Police Powers

Question 1

R v. Mann

Answer 1

Issue: Can police search someone before officially detaining them?
Facts: Police were looking for a suspect in a break and entering, they saw Mann walking down the road matching the description of the suspect, police searched Mann, he had something soft in his pocket, it was drugs and he was arrested.
Holding: Police have the power to search incident to investigative detention, but in this case soft drugs were not relevant to the investigation so the evidence was excluded.

Question 2

Exclusion of Evidence

Answer 2

Section 24(2) - Where police obtain evidence in a manner that violates the rights of the accused, that evidence will be excluded where its admission will bring the administration of justice into disrepute.

Question 3

Waterfield Test - From Mann

Answer 3

1. Does the conduct fall within the general scope of a police duty?
2. Does this conduct involve unjustifiable use of powers with the duty

Question 4

Powers of Arrest

Answer 4

Section 495 Criminal Code
- For the police to arrest someone they need to have reasonable and probable grounds
- The officer must believe the person is performing an offence

Question 5

R v. Brown

Answer 5

Issue: Were the police racially profiling when they stopped Brown without reason?
Holding: Yes, the officer confirmed he did not have reason to stop Brown, only stopped him when he realized a black man was driving an expensive car

Question 6

R v. Grant

Answer 6

Issue: Was Grant detained when the police approached him?
Facts: Grant was walking down the street when police approached him for no reason. Police told him to keep “his arms in front of him”, when he confessed to having a gun.
Holding: According to the Thairs test, Grant was detained and had to comply due to psychological detention

Question 7

Police Powers

Answer 7

• Detain briefly for sobriety checks
• Enter premises in response to a disconnected 911 call
• Detain briefly for investigative purposes
• Conduct roadblocks
• Use sniffer dogs where reasonable and probable cause exists

Question 8

Rights on Detention

Answer 8

Charter s. 10.
Everyone has the right on arrest or detention
a. to be informed promptly of the reasons therefor;
b. to retain and instruct counsel without delay and to be informed of that right; and
c. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Question 9

Thairs Test

Answer 9

Test for identifying psychological detention
1. Circumstances giving rise to the encounter, as reasonably perceived by the individual, general or targeted
2. Nature of the police conduct, including language, physical conduct, place of occurrence, presence of others, duration of encounter
3. Particular characteristics of the accused, including age, stature, minority status, level of sophistication, & racial status

Question 10

Grant Test

Answer 10

1. Seriousness of the Charter-infringing conduct
2. Umpact of the breach of Charter protected rights of the accused
3. Society’s interest in the adjudication of the case on its merits

Question 11

Remidy for Charter violations

Answer 11

S. 24(2): Evidence obtained in a manner that infringed upon Charter rights, the evidence will be excluded, IF the admission of the evidence would bring the administration of justice into disrepute

Question 12

R v. Le

Answer 12

Issue: was Le detained, were his s.8 & s.9 rights violated, should evidence be excluded?
Facts: Police walked into a backyard, started questioning Le & friends, Police asked about Le’s backpack, he ran, police caught & arrested him after finding drugs, cash & a firearm
Holding: Police violated Le’s rights when they entered the backyard without a warrant & detained Le without suspision

Question 13

R v. Golden

Answer 13

Issues: Was it legal to strip search golden in that manner?
Facts: Three strip searches were conducted in and unclean and public area.
Holding: The arrest was lawful, the strip searches were not, reasonable grounds to conduct the strip search, separate from
reasonable grounds to arrest

Question 14

Cloutier v Langois
Frisk Search

Answer 14

Classic frisk search
1. Power to search does not imply a duty to search.
2. Will be permitted incident to arrest for reasons of officer safety or to preserve evidence related to the commission of a crime.
3. Search must not be conducted in an abusive fashion.

Question 15

R v. Stillman

Answer 15

• Stillman was accused of murder, refused to give DNA, police took some without consent, the court said this was against the Charter
• No taking of bodily samples for DNA testing without the accused’s consent and without a warrant.
• In particular, no risk of evidence being destroyed.

