The Constitutionality of the Crown Prosecutor’s Appellant powers under Sections 230.1 and 245(2)National Defence Act were upheld by the Supreme Court of Canada in R. v. Cawthorne, 2016 SCC 32

Appeal Provisions The most recent decision from the Supreme Court of Canada that impacts the sphere of criminal lawyer and the trial practice of Criminal Defence Lawyers is the criminal law case:R. v. Cawthorne, 2016 SCC 32 (“Cawthrowne”).  This case deals with the Government of Canada’s ability to appeal decisions that are favourable to a criminal defendant within the scope of a particular section s. 245(2)(a) of the National Defence Act.

Facts of the Case

It dealt with the possession of illegally possessed (child) pornographic images held by an Ordinary Seaman (a Canadian Military Personal) at or clear Hawaii.  The images came to the attention of another officer when rendering efforts to ascertain the identity of the owner of the indexed phone.   When ‘swiping open’ the iPhone, the images on the screen should the illicit pornographic images.  Mr. Cawthrone was charged with possession of child pornography.  His defence was that the illicit images were inavdertenly on his phone and that he did not possess the requisite mens rea to possession those images (see para. 3) but his girlfriend testified and stated in examination in chief that she had several conversations with him wherein Mr. Cawthrowne stated that he told her that he had been arrested “for having inappropriate images on his phone”.   Furthermore, she also asked what types of images were on his phone. Her response, as she testified, was the following: “He said they were children and I believe that he said they were both male and female.” The Supreme Court of Canada decision relates that the defence lawyer’s cross examination was brief and centered on the theory that there was never an admission from the accused that he actually admitted to any alleged (similarly situated) offence.  The Crown Prosecutor in re-examination queried the girl-friend: “During any of those conversations, do you recall him saying that he did in fact do these things?” She said: “Yes.” (see para. 6).   The criminal defence lawyer, rightfully, objected to question.  The Trial Judge agreed and found her latter response to be inadmissible.  An application was made by the Criminal Defence Lawyer for a mistrial.  The military judge dismissed the motion and gave a further limiting instruction to the panel: I further instruct you that you shall not draw any inference against the accused . . . from that inadmissible evidence because it is both unreliable and prejudicial. I therefore instruct you to completely and absolutely ignore the inadmissible evidence and that you shall evacuate from your mind anything about it Regardless, the panel returned a verdict of guilty on both counts charged. On appeal, a majority of the Court Martial Appeal Court found that the mistrial ought to have been granted and ordered a new trial.

The Appeal by the Government form the Manitoba Court of Appeal granting Mr. Cawthrone’s Criminal Lawyers application to grant the said mistrial.

The Minister of National Defence (the “Minister”) appealed, as of right as per the provision in the National Defence Act, to the Supreme Court of Canada, pursuant to s. 245(2) of the National Defence Act, arguing that the military judge made no error in declining to grant a mistrial. Mr. Cawthrone’s criminal counsel brought a motion to quash the Minister’s appeal, on the basis that s. 245(2), which gives the Minister the authority to appeal to this Court, violates ss. 7 and 11(d) of the Charter. The question on this appeals was whether provisions of the National Defence Act that give the Minister the authority to appeal from decisions of a court martial or Court Martial Appeal Court infringe the right to liberty under s. 7 of the Charter, and if so, whether the limitation is justified under s. 1 of the Charter.It was also argued by criminal defence counsel that the law infringes the right to trial by an independent tribunal under s. 11(d) of the Charter.

