Common Law Police Powers Should Scare You - Cody Buhay

Introduction

Imagine one day you’re walking to campus, excited to get to class to hear another lecture on your favourite topic, federalism. Suddenly, you hear sirens coming from behind you. Before you have time to look around, a police cruiser has pulled up beside you. The officer demands that you stop and hand over your cellphone. You protest because you know you have a constitutional right to privacy, but the officer promptly throws you to the ground, places you under arrest, stuffs you in the back of the cruiser and confiscates your cellphone. While you’re sitting in the back, the officer puts your phone up to your face to unlock it with Face ID. After a few minutes, the officer lets you out of the cruiser, gives you your phone back and sends you on your way. You’re shaken and afraid and you decide to consult a lawyer to correct this injustice. When talking to a lawyer, you find out that not only what the officer did was perfectly legal, but you could have been charged for being uncooperative.

Clearly, this is a fictitious scenario but in the future the power for the police to detain people and search their cellphones without a warrant or probable cause is plausible. This power will undoubtedly arise from the common law because no parliamentarian would dare pass legislation that would permit the police to intrude so deeply into the lives of their constituents.

This blog will discuss common law police powers (CLPP). Examples of CLPP and the history of CLPP in Canada will be discussed. I will then explain why they are not a good idea and why you should care.

What Are Common Law Police Powers?

To understand CLPP, I need to differentiate police duties and police powers. Police duties are the responsibilities police officers have to the public at large. These duties come from common law or from statutes.[1] In Manitoba, The Police Services Act says that police officers have a duty to execute warrants.[2] In other words, police have a responsibility, as the physical embodiment of the state, to ensure warrants issued by a judge are completed. An example of a common law police duty is “the protection of life and property.”[3] On the other hand, powers are the actions police can take to carry out their duties. The sources of these powers are common law rules and statutory authority.[4] Common law acquisition means that the powers are given to the police by the judiciary, whereas statutory authority gives powers by legislation. An example of a statutory police power is that police can demand “the driver of a vehicle to go through a field sobriety test” (under certain conditions).[5] An example of a common law police power is the ability to conduct “warrantless drug sniffer dog searches in airports, bus depots, high schools and on roadsides.”[6] The use of a fierce canine to conduct a search on someone would surely elicit panic and fear, even if you are innocent. It’s shocking that this power belongs to the police without legislative authorization. This begs the question of how police got these highly intrusive powers in the first place? If law-makers did not see fit to create them, who did?

From Where do Common Law Police Powers Come?

In Canada, CLPP can be traced to R v Dedman.[7] This case involved a man who was pulled over by police “as part of a random vehicle stop program” to detect impaired drivers.[8] The case wound up at the Supreme Court of Canada (SCC) and hinged on the question: “Do police officers have the power to stop vehicles randomly to detect impaired drivers?”[9] The majority found that “the officer had lawful power to stop the vehicle: the stop constituted an interference with liberty but fell within the scope of duties available to police at common law.”[10] Before this decision no statutory law existed in Ontario, where the case originated, that gave police this power[11], so the majority conjured it out of thin air. In creating this power, the court invoked a test from R v Waterfield (1963), a case originating in the United Kingdom.[12] This test “was never meant to generate new police powers.”[13] Below, I will show that the court misinterpreted the test to create new police powers.

R v Waterfield Applied to R v Dedman

In R v Waterfield, the Court of Criminal Appeal was trying to figure out if the defendant was guilty of assaulting a police officer.[14] In the case, the police received information that led them to believe two men were involved in a crime.[15] The police found the men’s vehicle in a parking lot of a market and when the men arrived to leave the market with their vehicle, the police proceeded to tell the men they could not drive away because they were holding the vehicle for evidence.[16] One of the men, Lynn, got in the vehicle and under direction of the other man, Waterfield, he attempted to drive away.[17] At this point, the police, two constables, were on either side of the vehicle physically trying to block the vehicle from leaving.[18] Lynn backed the vehicle up, slightly hitting one officer, then drove the vehicle forward, forcing the other officer to jump out of the way.[19] The court grappled with the question: “were the officers acting within the scope of their lawful duties at the time of the incident?” because if they were not then the defendant could not be guilty of the offence of assault on an officer who was in the course of his duty.[20] The court created the following test to see if the police were acting in the course of their duty:

In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognized at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.[21]