Question 16

R v. Fearon

Answer 16

• Fearon was searched incident to arrest, had his phone searched without a warrent
  Police can search a phone incident to arrest where:
  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
  3. The nature and the extent of the search are tailored to the purpose of the search; and
  4. The police take detailed notes of what they have examined on the device and how it was searched

Question 16

R v. Manninen

Answer 16

Facts: Manninen was suspected of a crime, he was held in a small office at a gas station with a phone, Manninen said he wanted to speak with a lawyer but the police didn’t let him and he admitted to the crime
- The police had a duty to allow Manninen to speak with a lawyer and to hold off questioning until he did so
- Right to counsel

Question 16

R v. Oickle
Volluntary Confession Test

Answer 16

A confession is involuntary if it is the product of:
1. Threats or promises
2. Oppression
3. Lack of an operating mind
4. Police trickery that would shock the conscience of Canadians

Question 16

R v. Hebert

Answer 16

Facts: Hebert was in a cell with an undercover cop and told the cop he did the crime, the court found this was allowed because the cop did not induce him to confess
- RTS is only violated where the statement is elicited from the accused by the undercover police officer
- A confession is presumptively inadmissible until the crown proves the statement was voluntary

Question 16

R v. Singh

Answer 16

Facts: Singh said 37 times that he did not want to speak to police but police kept trying, eventually he said something incriminating
- Where the police persist despite clear statements from the accused that they don’t want to cooperate, there is a risk that RTS will be violated
- The right to silence doesn’t mean the right not to be spoken to.

Question 17

Right to Counsel

Answer 17

Charter s 10(b)
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right

Question 17

Three major components to the Right to Counsel

Answer 17

1. Informational
   
   • You need to inform the person they have this right
2. Implementational
   
   • Must allow the person to retain counsel
3. Duty to hold off
   
   • Police cannot speak to an accused until they have spoken to a lawyer

Question 18

R v. Brydges

Answer 18

Facts: Brydges is detained and advised of right to counsel, states he cannot afford counsel, police fail to inform Brydges of his rights to legal aid, Brydges gives prejudicial statements
- SCC held that the accused didn’t understand his rights, and therefore didn’t waive his right to counsel

Question 19

Arbitrary Detention

Answer 19

Charter s.9
Everyone has the right not to be arbitrarily detained or imprisoned

Question 20

R v. Storrey

Answer 20

Facts: Storrey was accused of assaulting 3 people, was detained until the people could positively identify him
Holding: For an arrest to be reasonable and not arbitrary, an officer must have reasonable and probable grounds for arresting

Question 21

R v. Sinclair

Answer 21

There is a limited right to re-consult counsel where there has been a “material change in the situation after the initial consultation.”
1. New procedures involving detainee
2. Change in jeopardy
3. Reason to question detainee’s understanding of his s. 10(b) right

Question 22

Search & Seizure

Answer 22

Charter s.8:
“Everyone has the right to be free from
unreasonable search and seizure”

Question 23

R v Collins
Search & Seizure

Answer 23

Compliance with section 8:
1. Is the search authorized by law?
2. Is the law itself reasonable?
3. Was the search carried out in a reasonable manner?

Question 24

Hunter v Southam

Answer 24

• Section 8 protects people, not places
  1. Prior judicial authorization (i.e. a warrant) will generally be required for a search to be considered reasonable
  2. The person authorizing the search must be impartial
  3. The constitutional standard for prior judicial authorization is reasonable and probable grounds (objective standard)

Question 25

R v. Jarvis

Answer 25

• Jarvis was a high school teacher and took photos of girl’s breasts, even though they were exposed to the public, they did not want to be photographed
• expectation of privacy can consider the same type of place but different circumstances

Question 26

R v. Wong

Answer 26

• What is the reasonable expectation of privacy
• Wong invited the public into his hotel room to gamble, generally a hotel room has an expectation of privacy, but no expectation when you invite everyone

Question 27

Expectation of Privacy

Answer 27

1. Contextual analysis/totality of circumstances
2. Privacy is not all or nothing
3. Type of intrusion is relevant, e.g. permanent recording; Must be cognizant of evolving technologies.
4. Privacy encompasses a number of related interests –
   
   • Territorial – privacy in the places we occupy
   • Personal – privacy with respect to our bodies; tied to dignity
   • Informational - information about you

Question 28

R v. Plant

Answer 28

Informational privacy
- the nature of the information
- the nature of the relationship between the party releasing the information and the party asserting confidentiality;
- The place where the information was obtained
- How the information was obtained; and
- The seriousness of the crime being investigated

Question 29

R v. Edwards
Territorial Privacy

Answer 29

Territorial privacy factors to consider:
- Presence at time of search
- Possession or control of property or place searched
- Ownership of the property or place
- Historical use
- Ability to regulate access
- Existence of subjective expectation of privacy
- Objective reasonableness of that expectation

Question 30

R v Spencer

Answer 30

• Found subscriber data on a computer, used it to find the accused, goes beyond name, address and phone
• SCC takes broad view of subject matter of search, the court found a breach but allowed it because it was a good faith breach
• informational privacy has overlapping characteristics
  * Secrecy
  * Control
  * Anonymity