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Posts from the ‘Law enforcement’ Category

CHEK News – Insensitive and Gratuitous

Most journalists work in their profession for noble reasons. Most of them intend to do the right thing. But sometimes – just like some police officers – they become jaded and numb to what they see on a regular basis. Media outlets are uniquely positioned in terms of their ability to inform millions of people. A gratuitous and insensitive decision by a journalist can lead to more grief and trauma, and foster a more cynical society.

The following has been submitted to the Canadian Broadcasting Standards Council in relation to a CHEK News segment that was broadcast on September 11, 2017:

Dear Sir or Ma’am,

I am writing to express my concern and disappointment regarding the decision by CHEK News to broadcast security camera footage of a fatal motorcycle collision.

The news clip even included a close up / enhanced replay showing [graphic description of collision removed].

The clip was broadcast on the 5pm news. No viewer advisory was shown before the clip. The clip currently remains on the CHEK News web site: [link removed]

Following the CHEK News broadcast, the police department investigating the collision took the rare and unusual step of publicly criticizing CHEK News by posting the following message on Twitter:

@Saanich Police: “Can’t believe you obtained the video & then aired the death of someone on your newscast. Insensitive to the #yyj family, friends & coworkers”

I wish to echo the concerns expressed by the Saanich Police Department.  It is one thing to show the aftermath of a collision, it is another matter entirely to broadcast the serious injury or death of a motorcyclist on the air.

I note that in a decision released earlier this year, the Canadian Broadcasting Standards Council determined that a violent sci-fi show should be broadcast at 9pm instead of 8pm. The CBSC also determined that the show required viewer advisories. I would respectfully suggest that the same criteria – at a minimum – should apply to a community television station that wishes to broadcast the death of a real person who lived in that very same community.

I believe that CHEK News violated the following provisions of the Canadian Association of Broadcasters Violence Code (1993):

6.1 Broadcasters shall use appropriate editorial judgment in the reporting of, and the pictorial representation of violence, aggression or destruction within their news and public affairs programming.

6.2 Caution shall be used in the selection of, and repetition of, video which depicts violence.

6.3 Broadcasters shall advise viewers in advance of showing scenes of extra-ordinary violence, or graphic reporting on delicate subject matter such as sexual assault or court action related to sexual crimes, particularly during afternoon or early evening newscasts and updates when children could be viewing.

Please note that I am submitting this complaint as a concerned citizen. These are my own personal views and they do not represent the official views of any organization or employer.

Thank you,

David Bratzer

Criminal harassment and the word “repeatedly”

A creepy guy stalks the same woman for thirty minutes every day for three days in a row.

A creepy guy stalks a woman for ninety minutes continuously on a single day.

Which scenario – if any – constitutes criminal harassment?  Section 264(1) of the Criminal Code describes a range of harassing behaviour:

264 (1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

Prohibited conduct

(2) The conduct mentioned in subsection (1) consists of
(a) repeatedly following from place to place the other person or anyone known to them;
(b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them;
(c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or
(d) engaging in threatening conduct directed at the other person or any member of their family.

So what does the word “repeatedly” mean in the context of criminal harassment? Does it mean at least twice?  Three times?  Well, in R. v. Venn, 2014 ABPC 284, the Court expressed a more nuanced view:

[26] The Ontario Court of Justice (General Division) in R. v. Belcher (1998 CarswellOnt 192), 50 O.T.C. 189, considered the nature of the ‘following’ that is required to found the charge under the subsection in question. At paragraph 20 the court summarized the authorities stating that the repeated ‘following’ contemplated by the section describes conduct that occurs more than once.

[27] However, the ‘following’ need not occur over and over again separated by any particular amount of time. Rather, the meaning in the criminal law context means “persistently” following. The court stated that focussing on persistent following “which demonstrates resolve to do so”, would help avoid criminalizing innocuously following another person even if annoying or prolonged.

