Access to Justice and the Police
Introduction
Many of the rights and freedoms protected by the Charter often, and unfortunately, compete for space with the powers and duties conferred on the police. The exercise of police powers is often positioned in confrontation with individual rights and freedoms, as if the two were mutually exclusive universes. This tension may appear inevitable, as when anti-riot police stand face-to-face with a crowd of protesters. Despite this unfortunate image, it is important to recognize that human rights and police powers both strive to achieve the same goal – creating and maintaining a just society. The advancement of individual liberty and human rights does not necessarily come at the expense of rule of law and governmental authority. The converse is also true. In examining the relationship between police powers and individual liberties, it is vital to keep in mind that these interests, while sometimes in tension, should not be treated as a zero sum game.
There are two prevailing models of society that are discussed when exploring the relationship between the state and individual liberty. The crime control model of society favors the efficient use of governmental powers to deter, prevent, and punish crime to maintain order and safety, with secondary regard to human rights. In contrast, a due process model gives higher priority to the protection of human rights and individual liberties, with minimal, strictly-controlled intrusions of police powers into private affairs.
Before the Charter’s enactment in 1982, Canada was more closely aligned with the crime control model. This situation often favored upholding effective policing over the individual rights that police conduct infringes upon. But with the enactment of the Charter, individual rights were raised to constitutional status, meaning that they now enjoy a higher order of priority in legal ranking. The entrenchment of individual rights and freedoms, especially rights against unreasonable search and seizure and arbitrary detention, has placed significant limits on police powers, while emphasizing due process. The initial cases decided since the coming of the Charter, especially by the Supreme Court of Canada, tended to increasingly circumscribe police powers and safeguard the protection of individual rights. There is debate as to whether this due process trend has continued or is in decline.
The Charter does not dictate, however, that police authority will continually be limited at the expense of effective crime control. The status of individual rights in relation to policing is, in practice, fluid and constantly being re-negotiated. It is important to understand the boundaries of individual liberty and state power, as this allows a person to accommodate him or herself within the bounds of law and yet ensure that their rights are duly respected and not overridden by abrasive state action.
Several Charter rights are affected by police action, but they will not all be specifically examined. The rights covered here are those that very often arise in the context of the citizen’s dealings with the police: the right to be protected against arbitrary search and seizure (section 8); the right against arbitrary arrest and detention (section 9); rights incident to arrest (section 10(a) and (b)).
The following paragraphs briefly explain the rights and obligations imposed on individuals and the police by virtue of these rights. The last section will deal with what remedies, or avenues for remedy, are available to those who suffer from police violations of Charter rights.
For further information on your rights in relation to the police, please check out a helpful pamphlet from the Canadian Civil Liberties Association (click here).
Privacy Rights
Section 8: Everyone has the right to be secure against unreasonable search or seizure
The right to be secure against unreasonable search or seizure has been interpreted as a right to privacy. It protects individuals against state intrusion into their private life and affairs where those individuals have a reasonable expectation of privacy.
This interpretation has richly enhanced the value and significance of this right. As Justice LaForest explained, “grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection” (R v Dyment, [1988] 2 SCR 417 at para 17). In R v Plant, [1993] 3 SCR 281, the Supreme Court of Canada held that section 8 protects “a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state” (Plant at 293).
To be protected by section 8, a person must establish that they had a reasonable expectation of privacy. This is determined by examining the totality of circumstances surrounding the specific case. This would include factors including, but not limited to, whether the person
was present at the time of the search,
had control or possession of the property being searched,
owned the property being searched, or
had a subjective expectation of privacy that was reasonable (R v Edwards, [1996] 1 SCR 128 at para 45).
If a reasonable expectation of privacy exists, any search conducted must be reasonable. To be reasonable, a search must satisfy three criteria. It must be:
authorized by law,
the law which authorizes the search must be reasonable, and
the manner in which the search or seizure is conducted must be reasonable. (R v Collins, [1987] 1 SCR 265).
A search can be authorized by law in several ways. Most typically, a search is authorized by a warrant. Indeed, unless the state can show appropriate pressing circumstances, a warrantless search is presumptively unreasonable.
