Adaikin v. Calgary Chief of Police et al., (2013) 556 A.R. 396

JudgeMartin, O'Ferrall and Veldhuis, JJ.A.
CourtCourt of Appeal (Alberta)
Case DateMay 10, 2013
Citations(2013), 556 A.R. 396;2013 ABCA 333

Adaikin v. Police Chief (2013), 556 A.R. 396; 584 W.A.C. 396 (CA)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. OC.007

Cst. P. Adaikin (appellant/appellant) v. Chief of Police of the Calgary Police Service and Law Enforcement Review Board (respondents/respondents) and Attorney General of Alberta (intervenor)

(1201-0069-AC; 2013 ABCA 333)

Indexed As: Adaikin v. Calgary Chief of Police et al.

Alberta Court of Appeal

Martin, O'Ferrall and Veldhuis, JJ.A.

September 30, 2013.

Summary:

Constable Adaikin pulled over a vehicle for speeding. Adaikin returned to the police car to write a speeding ticket. The driver became irate and angry with Adaikin. He left his vehicle and walked towards the police car. Adaikin stepped out of the car and stood behind the driver's door with his hand near his gun should the need arise to use it. Adaikin instructed the driver to return to his car. When the driver ignored that direction, Adaikin further instructed him to get back into his car, or to move to the sidewalk, otherwise he would be arrested. The driver returned to his car. Adaikin then served him the speeding ticket. The driver subsequently filed a complaint with the Calgary Police Service. Following an investigation, the Chief of Police ruled that there was evidence that Adaikin exceeded his authority when he advised the driver that he would be arrested if he did not return to his car. The Chief of Police placed an official warning on Adaikin's file. The Law Enforcement Review Board affirmed the Chief's decision. Adaikin appealed.

The Alberta Court of Appeal allowed the appeal and remitted the matter to the Chief for reconsideration.

Police - Topic 3086

Powers - Arrest and detention - Detention for investigative purposes - Constable Adaikin pulled over a vehicle for speeding - Adaikin returned to the police car to write a speeding ticket - The driver became irate and angry with Adaikin - He left his vehicle and walked towards the police car - Adaikin stepped out of the car and stood behind the driver's door with his hand near his gun should the need arise to use it - Adaikin instructed the driver to return to his car - When the driver ignored that direction, Adaikin further instructed him to get back into his car, or to move to the sidewalk, otherwise he would be arrested - The driver returned to his car - Adaikin then served him the speeding ticket - The driver subsequently filed a complaint with the Calgary Police Service - Following an investigation, the Chief of Police ruled that there was evidence that Adaikin exceeded his authority when he advised the driver that he would be arrested if he did not return to his car - The Chief of Police placed an official warning on Adaikin's file - The Law Enforcement Review Board affirmed the Chief's decision - The Alberta Court of Appeal allowed Adaikin's appeal and remitted the matter to the Chief for reconsideration - There were no specific provisions dealing with the power of a police officer to direct an individual's movements during the course of a traffic stop - The court had to find guidance in the common law - The court reviewed R. v. Aucoin (B.D.) (SCC 2012) and held that the issue on this appeal was not whether Adaikin had the authority to tell the driver to return to his car or face arrest, but whether the exercise of this power was reasonably necessary in light of the totality of the circumstances - The relevant determination had to focus on the specific nature of the situation - In this case, Adaikin stated that it was reasonable for him to believe that he was about to be assaulted by the driver who continued to advance on him after being commanded to get back into his car and thus the threat to arrest was necessary in the circumstances - Whether Adaikin had at his disposal less intrusive measures to ensure his safety and the continuation of his duty to issue the traffic ticket was a question of fact to be left to the Chief.

Cases Noticed:

R. v. Sharma (D.), [1993] 1 S.C.R. 650; 149 N.R. 161; 61 O.A.C. 161; 100 D.L.R.(4th) 167, refd to. [para. 8].

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2004 SCC 52, refd to. [para. 8].

R. v. Aucoin (B.D.) (2012), 437 N.R. 1; 324 N.S.R.(2d) 1; 1029 A.P.R. 1; 353 D.L.R.(4th) 417; 2012 SCC 66, refd to. [para. 11].

