Police Powers - Final Exam Study Guide PDF

Police powers - Final Exam Study Guide Familiarize yourself with the CBC news story posted in Week 13 - Erin Gilmour (22), and Susan Tice (45), were sexually assaulted, and stabbed to death in their beds by Joseph George Sutherland in August, and December 1983. - They lived just kilometres apart in...

Police powers - Final Exam Study Guide Familiarize yourself with the CBC news story posted in Week 13 - Erin Gilmour (22), and Susan Tice (45), were sexually assaulted, and stabbed to death in their beds by Joseph George Sutherland in August, and December 1983. - They lived just kilometres apart in downtown Toronto. - They did not know each other. - In 2000, detectives used DNA technology to discover that both women were murdered by the same man. - In 2019, police began using “Investigative Genetic Genealogy” to identify the suspect’s family group. They worked backwards, building a family tree of the suspect’s relatives. - Investigative Genetic Genealogy involves cross-referencing DNA found at crime scenes with DNA samples voluntarily submitted to services like 23andMe, etc, and then uploaded to open-source databases. - Out of Toronto’s 700 cold cases, there are 43 where DNA recovered at the scene is thought to have belonged to Joseph George Sutherland. When it comes to the use of discretion, what is the source of police officers’ knowledge about the use/application of discretion? Does this come from statute law, common law, personal experience, or police college? - Discretion is guided by case law, and perfected by experience. Chapter re: Discretion – How does the social, economic, and demographic makeup of the local community in which police work influence how officers use discretion? - These are the environmental factors. - The following influence how officers use discretion: - The officer’s place in the community, including their relationship with community members - The availability of alternatives to charging individuals. (if there are no programs/treatment centers nearby, as an alternative to charging the individuals.) How can a police service’s policies and procedures influence an officer’s decision to lay charges? - If the police service has a zero-tolerance policy against a certain type of crime, a police officer will be more influenced to lay a charge against that specific crime because it is the rule. - If the police service has a “ticket quota.” Explain the negative relationship between the “zero-tolerance” approach to enforcement when applied against Canadians of diverse cultural backgrounds. - Police learn how to be sensitive to individuals whose understanding of Canada’s laws may be unclear or unusual owing to their cultural backgrounds. A zero-tolerance approach is not good for police officers in these situations. What are some “pros” and “cons” of the use of discretion by police? - Benefits (PRO’S): - Compassion in Policing - Working with the Community - Addressing Economic Realities - Protecting the Safety of Police Officers - Enhancing Police Effectiveness - Challenges (CON’S): - Inconsistencies in Enforcement - Uncertainty Caused by Changing Norms - Discrimination: Direct, Indirect, and Systemic. - Mistakes and Misjudgement How does the use of discretion allow police and the community to cooperate? - Police discretion can positively impact community relations. By using their judgment to handle situations appropriately, officers can build trust and rapport within the communities they serve. This can lead to better cooperation and communication between law enforcement and the public What are some arguments against police use of discretion? - Some people argue that these types of decisions undermine the Criminal Code, which is there to create order and to keep people safe, so it ought to be strictly followed by police. - Some people claim that allowing police to make discretionary decisions can create inconsistencies and uncertainty in the legal system. - A further concern is that discretionary power could be driven either by favoritism toward or discrimination against certain people or grounds. Chapter re: discretion - Know the meaning of systemic discrimination, direct discrimination, and indirect discrimination. - Systemic discrimination: discrimination in which certain attitudes or values become the accepted standard in an organization or even a community. - Direct discrimination: discrimination directed toward a person based on characteristics such as age, gender, culture, and sexual orientation. - Indirect discrimination: discrimination, generally unintentional, that results from a policy or practice that on the face of it seems reasonable, such as height requirement for police. During a SITA, who/what is permitted to be searched? - WHO: - The person(s) being arrested - WHAT: - Weapons - Evidence (directly related to the offence) - Tools of Escape - Identity (Evidence of their Identity) - WHERE: - Persons clothes - Anything in their possession (backpack/purse/etc) - Immediate Surroundings (Their car, if that is where they were placed under arrest.) Why are warrantless searches considered to be prima facie unreasonable? - Any search that is conducted without a warrant is presumed to be unreasonable until proven otherwise. The onus rests with the Crown to demonstrate, on a balance of probabilities, that a warrantless search was reasonable. What does prima facie mean? - On first impression - Latin for “at first look.” evident from the facts; evidence that, if not contradicted, will be sufficient to prove a particular proposition or fact. What are the grounds needed to justify investigative detention? - Reasonable