Findings of the Court: Minister’s appeal is allowed and Sections 230.1 and 245(2) of the National Defence Act are constitutional

The Court made the following rulings, in representative part, in granting the Minister’s Appeal: The power that ss. 230.1 and 245(2) of the National Defence Act confer on the Minister — that is, to initiate an appeal — may effect a deprivation of liberty. Therefore, s. 7 of the Charter is engaged. The law recognizes as constitutional the principle that prosecutors must not act for improper purposes, such as purely partisan motives. This principle is a basic tenet of our legal system. It safeguards the rights of the individual and the integrity of the justice system, and it satisfies the criteria to be considered a principle of fundamental justice. A prosecutor — whether it be an Attorney General, a Crown prosecutor, or some other public official exercising a prosecutorial function — has a constitutional obligation to act independently of partisan concerns and other improper motives [see: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372, Miazga v. Kvello Estate, 2009 SCC 51, R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, andR. v. Power, [1994] 1 S.C.R. 601] The Minister, like the Attorney General or other public officials with a prosecutorial function, is entitled to a strong presumption that he exercises prosecutorial discretion independently of partisan concerns. The mere fact of the Minister’s membership in Cabinet does not displace that presumption (see para. 32). The law presumes that the Attorney General, also a member of Cabinet, can and does set aside partisan duties in exercising prosecutorial responsibilities, and there is no compelling reason to treat the Minister differently in this regard. Accordingly, Parliament’s conferral of authority over appeals in the military justice system on the Minister does not violate s. 7 of the Charter. As to the argument that the impugned provisions violate the right to an independent tribunal guaranteed by s. 11(d) of the Charter, it cannot succeed. The military judge in [Mr. Cawthrone’s] case did not err in declining to grant a mistrial. Once an error has occurred at trial, a trial judge may, in deciding whether to grant a mistrial, consider whether the error has been or can be remedied at trial. The decision of whether to grant a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised. That discretion is not absolute, but its exercise must not be routinely second‑guessed by the court of appeal.

Section 11(b) of the Charter: A three (3) year delay in proceeding with a criminal trial leads to a stay of proceedings, resulting in all charges against an accused being dismissed.  [June 30, 2016] The Supreme Court of Canada recently decided and added it’s line of case-law on the subject of the right to have a trial within a reasonable period of time in Reginav.Vassell, 2016 SCC 26 [Vassell].   This case considered Section 11(b) of the Charter, infra.  Prior to the Vassell decision, Regina v. Morin, [1992] 1 S.C.R. 771 (“Morin”) andRegina. v. Godin, [2009] S.C.J. No. 26, [2009] 2 S.C.R. 3 (“Godin”), arguably, served as the proverbial yardstick for Courts, Crown Prosecutors and Criminal Lawyers practicing in the fields of all ranges of Criminal Code of Canada offences ranging from TSA Speeding tickets, theft charges, sexual assault, fraud to murder to rendering an assessment as to what would violate a defendant’s right to have a trial without a reasonable period of time. The General Meaning of Section 11(b) of the Charter Section 11(b) of the Charter of Rights and Freedoms guarantees that any person charged with an offense has the right to be tried within a reasonable amount of time.  The primary purpose of section 11(b) is to protect the individual rights of the accused. Section 11(b) has a secondary function of protecting related societal interests.The individual rights that section 11(b) seeks to protect are: 1) the right to security of the person, 2) the right to liberty and 3) the right to a fair trial.  As the Court in Morin explained, these rights are protected by section 11(b) in the following manner:

• The right to security of the person is protected by section 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings;

• The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions; and

• The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is fresh and available.

Section 11(b) also addresses larger societal interests.  These were described by the Court in Morin, infra, as follows:

• Society has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly;

• Trials held promptly enjoy the confidence of the public and have an intrinsic benefit to society as a whole; and

• There is “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to law.”

In general terms, R. v. Godin is the most recent pronouncement from the Supreme Court of Canada on the issue of unreasonable delay.  In Godin, the Court considered the body of case law on the subject (particularly its decision in Morin) and summarized the nature of the section 11(b) analysis in the following manner: [w]hether delay is unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence and then by taking into account the reasons for the delay, the prejudice to the accused and the interests that s. 11(b) seeks to protect. The factors that must be considered in analyzing how long of a delay is “too long” are as follows:

• The length of the delay;
• Waiver of time periods;
• The reasons for the delay, including:
  • Inherent time requirements of the case;
  • Actions of the accused;
  • Action of the Crown;
  • Limits on institutional resources, and
  • Other reasons for delay; and
• Prejudice to the accused.