In R. v. Ohenhen, 2005 CanLII 34564 (ON CA), the Court of Appeal for Ontario found that sending two letters over the span of 18 months constituted “repeatedly communicating”. In examining past case law, the Court rejected suggestions that “repeatedly” meant three or more:

[17] I do not interpret these reasons to say anything other than that in the circumstances of that case the three incidents which were the subject of the charge were sufficient to meet the charge of “repeatedly communicating”. The statement that “three communications would seem to be the minimum number sufficient to justify being described as ‘repeatedly'” was nothing more than a Crown submission and was not specifically adopted by the court.

The Court went on to examine Belcher and other cases in a detailed manner, and ultimately reached this conclusion:

[31] In my view, the dictionary definitions of the words “repeat” and “repeated”, from which the adverbial form “repeatedly” is derived, lead me to conclude that conduct which occurs more than once can, depending on the circumstances of the case, constitute “repeated” conduct or conduct which is “repeatedly” done and the section is met. In my view, it is unnecessary that there be a minimum of three events or communications. “Repeatedly” obviously means more than once but not necessarily more than twice.

[32] While one instance of unwanted conduct can be sufficient to satisfy s. 264(2)(c) and (d), it will not be sufficient to satisfy s. 264(2)(b). More than one instance of unwanted conduct will be necessary to meet paragraph (b); however, in my view, there is not and should not be any minimum number of instances of unwanted conduct beyond this to trigger these subsections. Provided the conduct occurs more than once, in my view, the actus reus can be made out. It will be a question of fact for the trier in each case whether there has been repeated conduct. The approach is a contextual one. The trier will consider the conduct that is the subject of the charge against the background of the relationship and/or history between the complainant and accused. It is in this context that a determination will be made as to whether there has been repeated communication. On the facts of this case, it was clear that neither of the communications could be characterized as i nnocuous or accidental. In the context in which they were made, these two communications would be [page581] sufficient to constitute “repeatedly” communicating as set out in s. 264(2) (b). In my view, it was entirely appropriate for the trial judge to use the standard charge language on this point.

[33] Although not in issue on the facts of this case, trial judges should be cautious in using the standard charge language in all cases. It seems to me that defining “repeatedly” as being more than one communication is not always appropriate. In some cases, the jury will have to consider the context in which the communications were made, the intent of the accused and possibly other factors to determine whether the communications were repeatedly made or were innocuous or accidental. Perhaps a more appropriate instruction would be to advise the jury that communication that occurs more than once can constitute repeated communications depending on the context and circumstances in which they were made.

The Court of Appeal for Ontario upheld the conviction for criminal harassment and found the sentence to be appropriate:

[41] Lastly, the appellant requests leave to appeal his sentence and if leave is granted, appeals on the basis that in all the circumstances, his sentence is overly harsh. Counsel advised the court that he has served his sentence.

[42] The appellant was sentenced, in effect, to three years’ imprisonment. After being given credit for the time he spent in pre-trial custody, he was required to serve a further 18 months. The sentence was to be followed by two years’ probation. The appellant has an extensive record dating back to 1990; it includes weapons offences, aggravated assault, assault with a weapon and at least four convictions for uttering threats. In my view, the sentence was manifestly fit in all the circumstances and I would not interfere with it. In view of the fact, however, that the sentence has been served, I would deny leave to appeal sentence.

My takeaway from all of this? There is no magic number of incidents required for criminal harassment to have occurred.  Victims do not have to be followed for a minimum of three separate times. Nor do there have to be a minimum of three separate communications.

Canadian Police College Library

Last week I was in Ottawa for a conference. I stayed at the Canadian Police College and I had a chance to visit their library.

If you like police hats, this is the place to be:

Canadian Police College Library in Ottawa

Canadian Police College Library in Ottawa

The library had all the Criminal Codes, dating back almost 40 years. Look at how things have changed between 1979 to 2017.  The page count of Martin’s Annual Criminal Code has doubled.  And the text is more dense.  Today the law is more complex and there is more case law:

Criminal Code from 2017 vs 1979

Criminal Code from 2017 vs 1979

The Criminal Code has doubled in size over the past 38 years

The Criminal Code has doubled in size over the past 38 years

Before leaving Ottawa I paid my respects at the RCMP National Memorial Cemetery:

RCMP National Memorial Cemetery

RCMP National Memorial Cemetery

A new RCMP police academy for British Columbia

Note: Permission is granted for the following essay to be reprinted in any newspaper, provided the author info and disclaimer at the end remains intact.

