Expansion of Police Powers - CHW

In Richard Jochelson, Kirsten Kramar, and Mark Doerksen’s upcoming book, “The Disappearance of Criminal Law”, the three co-authors engage in a discussion of how the law has developed in a way that broadens discretionary powers for police. Over the past few decades, various decisions from the Supreme Court of Canada (“the Court”) have played a substantive role in the gradual disappearance of criminal law and entry into a society where threats are policed more than actual harms. In this blawg, I will be discussing how the expansion of ancillary police powers within Canada has developed and whether state authorities should be continuing a proactive approach in law enforcement or instead protecting rights guaranteed under the Canadian Charter of Rights and Freedoms (“the Charter”) by restoring an approach that enforces only once actual harm has occurred.

The balance between state power and constitutional rights

The Court plays a dualistic role by serving as an institution that must strike a balance between safeguarding and protecting the constitutional rights afforded to Canadians while expanding and delegating powers to state authorities. Striking an appropriate balance between Charter rights is determined under section 1 of the Charter, using the Oakes test. Similarly, the Court utilizes a similar means for justifying the formation of police powers by utilizing a test deriving from R v Waterfield, an English Court of Criminal Appeal case from 1963 (“the Waterfield test”).

The Waterfield test requires the consideration of “what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property”. If unlawful interference had occurred, the court would have to consider “whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty”.

This test coined by Justice Ashworth was limited in scope and seemed to be one that precluded from delegating new powers to state authorities and one that aimed to justify conduct in particular circumstances. After an absence of the test in judicial proceedings for years, it made an appearance in the 1985 Court case, Dedman v The Queen (“Dedman”). In Dedman, the Waterfield test was utilized as a means of conferring new police powers to the state as opposed to one that analyzed whether police conduct in a particular context was appropriate. It was found that police conduct that “[interferes] with any liberty interests was justifiable and the authority for roadblocks and intoxication tests came to be defined as a common law police power under the ancillary powers doctrine”. This marked departure from what seemed to be the intended purpose of the Waterfield test led to the further expansion of police powers.

As depicted in R v Mann (“Mann”), the Waterfield test continued to evolve and confer new powers to the police for aiding with criminal investigation. However, these powers were afforded at the expense of the liberties of Canadians. Mann implemented additional elements to the Waterfield test which addressed justifiable circumstances for detaining individuals for investigative purposes. Over the years, the common law has readily justified many circumstances where police can exercise their authority over individuals. This, however, comes at the cost of sacrificing Charter rights and freedoms such as the right to counsel in R v Orbanski and liberty in R v Godoy.

Moving forward to a more recent case that dealt with unreasonable search and seizure, R v Kang-Brown (“Kang-Brown”) resulted in the police continuing to acquire new, justifiable means of infringing on the rights of Canadians. To provide some background of the facts, three RCMP officers alongside sniffer dog, Chevy, were deployed to a bus station with the goal of detecting potential drug couriers. Sergeant MacPhee noticed Kang-Brown and thought he was suspicious due to an elongated stare and strange movements. After a while, Sergeant MacPhee introduced himself as a police officer and told Kang-Brown, “[y]ou’re not in any sort of trouble and you’re free to go at any time. We just talk to people as they are travelling.” Throughout their interaction, Sergeant MacPhee noticed that Kang-Brown seemed nervous and asked to see the contents of his bag. He assured Kang-Brown that he did not have to show him, but the bag was open so Sergeant MacPhee proceeded to touch the bag. Kang-Brown became very anxious and pulled the bag away before Sergeant MacPhee could touch it, so another officer and Chevy were signaled over. Upon arriving at this scene, Chevy sat down which indicated to his handler that there were drugs in the bag and Kang-Brown was arrested.

At the end of the trial, the Court decided that “[a] ‘sniffer dog’ is an investigative tool, not a ‘police power’” therefore it was acceptable to use sniffer dogs if there is a reasonable suspicion of drugs. However, in Kang-Brown, there was no reasonable suspicion that a bus depot would be utilized for trafficking drugs, so the evidence was excluded. As such, Kang-Brown acknowledged that sniffer dogs can be considered another police “tool” at their disposal.

Would the Court have been so lenient if this were a technological device instead of a living and breathing animal? Perhaps they would. Others have tried to parallel the use of a sniffer dog with other tools such as binoculars, flashlights, and night vision goggles which are considered to be reasonable tools. In R v Tessling, a thermal imaging device that took an aerial “heat picture” of an individual’s home was not considered to be an infringement of section 8 of the Charter. However, I personally am wary of the prospect of having the police being so readily given such a vast artillery of tools. Canadians should have a reasonable expectation of privacy but unfortunately it is being diminished by this expansion of ancillary powers.

Risks of pre-crime policing

This brings us to our final point of what the appropriate approach to law enforcement should be within Canada. As depicted earlier, the expansion of the Waterford test and ancillary powers of police have seemed to strike an imbalance in the rights of Canadians. As a result, incarceration has been increasing in both the United States and Canada. This can likely be attributed to a proactive approach that “seeks to target activities that present a risk of crime”.

It is undeniable that a threat-control style of policing has led to the incarceration of individuals who were going to engage in unlawful activity that could harm others. I do believe that society can benefit as a whole from nipping certain threats of crime in the bud. However, I find that this war on crime is difficult to grapple with because it bolsters the powers that police have when they conduct their investigations which comes at the expense of the Charter rights of Canadians.

Aside from that, this “proactive” approach to policing has the potential effect of marginalizing certain groups of Canadians even further. Most notably, the incarceration rates for Indigenous peoples are staggering in comparison to those who are not Indigenous. In the 2017-2018 Annual Report of the Office of the Correctional Investigator, 28% of inmates in federal institutions were Indigenous despite Indigenous peoples only contributing to 4.1% of the Canadian population. Do Indigenous peoples have a predisposition to committing more crimes because of their race? I would argue no, that is not the case. Instead, I would contend that police attempting to curb threats and risks before they materialize to actual harms provides them with the opportunity to pick and choose who they have a reasonable suspicion towards, and this will undoubtedly introduce biases.

The “Disappearance of Criminal Law” provides a comprehensive understanding of how police powers have evolved through various Court decisions. It provides a thought-provoking perspective on how this shift to threat policing has impacted the individual rights of Canadians. As the law continues to develop, it will be curious to see how the courts are able to balance and reconcile the powers of police with the rights of Canadians.