Chapter 14 - Police Practices 

Police powers [1][17]

There are those who argue that police have been granted powers that are far too extensive in relation to drug enforcement and that in this fight against drugs, society has come to tolerate a battery of investigative techniques–wiretapping, strip-searches, the use of paid informants, entrapment, etc–which are offensive to our basic notions of civil liberty. As will be discussed in more detail, the nature of drug offences renders them difficult to enforce. This results in police agencies requesting and using a variety of unusual methods of enforcement. While there is a long history of special police powers in relation to drug enforcement, this chapter will focus primarily on modern police powers.    

No one questions the fact that police require powers for the maintenance of law and order in our society. In investigating criminal offences, the police may use less intrusive investigative techniques such as observation and interrogation.  In other cases, they may be required to use more intrusive methods such as electronic surveillance and reverse sting operations. While such methods are not limited to drug enforcement and may be used in other criminal matters, they are certainly used much more extensively in drug investigations.

These powers must be constrained, however, so as to protect individuals from excessive police activity. As stated by La Forest J.: “The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.”[2][18]  In determining whether police conduct is acceptable, conflicting interests generally have to be weighed. First, there are the individual’s interests, including the interest of being free from state intrusion. Second, there are the state’s interests, including that of protecting society from crime. Because these interests generally conflict, it can sometimes be difficult to agree on where the line should be drawn in relation to police conduct.

The courts have recognized that, as crimes become more sophisticated, police must be able to use more sophisticated investigative techniques to detect their commission. In addition, with respect to drug-related offences and other consensual types of offences,[3][19] it is acknowledged that routine investigative techniques are often insufficient because of the difficulty in detecting these activities. Generally, because there is no “victim,” no one is there to complain or report the offence to police. Both Parliament and the courts appear to agree that additional police powers may be warranted in these circumstances. It is believed that police need to be proactive, rather than reactive, as is generally the case for other non-consensual offences. An example of this viewpoint is expressed in the following statement by former Chief Justice Laskin of the Supreme Court of Canada:

Methods of detection of offences and of suspected offences and offenders necessarily differ according to the class of crime. Where, for example, violence or breaking, entering and theft are concerned, there will generally be external evidence of an offence upon which the police can act in tracking down the offenders; the victim or his family or the property owner, as the case may be, may be expected to call in the police and provide some clues for the police to pursue. When “consensual” crimes are committed, involving willing persons, as is the case in prostitution, illegal gambling and drug offences, ordinary methods of detection will not generally do. The participants, be they deemed victims or not, do not usually complain or seek police aid; this is what they wish to avoid. The police, if they are to respond to the public disapprobation of such offences as reflected in existing law, must take some initiatives. [4][20]

The Le Dain Commission had also recognized the special nature of drug offences.

The peculiar nature of drug crimes–the fact that the people involved in them are consenting and co-operative parties, and there is rarely, if ever, a victim who has reason to complain, as in crimes against persons and property – makes enforcement of the drug laws very difficult. The police are rarely assisted by complainants. For the most part they have to make their own cases. Moreover, the activity involved in non-medical drug use is relatively easy to conceal. It can be carried on, by agreement of the parties involved, in places which are not easily observed by the police. Further, the substances and equipment involved are relatively easy to conceal or dispose of.

All of these difficulties have given rise to the development of unusual methods of enforcement. [5][21]