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See our full terms here. In addition, with respect to drug-related offences and other consensual type offences, it is acknowledged that routine investigative techniques are often insufficient because of the difficulty in detecting these activities. Generally, because there is no "victim," no one is there to complain or report the offence to police.
Both Parliament and the courts appear to agree that additional police powers may be warranted in these circumstances. It is believed that police need to be proactive rather than reactive as is generally the case for other non-consensual offences. An example of this viewpoint is the following statement by former Chief Justice Laskin of the Supreme Court of Canada:. Methods of detection of offences and of suspected offences and offenders necessarily differ according to the class of crime.
Where, for example, violence or breaking, entering and theft are concerned, there will generally be external evidence of an offence upon which the police can act in tracking down the offenders; the victim or his family or the property owner, as the case may be, may be expected to call in the police and provide some clues for the police to pursue.
When "consensual" crimes are committed, involving willing persons, as is the case in prostitution, illegal gambling and drug offences, ordinary methods of detection will not generally do.
The Law of Entry, Search, and Seizure
The participants, be they deemed victims or not, do not usually complain or seek police aid; this is what they wish to avoid. The police, if they are to respond to the public disapprobation of such offences as reflected in existing law, must take some initiatives. Police involve themselves in high-speed chases, travelling beyond posted speed limits. Police pose as prostitutes and communicate for that purpose in order to gather evidence.
Search and seizure - national proceedings in 'Malta - Criminal Code'
Police buy, possess and transport illegal drugs on a daily basis during undercover operations. In a perfect world this would not be necessary, but patently illegal drug commerce is neither successfully investigated, nor resisted, by uniformed police peering through hotel room transoms and keyholes or waiting patiently at police headquarters to receive confessions of penitent drug-traffickers.
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Thus, it appears that courts may be more willing to accept extraordinary investigative techniques in relation to drug-related offences as opposed to other non-consensual offences. In addition, Parliament has, in certain circumstances, provided special police powers in relation to drug-related offences so as to better combat these offences. This recognition of the particular nature of drug offences is not new. The Le Dain Commission stated the following:. The peculiar nature of drug crimes — the fact that the people involved in them are consenting and co-operative parties, and there is rarely, if ever, a victim who has reason to complain, as in crimes against persons and property — makes enforcement of the drug laws very difficult.
The police are rarely assisted by complainants. For the most part they have to make their own cases. Moreover, the activity involved in non-medical drug use is relatively easy to conceal.
It can be carried on, by agreement of the parties involved, in places which are not easily observed by the police. Further, the substances and equipment involved are relatively easy to conceal or dispose of. All of these difficulties have given rise to the development of unusual methods of enforcement. The following sections of the paper will review police powers used to investigate offences in general, with an attempt to highlight special rules that may apply in relation to drug-related offences.
This will include a discussion of:. In all cases, the limits imposed on these powers are discussed. The rules regarding the exclusion of evidence under the Charter are also briefly reviewed. Although these rules do not directly define the permissible boundaries of police conduct, they may have an indirect impact on it. This paper deals with fairly complex and technical legal issues, and it provides the reader with a better understanding of police powers and the limits imposed on them. Whether a person has been detained or arrested depends on the facts in question.
It requires some element of compulsion or coercion, whether a physical or psychological restraint for example, where the person reasonably believes they did not have a choice as to whether to comply with the demand or direction. Feeney , the Supreme Court of Canada stated that a detention occurs when a police officer assumes control over the movement of a person by a demand or direction. An arrest, meanwhile, "may occur where words are used which clearly indicate to the person that if he attempts to leave, he will be physically restrained and the person does in fact submit to his loss of liberty.
The Code provides two procedures to compel a person to appear before a court: the issuance of a summons or appearance notice; and by arrest with or without warrant. A police officer who has reasonable grounds to believe that a person has committed an offence may lay an information, and a justice who is satisfied that the case has been made will issue either an arrest warrant or a summons directing the accused to appear.
A summons is to be issued unless it is necessary in the public interest to issue a warrant.
As will be discussed below, a police officer may also, in certain circumstances, arrest a person without a warrant. If the officer does not arrest the person, he or she may issue an appearance notice and then proceed to lay an information at which time the justice will confirm or cancel the appearance notice.
Even when a person is arrested, either with or without a warrant, they will generally not be detained until trial unless it involves a serious offence or there is a risk of flight. Depending on the circumstances, the arrested person may be released by the officer, by an officer in charge or by a justice.
In the case of a judicial interim release, the onus is usually on the Crown to show why the detention is justified. This onus is reversed in certain cases, however, including where a person is charged with a trafficking, importing or exporting, or production offence under the Controlled Drugs and Substances Act the CDSA where the offence is punishable by imprisonment for life. A police officer to whom a warrant is directed has the authority to arrest the accused in the province where it was issued or — in the case of "fresh pursuit" — anywhere in Canada.
There are also procedures that allow the execution of a warrant in another province. Section of the Code sets out the powers of any person, including a police officer, to arrest without a warrant, while section sets out the powers to arrest without a warrant that are applicable only to police officers. Thus, a police officer has all of the powers of arrest of a private citizen section as well as additional powers available only to police officers section Subsection 1 a provides that a person is authorized to arrest without warrant a person he or she finds committing an indictable offence.
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Subsection 1 b , meanwhile, provides that a person is authorized to arrest without warrant a person who, on reasonable grounds, he or she believes has committed a criminal offence and is escaping from and freshly pursued by persons who have lawful authority to arrest that person. What are reasonable grounds?
To constitute reasonable grounds, there must be some "credibly-based probability" or, in other words, some factual basis for the belief. This means that the person who arrests must be able to give the court reasons for his actions, i. He must be able to subjectively support his belief that the person has committed a criminal offence.
Moreover, those facts must be such as would cause a reasonable person placed in the position of the arresting person to believe, or to have a strong and honest belief, that the person had probably committed an offence. But it need not go so far as to amount to a prima facie case for conviction.
The degree of reasonableness may vary according to the context. Thus, the reasonableness standard required for warrantless arrests may be lower than the reasonableness that will be required for a search warrant. The Ontario Court of Appeal stated the following:. Both a justice and an arresting officer must assess the reasonableness of the information available to them before acting.
It does not follow, however, that information which would not meet the reasonableness standard on an application for a search warrant will also fail to meet that standard in the context of an arrest. In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered.
The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant.
In addition to the powers of arrest of a private citizen, subsection 1 a authorizes a police officer to arrest without warrant a person who has committed an indictable offence.