CML2117 Introduction to Law, 2008 - Lecture 23 - Criminal Law and Police Powers

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CML2117 Introduction to Law, 2008 - Lecture 23 - Criminal Law and Police Powers

  1. 1. Today’s Lecture Criminal Law: Police Powers
  2. 2. A Caveat On Biased Perspectives, or...
  3. 3. Every Perspective has a Bias
  4. 4. Today’s bias: Critical with a chance of Leftism
  5. 5. How much power do the police have? Can they break the law?
  6. 6. The law applies to everybody equally, but Special defences are available for police
  7. 7. Criminal Code, 1892; s. 31: Police and their agents justified in using necessary force necessary to overcome any force used in resisting if not possible less violently to execute an arrest or warrant
  8. 8. Criminal Code, 1955; s. 25: Police and their agents justified in using necessary force necessary to overcome any force used in resisting if not possible less violently to execute an arrest or warrant Force intended to cause death or grievous bodily harm
  9. 9. Criminal Code, 1994; s. 25: Anyone required or authorized to enforce law justified in using necessary force necessary to overcome any force used in resisting if not possible less violently to execute an arrest or warrant Force intended to cause death or grievous bodily harm limited: serious offender fleeing, or escape from jail
  10. 10. A pattern emerges Broader justifications with More limitations
  11. 11. Scope of defences in practice By Court: R. v. Finta, suspected war criminal By Police: RCMP Commissioner Zaccardelli
  12. 12. Zaccardelli: “As police officers we used to be able to do things under the common law that were acceptable. They weren’t illegal; they were accepted in our system as powers and as means the police needed to carry out their duty in society.” Why couldn’t they do these things anymore? R. v. Campbell and Shirose
  13. 13. R. v. Campbell and Shirose, [1999] 1 S.C.R. 565 and the Reverse Sting Operation
  14. 14. R. v. Campbell and Shirose, [1999] 1 S.C.R. 565 SCC: abuse of process by police
  15. 15. Aftermath of Campbell: reverse sting operation law passed: CDSA reg SOR/1997-234, s. 16. police halt investigations involving illegal acts
  16. 16. Zaccardelli: “Since [Campbell], we can’t do that. We haven’t been doing that. This means there are criminal organizations that are profiting and taking advantage of what’s going on in society, as Chief Fantino has said. So I can’t send my police officer and pretend to be a smuggler or pretend to sell or buy illegal goods.”
  17. 17. Parliament’s response: Bill C-24 said to be concerned with organized crime written in very broad terms Added sections 25.1 to 25.4 to the Criminal Code Broad immunity; Some limits and accountability Applies to “designated officials”
  18. 18. Designation of 007 status Cabinet member can designate officers Cabinet member can designate senior officials, Designated senior officials can give “emergency designations” Immunity is extended to agents of police – like whom?
  19. 19. What illegal acts are justified? Essentially all acts and omissions, Including forcible confinement, kidnapping and assault with a weapon
  20. 20. How are justifications limited? actions reasonable and proportional in the circumstances no death or bodily harm, wilful obstruction of justice, and conduct violating sexual integrity of an individual
  21. 21. Controversy Objections to limiting scope of immunity to exclude death; bodily harm; wilful obstruction of justice; and conduct violating sexual integrity of an individual? Solutions proposed: Public interest groups: narrow immunity defence Police groups: eliminate the limitations
  22. 22. So, the Minister wants to designate an officer? Or the senior official wants to make an emergency designation? Limitations on Designations Allowance for limits on duration and investigations No requirement for such limits Requirement for existence of authority to review acts of designated officers Only for officers, not senior officials or emergency desig.s
  23. 23. Oversight and Accountability No judicial authorization for designations Weak requirement: report by officer to senior: 25.2 Not for serious acts under s. 25.1(8) Weak notification req. for property damage: 25.4(1) No compensation for damage Annual report: 25.3(1) Only for emergency designations
  24. 24. Annual Report of Minister Only for emergency designations by senior officials and approved property damage No information about: Designations of officers by the Minister Justified acts of police agents Justified acts of officers Exemption from reporting requirement: If report would compromise investigation, safety, a legal proceeding or would be against the public interest
  25. 25. Next class… • Murder and Defences: Sleepwalking as a case study R. v. Parks, linked on the website

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