Trial courts take direction from previous appellate level decisions. However, as can be seen below, trial courts have generated the most police powers out of all three levels we categorized in this section. Trial court judges are essential to the fact finding process within the criminal justice system. Once the facts have been agreed upon in a trial, they are accepted by appellate courts if there is an appeal by the losing side at the trial level. This suggests that trial courts have an impact on appellate level decisions and the facts and arguments heard at the trial level are often relied upon during the appeal process.
Trial courts take direction from previous appellate level decisions. However, as can be seen below, trial courts have generated the most police powers out of all three levels we categorized in this section. Trial court judges are essential to the fact finding process within the criminal justice system. Once the facts have been agreed upon in a trial, they are accepted by appellate courts if there is an appeal by the losing side at the trial level. This suggests that trial courts have an impact on appellate level decisions and the facts and arguments heard at the trial level are often relied upon during the appeal process.
Common Law Police Powers Deployed from 2020-2021:
Common Law Police Powers Deployed from 2020-2021:
In the past 35 years, the Supreme Court of Canada has generated several key police powers that have changed the criminal law landscape. Alongside warrantless roadside detentions (R v Dedman), the Supreme Court has provided police with the ability to detain individuals during a police investigation and search incident to the investigatory detention for police safety (R v Mann). The Supreme Court has also provided police with the power to use sniffer-dogs without a warrant (R v Kang-Brown, R v AM), and warrantless cell phone searches incident to arrest (R v Fearon).
Common Law Police Powers Generated from 1990-1999:
The 1990s saw courts generate 24 common law police powers (many expanding roadside detention powers) by either relying on Dedman or applying the Waterfield test.
The '90s also saw the creation of forcible entry powers such as the "right of entry to make an arrest in hot pursuit" (R v Macooh, [1993] 2 SCR 802) and "forced entry into a dwelling house due to a dropped 911 call" (R v Godoy, [1999] 1 SCR 311).
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In this decade, courts presided over several key Charter cases dealing with search and seizure (section 8). These cases focused on searches incident to arrest (Cloutier v Langlois, [1990] 1 SCR 158, R v Simpson, [1993] OJ No 308, R v Ferris, [1998] BCJ No 1415), including searching the pockets of an unconscious person at the hospital to find ID (R v Iskra, [1999] OJ No 5970).
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R v Simpson provided courts with the test to justify investigative detentions by applying the articulable cause doctrine (at paragraph 44). According to Simpson, for an investigative detention to be justified, a court would look at whether there was an objectively discernible set of facts connecting the investigation in progress and the questionable detention before the court (at paragraph 61). The Simpson case is part of a lineage of police powers cases that had a profound impact on the way courts handle section 9 (arbitrary detention) cases in the years to come (See R v Mann, 2004 SCC 52).
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Hover over the boxes below to reveal the cases that generated police powers in each year.