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Peace Officers Jurisdiction and Liability
A police officer may work as a peace officer, but a provincial peace officer may not work as a police officer. Although both have authority within their respective jurisdictions to enforce laws and uphold community safety, overall provincial peace officers have less authority than police officers.
Integrity and trust are the cornerstones of peace officer conduct, as peace officers are held to a higher standard than other employees. The Peace Officer Act and associated regulations apply to peace officers employed in the union and non-union sectors. The Public Security Peace Officer Program Policy and Procedures Manual also applies to peace officers, whose jurisdiction is set out in their appointment from the Alberta Solicitor General (Public Security Division).
Peace officers perform a range of duties, such as enforcing bylaws, provincial legislation, and interacting with the public in carrying out their duties as they respond to complaints, conduct investigations, gather evidence, attend Court as Crown witnesses, and liaise with other law enforcement. There is an obligation on a peace officer to prepare accurate and detailed notes as soon as practical after the investigation of a matter and the failure to do so may impact the officer’s credibility at trial.
Ignorance of the law is no excuse. In R. v. Mitchell, 2021 ABQB 924, Mr. Mitchell drove a 3 axle rock truck on the highway with a Class 5 Graduated Driver’s License when a Class 3 was required. Mr. Mitchell, and his employer construction company, presumed he could drive it on a range road. He was charged and convicted under ss. 51, 52 and 54 of the Alberta Traffic Safety Act for not having the proper class of operator’s license when driving a motor vehicle on a highway, not having it registered, and not having insurance on it. There was no work or construction zone, and no license plate on the rock truck. There was no due diligence defence (taking reasonable steps in the circumstances) and no defence of reasonable mistake of fact since an error about the type of license, or other requirements of the law, is a mistake of law and not of fact.
Peace officers are required to have reasonable grounds for enforcing a law. The reasonable grounds standard is less than the civil standard of balance of probabilities. Common sense, flexibility, and practical experience apply while looking at matters as a reasonable person having the knowledge, training and experience of the peace officer: R v. Ha, 2018 ABCA 233; R v. MacKenzie, 2013 SCC 50; R v. Brayton, 2021 ABCA 316.
It is incumbent on a peace officer to know the law before charging a person. As early as 1950, in Frey v. Fedoruk, [1950] SCR 517, the Supreme Court held that a warrantless search was lawful only if the police officer had a belief in the facts which could be traced to a criminal offence known to the law. If the officer errors in concluding the facts amount to an offence when they do not, that is fatal to the charges laid, and a mistake of law by a peace officer results in the charges laid not being valid. This principle has been further expanded by the Supreme Court in recent decisions.
In Kosoian v. Société de transport de Montréal, 2019 SCC 59, a subway passenger was arrested and searched for refusing to comply with a subway pictogram which warned passengers to hold onto the escalator rail. When the passenger refused to provide her name and identification she was taken to a room but remained uncooperative and cantankerous. She was placed in a chair with her hands handcuffed behind her back while her backpack was searched for her identification so a ticket could be issued. She was charged with disobeying the pictogram and obstructing the police officers.
The Supreme Court held the pictogram was a warning to passengers and not an offence known in law. There was no statute or bylaw which authorized an offence for not holding the handrail, and as a result, there were no reasonable and probable grounds to make an arrest without a warrant. The Court said reasonable grounds relates to the facts and not the offence. There was an unlawful arrest based on mistake of law and it did not matter if the officer believed in good faith the offence existed. The offence has to exist in some legislation, bylaw or at common law, which requires a person to identify themselves, and when that is not authorized at law, there is no power to arrest or detain the person. The officer was required to verify the existence of the offence before arresting the person. Since there was mistake of law, the passenger was awarded $20,000 in damages, 50% of which was payable by one of the police officers and 50% by the transit authority, plus costs and interest.
Sometimes jurisdiction is initially lost but then regained during the post arrest conduct of the accused. In the Alberta case of R. v. Tim, 2022 SCC 12, the Supreme Court confirmed that a lawful arrest cannot be based on a mistake of law and if an officer makes a mistake on the facts and concludes that an offence was committed when there is a mistake of law as to the offence, there is no offence. Police/peace officers are required to have an adequate knowledge of the statutes, bylaws, and common law which they enforce. Reasonable and probable grounds relate to the facts, not the offence, and if an officer believes the facts amount to an offence when they do not, then there is no offence and mistake of law occurs.
