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| Patrick J Ducharme |
Continued from part 2
Individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under section 9 of the Charter. They should be brief in duration.
Continue reading “Investigative detentions (part 3)”
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| Patrick Ducharme |
In Mann the Supreme Court of Canada was dealing with a case where two police officers approached the scene of a reported break and enter, they observed M, who matched the description of the suspect, walking casually along the sidewalk. They stopped him. M identified himself and complied with a pat-down search of his person for concealed weapons. During the search, one officer felt a soft object in M’s pocket. He reached into the pocket and found a small plastic bag containing marijuana. He also found a number of small plastic baggies in another pocket. M was arrested and charged with possession of marijuana for the purpose of trafficking.
Continue reading “Investigative detentions (part 2)”
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| Patrick Ducharme |
There is no general power of detention for investigative purposes, but the police may detain an individual if there are reasonable grounds to suspect in all the circumstances that the person is connected to a particular crime, and, the detention is reasonably necessary on an objective view of the circumstances. The circumstances include the extent to which the interference with individual liberty is necessary to the performance of the officers duty, to the liberty interfered with, and to the nature and extent of the interference.
Continue reading “Investigative Detentions”
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| Patrick J Ducharme |
By common law, the police have the power to search a person and her immediate surroundings incident to her arrest. The search does not have to be based upon reasonable grounds to believe that the person arrested is in possession of evidence, contraband or a weapon. The search need only have a purpose related to the arrest. Typically, the police claim the need to search incident to arrest, for their own protection, and the protection of the public, or, the preservation or discovery of evidence. In contrast, there must be additional grounds for concluding that a strip search is necessary. Except in rare and exigent circumstances, strip searches are to be conducted in police stations and should be performed with minimal force and by an officer of the same gender as the arrested person.
Continue reading “Search Incidental to Arrest”
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| Patrick Ducharme |
Exigent Circumstances
The Code provides statutory authorization to execute a search in the absence of a search warrant if the conditions for obtaining a search warrant exist but, by reason of exigent circumstances, it would be impracticable to obtain a search warrant.1 A peace officer may also search a place or a person in an effort to seize items related to a drug offence provided the conditions for a search warrant exist but because of exigent circumstances it would be impracticable to obtain a search warrant.
Continue reading “Exceptions to the Requirement of a Warrant”
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| Patrick Ducharme |
A Judge or Justice may issue a tele-warrant in circumstances where a peace officer believes that an indictable offence has been committed and that it would be impracticable to appear personally before a Justice to obtain an ordinary search warrant.1 This process is intended to provide immediate access to a judicially authorized search warrant in exigent circumstances. In these circumstances the officer provides information to a Justice by telephone or by facsimile, and, the Justice issues the warrant orally or by facsimile to the officer. The proceedings are recorded. This same methodology is also available to obtain a general warrant2, a warrant for DNA3 or a bodily impression warrant4. The information must be on oath and recorded verbatim by the Justice.5 The Justice must cause to be filed as soon as practicable the record of the transcription of the information or the written document with the clerk of the court for the territorial division in which the warrant is intended for execution. The Justice must also certify the record or transcription of the information as to time, date and contents.6 The tele-warrant issued by a Justice has the same legal effect as an ordinary search warrant. The peace officer provides a facsimile of the warrant to any person present and in ostensible control of the place to be searched.
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| Patrick Ducharme |
Continued from part 2.
The duty of the police is to provide the accused with access to the advice of counsel at the earliest practicable opportunity. To suggest, as the trial Judge had found in this case, that it was reasonable to delay the implementation of the right to counsel for the entire duration of the accused’s time waiting for and receiving medical treatment in the hospital emergency ward, without any evidence of the particular circumstances that justified the failure of the police to assist the accused to obtain legal advice, thus violating his constitutional right to legal advice “without delay”. (para. 32)
Continue reading “Tracking Devices (Part 3)”
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| Patrick J Ducharme |
Continued from part 1.
In July 2014 the Supreme Court of Canada delivered judgment in R. v. Taylor2. The accused was charged with three counts of impaired driving causing bodily harm. At the scene of the accident the accused was asked if he wanted to call a lawyer. The accused responded that he wanted to speak to both his father and to his lawyer. The Court of Appeal for Alberta had reversed the trial Judge’s convictions on appeal based upon the trial Judge’s erroneous assumption that an accused awaiting or receiving medical treatment could not reasonably be provided with private access to a telephone to implement his rights to counsel.
Continue reading “Tracking Devices (Part 2)”
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| Patrick Ducharme |
A warrant may be issued authorizing the installation of a tracking device.1 The tracking device may be placed in or on anything, including a thing carried, used or worn by any person. The warrant is issued where the Justice is satisfied that information that is relevant to an offence under investigation can be obtained through the use of the tracking device.
Continue reading “Tracking Devices”
