cml2117 introduction to law, 2008 - lecture 23 - criminal law and police powers

Today’s Lecture

Criminal Law:Police Powers

A Caveat

On Biased Perspectives,

or...

Every Perspective

has a Bias

Today’s bias:

Criticalwith a chance of

Leftism

How much powerdo the police have?

Can they break the law?

The law applies to everybody equally,

but

Special defences are available for police

Criminal Code, 1892; s. 31:

Police and their agents justified in using necessary force

necessary to overcome any force used in resisting

if not possible less violentlyto execute an arrest or warrant

Criminal Code, 1955; s. 25:

Police and their agents justified in using necessary force

necessary to overcome any force used in resisting

if not possible less violentlyto execute an arrest or warrant

Force intended to cause death or grievous bodily harm

Criminal Code, 1994; s. 25:

Anyone required or authorized to enforce law

justified in using necessary forcenecessary to overcome any force used in

resistingif not possible less violently

to execute an arrest or warrantForce intended to cause death or grievous

bodily harmlimited: serious offender fleeing, or escape

from jail

A pattern emerges

Broader justificationswith

More limitations

Scope of defences in practice

By Court: R. v. Finta, suspected war criminal

By Police: RCMP Commissioner Zaccardelli

Zaccardelli:

“As police officers we used to be able to do things under the common law that were acceptable. They weren’t illegal; they were accepted in our system as powers and as means the police needed to carry out their

duty in society.”

Why couldn’t they do these things anymore?

R. v. Campbell and Shirose

R. v. Campbell and Shirose,[1999] 1 S.C.R. 565

and the

Reverse Sting Operation

R. v. Campbell and Shirose,[1999] 1 S.C.R. 565

SCC: abuse of process by police

Aftermath of Campbell:

reverse sting operation law passed: CDSA reg SOR/1997-234, s. 16.police halt investigations involving

illegal acts

Zaccardelli:

“Since [Campbell], we can’t do that. We haven’t been doing that. This means there are criminal organizations that are profiting and taking advantage of what’s going on in society, as Chief Fantino has said. So I can’t send my police officer and pretend to be a smuggler or pretend to sell or buy illegal

goods.”

Parliament’s response:Bill C-24

said to be concerned with organized crimewritten in very broad terms

Added sections 25.1 to 25.4 to the Criminal Code

Broad immunity; Some limits and accountability

Applies to “designated officials”

Designation of 007 status

Cabinet member can designate officersCabinet member can designate senior

officials,Designated senior officials can give

“emergency designations”Immunity is extended to agents of police –

like whom?

What illegal acts are justified?

Essentially all acts and omissions,Including forcible confinement, kidnapping

and assault with a weapon

How are justifications limited?

actions reasonable and proportional in the circumstances

no death or bodily harm, wilful obstruction of justice, and conduct violating sexual

integrity of an individual

Controversy

Objections to limiting scope of immunity to exclude death; bodily harm; wilful

obstruction of justice; and conduct violating sexual integrity of an individual?

Solutions proposed:Public interest groups: narrow immunity defence

Police groups: eliminate the limitations

So, the Minister wants to designate an officer?Or the senior official wants to make an emergency designation?

Limitations on Designations

Allowance for limits on duration and investigationsNo requirement for such limits

Requirement for existence of authority to review acts of designated officersOnly for officers, not senior officials or emergency

desig.s

No requirement for review

Oversight and Accountability

No judicial authorization for designationsWeak requirement: report by officer to

senior: 25.2Not for serious acts under s. 25.1(8)

Weak notification req. for property damage: 25.4(1)

No compensation for damage

Annual report: 25.3(1)Only for emergency designations

Annual Report of Minister

Only for emergency designations by senior officials and approved property damage

No information about:Designations of officers by the Minister

Justified acts of police agentsJustified acts of officers

Exemption from reporting requirement:If report would compromise investigation, safety, a legal proceeding or would be against the public

interest

Next class…

• Murder and Defences: Sleepwalking as a case study

�R. v. Parks, linked on the website