The significance of Reginav.Vassell, 2016 SCC 26 In my view, the Regina v. Vassell provides more texture and contour to the existing line of jurisprudence and is in line with the Godin and Morin pedigree of cases.  It clarifies, to an extent, the Crown’s role in ensure that an accused persons rights are protected under section 11(b) when dealing with a number of co-accused defendants on the same charge. Mr. Vassell was charged with six (6) other individuals for possession of cocaine for the purposes of trafficking under the Control Drugs Substances Act.  The Crown Prosecutor’s office proceeded, at first instance, against all the co-accused on the same information but eventually only proceeded against Mr. Vassell.   Through criminal counsel, the defendant applied for a stay of proceedings under section 11(b) Of the Canadian Charter of Rights and Freedomsasserting that his right to a fair trial had been violated through, inter alia, the conduct of the Crown’s carriage of the case.   In this case, they found the right to be tried within a reasonable time under s. 11 (b) of the Canadian Charter of Rights and Freedoms  was infringed.   When such an challenge is raised by criminal lawyers under s. 11 (b), the Courts stated it must be careful not to miss the forest for the trees. In this case, the defendant waited three (3) years for a three-day trial. Significantly, the accuseddid not cause any of the delay.  He took proactive steps throughout to have his case tried as soon as possible. Despite his efforts, substantial delay was caused by his co-accused, and the inability of the system to provide earlier dates.The accused’s trial was adjourned twice, and the Crown and the system failed to respond proactively enough to these adjournments to avoid unreasonable delay. In these circumstances, a more proactive stance on the Crown’s part was required.  The Court said the following in representative part at para. 7: “In these circumstances, I believe that a more proactive stance on the Crown’s part was required. In fulfilling its obligation to bring all accused to trial within a reasonable time, the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates. That, unfortunately, is what occurred here. In the last analysis, Mr. Vassell ended up being the sole person out of the initial seven co-accused to be tried. To repeat the words of O’Ferrall J.A., he “waited three years for a three-day trial”. That is unacceptable, and it resulted in Mr. Vassell being deprived of his right to be tried within a reasonable time.” The Crown chose to prosecute all seven accused jointly, as it was entitled to do. But having done so, it was required to remain vigilant that its decision not compromise their s. 11 (b) rights as per the cases of Regina v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, and Regina v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 146. The Vassell case demonstrates the importance of immediately taking, without delay, all reasonable and lawful steps to ensure that your Charter rights under section 11(b) are protected at the various junctures of the criminal proceedings.  This would assist in ensuring that a viable (and in some cases only) defence is available to avoid the imposition of significant jail term or the entry of a criminal conviction.  It appears in this case, Mr. Vassell’spivotal criminal defence was ensuring, through a criminal lawyer, that he was diligent from the onset of the charges.  This likely meant ensure that the most strategic and Charter compliant representations were made in Court prior to the onset of the trial. This case demonstrates that Section 11(b) remains a powerful defence remedy. If you have been charged with a Criminal offence, call 403-585-1960 and request to speak to Mr. J.S. Patel, Barrister for a free initial consultation.

June 25, 2016:  “The Common Law Search Incident to Arrest Powers: Penile Swabs to Cell Phones” J.S. Patel, Barrister

There is arguably a pattern to be discerned from the Supreme Court of Canada (the “SCC”) and other jurisdictions wherein there is a principled abatement of individual privacy rights when balanced against the common-law policing powers permitting officers to conduct certain searches incident to arrest.  There are two cases from the SCC that exhibit this trend as discussed in this article:  Saeed, infra, and Fearon, infra.

