful interrogation” or “unfair collection of evidence” was R Vs Wray [1971] S.C.R. 272. which allowed such evidence so long as it passed the classic test of voluntariness.
Post-Charter, eventual jurisprudence relating to s. 24(2) required the exclusion of all evidence obtained “…in a manner that infringed or denied any rights or freedoms guaranteed by this Charter”, if it was established that, “…the admission of it in the proceedings would bring the administration of justice into disrepute.”
Although there is no specific general right associated with the public receiving frank disclosure from the police, I think the idea of “bringing the administration of justice into disrepute” properly remains a guiding principle. Regardless, there is no question that this approach was seized upon by myriad defense counsel hoping that Charter-related errors or other impropriety on the part of the police investigation itself would result in the exclusion of evidence prejudicial to their clients under s.24. Which, in many cases, it did!
Unless you can set me straight (which I am sure you will!) I was still under the impression that the case that informs the issue of police “trickery” is R vs Oickle [2000] S.C.C. 38. “There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community. In such cases, the confessions should be excluded.”
So, for me, the test was always about whether the nature and/or circumstance of any potential “trickery” was “so appalling as to shock the community”.
I think the Supreme Court says it best in Oickle:
:
“Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession. When reviewing a confession, a trial judge should therefore consider all the relevant factors. The judge should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confessions voluntariness, taking into account all the aspects of the rule. The relevant factors include threats or promises, oppression, the operating mind requirement and police trickery.”
In other words, even in the shadow of a lie, the exclusion of evidence at trial is not absolute. It is up to the Court to decide and its more often going to be decided on the issue of voluntariness rather than the Charter.
Unless I have completely misunderstood (which is a distinct possibility) you have used the Homicide Investigation Seminar as a vehicle to comment on infringement of individual legal rights. You take several “shots” in this respect where I was not always convinced you had established a solid nexus.
There was, however, mention of a potentially very serious infringement of individual legal rights about which you failed to comment at all.
Regardless of what Mr Paulsen may want, the idea of creating new Criminal Code charges relating to “about to commit” is, in my opinion, a far more frightening potential attack on individual rights than on some of the other things on which you focus. Without prescient beings (as depicted in fiction like Minority Report) I’m not sure exactly how you could charge someone for something they haven’t actually done (the mens rea without the actus reus if you will). A power of arrest for “about to commit a criminal offense” already exists and there are laws in relation to conspiracy.
Admittedly, post-Charter, conspiracy is an extremely difficult charge to successfully investigate and prosecute. I am also assuming (admittedly, I am not “up” on it) that there is now anti-terror legislation that might also be helpful. Rather than create new law, however, it might make more sense to liberate some of the laws of evidence that would make the application of existing law (the vast majority of which was drafted pre-Charter) so that it might be more practically and effectively pursued.
Given the tone of your blog, I can understand why you may not find that approach agreeable!
Joe, thank you for your excellent comments. You’re right. My intention was to use a very informative seminar on homicide investigation as a launching pad for a discussion of Harper’s new and improved anti-terrorism laws. A high-level administrator at CSIS says that like it or not, anti-terrorism is going to be the major file in 2015. If this is the case we need to pay close attention. Ironically Fadden says we need a nuanced (whatever that means) discussion of the topic, but I very much doubt we’re going to get one. Instead we’ll see Harper capitalizing on fear to push through legislation that will put tremendous power into the hands of the police and security forces. As I note in the blog, in an ideal world the existing legislation gives the police great power, I shudder to think what’s on the horizon under less than ideal circumstances.
I’m sure you’ve got it right in your analysis of what constitutes a voluntary confession. This aspect of the presentation elicited a number of questions from defence counsel in the audience. One said that the homicide detective’s description of his interview tactics sounded a lot like the Reid interview technique–as a corporate lawyer I had no idea what he was talking about but when I googled it, I could see the similarities.
Thanks for sharing your analysis. My posts are about 1000 words long (apparently that’s the limit of a reader’s attention span), so I’m delighted when readers can build on it and develop the concepts even further.
Thank you for considering my comments with an open mind. I was rather concerned that you would “come back at me”, but you obviously don’t suffer from that kind of insecurity. This makes it much easier to have a frank discussion.
I was simply concerned that your readers might think the admissibility of statements in law was more “black and white” than it actually is. Each time I read blog comments associated with news articles I am amazed at the armchair quarterbacks who express dangerous misunderstandings regarding the law.
I do appreciate your concerns about new law. Especially new law drafted when the public is frightened or vulnerable.
Several years ago I contributed to a Provincial Federal & Territorial Committee considering legislation to combat identity fraud and data breach. This was a good time to pass new law; people were scared.
