chutchinson

One thing that everyone working in our field must know is their authority. What laws do you operate under?

Law isn’t the most glamorous class to sit through. Most people aren’t really that interested. They want to learn how to throw people to the ground and put the cuffs on. Unfortunately when officers don’t know their legal authority they often get into trouble justifying their actions. This trouble can range from professional discipline to criminal convictions and even jail time. This can slightly impede your ability to work.

Most officers that receive formal legal training (a lot don’t) only receive the training at their initial point of hire. Unfortunately the law is fluid. New legislation comes out and minor changes occur.

I recommend that everyone takes some time, at least once a year, and read about some of the laws that you work under.

I recommend that everyone owns a criminal code. If not at least make sure you have one at your work site. If you get one make sure you read important bits. It can also be useful to put little flags on the most relevant sections. Make sure you at least have Sec. 494 flagged. That is the bread and butter of our job. Knowing your authority for making an arrest is vital.

Here is a little intro to law. This is copied out of a legal study guide that I created for my officers.

Each level of government is capable of creating laws.

Federal Government
Has authority from the constitution act, 1867, S.91, to pass laws of national interest.
- For example: Criminal Code
Charter of Rights and Freedoms
Youth Criminal Justice Act

Provincial Governments
Have authority from the constitution act, 1867, S.92, to pass laws of provincial interest.
- For example: Traffic safety Act
Gaming and Liquor Act
Trespass to Premises Act

Laws are passed by the Legislative Assembly (in Alberta) and are called Provincial statutes.

Municipal Government
Not mentioned in the Constitution. They receive authority from the provincial government
- For example: Parking
Noise

Laws are passed by municipal councils and are called “by-laws”

Criminal Code of Canada

- An Act of Parliament
- Describes acts or omissions which are criminal in nature
- Prescribes punishments for offences
- Prescribes procedures for appeals, trials and some rules of evidence.
- Describes some valid defenses

How to find a section of the criminal code

For offences:

- Look in the index for the name of the offence
- Look for “definition” – this section will define the offence
- Look for “punishment” – this section will set out the punishment for the offence

For procedural matters:

- Check index for key words - follow the links

Aids to interpretation of the Criminal Code

1. Section, including synopsis, cross references and annotations
2. Section at the beginning of the Part
3. definition section (S.2)
4. Index
5. Interpretation Act
6. Case law
7. Dictionary
- Legal
- Recognized

When quoting a section of any legislation always start with the section number. Any subsection numbers are in brackets. Then end with the acronym for the piece of legislation. Eg. Sec. 32(3) MHA

Description of an offence in the Criminal Code

There are three parts of each offence which mist be included for the offence to be properly outlined

Defining - “everyone who…”
-“everyone commits…who…”

The defining portion describes what action must take place for the offence to be committed.

Charging -“…is guilty of…”

The charging portion imposes liability on the person who commits the acts which define the offence.
The charging portion “creates” the offence.

Punishment -“…an offence punishable…”
-“…an indictable offence and liable to…”

The punishment portion describes the penalty which may be imposed.
Describes the risk a person faces in the committing the offence

Definition of Crime

Crimes are acts or omissions (offences) contrary to federal legislation.
For example: Criminal Code, Controlled Drugs and Substances Act

Offences contrary to provincial legislation are not crimes
For example: Mental Health Act, Trespass to Premises Act.

Elements

Every crime has a physical element, “actus reas” and a mental element “mens rea”. If either element is missing then no crime can be proven. The law does not, in most cases, punish people for having evil thoughts.

Charter of Rights

Section 52(1)
Constitution Act, 1982

The constitution act of Canada is the supreme law of Canada, and any law that is inconsistent with provisions of the Constitution is, to the extent of the inconsistency, of no force of effect.

Section 1

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

This requires that the courts balance a person’s rights with what is good for society.

Section 2
Fundamental Freedoms

“Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.”

Section 7

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Section 8

“Everyone has the right to be secure against unreasonable search or seizure.”

The power to search is based in common law. Once a person has been arrested the person making the arrest can search the suspect, if the search is justified for the following two reasons:
- The accused has displayed violent behavior and may have weapons.
- The accused behaves in a manner that indicated they may be an escape risk

If you have the criteria to search, the search must be for weapons and/or devices/tools for escape. Not for evidence!

Section 9

“Everyone has the right not to be arbitrarily detained or imprisoned.”

Unlawful or false arrest might be deemed to be “arbitrary detention”

An arrest occurs when one takes or gets control of a person with intent to detain him. An arrest is a restriction or prohibition of one’s freedom of movement. Physically touching the arrested person is not necessary to constitute arrest. Most arrests occur when the suspect is told that he or she is under arrest.

A protection officer has no right to arrest someone unless the arrest is authorized by law.

Section 10

“Everyone has the right on arrest or detention
(a) to be informed promptly of the reason therefore
(b) to retain and instruct counsel without delay
(c) to have the validity of the detention determined by way of Habeas Corpus and to be released if the detention is not lawful.”

Habeas Corpus – Bring before the courts.



Hope this gives everyone a little basic info on law. I will write about the law in future and include much more information.

There will be no article next week as I am in Edmonton teaching several classes and I do not have access to a computer.

In the meantime stay safe,

Chris

*Note* I am not a lawyer. The information included is information that I was taught during Alberta Sol Gen approved Peace Officer Legal Studies.