Saeed – Police Penile Swabs – Search Incident to Arrest

The SCC, in Regina v. Saeed, 2016 SCC 24  (“Saeed”) has dismissed an accused’s appeal from a decision emanating from a trial decision and Court of the Appeal, which found that an Albertan man’s rights to privacy under Sections 8 and 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”) were not violated in connection with a penile swab that was conducted on a “search incident to the arrest.”   The matter stems from an incident that was alleged to have occurred in 2011. The accused, Mr. Saeed, was arrested and charged with sexual assault and sexual interference after a complaint from a 15-year-old girl.  The details of the attack were significantly serious in that the it was alleged that the accused had “viciously attacked and sexually assaulted” the complainant, punching her several times in the face and brandishing a knife. Mr. Saeed was arrested for sexual assault by the Police Service and taken to the detachment.  At the police station, the police handcuffed Mr. Saeed to a wall in a cell with no toilet or running water for upwards of forty (40) minutes; and they had the accused conduct a penile swab on himself as two (2) officers blocked the windows to his cell.  The accused pulled his pants down and wiped a cotton‑tipped swab along the length of his penis and around the head. The swab was tested and revealed the complainant’s DNA.  The police didn’t have prior judicial authorization, i.e. a warrant, to conduct the search; and I believe it was critical to note the police did not apply for a tele-warrant under section 487.1 of the Criminal Code of Canada.   The DNA evidence was critical to the central issue at trial: the identity of the offender. At his trial, in the Provincial Court of Alberta, Mr. Saeed had challenged the Charter admissibility of the evidence of the complainant’s DNA obtained from the penile swab.   The Crown posited that search and seizure was incident to arrest and therefore fell within the common-law police powers; and was thus admissible.    The challenge under the charter stated, in essence, that conscripted evidence, i.e. the putative DNA evidence, violated Mr. Saeed’s rights to be free from an unreasonable search and seizure under Section 8 of the Charter.   The trial judge ruled that the penile swab violated the Mr. Saeed’s s. 8  Charter  right to be free from unreasonable search and seizure. However, she admitted the DNA evidence under s. 24(2)  of the Charter  (regardless of the breach of Mr. Saeed’s privacy rights) and relied on it to convict the accused of sexual assault causing bodily harm and unlawful touching for a sexual purpose. The Court of Appeal dismissed the accused’s appeal. The majority held that taking the swab violated s. 8  of the Charter  but the evidence was admissible under s. 24(2) . McDonald J.A., concurring in the result, held that s. 8  was not violated.  Leave was sought and granted to the appeal the matter further the Supreme Court of Canada on the whether the Mr. Saeed’s rights were violated or whether this was a valid search incident to arrest, and therefore the DNA evidence conscripted from his penis was lawfully obtained under the common-law power of the police. The majority of the Supreme Court of Canada found that Mr. Saeed’s s. 8  Charter  rights were not breached and the evidence of the complainant’s DNA obtained from the swabbing was properly admitted.  By way of prefatory comments, they applied the following general principles, as stated the following in representative part: To be reasonable and therefore consistent with s. 8  of the Charter : (1) a search must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be conducted reasonably. The SCC delineated the following principles regarding the common-law power of the police, in searching a potential offender during an alleged search incident to arrest, in the context of penile swabs: “Determining whether the common law power of search incident to arrest may reasonably authorize a penile swab involves striking a proper balance between an accused’s privacy interests and valid law enforcement objectives. In some cases, an accused’s privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused’s privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter ‑compliant. This case falls into the second category. A penile swab does not fall within the scope of R. v. Stillman, [1997] 1 S.C.R. 607. First, a penile swab is not designed to seize the accused’s own bodily materials but rather, the complainant’s. Accused persons do not have a significant privacy interest in a complainant’s DNA. Second, a penile swab is in some ways less invasive than taking dental impressions and the forcible taking of parts of a person. Third, unlike with the accused’s bodily materials or impressions, evidence of the complainant’s DNA degrades over time. In sum, a penile swab implicates different privacy interests and law enforcement objectives than seizures of an accused’s bodily samples and impressions. The common law power of search incident to arrest must be delineated in a way that is consistent with s. 8  of the Charter . There can be no doubt that requiring a penile swab is an intrusion on an accused’s privacy. A penile swab has the potential to be a humiliating, degrading and traumatic experience. On the other side of the ledger, it can serve important law enforcement objectives. It can enable the police to preserve important evidence that runs the risk of degrading or being destroyed. Sexual assaults are notoriously difficult to prove and this type of evidence is highly reliable. A penile swab can be crucial in the case of complainants who are unable to testify. The privacy interests at issue are similar to those implicated in strip searches and they can be protected by a similar approach. As with strip searches, the common law must provide a means of preventing unjustified searches before they occur and a means of ensuring that when these searches do occur, they are conducted in a reasonable manner. The reasonable grounds standard and guidelines regarding the manner of taking the swab provide these two protections. These two modifications to the common law power of search incident to arrest ensure that it is Charter ‑compliant.” The Court then arguably modified the common-law power of search incident to arrest relative to penile searches with the following principles:

