Constable Increment Exam Study Guide PDF

CONSTABLE INCREMENT STUDY GUIDE Constable Study Guide Explanatory Note This Study Guide is designed to assist you with preparing for the Constable Increment exam. This guide contains the statutory and policy sections along with case law principles with which you should be familiar. This guide may not address all the information you are responsible for, or all the materials you must know to master your role as a police officer. Some portions have been highlighted to help you focus on the material within those sections. Table of contents The table of contents has been organized with hyperlinks. Level 1 - Red capital letters Level 2 - Blue underlined letters Level 3 - Green underlined letters Statutory text is bolded and sandwiched between red borders. Updates Created August 2022 (based on earlier manual) - M. Novakowski 1 Constable Study Guide GENERAL.............................................................................................................................1 2022 Strategic Plan..................................................................................................1 National Use of Force Framework...........................................................................2 Suicide Risk Assessment - PIMAL...........................................................................3 Mandatory Detail Pages...........................................................................................4 Firearm Safety Rules................................................................................................5 Firearm Stoppages...................................................................................................5 CHARTER...........................................................................................................................6 Search and Seizure..................................................................................................6 What is a search?.....................................................................................................6 What is a seizure?....................................................................................................6 REP (Reasonable Expectation of Privacy)...............................................................6 Police Drug Dog Searches.......................................................................................7 Search Incident to Lawful Arrest..............................................................................8 General Framework.........................................................................................8 Enhanced protection.......................................................................................8 Strip searches..................................................................................................8 Biological samples of arrestee (DNA, hair, dental impressions)......................9 Dwelling Houses (the home)............................................................................9 Cell phones....................................................................................................10 Penile Swabs.................................................................................................10 Hot or Fresh Pursuit...............................................................................................11 Protective Searches (unconnected to arrest/detention).........................................12 Implied Licence......................................................................................................12 Plain View...............................................................................................................13 Consent..................................................................................................................14 Abandonment.........................................................................................................14 Computers.............................................................................................................15 Inventory Searches................................................................................................15 Detention................................................................................................................16 What is a detention?......................................................................................16 Investigative Detention..................................................................................17 Statements.............................................................................................................18 Youth..............................................................................................................18 Confessions Rule...................................................................................................18 S. 10 (b) Rights & Obligations Reviewed.......................................................18 2 Constable Study Guide Additional Informational Duty........................................................................19 Renewed Right to Counsel............................................................................20 No Right to Have Lawyer Present During Questioning.................................20 Other Considerations - s. 10(b)..............................................................................21 Investigative Detention..................................................................................21 Section 1 Limitations (driving).......................................................................21 Ancillary Powers Doctrine......................................................................................21 Dual Purpose Traffic Stops....................................................................................22 POLICE ACT....................................................................................................................24 Jurisdiction of Municipal Constables.....................................................................24 IIO - Independent Investigations Office.................................................................24 IIO Medical Incident Notification Policy.................................................................25 OPCC Mandatory Reporting..................................................................................25 Types of Police Act Files........................................................................................26 Types of Misconduct..............................................................................................28 Processing alleged misconduct.............................................................................29 Providing Assistance to Complainant....................................................................30 CRIMINAL CODE.............................................................................................................31 Weapon..................................................................................................................31 Firearm...................................................................................................................31 Child Under 12.......................................................................................................31 Protection of Person Acting Under Authority.........................................................31 Excessive Force.....................................................................................................33 Duty of Person Arresting........................................................................................33 Preventing Breach of Peace...................................................................................34 Arrest for Breach of Peace.....................................................................................34 Search and seizure without warrant where offence committed.............................34 Application for warrant to search and seize...........................................................35 Search and Seizure without warrant......................................................................35 Testing for presence of alcohol or drug.................................................................35 Physical Coordination Tests...................................................................................36 Mandatory alcohol screening.................................................................................36 Samples of breath or blood - alcohol....................................................................36 Warrants to obtain blood samples.........................................................................37 General Production Order......................................................................................38 3 Constable Study Guide Information for search warrant...............................................................................38 Telewarrants...........................................................................................................39 Execution of search warrant..................................................................................39 Where warrant not necessary................................................................................40 DNA - Investigative Procedures.............................................................................40 Arrest without warrant by any person....................................................................41 Arrest without warrant by peace officer.................................................................41 Arrest without warrant - application of section 524...............................................42 Appearance notice for judicial referral hearing......................................................42 Issue of appearance notice by peace officer.........................................................42 Release from custody - arrest without warrant......................................................43 Release from custody - arrest with warrant...........................................................44 Contents of undertaking........................................................................................45 Taking before a justice...........................................................................................46 Including authorization to enter in warrant of arrest..............................................47 Warrant to enter dwelling-house............................................................................47 Authority to enter without warrant.........................................................................47 Telewarrant.............................................................................................................48 Conditional Sentence Order...................................................................................48 Prohibited weapon.................................................................................................49 Prescribed Prohibited Weapons....................................................................49 Common Summary Only Offences........................................................................51 CANADIAN VICTIM BILL OF RIGHTS........................................................................51 Protection...............................................................................................................51 CORRECTIONS AND CONDITIONAL RELEASE ACT...........................................52 Execution of warrant..............................................................................................52 