The practical, legal problem in addressing identity and data fraud was that “information” didn’t fit well into the preexisting Criminal Code sections for Theft and Possession of Stolen Property (among others). The simple solution would have been to amend the definition section(s) at the front of each affected Criminal Code Part to make information/data something that was capable of being stolen.
Rather than take this approach, the drafters created new and very “legalistic” new sections that the average prosecutor (never mind investigator) can’t help but struggle with. This results, of course, in useless law that nobody attempts to enforce or prosecute.
So here is my point Susan; don’t worry about the Fed making new law that will violate people’s rights. Inevitably, they mess it up by overreaching, or through their own inability to be clear and reasonable. In this respect (although you might find this hard to believe) societies best line of defense are the police themselves who often take one look at such crap and stick it under their blotters.
Where I sense that you and I may disagree is with respect to law (which is predominately either case law or common law) that deals with the collection of evidence and its admissibility. I think you see this as the front-line of individual rights protection. Ironically, draconian rights-crushing new legislation is often proposed because of the failure of existing law. More often than not, however, existing law fails not because it is inadequate, but because there is an inability to fairly and reasonably collect the evidence needed to satisfy the elements of the offense, a weakness that is inevitably only amplified in proposed “new and improved” legislative initiatives.
Joe, we will probably “agree to disagree” on whether Harper’s new anti-terrorism laws are a concern, but we likely agree on the need to view Harper’s new laws with a healthy dose of scepticism. I really hope Canadians will pause before they jump on the “we’re all gonna die” bandwagon and consider the price we’re being asked to pay for an increase in security that may or may not be quantifiable. Interestingly, even Stockwell Day (not exactly a shining star in the political firmament) suggested Harper should proceed with caution because every increase in security is accompanied by a decrease in freedom in what or another.
I look forward to continuing the discussion when Harper finally unveils his legislation.
We will undoubtedly have more to chat about then!
While we debate back and forth about legal details. While we organize conference after conference the reality is harder and harder to accept and deal with. Another RCMP officer shot in the head by someone that even the RCMP commissioner does not understand how he is free. Honestly neither do I. I am not even going to mention this criminal’s record because when I was reading it I thought I was having a nightmare.
Parallel to what is happening politically we seem be losing our common sense and have buried our heads in the sand and refuse to look at reality in the face. We all seem to be playing the violin while our moral and ethical framework burns to the ground. We all became debaters and experts but we forgot the basics. People are getting hurt while we all push our petty interests and ideologies forward for the win.
Carlos, I agree with you on Shawn Rehn killing Constable Wynn. It defies reason. How could a man with Rehn’s criminal record be re-arrested and then released in the face of a parole board assessment that said his “crimes are continuous and increasing in seriousness”? And how pray tell, was he able to get his hands on a weapon? Something is seriously out of whack with the administration of justice in this case.
With respect to Harper’s anti-terrorism legislation, the issue for me is the need to understand what Canadians are being asked to give up in return for what they’ll be getting in the way of enhanced security. Analysts in Canada and the US agree that the lone-wolf terrorist is the most difficult type to capture. Seems to me we need to think about where lone-wolfs come from (socially, not necessarily geographically) and how best to head them off at the pass without putting the entire population under Minority Report-like surveillance.
Carlos you’ve lived under a variety of political regimes; you have a unique perspective and I welcome your thoughts on this.
Susan, I may indeed have a unique perspective like many other Canadians that were born outside of Canada and in many cases went through some disastrous revolutions or life changing events that changed their views on many complex issues like this one. I am not going to attempt to get on an almost legal discussion you are having here with Joe because I just do not have the background to feel comfortable in what I have read so far. I do not even like it at all. I am a great proponent of simplicity and I truly believe that any issue can be discussed without the exaggerated verbosity that in many cases is used to scare way people that do not have the access to that kind of specialized language. I also have in mind one the greatest definitions I have ever heard that to me is quite correct – One knows more and more about less and less until one knows everything about nothing.
In any event I just want to tell you that from my experience, I am way more concerned about people than I am about law. It is people that make wars horrible. In a high tech war like the ones we are now involved frequently, the guided missiles and the bombs that go down 5 floors are always easier to live with because they clearly destroy everything killing everyone in the process. On the other hand the rapes, torture, decapitations…etc is a completely different story. I believe the same applies in the political sphere. The fact that we live in a democracy has not stopped Stephen Harper from behaving like a dictator. In fact Harper has been involved in events that I did not witness when I lived under a dictatorship. Muzzling scientists is something I had never experienced before. Refusing to talk about euthanasia or abortion is another example. In Brazil in the 1970s there was a very healthy debate about abortion despite the fact that the Catholic Church did its best to stop it. The type of pressure I experience with this government is unacceptable. This is the reason I have commented before that we have our heads in the sand big time. We are falling behind in many fronts under the belief that ‘we have the best in the world’ trash conversation that takes us nowhere. We are slowly becoming an extremely conservative country, with a dubious democracy and very little to offer.
