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 2010-2019:
With cell phones becoming commonplace in people's lives, Canadian courts generated 2 police powers relating to cell phones in the 2010s (R v Hiscoe, 2011 NSPC 84, R v Fearon, 2014 SCC 77). For instance, police have been provided with the power to search a suspect's cell phone incident to arrest and without judicial authorization, as long as there is a "valid law enforcement objective" (Fearon, at paragraph 41).
​
In this decade, police were given broader discretion in relation to issues around search and seizure which falls under section 8 of the Charter. 15 of the 26 powers that were created in the 2010s authorized searches without a warrant and warrantless seizure of property. Police were also given the authority to perform penile swabs on suspects without judicial authorization (R v Saeed, 2016 SCC 24), and the power to enter a dwelling house in order to perform a safety search without a warrant (R v MacDonald, 2014 SCC 3).
​
A look into the case law from 2019 highlights an emergent trend in the jurisprudence that may impact decisions in this area of the law. Fleming v Ontario, a 2019 Supreme Court decision, chose to decline a new police power under investigative detention. The data shortly after this decision suggests that courts have declined to deploy investigative detention powers at a higher rate than before. It may indicate that courts have shifted their stance on investigative detentions and are becoming more reluctant to continue the expansion of police detention powers.
​
Hover over the boxes below to reveal the cases that generated police powers in each year.