Rôle des forces de l'ordre

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General Principles

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. 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.

Tort Liability

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

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

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."

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

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

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.

Undercover operations

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

Police Representing Crown

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

Police Powers

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.

Statutory Powers

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

• Liquor and Cannabis Control legislation
• Motor Vehicle legislation
• Mental Health legislation
• Protection of Property legislation

Topics

• Investigative Detention
• Warrantless Arrests
• Warrant Arrests
• Warrantless Search in Exigent Circumstances
• Authorized Searches Under s. 487
• Seizure of Property

Authority by Police Type

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

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

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. However, this duty does not extend to "record everything" the officer did or saw in their notebook.

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

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.

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

Police notes must be independent and contemporaneous. This is essential to the reliability and integrity of the officer's notes. Notes are only for the purpose of assisting the officer in testifying at trial. 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.

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

The absence of note taking can go to the reliability of the officer's testimony. 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.

It is not an acceptable excuse to not have notes where the officer “would remember it”. 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. This is not necessarily always the case however and the judge may still accept the evidence.

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.

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

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.

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

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

• 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.

Intentional failure to make notes may have negative consequences if it associated with a Charter breach. 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 adn 11(d) of the Charter.

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

Special Cases For Notes

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

• performing a warrantless search of electronic devices (see Search Incident to Arrest)
• performing a warrantless strip/body cavity searches (Search Incident to Arrest#Strip Searches)
• Justifying the use of force during an arrest or search (see Arrest Procedure and Manner of Search)

Other:

• Article on Notes

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))

Special Authorizations

• Powers to Suppress Riots
• Authorizations to Commit Illegal Acts

See Also

• Abuse of Process by Law Enforcement
• State and Police Misconduct as a Sentencing Factor
• Peace Officers

Other Parties

• Role of the Accused
• Role of the Defence Counsel
• Role of the Trial Judge
• Role of the Victim and Third Parties
• Role of the Crown