Role of Law Enforcement

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2020. (Rev. # 95944)

General Principles

See also: Peace Officers
Duty to Investigate

Police have a duty, on behalf of the public interest, to investigate alleged crimes, which includes making inquiries from relevant sources of information, including the accused.[1] While they have a duty to investigate and enforce the law, there is residual discretion on when to engage the judicial process.

Not Agents of Government

Law enforcement is not the agent or servant of the government that employs them. Rather they are servants to the public interest or Crown.[2]

Tort Liability

At common law, an officer is liable for their own conduct under law.[3] However, liability of officers acting in the execution of their duties is governed under federal and provincial legislation.[4]

Peace officers can be liable for harm inflicted upon prisoners held in their custody.[5]

Trickery

Law enforcement should expect to deal with often "sophisticated criminal" and so should not be expected to be governed by "the Marquess of Queensbury rules."[6]

The police are expected to sometimes resort to "tricks or other forms of deceit" when engaged in the investigation of crime.[7]

Unless the police engage in "dirty tricks", courts should not be engaging in determining "good taste or preferred methods of investigation."[8]

Officers have duty to protect those in custody. They may even be held liable if the detainee is assaulted by others and nothing is done to prevent the assault.[9]

Undercover operations

The use of "reverse sting" operations was found illegal.[10] "Mr Big" operations are permitted, however, the evidence collected is presumptively inadmissible unless proven otherwise.[11]

Police Representing Crown

While it may have been available in the past, police are not allowed to appear at bail hearings for indictable offences.[12]

  1. ↑ R v Sinclair, 2010 SCC 35 (CanLII), [2010] 2 SCR 310, per McLachlin CJ and Charron J, at para 63
  2. ↑ McCleave v City of Moncton, 1902 CanLII 73 (SCC), 32 SCR 106, per Strong CJ
    New South Wales v Perpetual Trustee Co , [1955] AC 457 (PC) (UK)
  3. ↑ Bainbridge v Postmaster General , [1906] 1 KB 178 (Eng CA) (UK)
  4. ↑ CAN: Crown Liability Act, s. 3
    ON: Police Services Act, s. 50(1)
    QC: Police Act
    BC: Police Act, s. 21
  5. ↑ R v Nixon, 1990 CanLII 10993 (BCCA), 57 CCC (3d) 97, per Legg JA leave refused 60 CCC (3d) vi
  6. ↑ R v Rothman, 1981 CanLII 23 (SCC), [1981] 1 SCR 640, per Lamer J ("It must... be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queensbury rules. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit, and should not through the rule be hampered in their work.")
  7. ↑ Rothman, ibid.
  8. ↑ R v Skinner, 1992 CanLII 4015 (MB QB), 17 CR (4th) 265, per Scollin J, at p. 14 ("Absent "dirty tricks", the courts should not set themselves up as the arbiters of good taste or of the preferred methods of investigation. It is unrealistic to demand chivalry from those who must investigate what are often heinous offences against blameless victims. ...the courts should not be so indulgent as to preserve the accused from himself and his own untrammelled tongue")
    R v Roberts, 1997 CanLII 3313 (BCCA), 34 WCB (2d) 232, per Hall JA, at para 14
    R v Bonisteel, 2008 BCCA 344 (CanLII), 236 CCC (3d) 170, per Levine J, at para 89
    R v Figliola, 2012 ONSC 4560 (CanLII), per Whitten J, at para 95
  9. ↑ R v Nixon, 1990 CanLII 10993 (BCCA), 57 CCC (3d) 97, per Legg JA
  10. ↑ R v Campbell, 1999 CanLII 676 (SCC), [1999] 1 SCR 565, per Binnie J
  11. ↑ see Admissions from Mr Big Operations
  12. ↑ Hearing Office Bail Hearings (Re), 2017 ABQB 74 (CanLII), 344 CCC (3d) 357, per Wittmann J
    R v Reilly, 2019 ABCA 212 (CanLII), 376 CCC (3d) 497, per Slatter JA, at para 12 ("The Alberta government first sought a judicial declaration that police officers were authorized to represent the Crown at bail hearings. That application was dismissed, with the court declaring that police officers could not appear at bail hearings for indictable offences: ... . The government chose not to challenge that decision, but rather proceeded to change the bail system by replacing police officers with Crown prosecutors.")

Police Powers

See also: Ancillary Powers Doctrine

Police are empowered by common law and statutory powers to execute their duties.