This presumption, however, is complicated by the common law (also known as judge made law). Judges have ruled that searches “incident to arrest” (a search immediately following arrest of the area within an arrestee’s immediate control) are authorized. The scope of this authority has been expanding, causing some people to question whether warrantless searches are actually treated as presumptively unreasonable. Specifically, the recent decision of R v Fearon, 2014 SCC 77 permits the police to conduct warrantless searches of cell phones as part of their “incident to arrest” powers. While the Court provided some limits on this right to comply with section 8, the decision has raised questions regarding the real-world interactions between section 8 and police activity.
For more information on section 8, please click here.
Rights Against Arbitrary Detention
Section 9: Everyone has the right not to be arbitrarily detained or imprisoned
Section 9 of the Charter protects against arbitrary or unlawful detention. Detention is “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (R v Grant, [2009] 2 SCR 353 at para 44). There are three ways a person can be detained:
physical detention – a person being physically restrained,
legal detention – a person would face criminal consequences for failing to comply with a police officer’s demands, such as a breathalyzer request,
psychological detention – a person submits to or acquiesces in the deprivation of liberty reasonably believing that the choice to do otherwise does not exist (R v Therens, [1985] 1 SCR 613; Grant at para 44).
Section 9 dictates that detention cannot be arbitrary. An action is arbitrary if “there are no criteria, express or implied, that govern its exercise” (R v Hufsky, [1988] 1 SCR 621). In R v Grant, 2009 SCC 32, the Supreme Court of Canada explained that a detention will be arbitrary if:
it is not authorized by law,
the law under which it was carried out was arbitrary, or
the manner in which it was carried out was arbitrary.
Any unlawful detention will be considered arbitrary (Grant at para 54).
The presence of lawful authority to detain someone can be set out in a statute (like the Criminal Code), or permitted by the common law. Detention powers have been somewhat complicated by incremental changes to common law. For example, although there is no general police power to detain persons for investigative purposes, or to randomly stop vehicles, Courts have permitted the expansion of police powers through an elastic application of common law and the adoption of the ancillary powers doctrine. This doctrine cloaks police with implied powers (including detention) that are necessary for them to carry out general police duties (Dedman v The Queen, [1985] 2 SCR 2; R v Hufsky, [1988] 1 SCR 621; R v Ladouceur, [1990] 1 SCR 1257; R v Mann, [2004] 3 SCR 59). The ancillary powers doctrine has attracted criticism from judges and commentators who insist that it is more appropriate for Parliament, not the Court, to expand police powers. Despite this criticism, as the law currently stands, police investigative powers are supplemented by this doctrine, which can act as lawful authority to detain someone.
For more information on section 9, please click here.
Rights Upon Detention
Section 10: Everyone has the right on arrest or detention
to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and to be informed of that right;
Sections 10(a) and (b) are intended to protect individuals from compromising their legal positions by doing or saying anything without knowing their legal status in relation to the police, or without the benefit of legal advice. These rights are triggered on arrest or detention, at which point the police have a constitutional obligation to satisfy them before taking any further action. Together with the right to silence at section 11(c), section 10 seeks to protect a person in the custody of the police from self-incrimination.
Section 10(a) is an informational right, meaning that it requires the police to promptly provide a person with information regarding their detention. Section 10(b) places both informational and implementation obligations on the police. As explained in R v Manninen, [1987] 1 SCR 1233 at para 21, section 10(b) requires the police to:
inform a detainee of their rights;
provide a detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay (including the duty to offer a detainee the use of the telephone); and
refrain from questioning the detainee until there has been a reasonable opportunity for them to speak with counsel.
The police must hold off their investigations upon arresting anyone until section 10 guarantees have been complied with (R v Bartle, [1994] 3 SCR 173). In R v Brydges, [1990] 1 SCR 190 the Court ruled that the police were under an obligation to provide a detainee with information and necessary assistance to obtain legal aid services. But the Court has not imposed on the police or government the duty to actually establish legal aid services. See more information on this topic here.
In providing the information required by section 10 (a) and (b), it is the substance of what the detainee can reasonably be thought to understand, not the precise words used. The question is whether the information given to the arrested or detained person is sufficient to allow them to make reasonable decisions (R v Evans, [1991] 1 SCR 869).
It is not, however, the responsibility of the police to ascertain whether the detainee fully understands the information. This obligation only arises where outward factors indicating a lack of understanding, such as mental illness, intoxication or linguistic difficulties, are apparent. In these circumstances police have a duty to take additional measures such as waiting for a drunk detainee to sober up, or finding an interpreter for a person with language difficulties (R v Baig, [1987] 2 SCR 537).