grounds to suspect What grounds are needed to justify the search of a person being detained for investigative purposes? What case tells us this? - CASE: - R v MacDonald - GROUNDS NEEDED: - Reasonable grounds to believe that the detained person is in possession of an offensive weapon. (Can conduct a pat-down only) Where do police derive their authority from SITA? - English Common Law - R v Golden says that SITA is an exception that all warrantless searches are prima facie unreasonable. If a person is arrested due to an arrest warrant, neither the arresting officer nor the OIC can release the accused person without the authorization of a justice or provincial court judge. Why? What needed to happen for this to be allowed? - This is because they require a bail hearing to be released. Who/what is an “affiant’? - An Affiant is the police officer who writes the warrant. What is “disclosure”? How does it work? What is the landmark case regarding disclosure? - In criminal cases, the practice in which the Crown provides the defence with all evidence gathered in an investigation. A "body search" is also known as a ___ search. - Cavity Search Difference between a confidential informer (CI) and an agent for the police (police agent): - Confidential Informer: - Informers who provide valuable information to the police and whose identity cannot be revealed by the Crown or the police unless the informant agrees to it. - Agent for the Police: - A person who, acting under the direction of the police, goes out into the field to gather, obtain, and convey to the police the information they receive. - Difference Between the Two: - A police agent is compelled to provide evidence in court. (Confidential Informant is not.) - Confidential Informant’s identity has absolute confidentiality. (Police Agent does not.) - Confidential Informant has Informer privilege. (Police Agent does not.) What is “informer privilege”? What are the rules associated with it? - Crown prosecutors have a duty to protect the identity of confidential police informers. Once informer privilege is found to exist, neither the Crown, nor the police can breach it. - As informer privilege belongs to both the Crown and the informer, the Crown cannot waive the privilege without the consent of the informer. Where the privilege is engaged, Crown prosecutors must object to the disclosure of any information that might reveal, even implicitly, the identity of an informer, or his or her status as an informer. - A witness cannot be asked questions which narrow the field of possible informers to the extent that the identity of the informant is determined by process of elimination. Read more about CI’s here: https://www.criminalnotebook.ca/index.php/Confidential_Informers (This information was/is posted under Week 13’s content) - Often used to gain grounds for a search warrant, or a warrantless search. - Information from a confidential informer is only admissible where the defense challenged the grounds of a search, seizure, or arrest, otherwise, it is not relevant. - Deboot Test: (testing a “tip.”) (3 C’s) - Compelling - Credible - Corroborated. - Anonymous tips are generally not sufficient. When a person is arrested, when should the search take place? How quickly after the arrest? - Generally speaking, within a reasonable period of time after the arrest. Re: SITA - What is permitted to be searched? - Immediate surroundings of the person arrested - If arrested in a car; one can search the car but not the trunk Explain the continuity of evidence. How should police handle and process evidence that they find? By what means? - Continuity of Evidence: - Police must be able to account for the whereabouts of seized items at all times. - How should Police Handle & Process Evidence that they find? - They must explain how they ______ the seized property: - Gathered - Processed - Managed - They must keep observations and meticulous notes of the search and seizure and should include the 5 W’s (who, what, where, when, why.) What is a “487” warrant? - Ordinary search warrant (most common) - Used to search any type of place for physical items that are evidence of an offense. Know the various specialty search warrants and the purpose & details of each - S.487 (Ordinary search warrant - used to search any type of place for physical items that are evidence of an offence) - S.487.01 (General search warrant - use of device, video surveillance - used by police to gather information (not intended to be used to enter/search a place or seize items)) - S.487.1 (Telewarrant - applies to any kind of warrant - RG must establish that it is impracticable or not possible to appear before a JP in person) - S.492.1 (Tracking warrant - tracking device - permits police to attach a locating device in/on anything carried, used, or worn by a person) - S.492.2 (Telephone number recorder) - S.487.04 (Bodily substances for forensic DNA analysis - authorizes police to seize blood, saliva, or hair for forensic DNA analysis) - S.487.092 (Impression warrant - used by police to “seize” an impression/print from a suspect/offender (handprint, fingerprint, footprint, teeth impressions)) - S.11 CDSA (Drugs and substances warrant) What is a CC Form 1? CC Form 5? - CC Form 1: Information to Obtain Search Warrant - A statement of factors concerning the investigation, the place to be searched, the items being sought, and the reason for their being sought. - CC Form 5: Warrant to Search - The actual warrant to search. Read pages 266 to 272 of your textbook – understand this scenario and familiarize yourself with the sample ITO - Appendix A: All items attempting to seize. - Appendix B: Facts in Issue - Appendix C: Introduction of the Affiant (police officer who writes the warrant application.) - Glossary: Discusses the abbreviations which may be used on the Search Warrant Information to Obtain. - Sourcing Information: States that unless otherwise stated, all police officers are from the specific police service, and unless otherwise stated, all locations are in a specific city/town/location. - Confidential Source Background: Discusses the story which their source gave them. - Grounds to Believe the Named Offences were Committed - Grounds to Believe that the Items Seized will Afford Evidence of the Stated Offense - Grounds to Believe that the Items are at the Location to be Searched - Appendix D: Includes background information on the source, and a request for a sealing order (if applicable). Page 175-178 textbook – know the “Three Influences On Police Discretion” 1. Environmental Factors - The environment in which police operate has a tremendous influence on how they use discretion. - Environmental Factors include The social, economic, and demographic makeup of the local community. - Environmental factors often affect: How an officer chooses to respond to certain situations, and the availability of alternatives to charging individuals. 2. Administrative Factors - Closely related to a police officer’s environment and may be seen as part of it. - Administrative Factors include: A departmental zero policy rule on something. - Administrative Factors often affect: A police officer’s ability to take more of a discretionary approach to certain laws. Requires the officer to take a strict enforcement approach. 3. Individual & Situational Factors - A police officer’s individuality. - Individual Factors Include: Often influenced by personal thoughts, beliefs, values, and traits, and level of experience. This is also often influenced by biases. Other factors would include, gender, age, and demeanor of the suspect. - Individual Factors often affect: How police officers respond to a threat, and certain situations, including the decision to charge the individual. Explain “Nexus of Search” – How does this relate to a police officer’s attempt to apply for a search warrant? - Nexus of Search: - A direct relationship between the offence that has been committed, the evidence that the police need to secure in their investigation, and the location where the police believe the evidence will be located. - How does this relate to a police officer’s attempt to apply for a search warrant? - Before officers apply for a search warrant, they must complete a thorough investigation to ensure there is a nexus of search. What is the definition of discretion as learned in class? - ‘Making That Call…’ - The authority for police officers to decide whether to engage the judicial process or pursue lawful alternate courses of action. Why is a police officer’s discretionary decision-making influenced by their experience as a police officer? - Experience may change a police officer’s view on a certain offence. - For example, a 25 year police veteran may view jaywalking differently than an officer right out of college. The officer out of college may choose to charge the person, while the veteran may see it as a mistake where there is room for the use of discretion. What are the 3 parts of the “3 Part Test” in R v. Belliveau? - Initial intrusion/entry into the place must be lawful - Discovery must be inadvertent (unplanned) - Must be obvious that the item(s) is evidence of crime How should all searches be conducted? - All searches should be thorough! R v Golden – ruling and impact? - Facts: - Police set up a stakeout. Saw people walk into a shop and get a white substance from Golden. Police arrest Golden. Did pat down and found no weapon or narcotic at shop/decided to do strip search of Golden in the shop. Pulled down pants and underwear in front of employees and officers. See baggy containing white substance in bum/used cleaning gloves to get it out. It was cocaine. - Ruling & Impact: - Ruling: - The manner in which the search was conducted against Golden was unreasonable and therefore a breach of s.8 Charter.Strip searches should generally be conducted at the police station, unless there are circumstances requiring that the detainee be searched prior to going to station - Impact: - Strip searches in the field can only be justified where there is a necessity and urgency to search for weapons or objects that could be used to threaten safety - Where reasonableness of a strip searched is challenged - either: 1. Reasonable and probable grounds, as well as exigent circumstances existed, and therefore, a strip search in the field was warranted and was conducted in a reasonable manner, or 2. That reasonable grounds existed, that the strip search was carried out in a police station and conducted in a reasonable manner. What is the rule concerning cavity searches? - Body Cavity searches must: - Be conducted at a hospital by a doctor - Have consent or a valid search warrant. Section 2 CC: What is “night”? What is “day”? How do these definitions relate to search warrants? - Night: - Between 9:00 pm, and 6:00 am the following day. - Day: - Between 6:00 am, and 9:00 pm. - These relate to search warrants because: - Most search warrants are executed during the day. - Section 488 of the Criminal Code limits the execution of search warrants by night. When can a CC search warrant be executed at night? What about CDSA search warrants? When can they be executed? - A search warrant shall be executed on day unless: - The justice is satisfied there are reasonable grounds for it to be executed by night. - The reasonable grounds are