Police Powers
Police Powers INTRODUCTION Police powers are defined as “legal abilities to perform actions that would otherwise be legally forbidden; they are not duties to perform actions to which the law would otherwise be indifferent” (Shiner, 1994). Police exercise powers with respect to detention and arrest, search and seizure, use of force, and interrogation of crime suspects’ . The degree to which police exercise these powers vary from one case to another. A police force with unlimited power might be more effective, but it would interfere with the freedoms citizens to enjoy.
Thus, one major problem permeates the whole field of police powers: how to frame the law to give police adequate powers to perform their law enforcement duties, while at the same time ensuring that such powers do not allow arbitrary and unreasonable interference by the police with the freedom of the individual (Lambert, 1986). Lambert (1986) has stated that, police forces are expected to use powers of coercion to function efficiently. He acknowledges that powers to detain suspects against their will are essential elements of the investigative process.
He also suggests that, there will always be circumstances, where police forces will need to stop and question people, search them and their premises or vehicle and take them to the police station in order to proceed with the investigation, if need be, by force. This would enable them to carry out their job successfully. This term paper looks at two police powers namely the power to detain and arrest and the power to search people and places to seize evidence that are essential to ensure order and pursue criminals, while protecting the rights of citizens.
Canadian criminal offences do not all have the same degree of severity. Understanding the classification of criminal offences is essential before discussing about arrest and detention. Arcaro (Arcaro, Classification of offences, 2003), has classified criminal offences in two categories : 1. Summary Conviction: Minor criminal offences that include indecent acts, disturbances, trespassing at night et cetera. 2. Indictable:Major criminal offences that include first degree murder, infanticide, kidnapping et cetera. ARREST AND DETENTION
The term arrest has been defined as ‘actual restraint on a person’s liberty, without that person’s consent’, and ‘physical custody of a person with the intent to detain’ (Arcaro, Arrest without warrant, 2003). It involves a statement that person is under arrest and may/may not involve physical touch of the person In Canada, The power to arrest is provided by the Criminal Code and other federal statues as well as by provincial legislation such as motor vehicle statues. An arrest can be made to prevent a crime from being committed, to terminate a breach of the peace, or to compel an accused person to attend the trial (Griffiths, 2007).
Griffiths (2007) proclaims that only a handful of criminal suspects are “formally arrested” when they are charged with an offence. He claims that most of them are issued an appearance notice by the police officer or are summoned to court by a justice of the peace (JP). He states that, sometimes, the police have to respond quickly without securing a warrant from JP. Section 495(1) C. C states four circumstances where a police officer can arrest a criminal suspect without a warrant: 1. Find a person committing a criminal offence 2. Reasonable grounds that a person has committed an indictable offence. . Reasonable grounds that a person is about to commit an indictable offence. 4. Reasonable grounds that a valid warrant exists in the territorial jurisdiction in which the accused person is found. (Arcaro, Arrest without warrant, 2003) Two additional conditions apply to making an arrest. First, the officer must not make an arrest if he or she has no “reasonable grounds”. Reasonable Grounds has been defined by case law as “a set of facts or circumstances which would cause a person of ordinary and prudent judgment to believe beyond a mere suspicion (Arcaro, Arrest without warrant, 2003). A police officer must have reasonable grounds that an indictable offence has been committed. Second, the officer must believe on “reasonable grounds” that an arrest is “necessary in the public interest. ” This is defined specifically as the need to: 1. Establish the identity of the person; 2. Secure or preserve evidence of or relating to the offence; and/or 3. Prevent the continuation or repetition of the offence or the commission of another offence. (Griffiths, 2007) In practice, arrests are usually made only in the case of indictable offences.
For summary conviction offences, arrest is only legal if the police finds someone actually committing the offence or if there is an outstanding arrest warrant or a warrant of committal. The Supreme Court of Canada has held that a detention occurs when a police officer “assumes control over the movement of a person by a demand or direction that may have significant legal consequence and that prevents or impedes access to legal counsel. (Griffiths, 2007)”. Detention is a part of arrest, but a person can be detained without being arrested.
Upon arrest or detention, the suspect can choose between exercising charter rights or not. According to Section 10 of the Charter, anyone who has been arrested or detained has the right to be informed promptly of the reason for the arrest or detention. That person also has the right to instruct counsel without delay and to be informed about that right. Suspects have a right to retain counsel but do not have an absolute right to have that counsel paid for by the state. When an arrested or detained person does not have a lawyer, police must inform the suspect of a toll-free number that offers free preliminary advice.