In other words, this test asks if conduct that interfered with your rights was permitted, by common law or statutory police power, to carry out a bona fide police duty and if that conduct was reasonable. Clearly, this test does not lay down a foundation to create new CLPP. It merely, checks to see if police conduct is authorized, if the conduct can be attached to a legitimate duty, and if it was reasonable. This is the reason why the judges in Waterfield did not perform an analysis to see if the police should have the power to detain someone’s vehicle, they merely checked to see if it existed (which it did not) and applied it to the police’s duty to collect evidence.[22] Because the police did not have the authorized power, they were not acting in the course of their lawful duty, so the accused was acquitted.[23] Returning to Dedman, the majority of the SCC correctly determined that a random stop “was prima facie an unlawful interference with liberty because it was not authorized by statute.”[24] The court then checked to see if the power to stop was an unjustifiable use of a police power.[25] However, the majority never stated from where this police power came. They knew it did not come from a statute and they did not cite a previous case where the power was created, so they must have conjured it out of thin air. The majority should not have done this; they should have stated no power exists and acquitted the accused.

Why Does All This Matter?

“I’m not a criminal,” you say, “What do I have to worry about?” Just because you don’t commit crime doesn’t mean you shouldn’t care. We all have rights in our society, and we determine, through our elected representatives, if, when, and how we want those rights to be limited to combat illegal activity. Yet, when the court creates CLPP they are “effectively adopt[ing] the role of parliamentarians.”[26] In other words, the court is taking away the people’s right to choose how we want our rights to be infringed on by the police. Members of Parliament are paid a lot of money ($189,500.00 per annum) to do their job[27] and we expect they will do the job effectively, including making hard decisions about police powers.

Additionally, the creation of CLPP conflicts with the legitimate role of the SCC[28]; The SCC is tasked with being the guardian of rights through its judicial interpretation of the Charter.[29] Giving the police more power allows the state to intrude into our lives which limits our freedom as Canadians.

Since the genie has been let out of the bottle with respect to the SCC’s creation of CLPP, a bountiful genesis of CLPP has occurred.[30] Between 1985 and 2017, there were at least 87 new creations of CLPP and 893 applications of already existing CLPP to a case at bar.[31] Clearly, the creation of new CLPP isn’t a rare occurrence and their utilization is routine. It’s important to remember that actual human beings are affected when CLPP are utilized in court. That effect is likely detrimental given that CLPP are “Charter-proof” and thus are not likely to violate Charter rights.[32]

I suggest that the court’s role should be restricted to interpreting and applying statutory police powers to the case at bar. The creation of new police powers should be left to elected representatives. Otherwise, ordinary Canadians may find themselves being randomly stopped and arrested so that the state can infiltrate their digital lives.

[1] Dedman v. The Queen, [1985] 2 S.C.R. 2 at 11-12 [Dedman]. [2] The Police Services Act, SM 2009, c 32, CCSM c P94.5, s 25. [3] Dedman, supra note 1 at 32. [4] Ibid at 12. [5] The Highway Traffic Act, SM 2004, c 11, CCSM c H60, ss 76.2(1)(a)-(b). [6] Richard Jochelson et al., “Generation and Deployment of Common Law Police Powers by Canadian Courts and the Double‐Edged Charter” (2020) 28 Crit Criminol 107 at 113. [7] Ibid at 112. [8] Dedman, supra note 1 at 24. [9] Ibid at 10. [10] Jochelson, supra note 6 at 112. [11] Dedman, supra note 1 at 10. [12] Jochelson, supra note 6 at 111-112. [13] Ibid at 112. [14] R v Waterfield (1963), [1964] 1 QB 164, [1963] 3 All ER 659 [Waterfield]. [15] Ibid. [16] Ibid. [17] Ibid. [18] Ibid. [19] Ibid. [20] Ibid; Offences against the Person Act 1861, SUK 1861, c 100, s 38. [21] Waterfield, supra note 14. [22] Ibid. [23] Ibid. [24] Dedman, supra note 1 at 35. [25] Ibid at 35-36. [26] Jochelson, supra note 6 at 113. [27] “Indemnities, Salaries and Allowances” (1 April 2022), online: Parliament of Canada<https://lop.parl.ca/sites/ParlInfo/default/en_CA/People/Salaries> [28] Jochelson, supra note 6 at 108. [29] Ibid. [30] Ibid at 115-116. [31] Ibid. [32] Jochelson, supra note 6 at 110.

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The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.