included in the information - The warrant authorizes that it is executed at night. - A CDSA search warrant can be executed at any time, day or night, without special authorization; HOWEVER, it is still important for the ITO to obtain the reason for the nighttime entry. What is the search authority for school officials? What and when can they search? - School officials have the power to search a student or their locker if they have reasonable grounds to believe that the student has violated either the law, or the rules of the school. - It applies to both teachers and principles When the police decide to return property that they have seized, what are the two things they must ensure before they do so? - First prove that there is no dispute as to who is lawfully entitled to the property that was seized. - That the property seized is not required for further detention. Under what circumstances can police use force when executing a search? 1. If a person refuses to allow entry into their residence (when police have a search warrant) Police may use as much force as necessary to enter the location. 2. After allowing occupants reasonable time to answer the door, if there is no response from within the premises, Police may use as much force as necessary to enter the location. 3. Police may use as much force as necessary to enter the location if there are circumstances where evidence could be destroyed or where police believe there is an immediate threat to themselves or others. (exigent circumstances) Who has the authority to issue search warrants? - A Justice of the Peace, or Provincial Court Judge. Know the facts and impact of the following cases: - R v Beare: - FACTS: - Claude Beare was charged with an offence and released using an appearance notice. He claimed the Identification of Criminals Act was a violation of his right to “Security of the Person.” - S.7 Charter. SCC ruled that s.2 of the Identification of Criminals Act is legal. - IMPACT: - Ruled that discretion is essential to the Criminal Justice System - R v Beaudry: - FACTS: - Officer Beaudry pulled over a van with a tire which was flat. The driver was banging his head on the steering wheel and having a mental health crisis. The driver then identified himself as Officer Plourde. Beaudry took Plourde back to the station and told dispatch to enter it as assistance to the public. He had given him a breathalyzer test after a bit at the station because he saw him staggering. In Beaudry’s reports, he reported it as - - “unclassified activity.” Beaudry had said he had used discretion to choose to not arrest or charge Plourde. The supervisor had asked Beaudry to make a detailed report of the incident and Beaudry had initially refused, however, submitted a detailed report later that night. IMPACT: - This case established that discretion is NOT ABSOLUTE. Hill vs. Hamilton-Wentworth Police: - FACTS: - Hill was wrongfully convicted of robberies he did not commit. Police had lots of evidence to prove he was the correct person, however during their investigation they also had information that 2 men (one who looks identical to Hill) were the robbers and that 2 additional, and similar robberies occurred while Hill was in custody. The police claimed they worked with discretion because they still had evidence Hill did it. He eventually brought on a civil case for negligence and they were able to be sued individually. - IMPACT: - Police have a duty of care to conduct themselves reasonably, and must not avoid work or responsibility by claiming they chose to act on a discretionary basis. What are: Deficiency of Execution and Deficiency of Knowledge? Provide an example of each of these. - Deficiency of Execution: - Knowing the right thing to do, but not doing it. - Example: A police officer stops a car believing the driver is impaired. He speaks to the driver who, using her police badge, identifies herself a police officer with a nearby police service. Despite RG that the driver is impaired, the officer parks the female driver’s car on the shoulder of the road and drives her home and makes no record of the incident in his duty book. - Deficiency of Knowledge: - Failing to identify the problem correctly. (or not knowing the alternative (More appropriate) solutions) - E.g., A young police officer found a teenage college student intoxicated in a public place. He arrested the student, brought her to police cells, and issued her a Certificate of Offense with a $65 fine. Despite her cooperation, the officer told her, “I have no other option.” What is a JP or judge’s role in the application process for a search warrant? - The JP must approve the search warrant application. Know the warrantless search authorities under provincial law that was discussed in class Liquor License and Control Act: - Liquor unlawfully kept> vehicle/boat and occupants - Any evidence of an offence (liquor, packaging, proceeds, licenses, etc.) - Grounds for warrant exist but circumstances are exigent Highway Traffic Act: - S.79(3) Speed measuring warning device>motor vehicle only Fish and Wildlife Conservation Act: - S.89(2) Inspection of any wildlife>stop any “conveyance” - S.91(2) Building or place other than dwelling - evidence of offence>exigent circumstances Corner’s Act: - S.16(1) P.O. delegated by the coroner may examine or take possession of any dead body; enter/inspect the place where the dead body is or was removed. Know the opinions and research findings of: Philips, Goldstein, Schulenberg, and Neyroud as these relate to discretion – Week 14 PowerPoint Notes Research indicates that a person’s involvement with the courts and incarceration often results in what exactly? -