Forstner Law

Reining in Police Power

The court found that the warrant was defective, the rights of the accused neglected. They ordered that the very real drug evidence should be excluded, and as there was no other evidence against Mr. Poirier, he was acquitted and set free. He went from having a 10 year jail sentence, to walking out the door. It is an important case. You can read the full highlighted version here: R v Poirier. Defence lawyers tell their clients not to give statements to police, but this case illustrates how different the experience is for a lawyer at the end of a phone compared to you, the accused. Police have so much power in those moments. It's our job, and the court's to rein that power in. Speaking truth to power is imperative.

But in their haste, and perhaps with the overzealous agreement of the judicial officer who signed the warrant, the police forgot that section 503 of the criminal code, a well known provision, requiresthat accused and arrested people are brought before a judicial officer, usually at bail court, within 'no later than' 24 hours after being arrested.

This is not some technical detail. It has its routes in the centuries old legal doctrine and concept of habeus corpus. People cannot be taken by police in the dead of the night and be shipped off to God knows where, until God knows when, without so much as tip of the cap to the court system. No, the police are required to bring the accused in front of a judicial officer, so that the open court system, (which we value so highly for reasons that cases just like this, demonstrate) can take ownership of the case, and begin to supervise and manage how the accused will be delivered of his rights, and have the legal case against him dealt with.

In this case, Mr. Poirier, was not brought before a court for 42 hours; only after his rectum had been thoroughly emptied to the satisfaction of police. His health, his liberty, his rights - all took second place to the 'needs' of police. In finding violations of section 7, 8, and 9, of the Charter, the court said, at paragraph 57:

Detention Without Rules?

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What are the limits on how long the police can hold you after you've been arrested? Most people have seen a lot of U.S. television and realize that there is some time limit; that an arrestee can't be brow beaten in a room by 'good cop/ bad cop' duos for unlimited periods, but the case R v Poirier spells out the Ontario Court of Appeal's view on this issue very nicely.

It illustrates competing interests between issued warrants and statutory requirements spelled out in the criminal code.

In this case, the police sought out a warrant with surprisingly wide ranging power. They suspected an accused, Mr. Poirier, of hiding a lot of drugs in his rectum, and they didn't think that he would 'give it up' easily upon arrest. So they asked a judicial officer for the right to hold what's known in the trade as a "bedpan vigil" until the drugs delivered themselves, as it were.

It sounds kind of comical and a little bit gross, from a distance, but close-up, the details aren't so funny. They got their warrant, and for some 30 hours after they arrested Poirier, they handcuffed him with his arms held at an uncomfortable position, his hands covered in taped on oven mitts, in a room without any running water, or a toilet. He would have to notify them, when he 'needed to go' and then they would watch and screen his bowel movements for drug packages.

Nevermind that Poirier was an addict, experiencing extreme withdrawal. Nevermind issues of his comfort or care; just get the drugs out of him however long it took.

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"Section 503 reflects an important fundamental right in our society, namely, the liberty of the subject, which is not to be taken away except in accordance with the law: R. v. Simpson..."

Also at paragraph 79:

"...the police were aware that the appellant was an addict. From Const. Vosburg’s casual conversation with a doctor, he knew that the appellant’s withdrawal symptoms would be “like getting the flu times ten”, and that Tylenol could provide some relief. Yet even knowing this, and as the appellant began to show symptoms of withdrawal, the police made no provision for measures to ease the appellant’s discomfort such as having a doctor assess him for prescription medication, or provide for medical administration of ordinary Tylenol. There is no question that the police simply failed to minimize the appellant’s discomfort during his detention..."

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Lawrence Forstner, Criminal Lawyer in Oshawa, Expert Qualifications and Specialized Training:
Former Crown Attorney; Former Probation & Parole Officer; Ontario Domestic Assault Risk Assessment (ODARA), Sex Offender Risk Assessment, Strategic Initiatives in Community Supervision (STICS), Sex Offender Relapse Prevention, Substance Use / Anger Management Group Leader/ Trainer. ( https://ca.linkedin.com/in/forstnerlaw )

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