Charter Rights and Police Misconduct
Given that most people who confront the state do so through police interactions, it is a sad fact that many Charter-based human rights violations occur through and by individual police officers. As such, individual rights are often vulnerable to mishandling in the course of police discharge of their law-assigned duties.
The media is replete with such examples. Heavy-handed police responses during public protests, strong-arm techniques during arrest and interrogation of suspects and other humiliating or dehumanizing antics of the police have often been reported and criticized. Between July and September 1990 the ‘Oka Crisis’ in Oka, Quebec, witnessed the tense confrontation of aboriginal protesters and police. A barricade was attacked by police wielding tear gas and stun grenades; a gun fight broke out and one person was killed. This event remains extremely controversial to this day, and the police have been criticized for their use or misuse of force. On October 14, 2007 Robert Dziekanski was tasered five times at the Vancouver airport and later died. An inquiry determined that this was an unjustified use of force, but decided not to lay charges against the officers.
A recurrent but disturbing story of abuse of police powers has to do with racial profiling, which is defined by the Ontario Human Rights Commission to include “any action undertaken for reasons of safety, security or public protection that relies on stereotypes about race, color ethnicity, ancestry, religion, or place of origin, rather than on reasonable suspicion, to single out an individual for greater scrutiny or differential treatment” (Ontario Human Rights Commission, Paying The Price: The Costs of Racial Profiling – Inquiry Report (Toronto: Ontario Human Rights Commission, 2003) at 6) In Peart v Peel Regional Police (2006), 217 OAC 269 (Ont CA) at para 91, the Ontario Court of Appeal had this to say about racial profiling:
Racial profiling is wrong. It is wrong regardless of whether the police action that racial profiling precipitates could be justified apart from resort to negative stereotyping based on race. For example, a police officer who sees a vehicle speeding and decides to pull the vehicle over in part because of the driver’s color is engaged in racial profiling even though the speed of the vehicle could have justified the officer’s action…
The Court found in another case that racial profiling is largely an unconscious phenomenon, most officers not being cognizant that their behavior is influenced by stereotypes. The substance of racial profiling, the Court observed, is the targeting of an individual member of a racial group on the basis of the assumption that the group as a whole has a propensity to criminality (see R v Brown, [2003] 64 OR (3d) 161 (Ont CA)).
The rights engaged in these and many other confrontations with police officers doing their job include the fundamental freedoms of expression and peaceful assembly set out in Section 2 of the Charter; the rights to life, liberty and security of the person in Section 7; the right against arbitrary search and seizure in Section 8; the right against arbitrary arrest and detention in Section 9; the right against cruel, inhuman and degrading treatment in Section 12; the equality guarantees set out in Section 15; and more besides.
Section 25 of the Criminal Code, RSC 1985, c C-46 authorizes the use of reasonable force, if necessary, in the course of administering or enforcing the law. However, this does not justify excessive force. Section 26 of the Code states clearly that; “Everyone who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess”. Determining whether police use of force is excessive is heavily context dependent. This gives rise to heated disputes regarding the perceived difficulty in holding police accountable for transgressions. The vexing but recurring incidents in both Canada and the United States of police shootings of “unarmed (black) teenagers” demonstrate how intractable this problem has become.
There is a delicate and constantly tipping balance between individual liberties and security interests of society. This creates a constant need for vigilance by all of society. Critical in this regard is the oversight of police activities as much as the professional training and discipline regimes within the various police bodies. Appropriate oversight agencies must be alert and responsive to hold the police accountable for inappropriate behavior, ensuring that police do not trample upon human rights or violate regulations governing police discipline and responsibilities in the course of police duty. A list of oversight organizations is provided here.
Remedies for Police Violations of Charter Rights
The protections contained in the Charter must be enforceable against the state and its agencies. Therefore, Courts are empowered by sections 24 and 52 of the Charter to both vindicate the rights in themselves, as well as provide appropriate remedies for such violations. Section 24 remedies are more commonly invoked as a result of interactions with the police. Section 24 states that:
24(1): Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
24(2): Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.”
Section 24(1) is the basis for private civil actions against the police. The court is not limited in the range of remedies it can grant, including monetary remedies. For example, monetary remedies were successfully awarded against the police in Doe v Metropolitan Toronto Board of Police Commissioners (1998), 160 DLR (4th) 697, as a result of police infringement of sections 7 and 15 of the Charter.