• The police may take a penile swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested. The reasonable grounds standard will prevent unjustified searches before they occur and will hold the police to a higher level of justification before they can take a penile swab.

• Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include: (a)  the timing of the arrest in relation to the alleged offence, (b) the nature of the allegations, and (c) whether there is evidence that the substance being sought has already been destroyed. The potential for destruction or degradation of the complainant’s DNA will always be a concern in this context.

• The swab must also be conducted in a reasonable manner. The following factors will guide police in conducting penile swabs incident to arrest reasonably.

• A swab should, as a general rule, be conducted at the police station. It should be conducted in a manner that ensures the health and safety of all involved. It should be authorized by a police officer acting in a supervisory capacity.

• The accused should be informed shortly before the swab of the nature of the procedure, its purpose and the authority of the police to require the swab.

• The accused should be given the option of removing his clothing and taking the swab himself or the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary.

• The officers carrying out the swab should be of the same gender as the accused unless the circumstances compel otherwise. There should be no more police officers involved in the swab than are reasonably necessary in the circumstances.

• The swab should be carried out in a private area. It should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time.

• A proper record should be kept of the reasons for and the manner in which the swabbing was conducted.

In applying these principles to the facts in Mr. Saeed’s case, the Court found:

“In light of these requirements, the penile swab in this case did not violate the accused’s rights under s. 8  of the Charter . The accused was validly arrested. The swab was performed to preserve evidence of the sexual assault. The police had reasonable grounds to believe that the complainant’s DNA had transferred to the accused’s penis during the assault and that it would still be found on his penis. The swab was performed in a reasonable manner. The police officers were sensitive to the need to preserve the accused’s privacy and dignity. The accused was informed in advance of the procedure for taking the swab and its purpose. The swab itself was conducted quickly, smoothly, and privately. The swab took at most two minutes. The accused took the swab himself. There was no physical contact between the officers and the accused. The officers took detailed notes regarding the reasons for and the process of taking the swab. The swab did not fundamentally violate the accused’s human dignity.”

2.Cell Phone Searches – Incident to Arrest The Saeed case may, at first glance, reveal a pattern flowing from the Supreme Court of Canada to expand the policing powers of search incident to arrest. The Court previously dealt with this issue in Regina v. Fearon, 2014] S.C.J. No. 77 with regards to cell phone searches conducted incident to arrest. The majority of the Court in Fearon, supra, (4:3) accepted that the important function served by searches incident to arrest, especially in relation to mobile devices, rejected a categorical prohibition, or the introduction of a reasonable and probable grounds requirement, or a limitation of searches to exigent circumstances in favour of requiring specific modifications to the common law power to limit the potential invasion of privacy that may result. The majority of the court laid out a very clear framework for future searches of cell phones and similar mobile devices. Police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, the modified test under section 8 of the Charter requires that:

1. The arrest was lawful;
2. The search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:
   • protecting the police, the accused, or the public;
   • preserving evidence; or
   • discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest.
   • The nature and the extent of the search are tailored to the purpose of the search. It is not enough that a cell phone search in general terms is truly incidental to the arrest. Both the nature and the extent of the search performed on the cell phone must be truly incidental to the particular arrest for the particular offence. In practice, this will mean that, generally, only recently sent or drafted emails, texts, photos and the call log may be examined as in most cases only those sorts of items will have the necessary link to the purposes for which prompt examination of the device is permitted.