In Tim, the police officer attended the incident after a car hit a road sign and then stopped about 1km away. The driver was standing beside his vehicle when the officer arrived, and when asked for his driver’s license, registration and insurance, the driver went to his car and opened the door to get those documents, but in the process, he tried to hide a zip-lock bag with a yellow pill in it which was gabapentin, which the officer believed was an illegal street drug (gabby). Gabapentin is an anti-seizure and painkiller medication whereas gabbies are trafficked and used as recreational drugs. The driver was arrested for possession of an illegal drug. The police officer then conducted a first pat down search of the driver, his car was searched, and five fentanyl pills, two hydromorphone pills (opioids), two alprazolam pills (tranquilizer drugs), .22 calibre bullets, a .45 calibre pistol and three cellphones were discovered. A second search of the driver’s vehicle yielded a folded serrated knife, bear spray, four fentanyl pills and two alprazolam pills. As the driver was walking strangely while being taken to the patrol car, shaking his leg, limping some and .22 calibre bullets were falling from his pants leg, another pat down search was conducted. A loaded double barrel pistol with two bullets was detected in the groin area, and it fell down the driver’s pants.
The Supreme Court said if the officer believes an offence has been committed, but there was none, then there is no power to require the person to identify themselves or to arrest the person if they refuse to comply with the request for that information. Though the police/peace officers are not required to know the conflicting precedents related to the law, they are required to know what the law is for the offence which they are investigating and charging the person. The subjective belief of the officer that there were reasonable and probable grounds to arrest the driver was based on a mistake of law that gabapentin was an illegal drug, which was not objectively reasonable as it is not a controlled drug. The Court said it makes no difference if the mistake of law relates to a non-existent offence or an existing offence which could not be used based on the facts if they were true and relied on by the police/peace officer since there is a mistake of law in both of those circumstances. The arrest of the accused for possessing gabapentin was unlawful under s. 9 of the Charter of Rights and Freedoms (right to be secure against unreasonable search or seizure) and was not saved under s. 1 of the Charter as being a reasonable and justifiable limit in a free and democratic society. However, the searches fell under the common law (judge made) right to search a person, conduct a search incidental to the investigation and do a strip search.
The Court found the driver could be detained by the police for the traffic collision investigation, and in doing so, the officer was exercising investigatory powers under s. 69(1)(a) of the Alberta Traffic Safety Act, which requires a driver or other person in charge of a vehicle involved in an accident to remain at the scene or if the person left to immediately return to the scene. Under the Act, the driver or other person in charge of the vehicle has a duty to provide the peace officer with information as required, and that duty is separate from the criminal law. A driver of a vehicle does not have the choice to not cooperate with the peace/police officer if they are involved in an accident. Section 320.16(1) of the Criminal Code can, in some circumstances, apply when the driver fails to remain at the scene of a traffic accident.
The Supreme Court ruled that by operation of law, the driver had no right to refuse to cooperate with the police, and he was lawfully detained due to the traffic accident investigation despite the fact he could not be lawfully detained as part of the drug investigation related to gabbies. There was no jurisdiction to detain the driver for the gabapentin, but there was jurisdiction to detain the driver due to the collision with the roadside sign. The Court found there were implicit reasonable grounds for the officer to believe that his or the safety of others was at risk, and those subjective beliefs of the officer were objectively reasonable in the circumstances, as there were concealed bullets and a loaded concealed gun which was discovered in the second pat down search. The Court noted that s. 24(2) of the Charter does not create automatic exclusion of evidence when a provision of the Charter is breached, and the onus is on the accused to prove the administration of justice would be brought into disrepute. The Court acknowledged that s. 25(1) of the Criminal Code protects a peace officer from civil liability when acting on reasonable grounds, which covers mistakes of fact, but not mistakes of law.
In brief, the officer did not have jurisdiction to arrest the driver initially for possession of gabapentin as it was a legal prescription drug. Still, there was jurisdiction to detain and arrest the driver related to the collision under the provisions of the Traffic Safety Act. There was the common law right to conduct the additional searches of the driver’s body and the vehicle.
Generally, police officers have authority for Criminal Code offences; however, the principles in the criminal law cases most often apply to peace officers when conducting their duties. Although the definition of “peace officer” in s. 2 of the Criminal Code covers police officers and peace officers under the Alberta Peace Officer Act, generally the authority for enforcing Criminal Code offences is the jurisdiction of police officers (unless there is an enhanced authority in the peace officer’s appointment by the Solicitor General covering some Criminal Code offences). Sometimes the actions of peace officers can be defended under s. 25 of the Criminal Code (protection from liability for conduct in law enforcement) provided the peace officer is acting reasonably, which is a shield against civil and criminal liability, and under s. 494 (detainment/arrest without a warrant when a person is reasonably believed to be committing a criminal offence and delivering such person to a police officer forthwith).
