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Major Studies of Drugs and Drug Policy
Cannabis Control Policy

 Cannabis Control Policy: A Discussion Paper

 Health Protection Branch

Department of National Health and Welfare

January 1979

Special Powers of Arrest, Search and Seizure in Drug Enforcement

The Narcotic Control Act (N.C.A.) 1960-61, c.35 and Food and Drugs Act (F.D.A.) 1952-53, c.38 grant police who work in drug enforcement virtually unequaled powers of arrest, search and seizure. The Canadian courts have broadly construed these statutory powers and the police officer's common law defences to civil suits. Despite police complaints that their hands have been increasingly tied by the expansion of civil liberties, the exact opposite is true. During the past seventy years federal drug legislation has greatly expanded police powers of arrest, search, and seizure at the expense of individual freedom, privacy and physical integrity. It is important to emphasize that these special police powers in drug enforcement are in addition to the already broad general powers of arrest, search and seizure contained in the Criminal Code R.S.C. 1970, c.34 and other federal criminal statutes. Provincial legislation such as The Highway Traffic Act R.S.O. 1970, c.202 and The Liquor Control Act R.S.O. 1970, c.249 provide still further police powers. Thus, even in the absence of the extraordinary powers of the N.C.A. and F.D.A., officers engaged in drug enforcement still have broad powers of arrest, search and seizure.

Two examples illustrate the breadth of the special police powers and the extent to which they represent a fundamental departure from traditional legal principles. A large percentage of cannabis arrests are made by uniformed police officers during routine traffic patrol. In these situations, the officer can use his powers under the provincial highway traffic and liquor control acts to undertake ad hoc drug investigations. For example, the Ontario Highway Traffic Act authorizes the police to stop any vehicle, to require the driver to identify himself and produce his licence, and to "submit the vehicle to such physical examination...as the constable...may consider expedient." While this Act does not give the officer the right to search the driver or the car's occupants, suspicious circumstances observed during this licence and safety inspection can be used to invoke the broad search powers of the N.C.A., s.l0, and F.D.A., 5.37. Both permit the police, without warrant, to enter and search any place other than a dwelling house in which they reasonably believe there is a prohibited drug. The police are also empowered by these acts to search any occupant found therein, using as much force as is reasonably necessary, whether or not they have reasonable grounds, or for that matter any grounds, to believe that the occupant was committing an offence. If the occupant refuses to submit to the search, he may be charged with obstructing a peace officer in the exercise of his duty, and if he physically resists, he may be charged with assaulting him and sued civilly. The police may require the occupant to submit to oral, rectal or vaginal examinations, and are not obliged to use medically-trained personnel for that purpose.

Perhaps the most noteworthy aspect of this power is that an individual may be forced to submit to a physical search in the absence of any evidence, belief, or even suspicion of wrongdoing of any kind on his part. This is a major departure from established principles; as a general rule, the police may only search a person after they have lawfully arrested him, and the arrest to be lawful must be based on a reasonable belief that the person had committed or was about to commit or was apparently committing a criminal offence. A possible rationale for this exception in drug cases arises in situations in which the occupants of a private car might realistically know of, or be participating in, a drug offence being committed by another occupant. However, this power to search occupants of premises in which the police have reason to believe a drug offence is being committed applies to all places other than dwelling-houses, not only cars. The police have used this power to enter taverns and strip-search their occupants, many of whom had no possible relationship with the suspected offenders and who probably had no idea that any offence was occurring. (See, for example, The Royal Commission on the conduct of Police Forces at Fort Erie on the 11th of May, 1974.)

The second example concerns the special police powers to search dwelling-houses in drug cases. The common law has traditionally distinguished between police powers to search dwelling-houses and other places. Generally speaking, the police could only enter the former if they had obtained a valid search warrant duly issued by a judge. Judicial scrutiny of the police evidence and control over issuance of the search warrant were designed to protect the sanctity of the home and the privacy of the individual. Both the N.C.A., s.l0(3), and F.D.A., s.37(3), provide far the issuance of writs of assistance to members of the RCMP, which empower them to enter and search any dwelling-house, day or night, in which they reasonably believe there is a prohibited drug. In order to prevent the possible destruction of evidence, the courts have permitted the police to enter without a prior announcement, using whatever force is reasonably necessary. The police may search the occupants of the dwelling- house and may "break open any door, window, lock...or any other thing."

Although the government has proposed modest changes (Globe and Mail, March 14, 1978:9; Globe and Mail, April 7, 1978:1), there is still no judicial control over the issuance or use of the writ of assistance. A judge of the Federal Court must issue it on the Attorney-General’s request. It is not limited as to time or place and is valid for the entire career of the officer to whom it is issued. Consequently, the judge has no control over when, where, how often, or in what circumstances the writ is invoked, regardless of whatever abuses arise. It should be pointed out that RCMP regulations require officers holding writs to file internal reports when they use them. (Le Dain, 1972:240) However, even if this departmental review were scrupulously carried out, which is questionable in light of earlier reports (Solomon, 1972), it is a far cry from the common law requirement that the judiciary approve and control each police entry into a dwelling-house.

This brief review of the special powers of arrest, search and seizure raises numerous issues regarding cannabis control policy. The most important of these is whether the risks posed by cannabis — particularly those posed by consumption-related activities — justify the wholesale sacrifice of our traditional safeguards of individual liberty. Even if one decides that cannabis use presents a sufficient threat to justify investing police with special powers of arrest, search, and seizure, a balance should be struck between the measure of freedom we give up and the enforcement benefits we receive. To date, a large measure of our freedom has been surrendered on the assumption that it has been offset by effective enforcement. Unfortunately the assumption appears unwarranted: the Canadian cannabis market has flourished, demand has risen steadily, supplies are abundant, and prices have remained relatively stable during the past ten years. The vitality of the Canadian cannabis market is even more remarkable given the tremendous increases in resources devoted to cannabis enforcement and more than a tenfold increase in cannabis arrests during the last ten years.

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