CM . . .
. Volume XXI Number 32. . . .April 24, 2015
Spoiler alert! Fans of the CSI television series, along with its various spin offs and imitators, will find this book to be similar in name only. On television, forensic science enables police and crime lab workers to solve complex cases (both current and cold) in an hour of viewing time (and that includes commercial breaks). Crime Scene Investigations, the third volume in the “Understanding Canadian Law” series, authored by Daniel J. Baum, provides a reality check. Scientific verification of evidence does not necessarily speed up the wheels of justice. Although some of the cases presented in this book do examine the role played by various technological and scientific assists in the determination of the validity of evidence (such as DNA testing, searching the contents of personal computers, hypnotizing witnesses in order to aid memory recall), most of the book’s content focuses on the issue of the degree to which individual rights, as defined under the Canadian Charter of Rights, may be challenged or violated in the course of police investigation of a crime. Even alleged criminals have Charter rights, and, if those rights are violated, he or she may have the right to seek legal remedy and redress, and possibly, compensation of some type.
As with the previous two volumes in the series, the book begins with an acknowledgement of the role of the Supreme Court of Canada’s work, as well as the role the media has in disseminating the Court’s decisions. Baum then provides an “Introduction” to the “intersect between crime scene investigations and individual rights” (p. 11), followed by a short chapter entitled “Who Are the Judges?” which describes the selection process for appointment to the Supreme Court, as well as a brief discussion of the potential roles for personal bias and emotion entering into a judges’s decision, as based on facts presented. Six chapters then follow, each of which focuses on a different issue arising in the course of crime scene investigations. These issues include an individual’s right to legal counsel being present during the course of police interrogation, search and seizure of evidence, police undertaking stop and frisk and pat down of individuals, the validity of evidence gathered from witnesses under hypnotic suggestion, the legal collection of an individual’s DNA for use as evidence, and finally, police accountability for errors in their investigation of a crime, especially in cases where an individual’s Charter rights have been breached.
Anyone who has watched an American crime show has heard the arresting officer read the accused his or her “Miranda rights”. The first chapter of the book, “Police Questioning: Must a Lawyer Be Present?” offers a 60 page examination of the Canadian version of Miranda: an individual’s Charter right to the advice of legal counsel (either a “duty counsel” from Legal Aid or counsel previously retained by the detainee), an individual’s need to assert that right once informed of it, and the outcome of cases where police interrogations (be they “chats” or in depth questioning) are conducted without compliance with the Charter. Somewhat more engaging is the next chapter which focuses on “Unseen Searches”, such as the use of a “thermal imaging device to take a ‘heat’ picture of a home” (p. 83) suspected as being used as a marijuana grow op, the use of secret video surveillance to locate illegal gambling operations, and the question of whether or not an Internet provider (such as Shaw Communications) can provide police with an Internet subscriber’s name, address, and similar information, without the police having obtained a court approved search warrant to investigate charges of possession of child pornography.
Prior to heightened airport security procedures, few of us had ever experienced a “pat down” (feeling the outside of a person’s clothing) (p. 138). But, if you are walking in an area known to be a high crime area and happen to resemble a suspect in a crime that has recently occurred, police might stop you, ask you to identify yourself and then proceed with a pat down to search for a concealed weapon. What if the police reach into your pocket and a stash of some illegal drug is found in your pocket, but no concealed weapon? Can you then be prosecuted for the illegal drug possession? And, more importantly, was the search of your person intrusive enough to be considered a Charter violation? The chapter on “Stop and Frisk and Pat Down” explores these questions, along with the Supreme Court’s rulings on cases where unexpected evidence of illegal activity has been gained in the course of such police behaviour.
Perhaps the most interesting chapter in the book focuses on the use of “Hypnosis: an Aid in CSI”. It is often believed that hypnosis can summon up deep memories and can be a useful aid in the collection of eye witness evidence. In it, Baum describes both the mental and physical states into which the body and mind enter when a person is hypnotized. And, in the ruling written by Justice Marie Deschamps, we learn that, contrary to popular belief, “memory does not work like a tape recorder but, rather, is constructive or additive. Remembering may therefore be a more creative mental process than it is usually understood to be. Given these gaps in scientific knowledge, the admission [as evidence] of post hypnosis memories raises a number of concerns.” (p. 181) Confabulation, the false memories raised in the hypnotic state, can be dangerous if taken as evidence which will lead to the conviction of an individual accused of a crime.