The common law indicates that employers have vicarious liability for the actions of their employees while acting within the scope of their duties, as long as they did not go on an independent frolic which takes them outside of the scope of their duties. Section 10 of the Peace Officer’s Act attributes vicarious liability to the authorized employer of the peace officer. Section 10 states, “The authorized employer of a peace officer is liable for the actions and omissions of the peace officer while the peace officer is acting within the scope of the peace officer’s authority, responsibility and duties”.
The Court judicially considered the application of s. 10 in Graham Ranching Company Limited v. Alberta Society for the Prevention of Cruelty to Animals, 2012 ABQB 707, where the authorized employer and a peace officer were sued. The Court indicated the meaning of s. 10 is the employer is liable for the actions of the peace officer, but it does not say that a peace officer is not liable for their actions. The Court held a peace officer could be named in a lawsuit and be held personally liable for their acts and omissions while acting within the scope of authorized authority, responsibility and duties. The authorized employer is then liable for the personal liability of the peace officer. The Court was clear that if the Legislature intended a peace officer could not be sued personally for authorized duties that should have been specifically stated in s. 10. The Court of Appeal has not yet considered the meaning of s. 10. In contrast, s. 39 of the Police Act covers vicarious liability and says the Chief of Police is liable for the tort actions (negligence, trespass, bad faith, etc.) of a peace officer appointed under the Peace Officer Act who is an employee of a police service the same as a master is liable for the actions of the master’s servant who is acting within the scope of authorized duties. The council of the municipality of the police service is then required to indemnify the Chief and pay any costs and damages associated with any such lawsuit.
It is noted that ss. 11 and 21 of the British Columbia Police Act, which covers provincial constables (equivalent of Alberta peace officers under the Peace Officer Act), makes the Minister liable for the torts committed by them, and the provincial constable cannot be sued for anything related to the performance of their duties.
Section 10 of the Peace Officer Act ought to be amended to indicate a peace officer cannot be personally named as a defendant in a lawsuit when the actions of the peace officer relate to their authorized duties. Many municipalities in Alberta do not have police services, so the more wholesome codified vicarious liability provision in the Police Act is of no avail.
A municipality has a significant investment in human capital in employing peace officers. Peace officers have special training and there needs to be ongoing training provided or paid for by a municipality to keep peace officers up to date, qualified, competent and to reinforce proper conduct in accordance with applicable laws, and due to direction from the Courts, which changes or is revised from time to time. Peace officers must act within the scope of their jurisdiction. The Charter of Rights and Freedoms apply to the actions of peace officers. As a result of the Charter, peace officers are held to more scrutiny by the Courts. When issuing a ticket or charging, detaining or arresting a person, the peace officer has to have reasonable and probable grounds. Any offence for which a person is ticketed or charged must be based on an actual offence in a statute, a bylaw or a known offence in the common law. If there is no actual offence at law, the peace officer does not have the jurisdiction to issue a ticket, charge, detain or arrest a person. In addition, peace officers must not exceed their jurisdiction as specified in their appointments by the Solicitor General, subject to the common law or Criminal Code giving jurisdiction in some limited circumstances. If peace officers exceed their jurisdiction, the municipality and the peace officer can be potentially liable in a civil action.
Due to the scrutiny of the Courts and the recent guidance by the Supreme Court in the case law, training provided to peace officers needs to be accurate. However, even if the training provided to a peace officer is not accurate by a municipality, agent or contractor acting on its behalf, the peace officer has an obligation to ensure an offence has been committed and that the offence for which the ticket/charge is given in fact exists at law. If the offence does not exist at law or jurisdiction is exceeded and not saved by some applicable law, and if the peace officer tickets, charges, detains or arrests the accused, the municipality and its agents or contractors acting on its behalf and the peace officer can be jointly and severally liable in tort law if the accused civilly sues them.
The role of peace officers in upholding community safety and enforcing laws comes with significant responsibilities. It is in the best interests of municipalities to take reasonable steps for safety, security, risk and potential liability and to ensure peace officers are competent and act within their jurisdiction.
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This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