R. v. Clayton (W.) et al., [2007] 2 S.C.R. 725; 364 N.R. 199; 227 O.A.C. 314; 2007 SCC 32, refd to. [para. 11].

Counsel:

J. Shymka, for the appellant;

G.N. Stapon, Q.C., for the respondent, Chief of Police of the Calgary Police Service;

S.P. McDonough, for the respondent, Law Enforcement Review Board;

J.A. Antonio, for the intervener.

This appeal was heard on May 10, 2013, by Martin, O'Ferrall and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered on September 30, 2013.

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7 practice notes
  • Boychuk v. Edmonton Police Service et al., 2014 ABCA 163
    • Canada
    • Court of Appeal (Alberta)
    • 1 Abril 2014
    ...of Sault Ste. Marie (1972), 34 D.L.R. 327 (Ont. C.A.), refd to. [para. 34, footnote 28]. Adaikin v. Calgary Chief of Police et al. (2013), 556 A.R. 396; 584 W.A.C. 396 ; 2013 ABCA 333 , refd to. [para. 34, footnote Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235 ; 286 N.R. 1 ; 219 S......
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...OF CASES Adaikin v Calgary (Police Service), 2013 ABCA 333 ......................................... 267 Agostini c R, 2018 QCCA 373............................................................................. 447 Alberta (Attorney General) v Malin, 2016 ABCA 396, 406 DLR (4th) 368, 344 CCC......
  • Table of Cases
    • Canada
    • Irwin Books The Anatomy of Criminal Procedure. A Visual Guide to the Law Post-trial matters Special Post-conviction Procedures
    • 15 Junio 2019
    ...Cases 1431633 Ontario Inc v Canada (AG), 2010 ONSC 266 ................................... 371, 373 Adaikin v Calgary (Police Service), 2013 ABCA 333 ............................................114 Alberta v Krannenburg, [1980] 1 SCR 1053 ..........................................................
  • Powers of Detention
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...the road while the sniff was conducted) was not reasonably necessary in the circumstances. See also Adaikin v Calgary (Police Service) , 2013 ABCA 333. e provincial stop powers. 52 In Brown , the court labels these grounds to be “proper” and differentiates them from “improper” ones. But the......
  • Request a trial to view additional results
1 cases
  • Boychuk v. Edmonton Police Service et al., 2014 ABCA 163
    • Canada
    • Court of Appeal (Alberta)
    • 1 Abril 2014
    ...of Sault Ste. Marie (1972), 34 D.L.R. 327 (Ont. C.A.), refd to. [para. 34, footnote 28]. Adaikin v. Calgary Chief of Police et al. (2013), 556 A.R. 396; 584 W.A.C. 396 ; 2013 ABCA 333 , refd to. [para. 34, footnote Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235 ; 286 N.R. 1 ; 219 S......
6 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...OF CASES Adaikin v Calgary (Police Service), 2013 ABCA 333 ..........................................171 Bacon v Surrey Pretrial Services Centre (Warden), 2010 BCSC 805 ................. 227 Banyasz v K-Mart Canada Ltd (1986), 57 OR (2d) 445, 33 DLR (4th) 474, [1986] OJ No 1244 (Div Ct) .........
  • Table of cases
    • Canada
    • Irwin Books Criminal Procedure. Fourth Edition
    • 23 Junio 2020
    ...OF CASES Adaikin v Calgary (Police Service), 2013 ABCA 333 ......................................... 267 Agostini c R, 2018 QCCA 373............................................................................. 447 Alberta (Attorney General) v Malin, 2016 ABCA 396, 406 DLR (4th) 368, 344 CCC......
  • Table of Cases
    • Canada
    • Irwin Books The Anatomy of Criminal Procedure. A Visual Guide to the Law Post-trial matters Special Post-conviction Procedures
    • 15 Junio 2019
    ...Cases 1431633 Ontario Inc v Canada (AG), 2010 ONSC 266 ................................... 371, 373 Adaikin v Calgary (Police Service), 2013 ABCA 333 ............................................114 Alberta v Krannenburg, [1980] 1 SCR 1053 ..........................................................
  • Powers of Detention
    • Canada
    • Irwin Books Detention and Arrest. Second Edition
    • 22 Junio 2017
    ...the road while the sniff was conducted) was not reasonably necessary in the circumstances. See also Adaikin v Calgary (Police Service) , 2013 ABCA 333. e provincial stop powers. 52 In Brown , the court labels these grounds to be “proper” and differentiates them from “improper” ones. But the......
  • Request a trial to view additional results

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