They must hold off on further questioning to give the suspect an opportunity to access this advice. Failure to do so is considered as an infringement of suspects’ Charter rights. SEARCH AND SEIZURE “Search and seizure” is defined as the power of the police to search people and places and to seize evidence. Griffiths (2007) suggests that, historically, under the common law, the way evidence was gathered did not affect its admissibility in a criminal trial. This scenario was changed by Section 8 of the Charter which protects all citizens against “unreasonable” search and seizure.
Section 24 of the Charter requires evidence from an illegal search to be excluded from the trial as is would bring the justice system into disrepute. As a result, conditions and requirements have emerged regarding prior authorization for a search. Generally, a search warrant must be issued. A search warrant is a written document that represents judicial authorization for peace officers to enter and search a specific place for specific items, and to seize those items that are evidence to the offence, if they are found (Arcaro, Search and Seizure, 2003).
Arcaro (2003) explains that search warrants must be preceded by an application; they are not automatically granted on the basis of a request by a police officer. He states that, justice may issue a search warrant if reasonable grounds exist to believe that there is in a building, receptacle or place: 1. Anything on or in respect of which any criminal offence under any federal statute has been, or is suspected of having been committed, or 2. Anything that is reasonably believed to be evidence of an offence against the criminal code or other federal statutes. . Anything that will reveal the whereabouts of a person who is believed to have committed any classification of criminal offence; 4. Anything that is intended to be used for the purpose of committing any criminal offence, against the person for which a person may be arrested without a warrant. Essentially the warrant authorizes the search for and seizure of tangible, physical items that are evidence that proves the commission of any classification of offences under any federal statute.
The general contents of a search warrant include applicant’s name and signature, the place intended to be searched, description of the items to be searched for, the offence that the evidence to be searched for will prove, and reasonable grounds for belief that the items are in the place (Arcaro, Search and Seizure, 2003). All of the above contents must be sufficiently proven to a justice. If one area is deficient, the application will be rejected. Box 4. 4 (Griffiths, 2007) illustrates a situation where Supreme Court expanded police practice with respect to searches.
Police responded to an anonymous tip from a caller regarding young men brandishing weapons by setting up a roadblock, searching for weapons in cars leaving the club. While doing so, they seized weapons from an unsuspecting vehicle. These weapons were ruled out as evidence by the Ontario Court of Appeal in acquitting the two accused, as it was obtained by means of a blockade, which was unlawful since there had been no evidence that anyone was in danger and that the police had not limited their search to vehicles described by the caller.
However, the Supreme Court of Canada overturned the decision, deciding that the search was justified. It was agreed that stopping any vehicles from leaving the parking lot of the club was a reasonable response. This example illustrates that the Supreme Court has adopted more of a law-and-order stance in recent years. Works Cited Arcaro, G. (2003). Arrest without warrant. In G. Arcaro, Basic Police Powers (p. 353). Toronto: Thomson/Nelson. Arcaro, G. (2003). Classification of offences. In G. Arcaro, Basic Police Powers (p. 353). Toronto: Thomson/Nelson.
Arcaro, G. (2003). Search and Seizure. In G. Arcaro, Basic Police Powers (p. 353). Toronto: Thomson/Nelson. Griffiths, C. T. (2007). Police Powers and Decision Making. In C. T. Griffiths, Canadian Criminal Justice (p. 367). Toronto: Nelson Education Ltd. Lambert, J. L. (1986). Arrest and Detention. In J. L. Lambert, Police Powers and Accountability (p. 230). London ; Dover, N. H. : Croom Helm Ltd. Shiner, R. A. (1994). Citizens rights and police powers. In R. S. Macleod, Police Powers in Canada: The Evolution and Practice of Authority (p. 76). Toronto: University of Toronto Press . ——————————————– [ 1 ]. Formal arrest takes place when an arrest warrant has been issued against the criminal suspect. Arrest warrant is a document that permits a police officer to arrest a specific person for a specified reason. It is issued by the Justice of Peace. [ 2 ]. A document issued by a judge directing prison authorities to accept a person into custody upon his or her sentencing or a document issued by parole board to revoke an offender’s conditional release.