Common Law Powers

Police have a number of powers vested by the common law that are related to their duties.[1]

Statutory Powers

Various provincial legislation empowers police to detain, arrest, search and seize. This includes:

  • Liquor and Cannabis Control legislation[2]
  • Motor Vehicle legislation
  • Mental Health legislation[3]
  • Protection of Property legislation[4]
Topics

Authority by Police Type

See also: Peace Officers

The Royal Canadian Mounted Police (RCMP) is the national police force.[5] They are peace officers for all jurisidctions in Canada.[6]

RCMP peace officers have "primary investigative jurisdiction concerning crimes committed in relation to national security or designated protected persons or designated protected sites."[7]

  1. ↑ See Ancillary Powers Doctrine
  2. ↑ NS: Liquor Control Act, [1]
    ON: Liquor Licence Act
  3. ↑ ON: Mental Health Act
    NS: Involuntary Psychiatric Treatment Act
  4. ↑ ON: Trespass to Property Act
  5. ↑ Royal Canadian Mounted Police Act (RCMPA), R.S.C., 1985, c. R-10, s. 3
  6. ↑ s. 3 and 11.1 RCMPA
  7. ↑ R v Seguin, 2016 ONCJ 441 (CanLII), per Letourneau J, at para 50
    Security Offences Act, RSC 1985, c S-7 at s. 2 and 6

Note Taking

Duty to Make Contemporaneous Notes

The taking of notes during the course of an investigation is not simply as an aide memoire. They have an obligation to make notes.[1] However, this duty does not extend to "record everything" the officer did or saw in their notebook.[2]

It is important for the judicial fact finding process that significant facts be recorded and not left to the "whim of memory."[3]

Police notes are no longer simply an aide-memoire simply used to refresh an officer's memory. Officers have an "inherent duty" to take notes.[4]

Without notes an officer's credibility can be diminished and his evidence can be discounted.[5]

Police notes must be independent and contemporaneous. [6] This is essential to the reliability and integrity of the officer's notes.[7] Notes are only for the purpose of assisting the officer in testifying at trial.[8] Without notes the evidence of the officer can be "sketchy at best" and will be unreliable. There must be indication that the notes are the officer's independent recollection. An officer should not be using someone else's notes to refresh their memory or else they will simply be reciting hearsay.[9]

As a general rule in an investigation involving multiple officers, notes should not be made after a collective debriefing.[10]

The absence of note taking can go to the reliability of the officer's testimony.[11] Where an officer is experienced they should be in the practice of taking notes of all relevant observations.

An officer is expected to take notes of all significant aspects of their investigation. Proper note taking is an important part of the fact-finding, as evidence should not be left to the whim of memory.[12]

It is not an acceptable excuse to not have notes where the officer “would remember it”.[13] Where notes are not taken the court is allowed to conclude that observation evidence was in fact not observed but a belief created after the investigation.[14] This is not necessarily always the case however and the judge may still accept the evidence.[15]

Memory of a police officer for things that occurred a considerably long time in the past where no notes were taken will has diminished reliability.[16]

The effect of an absence of notes will vary from case-to-case.[17]

Inferences from failing to take notes

Failure to take proper notes on observations of impairment allows a judge to find that there were insufficient evidence to form reasonable and probable grounds.[18]

The failure to take notes permits--but does not require--the drawing of the inference that the events testified to did not happen.[19]

What types of inferences can be drawn from the failure to take notes will depend on factors such as:[20]

  • Whether the significance of the event that was not noted would have been apparent at the time the notes were made.
  • Whether notes were made of other similar events.
  • The police officer’s level of experience.
  • The explanation, if any, for why notes were not made.
  • Whether notes of the event were made by other officers involved in the same investigation.
Consequence of Not Making Notes

Where police fail to take contemporaneous notes, their testimony may be considered unreliable and may not be admitted.[21]

Intentional failure to make notes may have negative consequences if it associated with a Charter breach.[22] However, there is no known principle that says that incomplete notes, by themselves, amounts to a breach of an accused right to full answer and defence under s. 7 and 11(d) of the Charter.[23]

Police should not be seen to thwart the objectives of Stinchcombe by making less accurate notes.[24]

Special Cases For Notes

There are additional constitutional obligations on peace officers to make detailed notes when engaged in the following:

Other:

  1. ↑ Wood v Schaeffer, 2013 SCC 71 (CanLII), SCJ No 71, per Moldaver J, at para 67 ("...police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation")
  2. ↑ R v Machado, 2010 ONSC 277 (CanLII), 92 MVR (5th) 58, per Durno J at 121
  3. ↑ R v Lozanovski, 2005 ONCJ 112 (CanLII), 64 WCB (2d) 630, per Feldman J, at para 14 ("It is important to the proper functioning of the judicial fact-finding role that significant facts be recorded by police and not left to the whim of memory.")
  4. ↑ R v Odgers, 2009 ONCJ 287 (CanLII), [2009] OJ No 2592, per Fournier J, at para 16
  5. ↑ Odgers, ibid., at para 16
  6. ↑ Schaeffer v Wood, 2011 ONCA 716 (CanLII), 107 OR (3d) 721, per Sharpe JA (3:0), at paras 69 to 70 on appeal to SCC
  7. ↑ Schaeffer v Wood, ibid.
  8. ↑ Schaeffer v Wood, ibid.
  9. ↑ Schaeffer v Wood, ibid.
  10. ↑ R v Thompson, 2013 ONSC 1527 (CanLII), [2013] OJ No 1236 (Sup. Ct.), per Hill J, at para 212 ("[W]here multiple officers participate in investigation of an incident, their notes should be made independently and not as a collective and not after a (de)briefing where the incident is discussed as a group.")
  11. ↑ R v Tang, 2011 ONCJ 525 (CanLII), per Reinhardt J, at para 53 -- police officer evidence entirely ignored due to poor notes
    R v Odgers, 2009 ONCJ 287 (CanLII), OJ No 2592, per Fournier J
    R v Machado, 2010 ONSC 277 (CanLII), 92 MVR (5th) 58, per Durno J at 120-123
  12. ↑ R v Lozanovski, 2005 ONCJ 112 (CanLII), [2005] OCJ 112, per Feldman J, at p. 3
  13. ↑ R v Zack (1999) OJ No 5747 (ONCJ)(*no CanLII links) , at p. 2
    R v Khan, 2006 OJ 2717(*no CanLII links) at 18
  14. ↑ Zack, supra, at p. 2
  15. ↑ e.g. R v Thompson, 2001 CanLII 24186 (ON CA), 151 CCC (3d) 339, per Morden JA (3:0)
    R v Bennett, 2005 OJ No 4035 (ONCJ) (*no CanLII links)
  16. ↑ Khan, supra, at paras 17 to 18
    R v Hayes, 2005 OJ No 5057(*no CanLII links) at 9
    R v McGee, 2012 ONCJ 63 (CanLII), 92 CR (6th) 96, per Grossman J, at para 66
  17. ↑ R v Noureddine, 2014 ONCJ 537 (CanLII), [2014] OJ No 1397 (OCJ), per Selkirk J, at paras 12 to 17
  18. ↑ R v Bero, 2014 ONCJ 444 (CanLII), per Cooper J
  19. ↑ see Wood v. Schaeffer, supra R v Singh, 2015 ONCJ 643 (CanLII), per Schreck J, at para 34
    R v Antoniak, 2007 CanLII 53233 (ON SC), [2007] O.J. No. 4816, per Garton J, at paras 21 to 25
    R v Golubentsev, 2007 ONCJ 568 (CanLII), 55 CR (6th) 170, per Duncan J, at para 30
  20. ↑ Singh, supra, at para 34
  21. ↑ R v Tweedly, 2013 BCSC 910 (CanLII), per Greyell J, at para 160 ("it is important to recall it has been held innumerable times in our courts that police testimony, without the advantage of contemporaneous notes, is unreliable and often not admitted into evidence for that purpose.")
    R v Zack, [1999] OJ No 5747 (Ont. C.J.)(*no CanLII links) , at para 6 ("In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw")
  22. ↑ R v Vu, 2013 SCC 60 (CanLII), [2013] 3 SCR 657, per Cromwell J, at para 70 - Officer intentionally avoided taking notes
  23. ↑ R v Bailey, 2005 ABCA 61 (CanLII), 63 WCB (2d) 614, per Hunt JA, at para 43 to 44
  24. ↑ R v Eagle, [1996] OJ No 2867 (Ont. C.J.)(*no CanLII links) referencing the "Martin Report" ("The statement should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less comprehensive notes.")
    R v Satkunananthan, 2001 CanLII 24061 (ON CA), 152 CCC (3d) 321, per curiam, at para 78

Information Sharing

Records containing personal information held by the RCMP are governed by s. 8 of the Privacy Act. RCMP are permitted to share personal information under limited circumstances including sharing with:

  • "an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed;" (s. 8(2)(e))[1]
  1. ↑ s. 8, Privacy Act

Special Authorizations

See also: Acting in Authority

See Also

Other Parties

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