Descripción de las clases

[1] POLICE POWERS

- Theme throughout: balancing liberty with public security

General police powers

- Police have broad powers under statute (mainly Criminal Code), and powers at common law.

- Statutory powers include powers allowing police to: arrest an accused; compel an accused’s appearance in court via a summons or appearance notice; use force; search suspects; etc [Note: the important ones are covered in the upcoming sections]

- Common law powers:

(1) Historical c/l powers:

a. Search incident to arrest for the purposes of ensuring safety; protection of evidence from destruction, and discovery of evidence (R v Caslake). Then, see R v Golden for strip searches incident to arrest, and the particular requirements that must be met (p 16)

b. To enter into a private dwelling in a hot pursuit (allowed – leading case is R v Feeney)

(2) New c/l powers can be created – the “ancillary powers” doctrine (see R v Waterfield) (p 17): The SCC has relied on this doctrine to support police power in a number of areas.

There are problems with relying on this test, though, as it was not intended to allow the creation of new CL powers.

(3) Consent (a final area from which police develop their powers)

(4) Default common law powers: Police have the power to do anything that will not result in some remedy being granted to an accused Powers of search and seizure

- Other than in powers of arrest, the ability of police offers to interfere with the liberty of individuals is most evident in powers of search and seizure - Note the law in this area attempts to balance individual interests (i.e. liberty) with interests of the state

- What is a search? A state investigative technique is or is not a search depending on whether it infringes on a persons reasonable expectation of privacy.

- Analyze searches with warrant and without warrant separately

(1) Searches with a warrant (a) Searching places with warrant

- General search warrant provision is found in s 487

- Must be issued by a justice; justice must be satisfied on reasonable grounds that evidence will be found (which must fall into 4 categories: (i) anything on or in respect of which an offence has been committed; (ii) anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence; (iii) anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant or (iv) offence related property); the search must be related to a “building, receptacle or place”; there must be someone responsible for carrying out the search;

- Note that there are some limits to this search warrant power (e.g specificity) (see p 69)

- A related provision found in s 489 allows police who are searching under a warrant to seize items not mentioned in the warrant if they believe on reasonable grounds that they were obtained by, or were used in, or afford evidence concerning an offence

(b) Searching people (DNA warrants):

- Warrants for taking blood, saliva etc

- Only available for “designated offences” listed in s 487.04 (see p 945 of Code) - See s 487.05 for the requirements to get the warrant

- Basic requirements = a provincial court judge (i.e. cannot be a JP) must be satisfied by information on oath that a bodily substance connected with an offence has been found, that a person was a party to the offence, and the DNA analysis of the substance will provide evidence about whether the bodily substance was from that person; judge is required to believe that the issuing of the warrant will be in the bests interests of the administration of justice; etc (see p 72)

- Different rules apply when the DNA warrant concerns young people (see p 73)

(c) Reviewing a warrant:

- The Code contains no provisions to review a warrant. But it is possible to challenge the issuance of a warrant by way of Certiorari (used to review the process by which the warrant is used)

- The central issue in reviewing a warrant is whether the requirements for its issuance under the Code have been met

- The question for the reviewing judge is whether there is evidence upon which the issuing judge could have decided to issue the warrant (R v Garofoli). The actual result of the search is not relevant on review

(2) Searches without a warrant

- Every warrantless searche is prima facie unreasonable under s 8 of the Charter (i.e. guarantee against unreasonable search and seizure) (Hunter v Southam).

- As a result, every warrantless search must be made consistent with minimum Charter standards.

- The following is the approach to determine the constitutional validity of the warrantless search:

(1) Threshold issue: First, to be a breach of s 8, the individual searched must be determined to have a reasonable expectation of privacy over their person, territory and information (i.e. if there is no reasonable expectation of privacy, there is no search/seizure at all, and therefore no breach of s 8).

(a) Look at “entitlement” to privacy – not whether X had, in that case, privacy – i..e the standards of privacy that a person can EXPECT to enjoy in a free and democratic society (Wong)

(b) Look at factors in Edwards (looking at “totality of circumstances”) (p 87)

(c) Note the three kinds of interests that privacy protects (e.g. personal privacy, territorial privacy, and informational privacy) (Tessling). Note: informational privacy = more difficult to prove.

(d) How significant of a right to privacy is this on a sliding scale?

(2) Once it has been determined that an individual has a reasonable expectation of privacy, then it follows that the search was a prima facie violation of the accused’s s 8 right.

The issue then becomes whether the search itself is reasonable, or was it an intrusion, in light of that expectation of privacy).

Here, the nature of the accused’s reasonable expectation of privacy is also a background factor in determining how reasonable the search is (the higher the level of privacy expected, the more difficult it will be to determine that the search was reasonable, e.g. a person has greater privacy when the search involves a bodily cavity as opposed to the trunk of their car; or in the situation of a search incident to arrest – heavy state interests).

Reasonableness of the search is generally determined by the Collins factors – have they been met?

(a) Is the warrantless search authorized by law:

(i) Statute? (e.g. warrantless searches are authorized by s 487.11 (in relation to the s 487 search warrant power)

(ii) C/L? (i.e. search incident to arrest; search during investigative detention; exigent Circumstances. Here, if you are saying that there is a search incident to arrest, you would have to go through the elements identified in the book, i.e., you would have to establish that: the arrest was lawful; the search was truly incidental to that arrest and that the search was conducted in a reasonable manner)

(iii) Consent?

(b) Is the law itself reasonable?

(c) Is the manner in which the search is carried out reasonable?

- NOTE: There are variations on the Hunter v Southam standard. Searches under an administrative scheme and searches of press offices have different rules (see p 111)

- NOTE Other investigative powers, ie., general warrants (s 487.01) (which have broader warrant power than s 487) Powers of Detention at the Investigative Stage

(a) Definition of detention

- S 10(b) gives rights to people who are “detained”, e.g. right to counsel. The issue is whether someone has been detained. One troubling context is police questioning – when does this qualify as a detention and therefore give the detainee s 10(b) rights?

(b) Common law powers of detention

- Some powers of detention exist by statute. The ability to make breathalyser demands and routine traffic stops, and some aspects of customs searches are all legislatively created detentions. Common law detentions are more controversial (e.g. Dedman case upheld RIDE program under Waterfield test as a valid form of detention)

(i) Investigative detention (Mann test): Reasonable grounds for officer’s suspicion that individual is implicated in criminal activity under investigation. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances.

(ii) Police roadblocks Ability to break the law: s 25.1