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).
WHAT IS A
COMMON LAW POLICE POWER?
Common law police powers are judge-made laws.
How do police officers receive their powers and duties?
Police receive their duties from
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the common law (judge-made), and
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legislation (created by democratically elected representatives).
Historically, police officers have had wide-ranging duties at common law pertaining to keeping the peace and crime prevention, among other duties not typically associated with police today, such as the inspection of goods and tax collection.
Since the institutionalization of police forces in major city centres, legislation has generally taken on a larger role in defining police powers and duties in conjunction with the general common law powers discussed above.
This two-pronged conferral of police power has been the typical scheme within Canada and other common law jurisdictions, such as England and Australia.
As cities became more sophisticated and populous the different common law
jurisdictions found their own balance between the judge-made law and legislation in relation to police powers. England, for example, has a much more comprehensive legislative scheme that authorizes police duties when compared to the Canadian legal system.
Police receive their powers from statute and the common law.
What are common law police powers?
Presently, the common law still plays a role in giving powers to police officers in Canada. These powers can be generated by courts and are 'ancillary' to "recognized police duties" (R v McColman, at paragraph 52). An ancillary common law police power is one that is recognized in a court decision and is not authorized or created by legislation. Essentially, Canadian courts have the ability to expand police powers in order to fill legislative gaps.
As we discuss in more depth here, once a court recognizes an ancillary common law police power in one decision, courts in future cases can uphold that decision as precedent. This cements the power as acceptable police practice.
Examples of ancillary common law police powers include:
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Investigative detention (R v Mann)
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Emergency or forcible entry (R v Godoy)
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Roadside detention (Dedman v R)
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Warrantless home entry powers in response to dropped 911 calls (R v Godoy)
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Warrantless police protective searches at the front door of a home when responding to a noise complaint (R v MacDonald)
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Warrantless powers to engage in investigative detention, including attendant searches (R v Mann)
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Warrantless roadblock powers in response to a 911 dispatch call near a purported crime scene (R v Clayton)
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Warrantless drug sniffer dog searches in airports (R v Chehil), bus depots (R v Kang-Brown), high schools (R v A.M.) and on roadsides (R v MacKenzie)
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In the search incident to arrest context (Cloutier v Langlois), common law search powers have proliferated to delineate protective and evidence searches including pat-downs (R v Caslake), strip searches (R v Golden), penile swabs (R v Saeed), and cell phone searches (R v Fearon)
References:
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Burchill, John, "A Horse Gallops Down a Street...Policing and the Resilience of the Common Law" Manitoba Law Journal, vol. 41, iss. 1, 1994, pp. 162-209.
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Jochelson, Richard and David Ireland, Privacy in Peril, UBC Press, 2019.
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Stribopoulos, James. "Sniffing Out the Ancillary Powers Implications of the Dog Sniff Cases." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference, vol. 47, 2009, http://digitalcommons.osgoode.yorku.ca/sclr/vol47/iss1/3.
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"Where our legal system comes from" Department of Justice.
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"How the Courts are Organized" Department of Justice.