4.The police take detailed notes of what they have examined on the device and how it was searched. The record should generally include the applications searched, the extent of the search, the time of the search, its purpose and its duration. After-the-fact judicial review takes on special importance where, as here, there is no prior authorization.

3.The SCC has not authorized unfettered searches incident to arrest. These two cases also echo a trend demonstrating the Courts intention to balance the individual liberty interest of arrested individuals with the societal interest in ensuring that the police have the proverbial arrows in their quiver to ensure that crime detection (and eventual prosecution) remains abreast of evolving technologies and science. Some authors and academics have commented that the Saeed case will have a negative impact on the future policing practices, given that the police may secure genital swabs without a warrant when they have reasonable grounds to believe that relevant evidence will be present in that region of the body in connection with the indexed offence. Those who are critical of the decision argue that the policing powers have now been expanded beyond non-intrusive pat-down searches. This presumes that the such police powers never existed in various forms and permutations from the various Appellant Courts in Canada.  Prior to these two decisions, there was a judicial disparity between the common-law amongst the Provinces. The SCC decision simply sets out the test for warrantless searches and lends a sense of parity to the common-law rules throughout the dominion of Canada.  Additionally, if the police to choose not evince the warrant procedure and elect to rely on their common-law authority, the Crown is encumbered with the burden of proving, arguably on a balance of probabilities, that the search was reasonable according to the common-law standards set out above. The peril the police may face is interpreting this power as broadly as possible; and not securing a warrant (albeit via telephone) is the exclusion of evidence that they would otherwise secured validly with proper judicial authorization. While in the Saeed case the absence of a telephone warrant under Section 487.1 of the Code was not fatal to the Crown case, there may be other cases wherein the facts do not gel with the new common-law test.  An avenue exists for defence counsel to argue that the failure to comport with the modified common-law test, in the absence of any prior judicial authorization, ought to result in the exclusion of evidence that it critical to an issue in the Crown’s case against an excused person based on a breach of a Section 8 right under the Charter. In my view, it is mistake to simply assume that that SCC has averred that the police may always conduct penile searches in sexual assault cases or review the contents of a cell phone.  The modified common-law test, stated above, defines the outer contours of the law and does not give the police the carte blanche authority to proceed with a search. Depending on factual matrix presented to a court, the Saeed, supra, and Fearon, supra tests may arguable advance formidable defences for arrested individuals in the event that police forces ignore the new common-law standards resulting in the inadmissibility of the evidence.

http://www.calgaryherald.com/news/Prosecutor+argues+blind+Paralympics+athlete+convicted+sexual+assault+should+locked/9068047/story.html

A recent US Study canvassed Court archives and records for a eleven (11) year period in a major US Study to determine the effectiveness of criminal defence counsel. A number of interesting results were yielded by the study. The RAND study found that only a small percentage of accused persons charged with homicide cases were retained by private defence counsel while the balance were either public defenders or court appointed defence lawyers. The study ultimately determined that the public defenders markedly provided more effective representation when juxtaposed to the results of private lawyers were paid insufficient or inadequate fees to ensure that a fulsome and well prepare defence was mounted. For a copy of the study: How Much Difference Does the Lawyer Make? The Effect of Defense Counsel on Murder Case Outcomes by James Anderson and Paul Heaton, December 2011 Rand Corporation, please see: http://www.rand.org/content/dam/rand/pubs/working_papers/2011/RAND_WR870.pdf