Arrest without warrant - breach of conditions.......................................................52 CONTROLLED DRUGS AND SUBSTANCES ACT.................................................53 Information for search warrant...............................................................................53 Search of person and seizure................................................................................53 Seizure of things not specified...............................................................................53 Where warrant not necessary................................................................................54 Seizure of additional things....................................................................................54 Assistance and use of force...................................................................................54 4 Constable Study Guide CANNABIS ACT.............................................................................................................54 Selling.....................................................................................................................54 Cultivation, propagation and harvesting — 18 years of age or older....................55 Information for search warrant...............................................................................56 Search of person and seizure................................................................................56 Seizure of other things...........................................................................................56 Where warrant not necessary................................................................................57 Seizure of additional things....................................................................................57 Assistance and use of force...................................................................................57 IDENTIFICATION OF CRIMINALS ACT.....................................................................57 Fingerprints and photographs................................................................................57 Use of force............................................................................................................58 YOUTH CRIMINAL JUSTICE ACT..............................................................................58 Right to counsel.....................................................................................................58 Notice to parents in case of arrest and detention..................................................59 Notice in other cases.............................................................................................59 Contents of Notice.................................................................................................59 Fingerprints and Photographs...............................................................................60 Disclosure by peace officer during investigation...................................................60 Disclosure to insurance company..........................................................................60 Disclosure to schools and others...........................................................................60 Fail to comply with sentence or disposition...........................................................61 General law on admissibility of statements to apply.............................................61 When statements are admissible...........................................................................61 ARMOURED VEHICLE AND AFTER-MARKET COMPARTMENT CONTROL ACT....................................................................................................................................62 Definitions..............................................................................................................62 Seizure of armoured vehicle or vehicle containing after-market compartment without a warrant............................................................................................................63 Peace officer powers.............................................................................................63 Obstruction............................................................................................................64 BODY ARMOUR CONTROL ACT...............................................................................64 Definitions..............................................................................................................64 Seizure of body armour without a warrant.............................................................65 5 Constable Study Guide Offence...................................................................................................................66 CHILD, FAMILY AND COMMUNITY SERVICES ACT.............................................66 Definitions..............................................................................................................66 Duty to report need for protection.........................................................................66 Child needs protection...........................................................................................66 If young child breaks the law.................................................................................68 Child in immediate danger.....................................................................................68 LIQUOR CONTROL AND LICENSING ACT.............................................................68 Definitions..............................................................................................................68 Arrest - Intoxication in public place.......................................................................69 Arrest - Conduct at event site, establishment, service area..................................69 Definitions......................................................................................................70 Search with or without warrant..............................................................................70 MENTAL HEALTH ACT...................................................................................................71 Definitions..............................................................................................................71 Emergency procedures - apprehension.................................................................71 MISSING PERSONS ACT..............................................................................................72 Search order — minor or vulnerable person..........................................................72 Search order — person at risk...............................................................................73 MOTOR VEHICLE ACT..................................................................................................73 Definitions..............................................................................................................73 Failing to stop and state name...............................................................................73 Arrest without warrant............................................................................................73 Exemption for emergency vehicles........................................................................74 Emergency Vehicle........................................................................................75 Police traffic direction............................................................................................75 Emergency Vehicle Driving Regulation..................................................................75 OFFENCE ACT................................................................................................................75 Right to a telephone...............................................................................................75 Search warrants.....................................................................................................76 Telewarrants...........................................................................................................76 Application of Criminal Code.................................................................................77 SAFE STREETS ACT......................................................................................................77 6 Constable Study Guide Definitions..............................................................................................................77 Arrest without warrant............................................................................................78 Offences.................................................................................................................78 TRESPASS ACT..............................................................................................................80 Arrest without warrant............................................................................................80 Offences.................................................................................................................80 Defences to trespass charge.................................................................................81 CANNABIS CONTROL AND LICENSING ACT.........................................................81 Definitions..............................................................................................................81 Consumption in vehicles and boats.......................................................................82 Cannabis in vehicle operated by minor..................................................................82 Arrest - Intoxication in public place.......................................................................83 Arrest - Conduct in establishment or government cannabis store........................83 Seizure of cannabis in plain view...........................................................................84 Information for search warrant...............................................................................84 Seizure of things not specified...............................................................................85 POLICY AND PROCEDURE.........................................................................................85 Use of Force - II.H.010...........................................................................................85 General..........................................................................................................85 Spit Hood/Mask.............................................................................................85 Oleoresin Capsicum Spray............................................................................86 Baton.............................................................................................................86 Kinetic energy impact projectiles...................................................................86 CEW - Threshold and Circumstances of Use................................................86 Drawing or Displaying CEW..........................................................................87 CEW - Medically High-Risk Incidents............................................................87 Firearm Discharge..........................................................................................88 Use of Force Reporting.................................................................................88 Reporting Use of Force Resulting in Injury or Death.....................................90 Reporting Excessive Use of