Since 1885, the RCMP has been training recruits at “Depot,” its police academy in Regina, Saskatchewan. While the quality of instruction is not in doubt, Depot’s monopoly on training new officers could be hurting our national police force.  British Columbia needs – and deserves – its own RCMP recruit academy.

“E” Division is responsible for all provincial and federal policing in British Columbia. It also provides municipal policing services, on a contract basis, to 63 municipalities across the province. About one third of all RCMP officers work in E Div. That’s more than 7000 officers, making it the largest division in the Royal Canadian Mounted Police.

Yet time and time again, there are media reports of staffing shortages. These shortages have real impacts on sworn officers, civilian employees and the communities they serve. It is, perhaps, not surprising that the yellow stripe protest originated in British Columbia. This protest has quickly developed into the largest police labour action in Canadian history.

Would officers still be wearing their yellow stripes if every detachment in BC was fully staffed? It’s tough to say. But what we can say is that a new police academy would improve recruiting and training outcomes. It would provide municipalities with confidence that detachment vacancies will be filled. It would create a more diverse candidate pool. And it would send a signal that the RCMP is changing.

Imagine your dream is to become an RCMP officer. You grew up in Kelowna, earned a degree from the University of Victoria, and now you live and work in the Lower Mainland. You’re excited by the Force’s existing commitment to allow you to return home to BC after graduation from Depot.

But there’s a problem: You’re in a new relationship, and you’re not sure it will survive a long-term absence. Or, maybe you have an aging parent whom you’re not in a position to leave for months at a time. Perhaps you have young children of your own. There are all kinds of reasons why someone can’t pick up and move across the country for six months.

Facing this dilemma, would you apply to the RCMP? Or would you apply to a municipal police department in British Columbia? My own choice, made over a decade ago, was the latter.

The winter in Regina certainly doesn’t help. At one point this week – the middle of April – it was minus five degrees Celsius, with winds of more than 20 km/h. And it snowed!

The end result is that instead of hiring the very best candidates, the RCMP is hiring the best candidates who are able to move to Regina.

There is a better way for our province. Pacific Region Training Centre, located in Chilliwack, is the most logical place for a new recruit academy. It is currently used by the RCMP to offer advanced courses to law enforcement agencies across Western Canada. In 2015, the facility opened a $20 million, state-of-the-art indoor firing range. The 60 acre campus has onsite living accommodations for over two hundred students.

Alternative locations include the new E Division Headquarters in Surrey, as well as the Justice Institute of British Columbia in New Westminster. So there are suitable places that exist now. This doesn’t have be a big project involving land acquisition, zoning, construction, etc. The first recruit class could be up and running in ninety days.

British Columbians are headed to the polls on May 9th. During the campaign it is important to discuss positive solutions to challenges faced by the RCMP. For more than 130 years, Mounties have been trained in Regina. Depot is a place that is steeped in honour and ceremony. Now it is time for the RCMP to create new history, and new traditions, by adding a second recruit academy.  Right here in British Columbia.

David Bratzer is a police officer in British Columbia. He is a certified police candidate assessor as well as an experienced field training officer. The opinions expressed in this essay are his own personal views and do not represent those of his employer.

Using 810.1 and 810.2 peace bonds to reduce violence in Canada

The document Handbook for High-Risk Offenders – A Handbook for Criminal Justice Professionals was published in 2001 by Public Safety Canada. Although dated, it provides a basic description of 810.1 and 810.2 peace bonds:

On August 1, 1997, Bill C-55 came into effect and created the section 810.2 order. The 810.2 order focuses on violent offenders, including sexual offenders. Both of these sections are designed to be preventative and not punitive, hence, it is not necessary for an offender to have a previous criminal record in order to qualify for one of these orders.

