Review in Saskatchewan Law Review 2016 Vol. 79

The Disappearance of Criminal Law
Police Powers and the Supreme Court

By Richard Jochelson and Kirsten Kramar  

The thesis of this book is set out in the authors’ explanation of the title: the decisions of the Supreme Court in the post-Charter era have erased or blurred the formerly bright lines that defined the limits of police authority and identified the point at which that authority must yield to the rights of an accused. This evolution is, according to the authors, the result of a gradual shift toward a “securitized” or “surveillant” society in which the state has an ever expanding, intrusive role in the lives of citizens. The authors draw on various sources – including case law, secondary sources, crime statistics and trends, and real world examples – to support their position that as worldviews change and more emphasis is placed on the need for security, offences begin to target activities that merely carry risks of harm rather than actually cause harm (e.g. obscenity offences), and society becomes more permissive of intrusions upon the rights of citizens, notwithstanding a lack of evidence of any beneficial results. The different chapters deal in turn with four specific areas of criminal law in which the expansion of the power of the state at the expense of the rights of the individual is apparent: search and seizure, ancillary police powers, the right to counsel and right to silence, and finally Charter remedies. Throughout the work, common themes and concerns emerge. The greatest concern of the authors is that subtle shifts toward a surveillant state may change societal attitudes and lead to an increasing tolerance of state intrusion. Because the tests for rights infringements and excluding evidence incorporate “reasonableness” or other normative ideas that will change as public perceptions change, the authors are concerned that these tests will eventually be insufficient to protect an accused against the power of the state. Examples of test criteria that incorporate these ideas discussed by the authors include reasonable expectations of privacy, reasonable opportunities to contact counsel, and the question of whether admitting or excluding evidence obtained through a Charter breach would bring the administration of justice into disrepute. Throughout the book, the authors develop a persuasive argument that increasing tolerance for surveillance, precautionary policing, and intrusions by the state will affect the rights of the accused on two levels: first, changing perceptions may make it less likely an infringement will be found at all; additionally, where an infringement is found, it may be less likely that a remedy will be granted under the test set out in R. v. Grant (2009 SCC32, [2009] 2SCR 353). A second major concern is that because formerly clearly drawn lines have been blurred over time, neither the accused nor the police know the limits of the police officer’s authority and scope of the accused’s rights until a court determination is made after the fact. This concern is most persuasive when discussed in relation to ancillary powers. The authors clearly demonstrate that courts are place in a highly problematic situation when called upon to recognize a new ancillary power. As guardians of the individual’s Charter rights, courts are entrusted with the duty to protect the individual against actions that are not authorized at law while also being called upon to decide whether to acknowledge a new police power that retroactively authorized such conduct. Because the power did not exist at the time of the event, none of the parties were capable of knowing at the relevant time whether the actions of the police were the legitimate exercise of police powers. A third trend the authors are critical of is placing burdens or duties upon the accused before a right can be asserted or in order to ensure no waiver occurs. The authors cite as examples the burden on the accused to demonstrate a reasonable expectation of privacy before a search will be deemed a search at all, the duty to be reasonably diligent in exercising rights to counsel, and the requirement that the accused continue to remain silent while his or her will and endurance are tested by continued questioning after having asserted the right to silence. The authors argue, at some times more convincingly that others, that creating preconditions or placing duties upon the accused detracts from the true purpose of the right: to provide the accused with some procedural protections when facing the gross power imbalance that arises while under the physical control of state actors. The Disappearance of Criminal Law provides a valuable overview of the developments in the case law, including points of departure from previous precedents, and point at which dissenting judges foreshadowed problematic implications of majority judgments. If the authors’ aim was to identify thought-provoking issues and demonstrate how a shift toward a surveillant state may be occurring, they achieve their purpose. However, the book does not go on to propose workable alternative approaches or tests that would avoid the problems the authors identify. For example, it would have been useful to explore alternative approaches to the right to counsel and right to silence that do not place duties on the accused and import ideas about reasonableness, without rendering the investigative tactics of police ineffective. For the most part the authors provide much food for thought through well-developed historical overviews, and clearly articulated criticisms and concerns. However, there are times when this is not the case. At one point the authors, in their critique of R. v. Patrick (2009 SCC 17, [2009] 1 SCR 579), allege that “the reasonable expectation of privacy analysis is really a technique of surveillance designed to make us complicit in police intrusion” (at 33). While the authors are correct that the distinction between seizing and searching garbage bags close to a house and garbage bags placed at the edge of a property is not entirely explained by the abandonment principle, they jump to their conclusion without considering alternative explanations. They overlook the possibility that the distinction based on proximity may have been intended to prevent the same intrusions that the earlier decisions regarding perimeter searches addressed, by preventing officers from coming close enough to the building to peek inside, or take note of smells and sounds emanating from the house while purporting to collect abandoned trash. Allegations of ulterior motives are complemented throughout the book with loaded and accusatory language including references to “the illusion of privacy” (at 33), “fictional balancing of individual versus state sovereignty” (at 16) and “the alleged promises of the Constitution” (at 61). Taken together, these problems create concerns about balance and bias.

— Cara Hill (Saskatchewan Law Review)

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