Ancillary powers
Which legal test defines the scope of the ancillary powers doctrine?
The Waterfield test.
What are the two things required to meet the minimum threshold for a search to NOT be presumptively unreasonable?
1. Reasonable and probable grounds
2. Prior judicial authorization
Describe the common law confessions rule.
This rule prohibits the admission at trial of statements made by suspects to police or other "persons in authority" unless the prosecution proves beyond a reasonable doubt that the statements were voluntary.
S. 9
True or false? The police need reasonable and probable grounds to conduct a search incident to arrest.
False! They must have SOME reason for conducting the search and that search must be objectively reasonable, but do NOT need reasonable and probable grounds.
What is the relevant Charter provision when seeking an exclusion of evidence bc police conduct exceeded permissible limits of the common law?
S. 24(2)
If this minimum threshold is NOT met, the onus is on the Crown to demonstrate that the search was reasonable by meeting these 3 criteria on a balance of probabilities.
The search was authorized by law (statute or common law)
The law itself was reasonable
The search was carried out in a reasonable way
Who does the rule apply to?
Persons in authority.
Whether psychological compulsion has occurred is an objective determination based on what a reasonable person would perceive, taking into consideration these 3 relevant factors (among possible others) (test is from Grant)
1. Circumstances giving rise to encounter as they’d reasonably be perceived by an individual
2. The nature of the police conduct
3. The Particular circumstances and characteristics of the individual
Describe what "incidental" to the arrest means, drawing from Caslake and Cloutier.
Cloutier → “The restriction that the search must be “truly incidental” to the arrest means that the police must be attempting to achieve some valid purpose connected to the arrest”
Caslake → “The fact that this search was not, in the mind of the searching party, consistent with the proper purposes of search incident to arrest means that it falls outside the scope of this power”
Dedman tweaked Waterfield slightly, asking at the second stage whether the conduct amounted to an unjustifiable use of police powers by looking whether the inference was _____.
"Reasonably necessary."
Describe reasonable and probable grounds, differentiating it from reasonable suspicion.
Reasonable suspicion: more than a hunch or mere suspicion, though less than the standard of reasonable and probable grounds.
Reasonable and probable grounds: “An honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, on the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, laced in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed” (cop must believe they had the grounds and this belief must be reasonable)
Give ONE reason (there were four outlined in lecture) why someone might give a false confession?
1. Stress compliant confession
2. Non-coerced persuasion
3. Coerced compliance confession
4. Coerced persuaded
According to Collins, when is a detention NOT arbitrary?
1. Where the detention is authorized by law
2. And the authorizing law is not arbitrary
3. The manner in which the detention is carried out is reasonable
Why was the search in Aucoin deemed unreasonable while the detention was perfectly lawful?
Driver was driving under the influence, so detainment totally lawful in pursuit of police duty to protect life and prevent crimes. The subject search was only necessitated by the manner of the detainment (there had been other less intrusive means to secure the individual, so those should've been taken)
What are the factors to consider in assessing the totality of the circumstances at the second branch of the modern ancillary powers test?
1. Duty being performed
2. Extent to which interference w/ liberty is necessary to perform the duty
3. Importance of performance of duty to the public good
4. Nature of liberty interfered with
5. Nature and extent of interference
Where could a warrantless search be justified by law?
Safety pat-down + investigative detention (Mann)
Incident to arrest (Caslake/Cloutier)
Exigent circumstances (MacDonald)
Legislation: Cannabis Act, HTA, Immigration
What do we mean by person in authority?
A subjective/objective test → it has to be reasonable, but an individual belief that they had authority over the other person. Their subjective belief has to be objectively reasonable.
R v. Mann developed a limited power for investigative detention if there are reasonable grounds to suspect these two things.
a) The individual is connected to a particular crime
b) Such a detention is necessary.
When is consent to a search valid?
Willis criteria
What are the 3 things courts must have regard to in assessing whether to exclude evidence pursuant to s. 24(2)? The test is from Collins.
Evidence must be excluded if it established that, having regard to all the circumstances, its admission would bring the admin of justice into disrepute, having regard to:
1. The seriousness of the Charter-infringing state conduct
2. The impact of the breach on the Charter-protected interests of the accused
3. Society's interest in the adjudication of the care on its merits
Is there a REP in an unlocked/non-password protected offence?
Idk!
Evidence that arises from involuntary confessions could lead to the discovery of other statements. This rule dictates that statements would be excluded if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement.
Investigative detention must be premised on reasonable grounds and viewed as reasonably necessary, through an objective lens, informing the cop's suspicion there's a clear nexus between person detained and recent or ongoing criminal offence. Describe the clear nexus test.
Officer must have reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.
What are the 3 qualifications to the police's power to search someone incident to lawful arrest, established in Cloutier?
1. It is a power to search, not a duty
2. Search must be for a valid objective in pursuit of the ends of criminal justice
3. Manner of search must NOT be abusive