Force................................................................90 Respectful Workplace - I.B.060.............................................................................90 Responsibilities..............................................................................................90 Confidentiality................................................................................................91 Resolution (Supervisor/Designate Involvement)............................................91 Bombs/Explosives - II.A.60....................................................................................91 7 Constable Study Guide Evacuation.....................................................................................................91 Police Pursuit - II.A.90............................................................................................92 Engaging In or Continuing a Pursuit..............................................................92 Factors to Consider.......................................................................................92 No Pursuit......................................................................................................93 Paralleling......................................................................................................93 Ramming.......................................................................................................93 Passing..........................................................................................................93 Unmarked Vehicle Relinquishment................................................................93 Primary (Pursuing) Unit..................................................................................94 Secondary (Back Up) Unit.............................................................................94 Supervision....................................................................................................94 Termination of a pursuit.................................................................................94 Box and pin maneuvers.................................................................................95 Tire deflation devices.....................................................................................95 Box and Pin Maneuvres - II.A.095.........................................................................95 Authorization and initiation............................................................................95 Emergency Vehicle Operation - II.A.100................................................................96 Code 3 Response..........................................................................................96 Search and Seizure Policy Part 1 - II.D.010...........................................................97 Duty of Members...........................................................................................97 When to Get a Search Warrant......................................................................97 The Search Warrant.......................................................................................97 Search Warrant Supervisor’s Duties..............................................................97 Police Service Dogs - II.K.060...............................................................................98 Building and Area Searches..........................................................................98 Tracking.........................................................................................................98 Arrests...........................................................................................................98 PSD Bite Procedures - Involved Members....................................................98 Assault - II.B.20......................................................................................................99 Responding members...................................................................................99 Street Checks - II.B.290.......................................................................................100 Conducting a street check..........................................................................100 Jail - Care and Control of Prisoners - II.I.030.......................................................101 Searching Prisoners.....................................................................................101 Frisk search.................................................................................................101 Metal Detector Scanning.............................................................................101 8 Constable Study Guide Strip Searches.............................................................................................101 Body Cavity Searches.................................................................................102 Penile Swabs...............................................................................................102 APPENDICES.................................................................................................................103 APPENDIX 1 -Standards of Proof APPENDIX 2 - Emergency Vehicle Driving Regulations APPENDIX 3 - Guidelines for Peace Officers Operating Emergency Vehicles APPENDIX 4 - 3 Keys to Electrical Safety APPENDIX 5 - School Emergency Procedures APPENDIX 6 - Impaired Driving Decision Tree & ASD Demand APPENDIX 7 - Operational Directive O22-007 Domestic No Assault Files 9 Constable Study Guide GENERAL 2022 Strategic Plan ABBOTSFORD POLICE DEPARTMENT STRATEGIC PLAN 2022 VISION MISSION VALUES Strength in Community To make Abbotsford the safest city in BC Integrity, Honour, Courage, Service The Abbotsford Police Department’s 2022 priorities focus on community safety and connectivity through the well-being challenges, implement positive organizational growth, and seek opportunities for public PUBLIC SAFETY ORGANIZATIONAL DEVELOPMENT COMMUNITY CONNECTIONS Objectives Suppress Gang Violence Objective Application of best practices for Equity, Diversity and Inclusion Objective Strengthen and build upon connections with indigenous and racialized community Disrupt Street Disorder 1 Constable Study Guide National Use of Force Framework 2 Constable Study Guide Suicide Risk Assessment - PIMAL 3 Constable Study Guide Mandatory Detail Pages PRIME Directive Mandatory Detail Pages PRIME 18-04 Mandatory Detail Pages Detail Pages enable users to record more extensive information than what the basic event and indexed persons, vehicles and institution screens provide. A number of different types of Detail Pages can be indexed to events, allowing the recording of extended information specific to a police report. The appropriate use of Detail Pages provides consistency in the manner Participating Agencies collect information, enables data mining and can provide valuable investigative leads in similar-fact crimes. APD Policy The Abbotsford Police Department utilizes five mandatory Detail Pages:      Hate Crime Missing Person Seized/Towed Vehicle Stolen Vehicle Break and Enter MO **Person Offences MO** The Person Offences MO is mandatory at the NCO’s discretion. In instances where offender/suspect modus operandi would be valuable in linking or potentially linking crimes, making use of this detail page is recommended. PRIME Directive 2018-03-22 4 Constable Study Guide Firearm Safety Rules #1 Treat all firearms as if they are loaded. Even if you "know" your firearm is unloaded, treat it as if loaded. Never point an "unloaded" gun at yourself or anyone else. #2 Control the muzzle direction at all times. Never point a loaded gun at anything you are not ready to destroy. Even when you "know" or "believe" the gun is unloaded, never point it at anyone or yourself. #3 Keep your finger off the trigger until a conscious decision to shoot has been made. Keep your finger indexed along the slide. #4 Be sure of your target and what is beyond. As at July 1, 2014. Firearm Stoppages Stoppage - anything that interrupts the firing cycle. Phase 1 The trigger is pulled of a loaded handgun and instead of firing you hear a click. Failure to feed. Failure to fire. Failure to eject. Remedy Tap-Rack-Ready TAP the magazine, RACK the slide, READY to fire. Tap the magazine means to smack the bottom of the magazine firmly enough to lock it into place or dislodge any bind in the magazine. Rack the slide is a cycling of the slide to eject any hammered /or dead casings or to re-chamber a new cartridge following a malfunction. Ready to fire means being prepared to commence or resume fire as required by assessing the situation. Phase 2 Double feed/two failures to fire Remedy Rip-Work-Tap-Rack-Ready RIP the magazine, WORK the slide (action), TAP (insert new magazine), RACK the slide, READY to fire. Rip the magazine means to remove the magazine from the pistol. Work the slide at least twice. This cycling of the slide is to eject any feedway stoppages. Tap means to insert a new magazine (reload). Rack means to chamber a round. Ready to fire means being prepared to commence or resume fire as required by assessing the situation. As at February 5, 2015. 5 Constable Study Guide CHARTER1 Note: You must have good working knowledge of how Charter standards apply to your authorities. In addition, you must understand the legal framework for your common law powers, for example search incident to arrest. Rather than highlighting all of the material under this heading (Charter), ensure you study and master this material. Search and Seizure s. 8 Charter – Everyone has the right to be secure against unreasonable search or seizure. What is a search? A search is a governmental (police) intrusion into a person’s reasonable expectation of privacy (REP). (Evans, SCC) Police (government) + intrusion + REP If the police are not involved in the intrusion, there is no search. For example, sometimes people acting privately (eg. landlord, parent, business manager, private security, neighbour, spouse) without police involvement will recover evidence and turn it over to police. These actions will not constitute a search for Charter purposes. However, if these people act on behalf of the police (eg. as agents of the state, on the direction of police, at the behest of law enforcement) their actions may constitute a search. What is a seizure? A non-consensual taking of an item by the state in respect of which the citizen has a reasonable expectation of privacy. (Borden, SCC) REP (Reasonable Expectation of Privacy) Whether a person has a reasonable expectation of privacy will depend on the “totality of the circumstances” (eg. Edwards, SCC; Cole, SCC; Marakah, SCC; Spencer, SCC; Gomboc, SCC; Mills, SCC ). Conceptually, people can claim a privacy interest in three different ways: Adapted from work of M. Novakowski. Note: This is not a comprehensive treatise of the law in the areas discussed. It is for general information only. This is simply intended to be a quick reference guide, in general terms, on the common principles related to each topic. Cases are cited for further reference. Furthermore, the law is constantly evolving as new cases arise and the statements noted above may change or require modification due to changing law at the time of you reading this document. 