Section 24(2) is an important adjunct to the judicial enforcement of Charter rights. It is especially important when ones reasonable expectation of privacy has been breached (see discussion of section 8 above). Section 24(2) authorizes the Court to exclude incriminating evidence obtained through inappropriate police conduct from a trial. This is evidence that, at one time, would have been admitted without regard to the manner it was obtained. This power to exclude evidence is very powerful, and can lead to an acquittal that otherwise would have been a conviction.
Whether the evidence will, in fact, be excluded depends on the Court’s evaluation of all the circumstances. In such cases, the Court’s guiding light is the preservation of the administration of justice from disrepute. The Court seeks to do justice in every case. When evidence was obtained in breach of Charter rights, the need to exclude this evidence is balanced against the public’s desire to have the guilty face punishment, and not walk free on a technicality. Typically the court considers three questions to determine whether illegally obtained evidence ought to be admitted or excluded in a particular case:
The seriousness of the Charter violation: Was the breach caused by a deliberate state conduct with reckless disregard for Charter protections, or was it a minor unintentional violation?
The impact on the Charter-protected interests of the accused: Was the breach fleeting and technical, or profoundly damaging to the accused person’s Charter-protected interests?
Society’s interest in adjudication on the merits: How reliable and important is the evidence to the case? Is the truth-seeking function of the court better served by admitting the evidence or excluding it? (See R v Grant, 2009 2 SCR 353).
See more information on s. 24(2) here.
It remains to point out that Charter rights are not absolute. Section 1 of the Charter subjects the rights guaranteed therein to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. See more information on section 1 of the Charter here.
In addition to Section 24, and criminal prosecution in appropriate cases, remedies for police misconduct may as well be sought through the private torts law.
Other Available Remedies
At the institutional level, there are agencies and organizations whose legal remit is the civilian governance and oversight of police services, and the development of policing law and policy, while others are empowered to enforce human rights as well as investigate complaints of police misconduct. Find summary information about these agencies below.
Alberta Association of Police Governance (AAPG)
The AAPG is an association of police commissions and RCMP policing committees that seek to support civilian governance of police services in Alberta and contribute to the development of law and policy. The AAPG seeks to ensure information about policing is accessible, that police services are accountable to civilian oversight, that police be able to investigate their own organizations where reasonable, and that policing is conducted effectively. Read more at the AAPG website here.
Alberta Human Rights Commission
This organization works to foster and maintain human rights in Alberta. Established by the Alberta Human Rights Act, the Commission is an independent body that disseminates information and provides education, oversees and resolves complaints of discrimination and human rights violations, and participates in court cases when human rights claims are at issue. Read more at the Commission’s website here, or on our website here.
Alberta Serious Incidents Response Team (ASIRT)
This organization responds to and investigates sensitive incidents or complaints that result from the actions of a police officer. It affords a professional and independent response to potentially troubling police conduct, ensuring that responsible parties will be held accountable. ASIRT operates on a referral basis, it does not take cases directly from the public. Read more at the ASIRT website here.
Canadian Human Rights Commission (CHRC)
The CHRC handled human rights complaints that fall under federal jurisdictions (for examples, complaints involving federal employees, banks and airlines). The Commission's mandate is to gather and disseminate information on human rights, oversee the provision of human rights in Canada, and investigate complaints of infringement. Read more at the CHRC website here, or on our website here.
Calgary Police Commission
This organization’s mandate is to provide independent, civilian oversight and governance over the Calgary Police Department. The Commission monitors the public complaints process and handles complaints about the police chief. Read more at the Calgary Police Commission website here.
Commission for Public Complaints Against the RCMP (CPC)
CPC is An independent federal government agency with the mandate to examine complaints of inappropriate conduct of on-duty RCMP officers. Read more at the CPC website here.
Edmonton Police Commission
This organization’s mandate is to provide independent, civilian oversight and governance over the Edmonton Police Department. As well as overseeing the proper functioning of police service in Edmonton, the Commission monitors the public complaints process and handles complaints about the police chief. Read more at the Edmonton Police Commission website here.
Law Enforcement Review Board (LERB)
This independent and quasi judicial body is established under Alberta’s Police Act. The LERB hears appeals from both citizens and police officers separate and apart from the police service involved, aiming to provide an independent and impartial review. Read more here.