TPS-IT Resources: Usage and Auditing

• Using TPS-IT resources for personal, commercial, financial gain, or political causes is prohibited.

Systems Auditing and Monitoring

• The TPS reserves the right to access system information without prior notice for lawful purposes.
• These purposes include facilitating work in a member's absence, routine technical administration, auditing system use, investigating improper use or misconduct, and complying with legal obligations.
• By using TPS-IT resources, members accept the TPS's right of access and waive any expectation of privacy.

Definitions

• Authorized User: individuals with access to Toronto Police Service's IT resources (permanent members, contractors, volunteers, temporary members, consultants, and third-party personnel).
• Workplace Technology Device (WTD): any computing end-user device with its own operating system that connects to a network (workstations, mobile devices, photocopiers, laptops, monitors, fax machines, external media storage devices, printers, telephones, and handheld ticketing devices).
• Information Supplied Technology (IT) Resource: any system, service, hardware, and network resources owned by or available to authorized users of the Toronto Police Service (networks, network devices, communication applications, software, WTDs, and internet access).
• Confidential Information: all police information used for official business, including privileged information, third-party information, personal information, and any information collected or derived from TPS records protected by MFIPPA, YCJA, or other laws.
• Personal Devices and Technology: telecommunication equipment not issued or authorized by the Service.

Case Law Review

R v. Grant 2009 SCC – Investigative Detention and RTC

• Summary: In 2003, undercover officers in a high-crime area found Mr. Grant suspicious and asked a uniformed officer to speak with him.
• The uniformed officer asked Mr. Grant for his name and ID, and Mr. Grant adjusted his coat, causing the officer to ask him to keep his hands in sight.
• The undercover officers joined, flashed their badges, and blocked Mr. Grant's path.
• The uniformed officer questioned Mr. Grant who admitted to carrying a gun, resulting in his arrest and being informed of his rights.
• Decision: The Supreme Court ruled that Mr. Grant was arbitrarily detained, violating section 9 of the Charter, and his right to a lawyer was also violated, per section 10(b).
• The Court allowed the gun as evidence and dismissed Mr. Grant's appeal, despite these breaches.

Summary of Reasons of the Supreme Court

• The SCC examined the moment of Mr. Grant's detention because it triggers the Charter rights under sections 9 and 10(b).
• The Crown argued detention began at arrest, but Mr. Grant argued it was when he was told to keep his hands in sight; the SCC agreed with Mr. Grant.
• The SCC aimed to balance police effectiveness with individual rights, defining detention as a police intrusion on physical or psychological liberty.
• Detention is self-evident if physically restrained, but psychologically, it occurs when someone feels legally obligated or reasonably believes they cannot leave.
• Courts consider the specific facts of each case from the accused's perspective, including the circumstances, police conduct (tactics, length, tone), and the stopped individual's characteristics (stature, age, minority status, sophistication).
• The SCC acknowledged police need to conduct everyday functions without accidental detentions, reaffirming that normal interactions don't require the right to counsel.
• Detention is only justifiable with reasonable and probable grounds of criminal activity.
• Arbitrary detention violates section 9 of the Charter.
• When detained, individuals have the right to contact a lawyer. Mr. Grant was only given the opportunity after formal arrest.
• SCC found his 10(b) Charter rights were violated because he wasn't given the chance to speak to a lawyer after being psychologically detained.
• Section 24(2) of the Charter prevents the use of evidence obtained from Charter breaches if it brings the administration of justice into disrepute.
• The Supreme Court articulated three avenues of inquiry to determine whether evidence should be excluded.
• These include assessing: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the accused's Charter rights, and (3) society's interest in the case's adjudication.
• The SCC decided the evidence shouldn't be excluded, deeming the Charter violations not flagrant and the officers as acting in good faith.
• The Court noted the public interest in punishing gun-related crime and determined that the gun was essential evidence, which outweighed the exclusion of the evidence.
• The Court concluded that the gun should be admitted as evidence.

R v. Jordan 2016 SCC – Right to Be Tried Within a Reasonable Time, 11(b)

• The Supreme Court of Canada introduced a new framework for timelines of what qualifies as a reasonable time to trial.
• Jordan's charges were dismissed after waiting over four years for his trial.
• Criminal trials should be completed or have a completion date within 18 months for provincial court or 30 months for superior courts.
• The Jordan decision addresses the "culture of complacency," including unnecessary procedures, inefficient practices, and a lack of institutional resources.
• The onus to avoid delay is on the courts, prosecutors, and defense lawyers.
• I unreasonable delay is found, the court remedy is a judicial stay of proceedings, effectively an acquittal without appearing on the criminal record.
• The timelines for delay begin when the accused is charged.
• Delays over the time limit generally result in charges being stayed, unless the Crown establishes the delay is reasonable due to exceptional circumstances or complexity.

R v. Prosper 1994 SCC – Implementational Duty of RTC

• Knowledge of statement law, especially for detained or arrested suspects, is essential for investigative interviewers.

• Officers must inform suspects of their right to legal counsel and silence and may need to provide a "Prosper warning."

• A Prosper warning is required if a suspect asserts their right to counsel and then changes their mind after reasonable but unsuccessful efforts to contact counsel.

• Police must explicitly inform the detainee (again) of their right to a reasonable opportunity to contact counsel and of the police duty to hold off questioning until such an opportunity has been provided.

• Communicated elements should include:

  • Right to remain silent.
  • Right to a reasonable opportunity to consult legal counsel, despite initial wish.
  • Because of the change of mind, duty to advise again of right to speak to a lawyer.

• Until certain if they wish to speak with a lawyer, legally obligated not to attempt any statement.

• Failure to provide a Prosper warning isn't a "technical" violation of the Charter.

• The Prosper warning is meant to ensure individuals frustrated in their attempts to exercise their right to counsel do not give it up too easily.

• Where a suspect waives their right to silence, they do so voluntarily and with knowledge of the consequences of that choice, if required.

R v. Stinchcombe 1991 SCC - Disclosure Obligations

• There was a case where a lawyer was charged with breach of trust, theft, and fraud.

• The lawyer's former secretary was a crown witness at the preliminary inquiry, where she gave favourable evidence for the defense.

• Statements were taken from the secretary after the preliminary inquiry but prior to the trial. Defense counsel were informed of this, but not its content.

• The Crown wasn't going to call that witness to the stand during trial. Counsel sought an order that the witness be called or that the Crown disclose contents of the statements.

• Issue: Was the Crown under an obligation to disclose the contents to the denfense?

• Supreme Court Analysis: the Crown has a legal duty to disclose all relevant information to the defense.

• The Crown cannot use its investigation for securing a conviction; it's for justice.

• Discretion must be exercised with respect to timing and relevance of information.

• The Crow's discretion is reviewable by the judge.

• Initial disclosure should occur before the accused is called to elect the mode of trial or plead.

• Crown counsel had no justification in refusing disclosure, as whether is witness is credible is for the trial judge to determine after hearing the evidence.

• Holding: the Crown has a legal duty in disclosing information (exculpatory or inculpatory) to the defence. The Crown also has discretion with respect to timing and relevance of information.