1 6 Constable Study Guide Personal privacy in their bodies. For example, pat downs, strip searches, body cavity searches, obtaining biological samples can all amount to an intrusion into a REP. Territorial privacy. People can have a REP in a thing, place or surroundings. For example, people may be able to establish a REP in a home, vehicle, knapsack, business, etc. Informational privacy. People may establish a REP in personal information (eg. medical records, odour of marihuana detected by drug sniffing police dog, ISP info, computer data, their location through “pinging” their cell phone). There are some cases where it was found that people were unable to establish a REP. For example: FLIR (Tessling, SCC) Hydro consumption records (Plant, SCC) Girlfriend’s apartment when not present (Edwards, SCC) Garbage placed at the roadside for collection (Patrick, SCC) Communicating with someone believed to be a child who was a stranger to him but turned out to be an undercover officer posing as a 14-year-old female (Mills, SCC) All warrantless searches are presumptively unreasonable. (Hunter v. Southam, SCC) To rebut this warrantless presumption, Crown (through the police) must prove: 1. The search was authorized by law. Common law (without warrant) Statute law (with or without warrant) 2. The law authorizing the search was reasonable. 3. The search must be conducted in a reasonable manner. A warrant is presumed valid. (Merelles, ONCA) Police Drug Dog Searches (eg. A.M., Kang-Brown, Chehil, MacKenzie, SCC) Using a police drug dog to sniff an item in which a person has a REP is a search. Note that the cases that have been resolved before the SCC involve searches of property located in area with a reduced expectation of privacy (eg. vehicle on a public roadway, backpack left unattended in a school gym, luggage at a bus depot, luggage at an airport). No warrant is required. Authorized under the common law. 7 Constable Study Guide Use of dog requires reasonable suspicion of drug-related offence. Search Incident to Lawful Arrest (eg. Cloutier v. Langlois, Stillman, Caslake, Golden, Nolet, Fearon, Saeed, SCC) General Framework The general framework or governing principles for the power of search incident arrest are as follows: 1. Lawful arrest. 2. Search must be truly incidental (connected/related to arrest) safety; and/or evidence (secure, preserve or discover). 3. Manner of search must be reasonable. May extend to area within immediate surroundings, such as a vehicle the person was in or near at the time of arrest. Enhanced protection In some cases, a person may have an enhanced or heightened expectation of privacy in a particular circumstance. In such a case, the general framework authorizing a search incident to arrest will require modification for it to be Charter compliant. Enhanced protection arises in the case of strip searches, dwelling houses, cell phones and penile swabs. Taking biological samples of an arrestee from an arrestee is not permitted as an incident to arrest. Strip searches (eg. Golden, Ali, SCC) 1. The arrest was lawful. 2. The search must be for a valid objective in pursuit of the ends of criminal justice, such as the discovery of a weapon or evidence. 3. The police must also have reasonable grounds to believe strip search is necessary in the circumstances. 4. The search must be conducted in a reasonable manner. The Court outlined several factors the police must consider in performing a strip search: Can the strip search be conducted at the police station and, if not, why not? Will the strip search be conducted in a manner that ensures the health and safety of all involved? Will the strip search be authorized by a police officer acting in a supervisory capacity? 8 Constable Study Guide Has it been ensured that the police officer(s) carrying out the strip search are of the same gender as the individual being searched? Will the number of police officers involved in the search be no more than is reasonably necessary in the circumstances? What is the minimum of force necessary to conduct the strip search? Will the strip search be carried out in a private area such that no one other than the individuals engaged in the search can observe the search? Will the strip search be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time? Will the strip search involve only a visual inspection of the arrestee’s genital and anal areas without any physical contact? If the visual inspection reveals the presence of a weapon or evidence in a body cavity (not including the mouth), will the detainee be given the option of removing the object himself or of having the object removed by a trained medical professional? Will a proper record be kept of the reasons for and the manner in which the strip search was conducted? Biological samples of arrestee (DNA, hair, dental impressions) (eg. Stillman) – not permitted Dwelling Houses (the home) (eg. Stairs, SCC) When the police make an arrest inside a home, there will be two subcategories within the surrounding area of the arrest: The area within the physical control of the arrestee at the time of the arrest; and Areas outside the physical control of the arrestee but which are part of the surrounding area because they are sufficiently proximate to the arrest. Whether an area is sufficiently proximate to an arrest is a contextual and case specific inquiry and dependent on whether there is a link between the location and purpose of the search and the grounds for the arrest. A search of a home for safety purposes is permitted incident to lawful arrest provided the following criteria are met: 1. The arrest is lawful. 2. The search is incident to arrest. The search will be incident to arrest under the following conditions: Where the area searched is within the arrestee’s physical control at the time of arrest, the general framework for the common law power must be satisfied. Where the area searched is outside the arrestee’s physical control at the time of the arrest, but the area is sufficiently proximate to the arrest, the police must have reason to suspect that the search will further the objective of police and 9 Constable Study Guide public safety, including the safety of the arrestee. The nature and extent of the search must be tailored to the purpose of the search and the heightened privacy interests in a home, and the police must not be any more intrusive than is necessary to resolve their reasonable suspicion. 3. Members should take detailed notes after searching a home incident to arrest of “the places searched, the extent of the search, the time of the search, its purpose, and its duration.” Unfortunately, the Supreme Court of Canada in Stairs declined to decide whether the reasonable suspicion standard it espoused also applied to investigation-related purposes, such as evidence preservation or evidence discovery. Cell phones (eg. Fearon, SCC) 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. 3. The nature and the extent of the search are tailored to the purpose of the search. 4. The police take detailed notes of what they have examined on the device and how it was searched. Penile Swabs (Saeed, SCC) 1. The arrest was lawful. 2. The swab must be truly incident to the arrest, in the sense that the swab must be related to the reasons for the arrest and it must be performed for a valid purpose. The valid purpose will generally be to preserve or discover evidence. 3. The police must also have reasonable grounds to believe that a penile swab will afford evidence of the offence for which the accused was arrested. 4. The penile swab must be conducted in a reasonable manner. The Court outlined several factors the police must consider in performing a penile swab: The penile swab (like a strip search) should, as a general rule, be conducted at the police station. This requirement is even stricter for penile swabs than strip searches. Safety concerns may justify a strip search for weapons in the field. Safety concerns are highly unlikely to justify a penile swab in the 10 Constable Study Guide field. However, the Court did not rule out the possibility that a penile swab may reasonably be performed in another suitable location, such as a hospital, if there is some valid reason for doing so. The swab should be conducted in a manner that ensures the health and safety of all involved; The swab should be authorized by a police officer acting in a supervisory capacity; The arrestee should be informed shortly before the swab of the nature of the procedure for taking the swab, the purpose of taking the swab, and the authority of the police to require the swab. As a general rule, the police must explain to the accused the procedure for taking a swab before it is taken, to ensure the accused understands the nature of the procedure and the steps it involves. Reviewing the procedure with the accused in advance can only help to keep the procedure quick and efficient; The arrestee should be given the option of removing his clothing and taking the swab himself, and if he does not choose this option, the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary. Giving the arrestee the option of taking the swab himself enables the accused to minimize the intrusiveness of the swab. The police may use force in taking a penile swab incident to arrest, but only if the force used is necessary and proportional in the specific circumstances. In other words, as with strip searches, if the arrestee resists the swab, the police may only use the minimum amount of force necessary to obtain it. However, the fact that an arrestee resists does not entitle the police “to engage in behaviour that disregards or compromises his or her physical and psychological integrity and safety”; The police officer(s) carrying out the penile swab should be of the same gender as the individual being swabbed, 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 such that no one other than the individuals engaged in the swab can observe it; The swab should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time; and A proper record should be kept of the reasons for and the manner in which the swabbing was conducted. A detailed record of how the swab was conducted is important for after-the-fact review of these searches to be effective and it is likely to focus police officers’ attention on whether their conduct is reasonable. Hot or Fresh Pursuit Hot or fresh pursuit has been defined as “continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction.” (Macooh, SCC) The common law authorizes an officer, in the case of hot or fresh pursuit, a right to enter without a warrant, private premises, including a dwelling house, to make an arrest both for provincial 11 Constable Study Guide offences and for indictable offences, provided the circumstances justify an arrest without a warrant. (Macooh, SCC; Haglof, BCCA) Hot or fresh pursuit does not mean an officer must make instant or immediate entry while in pursuit. Officers must emphasize safety in deciding the timing of entry while in pursuit. For example, an officer should not force an unsafe situation and, prior to making entry, an officer may use their radio, wait for backup, coordinate available resources to establish a perimeter, and make efforts to de-escalate the situation and call the person to be arrested out from the premises. Protective Searches (unconnected to arrest/detention) (eg. MacDonald, SCC) – developing in the law “[A safety] search will be authorized by law only if the police officer believes on reasonable grounds that his or her safety is at stake and that, as a result, it is necessary to conduct a search. The legality of the search therefore turns on its reasonable, objectively verifiable necessity in the circumstances of the matter.” (MacDonald, SCC) Implied Licence (eg. Evans, SCC; Parr, BCCA) The common law implied licence to knock doctrine recognizes that the occupier of a residential dwelling is deemed to grant the public permission to enter onto private property and approach the door of the dwelling to knock (or ring the doorbell) in order to speak with the owner or