Sniffing Out the Ancillary Powers Implications of the Dog Sniff Cases

This paper critically evaluates the Supreme Court of Canada’s recent decisions in the dog sniff cases: R. v. Kang-Brown and R. v. M. (A.). After briefly assessing the impact of these decisions on the law of search and seizure, the paper considers the significance of the disagreement between the majority and dissent in these cases on the appropriateness of using the ancillary powers doctrine to recognize new “common law” police powers. The paper explains the origins of that doctrine, its operation and the controversy that continues to surround its use as a source of police powers. On this fundamentally important issue, the paper offers a critique of both the majority and dissenting judgments, while also forecasting what may serve to finally resolve this lingering dispute

The Forgotten Right: Section 9 of the Charter, Its Purpose and Meaning

This paper examines why section 9 of the Charter, the right not to be arbitrarily detained or imprisoned, has failed to flourish. The paper argues that the right has essentially remained dormant because the Supreme Court of Canada has not yet expressly identified the underlying purpose of this important constitutional guarantee. After briefly canvassing the current state of affairs under section 9, the paper shifts to a purposive analysis of the guarantee. Its historic antecedents, the provision’s drafting history, the international influences that helped shape its framing, the testimony of senior civil servants involved in its drafting, as well as its relationship to the other legal rights provisions, are all considered in an effort to bring to the surface the guarantee’s purpose: to protect individual liberty against unjustified state interference. With that purpose revealed, the paper turns to a critical analysis of the section 9 jurisprudence, arguing in favour of a renewed understanding of its key defining terms, “arbitrarily” and “detention”, in light of the overarching purpose of the guarantee. The paper contends that it is only through this sort of purposeful revitalization that section 9 can be transformed from a largely forgotten right to a meaningful constitutional protection of our most cherished freedom: liberty

Charkaoui: Beyond Anti-Terrorism, Procedural Fairness, and Section 7 of the Charter

The Supreme Court of Canada’s unanimous decision in Charkaoui v. Canada1 has attracted much public attention. Perhaps most newswor- thy is the fact that these cases —challenges by three men to provisions of the Immigration and Refugee Protection Act (IRPA)2 under which they were detained — represent the first time since September 11, 2001 that the Supreme Court has delivered a defeat to the government in its anti- terrorism efforts

Reasonable Expectations of Privacy and Open Fields: Taking The American ‘Risk Analysis’ Head On

This article argues that the open fields doctrine should not be adopted in Canada as it is premised upon the perilous American risk analysis which the Supreme Court has previously rejected

Criminal Justice Law Reform: Stealing A Page From The American Playbook

Criminal justice law reform is a major component of the Federal Government\u27s current legislative agenda. Unfortunately, instead of basing reforms on criminological research or the advice of experts, our current Government, by its own admission, is far more interested in what ordinary Canadians think about the criminal justice system

A Failed Experiment? Investigative Detention: Ten Years Later

Ten years ago, the Ontario Court of Appeal introduced the investigative detention power to Canada with its decision in R. v. Simpson. After providing some necessary background about the realities of police detention practices, the author offers a critical evaluation of Simpson and the ancillary powers doctrine that it relied upon to create this new police power. The author then proceeds to consider how well the investigative detention experiment has fared over the last decade, examining whether it has lived up to the goal that provided its inspiration, namely, the regulation of police detention practices. The author advances two major claims. First, the investigative detention cases have done little to regulate but much to legitimize police detention practices, mostly serving to blur the line between the detentions they endorse and conventional arrests. Second, the investigative detention experiment holds larger lessons about the dangers inherent when courts, as opposed to legislatures, create police powers. Given these dangers, the paper contends that the ancillary powers doctrine should be rejected as a device for creating complex police powers, like investigative detention. Instead, the author draws upon the dialogue model, already embraced by the Supreme Court of Canada, to offer an alternative approach. He concludes by outlining steps the Court could take to encourage Parliament to finally enact the sort of clear, comprehensive, and prospective rules and procedures that are essential if police detention practices are to be effectively regulated in the future