Why am I saying all of this? Well I think that any law related to as a complex issues as terrorism versus civil liberties under Stephen Harper is something I am very worried about. He has shown time and again that he has no concerns challenging whatever is necessary to impose his will, even going as far as insulting the Supreme Court which I believe in Canada has shown without a doubt to be one of the few institutions with a lot of Common sense and great respect for Canadians. It is not by accident that they have the highest approval rate in Canada. In summary, I have no doubts that if the Conservatives win the next election with their usual majorities of 39% percent, they will change Canada to an even deeper pseudo democracy where human rights will be curtailed for good. The writing is definitely on the wall.
…exaggerated verbosity…Hmmmm…that certainly hurt…
I did not mean it personally. That is the way certain professions use language.
Lawyers and Judges are probably one of the worst examples, but certainly not the only ones.
I apologize if you took it personally but that was not at all my intention. I was referring to the issue in general.
You and Susan can continue discussing the way you have been but to me that is what that sounds like. I have no interest or capability of discussing with that language. I may have been blunt and if so I apologize for that as well.
Susan asked for my thoughts and that is the only reason why I replied.
Carlos and Joe, I think both types of discussions are important. I sincerely hope that the Canadian Bar Association and various civil liberties groups take a good hard look at Harper’s proposed legislation in the context of our Charter rights, the existing Criminal Code provisions and the case law and explain the impact of Harper’s changes. Then I would expect writers (hopefully I’ll be one of them) to explain the implications of these changes to the general public in clear, easy to understand language and link them to the fact that this is just the latest in Harper’s effort to remake Canada in god-only-knows-whose image. I think this is the point Carlos was making–while we professionals talk about the nuances of the new legislation, all Canadians must understand the implications of what Harper has done and continues to do to destroy democracy in our country. The next election will be critical.
“it is clear that there needed to be more engagement and discussion to prepare Albertans for this change.”
This is what Danielle Smith has said today about the floor crossing.
The more this people rationalize the worst it gets.
Prepare Albertans for what Ms. Danielle? To accept your corrupted mind? To accept lack of character? To accept opportunism?
Albertans should be preparing their politicians for some real corruption free politics very soon.
These people really have guts and above all think that we are stupid.
Good Luck Danielle but I think your days as a politician are in the past.
Very interesting Carlos. Looks to me like Ms Smith is throwing herself on the mercy of her constituents, both WR and PC, with the tried and true technique of “The Political Apology”. She’s quoted as saying “I am sorry to Wildrose members and supporters that I was unable to make the Wildrose a viable, governing alternative.” Why would she even say such a thing? The WR were only 6 points behind in the polls after the four by-elections. She would have scored big time by attacking Prentice’s statements about the unprecedented oil price drop (which wasn’t unprecedented) and his flip flop on the sales tax and progressive tax, etc. But she joined him instead and gave up the right to speak (except on her FB page where this goofy statement appeared).
As you say, politicking at its worst.
Yes it is interesting indeed. The spin has started and the best is yet to come.
Danielle Smith just like many other politicians in Alberta has stabbed democracy right in the stomach but this kind of politics is going the way of the Dodo.
The noeconservative assault on the middle class and on real democracy is slowly losing steam and the process will accelerate. After years of mental buildup Greece has finally put some meat on the bone. Hopefully they will be able to give a big push to a different type of politics. The oligarchy in Europe is I am sure out with all they have to supress them but somehow I think this is going to be the beginning of the end for those that have been trying very hard to enslave the rest of us into an economic and social cul de sac. Europe will not be the same starting today.
Carlos, I too was watching the election in Greece. Very interesting indeed. One has to wonder why countries continue to buy into the IMF austerity program when its been demonstrated not to succeed. After five years Greece’s economy shrunk by 25% and the French were sending in a charitable group of doctors (who normally work in Africa and Asia) to treat severe malnutrition in children and adults. No wonder the Greeks decided they’d had enough.
Yes it is ridiculous but fine for those imposing it.
It is not going to be an easy task because we all know what happens when one challenges the oligarchs but somehow I have hope this one is going to make a big dent. Just take a look at this video from the future minister of finances in the new government by the name of Yanis Varoufakis
The media is already on the attack with the words ‘Radical Left’ as many times as possible because of course this process has to stop no matter what but I still have some hope because these people know what they are doing and being called a radical is nowadays a good thing because one has to be a radical to confront the ultra conservatism that is solidly established.
I certainly do not mind being called a radical because if you are not one these days, you do not really know what is really going on.