occupier. This doctrine aims to facilitate convenient communication by enabling members of the public, including an officer, to reach a point in relation to the home where they can conveniently communicate with an occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of their dwelling. Where the police act in accordance with this implied invitation (for the sole purpose of communicating with an occupant), the police cannot be said to intrude upon the privacy of the occupant. Where the conduct of the police goes beyond that which is permitted by the implied licence doctrine, the conditions of the implied licence are breached, and the police approach the dwelling as an intruder. The legitimacy of the police use of the implied licence doctrine is dependent on the officer’s purpose or intention when they enter upon private property and approach the dwelling to communicate with the occupant. If the approach is motivated by anything more than to communicate with an occupant, such as conducting a search or gathering evidence against an occupant the licence has been exceeded.37 Examples of conduct exceeding implied licence include an intention upon approach to the dwelling to sniff for the odour of marihuana at the door when it was opened in response to a knock or search for visual, auditory or olfactory clues of impaired driving while interacting with an occupant on the doorstep. (Rogers, SKCA) 12 Constable Study Guide There is no general prohibition against the police approaching a dwelling in order to question the owner/occupier for the purpose of furthering a lawful investigation. The police do not necessarily exceed implied licence simply because they attend a residence to investigate a criminal offence or are looking for information about an offence. The fact the police are aware evidence might be acquired while entering onto the property does not make the police intruders acting outside the scope of the doctrine. (Parr, BCCA) Implied licence can be revoked verbally, or by, for example, putting up signs prohibiting entry or by locking an entry gate. Once implied licence has been revoked, a police officer must not enter, or, if licence has been revoked after entry, must leave, the property within a reasonable time or risk becoming a trespasser unless, while authorized to be on the property, the officer has acquired another lawful authority to remain. Where an officer is lawfully present on private property under implied licence and grounds for arrest come into existence before the licence is withdrawn, the officer may arrest the person. On the other hand, if the implied licence is withdrawn before there were lawful grounds for arrest and the officer does not leave, the officer would become a trespasser. Plain View (eg. Gill, BCCA) The common law plain view doctrine is a seizure authority only. It allows the police to seize evidence of a crime if the officer observes the evidence from a lawful vantage point and has lawful access to the item. This seizure power is limited to items that are visible and does not allow for an affirmative exploratory search for evidence of criminal activity. The proper application of the plan view doctrine has been expressed to be dependent on the existence of the following four requirements: 1. the police had lawful prior justification to be at the place where the evidence was found. The officer must be lawfully in the place and acting lawfully in the exercise of police powers when the officer discovers the evidence. 2. the police discovered the evidence inadvertently while exercising a lawful police power or performing a lawful police duty. The discovery of an item must not be uncovered by a deliberate, unauthorized search; 3. the evidence was in plain view in the sense that it was detected through the unaided use of the officer’s senses; and 4. it must be immediately apparent to the officer that there are reasonable grounds to believe the item is evidence of criminal conduct. It was immediately apparent to the officer that the evidence was probably connected to criminal activity. The immediacy requirement means that it is apparent without further investigations. The reasonable grounds requirement means that more than mere suspicion is required, but certainty is not required. 13 Constable Study Guide “[T]he officer did not have to avert his eyes and pretend, like Sergeant Schultz in the television show, “Hogan’s Hereos”, that he “knows nothing”. That would make a mokery of effective police enforcement.” (Robere, NLCA) Consent (eg. Borden, SCC; Head, BCCA; Kennedy, BCCA) Person may waive their constitutional protections against unreasonable search and seizure. Voluntary (includes awareness of the right to refuse consent) Knowledge (sufficient info to make choice meaningful) A prudent way for the police to prove a person was aware of the right to refuse is for the officer to tell the person they have the right. Consent is NOT mere compliance or passive acquiescence to police requests or instructions. See also the Ontario Court of Appeal test for consent (Wills, ONCA): there was a consent, express or implied; the giver of the consent had the authority to give the consent in question; the consent was voluntary in the sense that that word is used in Goldman, [ 1 S.C.R. 976], and was not the product of police oppression, coercion or other external conduct which negated the freedom to choose whether or not to allow the police to pursue the course of conduct requested; the giver of the consent was aware of the nature of the police conduct to which he or she was being asked to consent; the giver of the consent was aware of his or her right to refuse to permit the police to engage in the conduct requested; and the giver of the consent was aware of the potential consequences of giving the consent. Abandonment (eg. Patrick, SCC) Person ceases to have a reasonable expectation of privacy. Through a person’s actions they alter the scope of their privacy expectation (eg. garbage, discarded DNA) The difference between abandonment and consent was expressed by the BCCA as follows: “[I]t is at the outset important to distinguish between waiver in the sense of abandoning one’s expectation of privacy and waiving one’s constitutional right to be free from unreasonable search and seizure. In the first [abandonment], through the actions of the accused, the scope of the accused’s expectation of privacy is altered and, where there is 14 Constable Study Guide no expectation of privacy, there can be no unreasonable search or seizure. In the second [consent], an otherwise unreasonable search or seizure becomes permissible because the accused has consented to it being undertaken.” (Roy, BCCA) Computers If police intend to search computer in a place to which they seek a warrant, must provide RGB that any computers they discover will contain the things they are looking for. Don’t need RGB you will find a computer. If, while searching with a warrant, the police come across a computer that may contain material they want but the warrant does not give them specific authority to search it, they may seize it and get a warrant. “Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. … If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.” (Vu, SCC) Inventory Searches Where a vehicle is lawfully taken into police custody pursuant to a Motor Vehicle Act towing authority (e.g. IRP impound, VI impound), the police have the authority to conduct an inventory search of the vehicle and its contents. (R. v. Russell, 2018 BCCA 330). The authority to conduct a reasonable inventory search of a vehicle implicitly derives from the statutory power of taking a vehicle into legal custody pursuant to impoundment or towing authorities such as BC’s Motor Vehicle Act. (R. v. Russell, 2018 BCCA 330; R. v. Strilec, 2010 BCCA 198; R. v. Cooper, 2016 BCPC 259). An inventory search serves a safeguarding function by securing and protecting a vehicle and its contents until it can be released to its owner/operator. An inventory search will be lawful provided: the vehicle has been lawfully taken into police custody (e.g., impounded/towed under applicable Motor Vehicle Act authority). If there is no lawful basis for taking the vehicle into police custody, the inventory search will not be authorized by law; the search was conducted for a proper purpose; and the search was conducted in a reasonable manner to achieve a proper purpose. Proper purposes for conducting an inventory search include: 15 Constable Study Guide protecting an owner’s interest in property while it is in the custody of the police; identifying public safety concerns and guarding the police and others from any hazardous or dangerous items or goods being held in police controlled or authorized storage facilities; and/or permitting the police to engage in protective measures against potential civil liability from claims of lost or damaged property in a vehicle which has been taken into police custody. (R. v. Cooper, 2016 BCPC 259) An inventory search must be reasonable in the circumstances and target places in a vehicle where people commonly place items of value such as under the seat, or in the glove box, centre console or trunk. Absent compelling circumstances, areas where it would not be reasonable to search for valuables include inside an air filter, inside a bumper, or behind wheel covers. In conducting an inventory search, the police may itemize the contents of objects such as purses, wallets and bags. (R. v. Wint, 2009 ONCA 52) An inventory search is unrelated to criminal investigation. A search undertaken solely to discover evidence of criminal activity is not a valid inventory search. An inventory search must not be used as a pretext to avoid the presumptive warrant requirement. However, an inventory search will not be rendered unlawful merely because evidence of criminal activity is discovered. Prior to towing a vehicle and conducting an inventory search, officers should give the vehicle’s occupant(s) an opportunity to remove property from the vehicle. Since any property removed from the vehicle is not in the legal custody of police, there is no need for the police to safeguard the property and the purposes of an inventory search are no longer applicable to the removed property. Detention s. 9 Charter – Everyone has the right not to be arbitrarily detained or imprisoned. What is a detention? A detention can occur in three different ways: 1. Physical Restraint. Arguably this would involve actual physical contact such as grabbing hold of a suspect, handcuffing, confining to the back of a police car. 2. Psychological Restraint with Legal Obligation. This occurs where a police officer gives a direction or demand in which there would be a significant legal consequence for non-compliance. For example, a breathalyzer demand. 