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  • Tracer Bullet (law student)

A Policing Perspective: The Common Law (a student blog)

Prior to entering law school, I had some idea what to expect in regards to the teaching method. I knew that learning was primarily done through studying cases, rather than statute. For me personally, this reflected a significant change from how I had learned about criminal law eight years prior when I began a career in policing.

I completed my police training back in 2008. While the training program was comprised of 785 training hours, not a single hour was spent reading a case. While those training hours are spread across several different units, such as driving, firearms, fitness and defensive tactics, almost half of those hours are dedicated to the classroom learning component.

It may seem odd then that unlike law school where such a large focus is placed on the common law, my police training consisted of no case readings. While I cannot recall for certain, there may have been some mention of relevant cases amongst the learning materials, such as R. v. Stinchcombe [1991] 3 S.C.R. 326 when learning about a topic such as disclosure. There was also some discussion of the annotations (we used Martin’s Annual Criminal Code) but no real emphasis on them. Most of the learning was done through studying the Criminal Code statutes themselves and understanding the elements of an offence.

That is not to say that the common law is not a part of any police training. In fact, I still remember my first exposure to actual cases in their entirety. It was around November 2009 and came about as I was scheduled to attend a criminal interdiction training workshop. A few cases, I believe R v Grant 2009 SCC 32, R v Suberu 2009 SCC 33, and R v Kang-Brown 2008 SCC 18, were emailed out as required reading prior to the course. I still recall how overwhelmed I was at the time, trying to make sense of them, without the aid of course outlines, online briefs or anything similar and having no idea what to look for.

My next exposure to case law came about a year after that when I went on an interviewing course and had to read R v Oickle, 2000 SCC 38, R v Singh 2007 SCC 48, R v Sinclair 2010 SCC 35 and R v McCrimmon 2010 SCC 36. Another daunting task but things were slowly starting to make more sense.

Beyond those few instances however, I cannot recall any case readings forming a significant part of any other courses or training. That is not say that was the end of my common-law studies, as at some point I had developed a keen personal interest in case law. This was aided by sources such as the website of BC Crown Attorney Henry Waldock,1 T.J. Romaniuk’s Search Warrant website,2 and the Atlantic Police Academy Law Blog,3 all great resources for investigators.

I had a strong interest in drug investigations and my readings tended to focus around the Charter, as drug files and the Charter seem to go hand in hand. Through sites such as those noted, I began to see each decision as a tool, sometimes a great one to potentially utilize, other times something to simply be mindful of. Furthermore, I developed an interest in understanding not only the what, but the how and the why, leading me to search down the cases themselves, often on CanLii, and read them in their entirety.

I still remember the first time I came across the decision R v Sesay, 2013 MBCA 8, a Manitoba case that essentially gave the police the power to search for further breaches of an undertaking following arresting a person for a breach of that undertaking. I was working in a plainclothes unit at the time and in the community which I was posted, we had several individuals who we believed were involved in drug trafficking that were under court orders, be it Undertakings, Recognizances or Probation Orders. The partner I worked with and myself both knew that this case would undoubtedly pay dividends.

It was not that long after that we were out on patrol and observed a local individual we knew to be on a curfew traveling as a passenger in a motor vehicle. We stopped the vehicle, arrested the subject and proceeded to search the vehicle for further breaches of this person’s court order. The search led to us obtaining evidence which aided us in writing a search warrant for a residence, ultimately leading to charges against the subject and one other individual for drug trafficking related offences. Arguably, without the knowledge of that case, we may have been hesitant go to down the path we did, or alternatively we would have had trouble articulating why we did it. As it was, we were confident in our actions and could support the reasons for the search in both our notes and in obtaining the warrant.

In the next few installments, I will address some specific Supreme Court decisions from the past few years and how I feel they had a direct impact on policing as well as my personal experiences related to those decisions.


2. Formerly at and sadly now a dead link.

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