“Law sets out the procedure for police to compel DNA samples in a crime scene investigation. Law also permits the Crown to introduce the results of DNA testing, and it allows courts to consider such results.” (p. 210) CSI style crime shows frequently focus on the use of the use of DNA samples collected from such biological sources as hair, skin cells, or secretions which a criminal may unintentionally leave at a scene of a crime. These sources all contain DNA, and, with the exception of identical twins, each person’s DNA is unique. As a result, DNA serves as a unique identifier, and, as the DNA molecule is highly stable, even evidence gleaned from sources such as old clothing can be used in the course of an investigation to validate an individual’s guilt or innocence of a crime. DNA typing was first used in Britain in 1986, resulting in the exoneration of an individual who was accused of two murders which appeared to have the same modus operandi, and the ultimate conviction of the man responsible for the crimes. However, the conditions for both the collection of DNA samples, their retention as evidence and their subsequent admissibility in a court case all have very specific limitations. DNA typing, and then its matching to an accused individual, is certainly no guarantee of a conviction, and, if the Criminal Code’s provisions for mandating a DNA warrant (i.e. a court order compelling the collection of DNA samples for testing and possible use in trials” (p. 221)) have not been maintained by police, a conviction can be overturned. In short, the science may be an effective investigative tool, but, if the evidence is not collected or used according to the conditions set out by the Charter of Rights, acquittal may be the unexpected and undesired result.
The final chapter of Crime Scene Investigations focuses on those situations in which the police violate an individual’s Charter Rights, either knowingly or not, and whether or not the individual may rightfully sue for damages and receive monetary compensation. The case on which this chapter focuses is that of “an innocent person caught up in a protest crowd.” (p. 253) This precedent setting case involves the unfortunate situation of a Vancouver lawyer who, in 2002, attended a public ceremony in which then Prime Minister Jean Chretien would be participating. Acting on the basis of a “tip” that someone was going to throw a pie at the PM, police arrested the lawyer who vaguely resembled the suspect described by the tipster. As a result of his unfortunate experience of false arrest, strip search, and detention in the Vancouver Police Department’s lock up, the lawyer sued the arresting and corrections officers, as well as the City of Vancouver and the Province of British Columbia. The lawyer sued for breach of both his Charter right to freedom from unreasonable search and seizure (his car was also impounded), and from arbitrary detention. The case went all the way to the Supreme Court of Canada, and, in addition to a “declaration that . . . Charter rights had been violated” (p. 257), the lawyer also wanted monetary compensation. Viewers of American television news know that the awarding of money damages can be the result of judicial outcomes. However, in Canada, the award of “money damages for a Charter violation was a new remedy.” (p. 262) In short, if the police make an error, the accused individual has the right to seek compensation.
As in each chapter of Youth and the Law and Freedom of Expression, Baum offers details of legal cases along with a series of questions about the particular cases under discussion, provides the reader with the opportunity to consider and rule upon a hypothetical case (“You Be the Judge”), poses “Challenge Questions” which further explore that chapter’s central issue, and ends each chapter with a listing of “References and Further Reading” drawn from current media such as The Globe & Mail, as well as academic and law journals, position papers and monographs. The book concludes with a thorough index of the book’s contents. Although the legal cases provided as the focus for each of the chapters contain interesting details and raise significant questions about the Charter rights of those accused (and convicted) of crimes, the extensive and exhaustive discussion of the judicial decisions rendered by the Supreme Court justices make for difficult reading. Baum assumes that the reader has familiarity with the text of the Charter of Rights and that is not likely to be the case for high school students and, in many cases, classroom teachers of Canadian Law. More than in Baum’s previous two volumes in the “Understanding Canadian Law” series, the text often sounded like a lecture transcribed onto paper. “We will follow and somewhat expand upon the path taken by Justice Arbour in setting out the decisions of the Court” (p. 211) is the type of rhetorical transition which a university instructor might make in setting out the direction of a class lecture.
In the final paragraph of the book’s “Acknowledgements” chapter, Baum states that his task was to discuss the judgements of the Supreme Court in a “non judgmental and accessible way.” (p. 10) I believe that he succeeded in being non judgmental, but the book’s content can hardly be described as “accessible” to high school students. It is more suitable for students in post secondary courses in sociology, criminology, and similar areas of study. If considering acquisition of this resource for a high school library as support material for Canadian Law courses in the upper grades, consult with teachers who might use it as a teaching or supplemental resource, have them examine the book’s contents carefully, and then, make a collaborative decision.
Recommended with Reservations.
Joanne Peters, a retired teacher-librarian, lives in Winnipeg, MB.
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