16 Constable Study Guide 3. Psychological Restraint without Legal Obligation. This occurs when a police officer gives a direction or demand and the person reasonably believes there is no choice but to comply and does comply. This encapsulates a reasonable person test. In cases where there is no physical restraint or legal obligation a court examine the following circumstances: Circumstances giving rise to the encounter as they would reasonably be perceived by the individual. Conduct of the police including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. Characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. (Grant, SCC) The language and actions of the police must be consistent. Just because the police explicitly inform an individual that they need not cooperate with police and can leave does not necessarily preclude a finding of detention. The test for detention involves an appraisal of the entire interaction with police as it develops and no single consideration — including a statement from the police that the individual need not speak to them or could leave — is determinative. “[T]he assessment requires a broad view directed to all circumstances of the case, from which view a court should not be distracted by a police officer’s statement that might, taken in isolation, militate against the finding of a detention. It is entirely possible that such an assurance, given at a very specific point and time of the interaction with the police, might lose any significance to a reasonable person in the detainee’s circumstances once the entirety of the encounter is accounted for.” Even repeated assurances that a detainee is free to leave may be disregarded by vulnerable individuals unfamiliar with their Charter rights in circumstances involving the psychological dynamics of police interrogation characterized by a power imbalance between the state and citizen. (LaFrance, SCC) “To summarize: no single consideration, including a police statement to an individual that he or she is ‘not detained’ or otherwise under any obligation to cooperate or may leave, is determinative of whether a detention has occurred. Where present, it is a single consideration among others for which a court should account in deciding whether a reasonable person in the shoes of the accused would feel obliged to cooperate. It does not automatically turn the tide, and may not turn the tide at all, where other factors point to a finding of detention.” (LaFrance, SCC, at para. 39) Investigative Detention (eg. Mann, SCC) Reasonable grounds to detain (formerly articulable cause) individual is criminally implicated in the activity under investigation (recent, ongoing, or imminent criminal offence) 17 Constable Study Guide Detention is necessary in all the circumstances “[P]olice may detain an individual for investigative purposes if there are reasonable grounds to suspect in all of the circumstances that the individual is connected to a particular crime and that such detention is necessary.” (Baddock, BCCA) Detention must be brief and conducted in a reasonable manner. Search - if reasonable grounds safety is at risk (scope of search limited to finding weapons/objects that could be used as weapons) not an investigative search to locate evidence “[W]here a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual.” (Mann, SCC) “[A search incidental to investigative detention] does not give licence to officers to reap the seeds of a warrantless search without the need to effect a lawful arrest... nor does it erode the obligation to obtain search warrants where possible.” (Mann, SCC) Statements Common Charter rights affected: s. 7 includes right to silence (person’s choice to speak to police). s. 10 (a) reason for arrest/detention. s. 10 (b) right to counsel. Youth see s. 146 of YCJA Confessions Rule (common law) Crown must prove beyond a reasonable doubt that a statement made to a person in authority (includes police) was voluntary. Considerations: Threats Promises Operating mind Police trickery S. 10 (b) Rights & Obligations Reviewed (Sinclair; Willier; McCrimmon, SCC) 18 Constable Study Guide Police - s. 10(b) duties... Informational Duty - triggered immediately upon arrest or detention (except in urgent or dangerous situations): to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. Implementational Duties - triggered only when detainee chooses (indicates a desire) to exercise their right to counsel (except in urgent or dangerous situations): to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). Should a detainee indicate that they do not understand their right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding. Generally, s. 10(b) will afford the detainee a single consultation with a lawyer. It will be assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise their rights in the context of the police interrogation. Additional Informational Duty If a detainee, diligent but unsuccessful in contacting counsel, changes their mind and decides not to pursue contact with a lawyer, s. 10(b) requires the police to explicitly inform the detainee of their right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This has been referred to as a Prosper warning. Detainee - must be reasonably diligent in exercising right Police duties are contingent upon a detainee’s reasonable diligence in attempting to contact counsel, whether this is duty counsel or counsel of choice (a specific lawyer). What amounts to reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole, including such factors as the seriousness of the charge and the urgency of the investigation. It is not about getting the best lawyer to conduct a trial, but rather about the immediate need for legal advice. if a detained person is not diligent in exercising their right to counsel then the correlative duties imposed upon the police to refrain from questioning the detainee are suspended. if a chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice 19 Constable Study Guide to respond. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended. Renewed Right to Counsel Detainees should be given a further opportunity to speak to a lawyer where there is a change in circumstances such as: 1. new “non-routine” procedures involving the detainee (eg. participation in a physical lineup or polygraph) recording voice during interview for later voice comparison not a new “nonroutine procedure. (Wu, ABCA) participating in a re-enactment not a new “non-routine” procedure. Re-enactment nothing more than a statement by conduct. (eg. Ashmore, BCCA) 2. a change in the jeopardy facing the detainee (the investigation takes a new and more serious turn as events unfold) gradual or progressive revelation of incriminating evidence does not, without more, give rise to a renewed right to counsel. police practice of disclosing information, be it true or false, to encourage a detainee to talk does not, without more, re-trigger s. 10(b) rights. (eg. Ashmore, BCCA) 3. reason to question the detainee’s understanding of their s. 10(b) right to counsel. The renewed right to counsel under this category includes situations where the police “undermine” the legal advice that the detainee has received. Undermining not only includes belittling defence counsel such as expressly calling into question the competence of defence counsel, but also includes police conduct that causes the detainee to doubt the legal correctness of the advice they have received or the trustworthiness of the lawyer who provided it. (eg. Dussault, SCC) No Right to Have Lawyer Present During Questioning There is no constitutional right to have a lawyer present throughout a police interview. However, the police can allow a lawyer to be present if the police choose to do so and the detainee may wish to make counsel’s presence a precondition of giving a statement. 20 Constable Study Guide Other Considerations - s. 10(b) Investigative Detention The s. 10(b) right to counsel arises immediately upon detention, whether or not the detention is solely for investigative purposes. Thus, s. 10(b) of the Charter requires the police to advise a detainee that they have the right to speak to a lawyer, and to give them a reasonable opportunity to obtain legal advice if they so choose, before proceeding to elicit incriminating information from them. This immediacy requirement is subject to concerns for officer or public safety. (Suberu, SCC) Section 1 Limitations (driving) The right to counsel under s. 10(b) is not absolute. It is subject to such limitations as prescribed by law and justified under s. 1 of the Charter. For example, a lawful detention arising from a brief roadside stop pursuant to highway traffic legislation does not trigger the rights set out in s. 10(b). (Harris, ONCA) Similarly, a demand to provide a breath sample into an approved screening device, although a detention, does not require the police to advise the detainee of their right to counsel provided the test is administered forthwith (Thomsen, SCC). A police officer may also suspend reading s. 10(b) Charter rights when they give a direction for a vehicle to pull over and check the driver’s sobriety by asking questions about prior alcohol consumption or request a driver perform sobriety tests (Orbanski; Elias, SCC). Ancillary Powers Doctrine Common law test used to determine whether a police officer’s conduct, which is prima facie an unlawful interference with an individual’s liberty or property, is nonetheless justified. The test involves a two-prong analysis: 1. Was the police conduct giving rise to the interference falls within the general scope of any duty imposed on the officer by statute or at common law. 2. If yes, did the conduct, albeit within the general scope of such a duty, involve an unjustifiable use of powers associated with the duty. The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. (eg. Dedman, SCC) Examples of when this has been used: 21 Constable Study Guide Investigative detention (Mann, SCC) Entry on hang-up 911 call (Godoy, SCC) Safety search (MacDonald, SCC) Dual Purpose Traffic Stops Under provincial motor vehicle legislation, such as BC’s Motor Vehicle Act, police officers are entitled to stop motorists for highway regulation and safety purposes. Such a stop, however, does not become illegal simply because the officer may have another legitimate purpose for investigating the driver, even though the other purpose in and of itself could not justify detention. For example, the fact police have an additional purpose in mind such as finding out who the driver is for intelligence reasons, does not convert a lawful stop into an unlawful or arbitrary one. As long as the police officer has a legitimate statutory basis upon which to stop the vehicle, a secondary or additional motive does not render the stop unlawful as long as the secondary motive is itself legitimate and consistent with the Charter. Unauthorized suspicionless searches during a random vehicle stop, for example, would not be a proper secondary purpose and render the stop arbitrary. In Kaddoura (BCCA), a patrol officer was asked to stop a vehicle to identify its occupants in connection with a drug transaction that had just taken place. When the officer saw the vehicle he noticed that it had a cracked taillight, a violation under BC’s Motor Vehicle Act Regulations. The officer pulled the vehicle over and determined that the accused was the driver and he subsequently was charged with trafficking in cocaine. He was acquitted at trial when the judge concluded he had been arbitrarily detained when pulled over and excluded the evidence that he was the driver of the vehicle. In allowing a Crown appeal, the BCCA held: [W]here a police officer has a lawful and reasonable basis to stop a motor vehicle, the presence of additional reasons to effect a stop does not transform it into an arbitrary detention. However, “the authority of the police to stop a vehicle for traffic safety purposes does not entitle them to interrogate the occupants or search the vehicle for the purposes of proving the commission of criminal offences. The mere fact that the initial stop is legal will not insulate subsequent police conduct from Charter scrutiny.” (Kaddoura, BCCA). Officers must ensure they do not use their motor vehicle stop powers as a ruse, pretext or subterfuge. A “dual purpose” stop requires two proper purposes: I agree with this conclusion as long as the other purposes motivating the stops are not themselves improper. For example, the police are entitled on a s. 