Perspective, and Perspectives, on Police Powers

R. v. Zacharias is a complex, and on one important issue inconclusive, decision about the extent of police powers and the balance between individual rights and societal interests. The case decided that the “reasonable grounds” justifying a warrantless arrest could not include any information which had been obtained unlawfully. This rule had been long-established with regard to search warrants but had been the subject of conflicting decisions in lower courts in the case of arrests. Zacharias leaves no doubt that arrests which occur due to prior Charter breaches will be a further breach — a “consequential” breach — of the Charter. Where the decision is inconclusive is on the issue what to do about such consequential breaches: specifically, whether consequential breaches should be taken to increase the “seriousness of the breach” in an exclusion analysis. Should we conclude that it is not more serious because the police did not do anything additional which was improper, or that it is more serious because the accused’s rights were violated several times, not just once? Because of the way the case was decided, only four judges pronounce clearly on that issue, and they divide two-to-two. This paper argues that, in attempting to find the proper balance between individual rights and societal interests, it will always make a difference whether a court’s reasoning starts from one perspective — “what can we reasonably ask of the police” — or the other — “what rights can individuals reasonably expect to have protected?” It also argues that guidance about which starting perspective to adopt can be found in looking at the underlying purpose of the law in question. Since, in the context of Zacharias, the law in question is the remedies provision in the Charter and its underlying purpose is the protection of individual rights, consequential breaches should be found to increase the seriousness of the breach.