Carlos, I’m working my way through the video. Very thought provoking. You make an excellent point about the media (owned by large corporations) using labels to scare people so they won’t vote for any party but the conservative party. Labels are like short hand, purporting to describe a political belief, but more often than not doing it inaccurately. The progressive parties, particularly the NDP, are painted out as reckless wasteful parties intent on “confiscating” the wealth of hard working people to pay for idle bums who can’t be bothered to work and therefore don’t deserve a penny. So what can we do? I like your solution which is: stand up for your beliefs and don’t be cowed because someone labels you with the epithet “radical”. I myself am delighted when people label me as a left leaning activist.
Carlos I just finished the video…the “troika” must be trembling in their boots wondering whether Yanis Varoufakis and Alexis Tsipras will implement Varoufakis’ 100 day plan: (1) attend to the humanitarian needs of the dispossessed and (2) enter into negotiations with the European Central Bank, Germany (EU) and the IMF who Varoufakis says is not happy with the severity of the austerity program forced upon Greece and other small countries. If they’re successful it will certainly start a domino effect that will be felt all over the world.
Yes the video is indeed thought provoking and more. It is wonderful to know what these people believe in and what their objectives in their political lives are. I cannot say the same about our government who many times dismisses people like Varoufakis as a left wing nut, but have absolutely nothing to offer. Stephen Harper has been in power 9 years and never once made a speech about anything of interest to the country. I still do not know what this man believes in other than the market and balanced budgets, which by the way he has never accomplished. In 9 years we have not heard a word about Health Care, education or anything else. All I know is that he likes free trade agreements that are approved by him alone and just like a good dictator, he forces them on to us whether we like them or not. His opinion is what matters. Joe Oliver has said nothing other than ‘we have a balanced budget’ despite the fact that only him can see it.
There is zero engagement with Canadians. It is not surprising when one of their objectives is reduce government to the point of irrelevancy. I have asked myself what do they have in mind to replace it with but I am not sure they know themselves. No wonder that people like Danielle Smith, with the same schooling as Harper, crossed the floor from the opposition to the government side of the House.
I am not surprised that you feel delighted when people call you a left leaning activist. I would too. Unfortunately people that I deal with on a daily basis do not feel comfortable talking about politics especially of the left wing nature. Alberta has a left wing self imposed censorship that has been diluted in the last decades but still very much felt even in Edmonton. Not surprising when even our premiers talk about people on the left as if they have some kind of brain deficiency.
.
See Susan this is what Harper’s values are
http://www.huffingtonpost.ca/2015/01/27/immigrant-investor-program-canada_n_6553054.html
Seriously? I am supposed to be proud of this?
Carlos the link to Harper’s “immigrant investor” program sums it up nicely, doesn’t it. Harper thinks the answer to everything is having more millionaires, presumably under the trickle down economic theory that worked so well under Reagan and Thatcher (sorry, sarcasm). So he’s re-instituting a program that research demonstrates was a failure (such immigrants “were less likely than other immigrants to stay in Canada over the medium to long term…and contributed relatively little to the Canadian economy, earning very little income and paying very little tax.”) The article also says it was riddled with fraud. Brilliant, (sorry, more sarcasm).
Well first of all it is immoral to me that one donates citizenship for investment. This to me just means that if you are rich you can have Canadian citizenship anytime. No wonder the Canadian passport is the most abused in the world in terms of fraud. If Canadians are willing to sell their citizenship for money then what kind of respect do we have for it?
It is this kind of disrespect for citizenship and for our democracy that I find absolutely insane coming from a party that says to be Conservative. Conservative of what? They are basically making our citizenship a prostitution ring. By the way this is not sarcasm this is exactly what I think.
Matters like this should never ever be decided by a person or even a government. This is too important to be left in the hands of nuts like these guys seem to be. These are matters for national referendum. As a citizen I do not want any of my representatives to make decisions at this level. This should actually be enshrined in the Constitution.
As far as being a failure, yes but that is what this government has done over and over. They get all the programs that have failed around the world and apply them here. Maybe because just like teenagers they think that everyone else is stupid and they can do better. Frankly I feel embarrassed of this government. There is bad government and there is devious government.
Last night I heard an interview in the Current about the relationship between the Press and Harper and it is nothing short of mind boggling. Here is the link
http://www.cbc.ca/thecurrent/episode/2015/01/28/the-battle-between-the-harper-government-the-ottawa-press-corp/
Carlos, I just listened to The Current. Great interview with Stephen Maher (PostMedia) and Mark Bourrie (Kill the Messengers). So between the media firing journalists so that fewer and fewer of them do real research and the PM blocking media requests for information, firing the scientists and crippling StatsCan it’s a wonder we know anything at all.