These orders can be made for a maximum of one year [this has since been extended, in some circumstances, to two years]. Conditions can be attached to these orders and a breach of an 810 order constitutes an offence. These orders are quite broad in their application, as a crime need not have been committed and the potential victim need not be named. Should a defendant refuse to enter into an 810 order they can be imprisoned for up to one year.

Two of these orders, 810.01, (When fear of a criminal organization offence); and 810.2, (Where fear of a serious personal injury offence) require the consent of the Attorney General of the province, or if in the territories the consent of the Attorney General Canada, to proceed. Each of the 810 orders has standard conditions set out in the Code. In each case the court will consider whether to impose these conditions based on the interests of society and the interests of the safety of the potential victims. The court also has the discretion to impose any additional conditions it sees fit as long as these conditions meet the test of reasonableness. Additional conditions are commonly applied to 810.1 orders (Where Fear of a Sexual Offence) and to 810.2 orders (Where Fear of a Serious Personal Injury Offence).

The British Columbia Supreme Court ruled in R. v. Baker (1999) [B.C.J No. 681 (B.C.S.C.)] that it is not necessary for the informant (the person who has the fear) to have had contact with the defendant in order to lay an information under section 810.2.

Generally, while the conditions associated with 810 orders do impose some restrictions on the defendant, they should not prevent the defendant from leading a reasonably normal life. See R. v. Budreo (1996), 104 C.C.C. (3d) 245, 45 C.R. (4th) 133 (Ont. Ct. (Gen. Div.)), affd (unreported, January 19, 2000, Ont. C.A., Court File No. C23785).

In my view, these peace bonds are an important tool. Used properly, they can reduce violence and keep potential offenders out of jail.

Here are some of the more important cases I’ve been able to find about 810.1 and 810.2 orders:

R v. Boone, 2007 MBPC 15
This case is useful for its examination of various conditions that can be applied under 810.1 and 810.2 orders.

R. v. J. S. H., 2017 BCPC 12
The Court declined to order an 810.2 for the defendant. Most of the Defendant’s criminal record was as a youth, and his last criminal conviction was five years ago. He spent 14 months on a recognizance of bail pending the 810.2 hearing, and his conduct during that time was upstanding. Of note, at para 21, there is a list of examples in case law where orders have been made under section 810.2 even though the Defendants had similar periods of compliance with their bail orders.

R. v. Nikal, 2016 BCSC 29
This was a provincial court decision appealed to the BC Supreme Court. The BC Supreme Court found that the original judge did not have to articulate imminent harm (para 42). All that was necessary was for the evidence to show that apprehension of the risk is reasonably grounded and is neither speculative nor remote (para 40).

R. v. Fendley, 2013 BCPC 194
The Court granted an 810.1 order even though the Defendant had no criminal record for sexual offences (para 5). The Court also found there was no requirement for the Informant to prove “serious and imminent danger” (paras 20 – 28). The reason this language is important is that a much earlier court decision from another province suggested that “serious and imminent danger” was required (even though this language was not present in the Criminal Code).

R. v. Baker, 1999 CanLII 15135 (BC SC)
The hearing judge need only find on the balance of probabilities that there are reasonable grounds that the appellant will commit a personal injury offence (para 44).

R. v. R.H.G.M., 2010 BCPC 434
This case resulted in a peace bond with comprehensive conditions, including a curfew, a red zone and a no alcohol condition (paras 31 – 34). The Defendant had a criminal record dating back to 1988. He had amassed approximately 30 convictions, including a three year federal sentence for aggravated assault.

R. v. Penunsi, 2015 CanLII 64020 (NL SCTD)
Section 515 of the Criminal Code (judicial interim release) applies to proceedings on an Information laid pursuant to s. 810.2 of the Criminal Code.

R. v. Burton, 2013 ONSC 4531
This case resulted in a substantial sentence for breaching an 810.2 order. In addition to a lengthy jail sentence, the offender also received a probation order with a comprehensive and innovative list of conditions.