A variety of powers is exercised by the police to assist in the investigation of crime and in the collection of evidence. The methods employed among others are:
- search and seizure;
- production orders;
- proceeds of crime legislation;
- the questioning of suspects; and
- some miscellaneous investigative tests.
The police has several provisions in the Criminal Code (Code) to search for and seize evidence. The most important of these provides for the issuance of a warrant that authorizes the search for, and seizure of, evidence. Other federal and provincial statutes also contain search provisions, and the common law authorizes search and seizure in some situations.
Search and Seizure vs. the Charter
All search powers are governed by the Canadian Charter of Rights and Freedoms (Charter), which provides that everyone has the right “to be secure against unreasonable search or seizure.” In Canada a reasonable search is the one authorized by law, where the law itself is reasonable, and where the manner in which the search is carried out is reasonable. If one or more of these characteristics is missing, the search violates the Charter. Even if a violation is established, the evidence discovered during an unreasonable search can still be admissible at trial. When a violation is proved, the question of the admissibility of the evidence is to be determined by reference to the Charter, which holds that evidence will be excluded if its admission would “bring the administration of justice into disrepute.”
The Charter jurisprudence on search and seizure law stresses that “prior judicial authorization” is required in order to find that a search is reasonable. Prior judicial authorization is usually in the form of a search warrant. To qualify as a proper prior judicial authorization, the warrant is to be issued only where the justice or judge is satisfied on sworn evidence that there are reasonable grounds to believe that an offence has been committed and there is evidence to be found at the place to be searched.
Minimum Requirements for a Search Warrant
The police officer’s Information or the affidavit sworn in support of the application for a search warrant has to disclose sufficient facts to permit the justice or judge to determine whether the warrant should be issued. Therefore, the Information is to contain evidence about the alleged offence, the evidence to be seized, and the location of the search, so that reasonable grounds are established that a search at the location will afford evidence of the alleged offence. The offence reasonably believed to have been committed is to be described in the Information. The Information need not be precise, but sufficient facts should be supplied so that the nature of the offence is clear. All the information the police have about the alleged offence is to be included. The evidence to be seized is to be described and specified in both the Information and the warrant. As it is not always possible to be absolutely precise, it is alright if only categories of evidence can be identified in the Information. The warrant is to give the description of the items to be seized, so that officers executing the warrant are able to identify them and to link them to the offence set out in the warrant. Finally, the “building, receptacle or place” to be searched is to be specified in the Information, and this is to be accurately mentioned on the warrant. The objective is to have reasonable grounds for believing that the evidence sought will be at the location described. It could be anywhere in Canada, possibly in a jurisdiction other than the one from which the justice issued the warrant. If so, the warrant must also be endorsed by a justice within the jurisdiction in which the search is to take place .These three factors (an offence, the evidence to be seized, and the location of the search) should be all established on reasonable grounds. The standard of proof is “credibly based probability” and not necessarily proof beyond a reasonable doubt. The Information could also rely on reliable hearsay (i.e. “he said she said”).
If the hearsay in question comes from a confidential informer whose identity cannot be revealed because it is protected by informant privilege, the sufficiency of the Information is assessed on a “totality of circumstances” test, requiring the court to consider whether the information provided was compelling, whether the source was credible, and whether the information supplied was corroborated. If the disclosure of the Information identifies the confidential informant, the Crown may apply to prohibit access to the information used to obtain a search warrant by way of a sealing order. Thereafter, if the accused wants to challenge the reasonableness of the search and requires access to the Information for that purpose, the accused is to be given access to an edited version of the Information that does not divulge the identity of the informant.
The duty to investigate and the right to silence
Investigation of a crime is a duty of the police and, as part of that duty, they may ask people questions. It is not exactly correct to describe this right as an investigative “power”, considering that there is no duty on the person questioned to answer the questions posed. However, there are exceptions to this rule, like the Highway Traffic Act requires motorists to respond to some police inquiries. Actually, the Highway Traffic Act demands compliance even when it is a bicycle and not a “motor vehicle”. Therefore, when the investigation involves provincial legislation or federal legislation other than the Code, it is better to consult that legislation to determine the powers of the authorities and the duties that may be imposed upon the individual to co-operate. Anyway, it is generally correct to say that an individual who is under investigation for a Code offence is not required to answer questions and has the right to remain silent.
Also, a police officer has no right to detain a person solely for the purpose of questioning or further investigation. Nobody has a right to impose any physical restraint upon an individual except as authorized by law, and this principle is applicable as much to police officers as to anyone else. If a police officer, in some circumstances, briefly detains a person to question him or her on the street, and the person refuses to answer, the police officer is to allow the person to proceed. If, however, the officer arrests the person on a specific charge or arrests according to the Code, where the officer has reasonable and probable grounds to believe that the person has committed or is about to commit an indictable offence, it is in order. It would be seen that each case is unique and there is no denying that criminal charges are sometimes avoided because an individual provided the police with an explanation. Generally, the person who chooses to speak to the police should not lie or otherwise mislead the police, since this can constitute the offence of attempting to obstruct justice, public mischief, or obstructing a police officer.
In any event your first response or decision should be in the presence of your lawyer or after speaking to one, like the lawyers at Levy Zavet PC.