216(1) stop to require drivers to produce their licences. That requirement is consistent with the highway safety concerns which underlie the power granted by the section. In addition to ensuring that the driver is properly licensed, the police may wish to 22 Constable Study Guide identify the driver for other purposes. It may be, as in this case, that the police are interested in knowing the identity of all those who are connected with what they believe to be organized criminal activity. The gathering of police intelligence is well within the ongoing police duty to investigate criminal activity. As long as the additional police purpose is not improper and does not entail an infringement on the liberty or security of the detained person beyond that contemplated by the purpose animating s. 216(1) of the H.T.A., I see no reason for declaring that a legitimate police interest beyond highway safety concerns should taint the lawfulness of the stops and detention. As the trial judge pointed out, known criminals should not be more immune from s. 216(1) stops than law abiding citizens who are not known to the police. (Brown v. Durham Police, ONCA; s. 216(1) HTA is Ontario’s vehicle stop provision similar to s. 73 of BC’s MVA). (See also R. v. Shipley, 2014 ONSC 4795 upheld 2015 ONCA 914), “I disagree with the [accused’s] position that the traffic stop was a ruse. The officer, under these circumstances, was well justified in stopping the applicant under the H.T.A. to ensure he was properly licensed. There was nothing improper for the other reason for his stop which was to investigate why the Applicant was stopped at an empty bank parking lot at night, with interior lights on, in a high drug area, and looking startled upon seeing the police.” The officer was found to have kept his inquiries within the proper scope of s. 216(1) HTA). Sometimes, a court will find that the true purpose of a traffic stop was not related to highway safety, but rather to rule our criminal behaviour. If that is the case, the stop will need to meet the investigative detention standard (reasonable suspicion). A general suspicion about criminality will not suffice. In short, the use of a traffic stop authority cannot be a mere pretext or ruse employed in order to further the other investigative purpose, which, by itself would not otherwise lawfully justify the stop. 23 Constable Study Guide POLICE ACT Jurisdiction of Municipal Constables s. 38 (1) A municipal constable or a special municipal constable has (a) all of the powers, duties and immunities of a peace officer and constable at common law or under any Act, and (b) jurisdiction throughout British Columbia while carrying out those duties and exercising those powers. IIO - Independent Investigations Office The Independent Investigations Office (IIO) of British Columbia is a civilian-led police oversight agency responsible for conducting investigations into incidents of death or serious harm that may have been the result of the actions or inactions of a police officer, whether on or off duty. The Police Act requires the IIO be notified by a police agency when the requirements of ss. 38.09 or s. 38.10 have been satisfied. Immediate reporting of critical incidents and steps to be taken for takeover by independent investigations office 38.09 (1) When an officer is at the scene of an incident where it appears that (d) a person may have died or suffered serious harm as a result of the actions of an officer, whether on or off duty, or (e) an officer, whether on or off duty, may have contravened a prescribed provision of the Criminal Code or a prescribed provision of another federal or provincial enactment, the officer must immediately notify the independent investigations office in accordance with the guidelines established by the chief civilian director. (2) Until IIO investigators arrive at the scene of the incident, the officers at the scene must take any lawful measures that appear to the officers to be necessary or expedient for the purposes of obtaining and preserving evidence relating to the matter. (3) On arriving at the scene of the incident, one or more IIO investigators must take over and conduct the investigation of the incident under this Part. Immediate reporting of critical investigations and takeover by independent investigations office 38.10 (1) When a police service is conducting an investigation into the conduct of an officer under Part 11 [Misconduct, Complaints, Investigations, Discipline and Proceedings] and there is evidence that the officer may have, whether on or off duty, 24 Constable Study Guide (a) caused the death of a person, (b) caused a person serious harm, or (c) contravened a prescribed provision of the Criminal Code or a prescribed provision of another federal or provincial enactment, the chief of the police service must immediately notify the independent investigations office in accordance with the guidelines of the chief civilian director. Serious harm is defined in s. 76 of the Police Act: "serious harm" means injury that (a) may result in death, (b) may cause serious disfigurement, or (c) may cause substantial loss or impairment of mobility of the body as a whole or of the function of any limb or organ[.] IIO Medical Incident Notification Policy The IIO Medical Incident Notification Policy does not require the notification of the IIO of “an incident involving serious harm or death where a police officer provides immediate medical care such as the administration of CPR, naloxone or other life-saving measures, except in the following circumstances: a. where there has been any use of force by police prior to or after the administration of CPR, naloxone or other life-saving measures; b. where a person dies or suffers serious harm while detained or in custody of the police; c. where a person dies or suffers serious harm as a result of a motor-vehicle incident involving police or a police pursuit.” IIO Additional resources: Guidelines and Expectations with Respect to the Conduct of IIO Investigations MOU with Police Agencies OPCC Mandatory Reporting When a member of a municipal police department or designated law enforcement agency is involved in an incident resulting in a person receiving an injury caused by the discharge of a firearm, or an injury requiring emergency care by a medical or nurse practitioner and requires transfer to a hospital, s. 89 of the Police Act requires the police department or law enforcement agency must immediately report the circumstances of that incident to the OPCC. Under s. 89(2), the Police Complaint Commissioner must direct 25 Constable Study Guide a mandatory investigation to be conducted by an external police department or other agency if there is reason to believe: a person died or suffered serious harm while in the custody or care of a member; a person died or suffered serious harm as a result of the conduct of a member; or a person died or suffered serious harm as a result of the operations of a municipal police department or designated law enforcement agency. Reportable injury is defined in s. 76: "reportable injury" means any of the following: (a) an injury caused by discharge of a firearm; (b) an injury requiring emergency care by a medical practitioner or nurse practitioner and transfer to a hospital; (c) an injury described by regulation under section 184 (2) (c) [regulations under Parts 9 and 11]. The OPCC in its Guideline: Notification of Death and Serious Harm to the OPCC provides examples of what could amount to “serious harm”: Types of Police Act Files2 There are a number of different types of files the OPCC opens. There are registered complaints, service or policy complaints, ordered investigations, questions or concerns, monitor files and internal discipline. Registered Complaints - The public can file complaints about a police officer’s conduct or actions that affect a member of the public. 2 Adapted from OPCC Annual Report 26 Constable Study Guide Service or Policy Complaints - The public can file complaints about the policies or services being provided by a police department. These complaints are the responsibility of the department’s police board. The police board is required to advise the OPCC of their course of action. The Commissioner may also make recommendations to the police board. Ordered Investigations - The Commissioner can initiate investigations into a police officer’s conduct or actions, even if there is no complaint filed by the public. Police departments can also ask the Commissioner to initiate an investigation into the conduct of one of their police officers. The Police Act also requires the Commissioner to order a mandatory external investigation into any incident resulting in serious harm or death. Questions or Concerns - If a member of the public has a question or concern about a municipal police officer’s conduct, that does not result in the making of a registered complaint, he or she may contact a municipal police department directly. The member of the municipal police department who receives the question or concern must inform the professional standards section of the involved municipal police department. The professional standards section must record the question or concern and forward a copy of the record, along with how it was resolved, to the Office of the Police Complaint Commissioner for review. A Question or Concern relates to (1) conduct by a member that does not reference an allegation of misconduct as defined in s. 77 of the Police Ac or (2) conduct by a member that causes a member of the public to be upset, worried or disturbed.3 Examples of Questions or Concern provided by the OPCC include:4 Ms. Roberts was driving with her teenaged son and while they were stopped at a red light, they witnessed a police officer in his vehicle who appeared to be pressing buttons on a computer screen on his dashboard. Ms. Roberts attended the professional standards section to enquire whether the police are allowed to type on computers while operating motor vehicles. Mr. Smith called the police because he wished to file a noise complaint against one of his neighbours. The noise continued for 30 more minutes without stopping. Mr. Smith emailed professional standards and was concerned that the police did not prioritize his call. Mr. Smith wished to let the department know that while he does not wish to file a complaint, he would like to discuss how the police respond to calls of noise complaints in his area. Mr. Jackson was inside his home when he saw a police vehicle being driven through his neighbourhood with its emergency lights activated but no siren. Mr. Jackson called the police because he felt the police should have activated their siren. 3 See OPCC Information Bulletin #13 - Receiving & Handling of Complaints & Questions/Concerns, dated October 8, 2014. 4 See OPCC Information Bulletin #13 - Receiving & Handling of Complaints & Questions/Concerns, dated October 8, 2014. 27 Constable Study Guide Questions or concerns about an AbbyPD officer’s conduct must be reported to the OPCC. A supervisor receiving a question or concern must notify PSS to process the question or concern. Monitor Files - Opened when information is received by the OPCC from the police, including reportable injuries, or from other sources, such as public information, that may require an investigation pursuant to the Police Act. Typically, these are incidents that are serious in nature or that have generated media attention, but no potential disciplinary defaults have yet been identified. These files are held open until a report is received from the police. The matter is reviewed and a decision is made as to whether an Ordered Investigation is required. If no action is deemed necessary, the file is concluded as “reviewed and closed.” Internal Discipline - Involve performance management issues or employer/employee concerns that do not affect members of the public; are not the subject of a complaint or investigation; and no overriding public interest in proceeding with the matter as a public trust matter. Types of Misconduct “Misconduct” under the Police Act includes conduct that constitutes a disciplinary breach of public trust described in s. 77(2): 28 Constable Study Guide Abuse of Authority Accessory to Misconduct Corrupt Practice Damage to Police Property Damage to Property of Others Deceit Discourtesy Discreditable Conduct Improper Disclosure of Information Improper Off-Duty Conduct Improper Use or Care of Firearms Misuse of Intoxicants Neglect of Duty “Misconduct” also includes conduct that constitutes a public trust offence described in s. 77(2): s. 77(2) A public trust offence is an offence under an enactment of Canada, or of any province or territory in Canada, a conviction in respect of which does or would likely (a) render a member unfit to perform her or his duties as a member, or (b) discredit the reputation of the municipal police department with which the member is employed. Processing alleged misconduct s. 78 (1) Subject to section 79, a complaint concerning any conduct of a member that is alleged to constitute misconduct may be made to and registered with the police complaint commissioner (d) by a person who is directly affected by, or who directly witnesses, the conduct, (e) by an individual known to and acting on behalf of a person described in paragraph (a), if the person on whose behalf the complaint is being made consents to its being made or is, because of age or a mental or physical condition, incapable of giving consent, or (f) by a third-party complainant. (2) The complaint may be made and registered by stating or delivering it (a) directly to the police complaint commissioner, or (b) to one of the following for forwarding under section 80 to the police complaint commissioner: (i) a member on duty at a station of any municipal police department who is assigned to receive and register complaints under this Division; (ii) an individual designated by the police complaint commissioner under section 51 (5) (a) [staff and other designated individuals]. The time limit for making a complaint is 12 months from the date of the alleged misconduct. (s. 79(1)) 29 Constable Study Guide The OPCC may extend the time limit for making a complaint if the police complaint commissioner considers that there are good reasons for doing so and it is not contrary to the public interest. (s. 79(2)) A complaint is considered to be made as soon as it is received directly by the OPCC, or a police member. (s. 79(3)) When a member receives a complaint, they must immediately (a) record the complaint and the date and time of its receipt, (b) provide the complainant with a written acknowledgement of its receipt, and (c) forward a copy to the OPCC. (s. 80(1)) Providing Assistance to Complainant s. 80 (2) The member or designated individual receiving the complaint must (a) provide the complainant with any assistance that complainant requires in making the complaint, (b) provide any information or advice to the complainant that may be required under the guidelines prepared under section 177 (2) (a) by the police complaint commissioner, (c) request from the complainant any information that may be required under the guidelines, (d) provide the complainant with a copy of the police complaint commissioner's list, established under section 177 (2) (k), of support groups and neutral dispute resolution service providers and agencies, and (e) complete and forward to the police complaint commissioner the record of complaint in the form and manner required by the police complaint commissioner. OPCC Additional resources: Information Bulletin 1 - Section 89 – Reporting of Death, Serious Harm and Reportable Injuries, and Mandatory External Investigations in Cases of Death and Serious Harm Guideline: Notification of Death and Serious Harm to the OPCC Guideline 2: Receiving & Handling Questions or Concerns. Information Bulletin #13 - Receiving & Handling of Complaints & Questions/Concerns 30 Constable Study Guide CRIMINAL CODE Weapon A weapon is defined in s. 2 of the Criminal Code. weapon means any thing used, designed to be used or intended for use (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will. s. 88 - Possession of weapon for dangerous purpose s. 267 - Assault with a weapon or causing bodily harm s. 272 - Sexual assault with a weapon, threats to a third party or causing bodily harm Firearm Firearm is defined in s. 2 of the Criminal Code: firearm means a barrelled weapon from which any shot, bullet or other projectile can be discharged and that is capable of causing serious bodily injury or death to a person, and includes any frame or receiver of such a barrelled weapon and anything that can be adapted for use as a firearm. Child Under 12 s. 13 No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. Protection of Person Acting Under Authority s. 25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law (a) as a private person, (b) as a peace officer or public officer, (c) in aid of a peace officer or public officer, or (d) by virtue of his office, 31 Constable Study Guide is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. Idem (2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction. When not protected (3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm. When protected (4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if (a) the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; (b) the offence for which the person is to be arrested is one for which that person may be arrested without warrant; (c) the person to be arrested takes flight to avoid arrest; (d) the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and (e) the flight cannot be prevented by reasonable means in a less violent manner. Power in case of escape from penitentiary (5) A peace officer is justified in using force that is intended or is likely to cause death or grievous bodily harm against an inmate who is escaping from a penitentiary within the meaning of subsection 2(1) of the Corrections and Conditional Release Act, if (a) the peace officer believes on reasonable grounds that any of the inmates of the penitentiary poses a threat of death or grievous bodily harm to the peace officer or any other person; and (b) the escape cannot be prevented by reasonable means in a less violent manner. “Section 25(1) essentially provides that a police officer is justified in using force to effect a lawful arrest, provided that he or she acted on reasonable and probable grounds and used only as much force as was necessary in the circumstances. That is not the end of the matter. Section 25(3) also prohibits a police officer from using a greater degree of 32 Constable Study Guide force, i.e. that which is intended or likely to cause death or grievous bodily harm, unless he or she believes that it is necessary to protect him- or herself, or another person under his or her protection, from death or grievous bodily harm. The officer’s belief must be objectively reasonable. This means that the use of force under s. 25(3) is to be judged on a subjective-objective basis. If force of that degree is used to prevent a suspect from fleeing to avoid a lawful arrest, then it is justified under s. 25(4), subject to the limitations described above and to the requirement that the flight could not reasonably have been prevented in a less violent manner.” - R. v. Nasogaluak, 2010 SCC 6, at para. 34, reference omitted. “[P]olice officers do not have an unlimited power to inflict harm on a person in the course of their duties. While, at times, the police may have to resort to force in order to complete an arrest or prevent an offender from escaping police custody, the allowable degree of force to be used remains constrained by the principles of proportionality, necessity and reasonableness.” - R. v. Nasogaluak, 2010 SCC 6, at para. 32, emphasis added. Excessive Force s. 26 Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess. Duty of Person Arresting s. 29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so. Notice (2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of (a) the process or warrant under which he makes the arrest; or (b) the reason for the arrest. Failure to comply (3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility. 33 Constable Study Guide Preventing Breach of Peace s. 30 Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace. Arrest for Breach of Peace s. 31 (1) Every peace officer who witnesses a breach of the peace and every one who lawfully assists the peace officer is justified in arresting any person whom he finds committing the breach of the peace or who, on reasonable grounds, he believes is about to join in or renew the breach of the peace. Giving person in charge (2) Every peace officer is justified in receiving into custody any person who is given into his charge as having been a party to a breach of the peace by one who has, or who on reasonable grounds the peace officer believes has, witnessed the breach of the peace. Search and seizure without warrant where offence committed s. 117.02 (1) Where a peace officer believes on reasonable grounds (a) that a weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of an offence, or (b) that an offence is being committed, or has been committed, under any provision of this Act that involves, or the subject-matter of which is, a firearm, an imitation firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, and evidence of the offence is likely to be found on a person, in a vehicle or in any place or premises other than a dwelling-house, the peace officer may, where the conditions for obtaining a warrant exist but, by reason of exigent circumstances, it would not be practicable to obtain a warrant, search, without warrant, the person, vehicle, place or premises, and seize any thing by means of or in relation to which that 34 Constable Study Guide peace officer believes on reasonable grounds the offence is being committed or has been committed. Disposition of seized things (2) Any thing seized pursuant to subsection (1) shall be dealt with in accordance with sections 490 and 491. Application for warrant to search and seize s. 117.04 (1) Where, pursuant to an application made by a peace officer with respect to any person, a justice is satisfied by information on oath that there are reasonable grounds to believe that the person possesses a weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance in a building, receptacle or place and that it is not desirable in the interests of the safety of the person, or of any other person, for the person to possess the weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the justice may issue a warrant authorizing a peace officer to search the building, receptacle or place and seize any such thing, and any authorization, licence or registration certificate relating to any such thing, that is held by or in the possession of the person. Search and Seizure without warrant s. 117.04 (2) Where, with respect to any person, a peace officer is satisfied that there are reasonable grounds to believe that it is not desirable, in the interests of the safety of the person or any other person, for the person to possess any weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, the peace officer m

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