Nature of the Interaction Between Police and Individuals

• Author: Steve Coughlan/Glen Luther
• Profession: Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, University of Saskatchewan
• Pages: 6-130

6

CHA PTER 2

NATURE OF THE

INTER ACTION

BETWEEN POLICE

AND INDIVIDUALS

A. SOURCES OF POLICE POWERS

1) Introduction

Police powers in Canada have long involved a lack of clarity and have

engendered sharp divisions among the members of the Supreme Court

of Canada. In this section, we will review the sources of police power,

which involve a combination of statutory rules and common law practi-

ces. We will see that the Supreme Court of Canada has played a large role

in the f‌ield as it has interpreted the various statutory police powers, all

the while leaving a very large role for the common law in the delineation

and exposition of such powers.

Prior to enactment of the Canadian Charter of Rights and Freedoms

in 1982,1 the exact nature and extent of individual police powers were

not often at the forefront of the Supreme Court of Canada’s reasoning.

Unlawfully obtained evidence was generally admissible in criminal trials,

so it was usually not necessary for a court to decide whether or not a par-

ticular police action was lawful.2 Occasionally, an accused faced a charge

of resisting arrest or obstruction of a police ocer in the lawful execu-

tion of duty.3 In such cases, the Court had to determine the lawfulness

1 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),

1982, c 11 [Charter].

2 R v Wray, [1971] SCR 272.

3 The Queen v Biron, [1976] 2 SCR 56 [Biron].

Nature of the Intera ction Between Police and Individu als 7

of police action, and this issue was reduced to an either/or proposition:

either the police or the resisting individual acted unlawfully, and that

settled all the relevant questions.

Indeed, in 1975 in The Queen v Biron,4 a case to be discussed in

detail elsewhere,5 the division of the Court was precisely on this point.

In dissent, Laskin CJC, supported by Dickson J (as he then was) and by

SpenceJ, attempted to separate the question of an ocer’s civil liability

for false arrest from that of whether the arrested individual could be said

to have had the right to resist in the circumstances and thus be entitled to

an acquittal on the criminal charge of resisting arrest. To Laskin, the ques-

tion of civil liability was to be determined by application of section 25 of

the Criminal Code,6 which he held presented a shield, but not a sword, to

the ocer when the ocer acted upon reasonable grounds. In Laskin’s

view, then, an ocer could be said to be not acting in the lawful execution

of duty (on the facts, because the ocer did not “f‌ind the accused com-

mitting”7 the summary conviction oence there in question) even though

he may have been protected from civil liability by the shield of section 25

(because the ocer acted on reasonable grounds). Accordingly, to Laskin,

the question of lawful police action was multi-layered and multi-faceted.

The majority of f‌ive in Biron, on the other hand, saw the question

more simply. To them, the crucial question was whether the police had

the power to do what they did. Justice Martland, who wrote the major-

ity judgment,8 held that the focus needed to be on the time the police

acted and not at some later time when the courts had had a chance to

decide whether or not the ocer’s belief that he had found the accused

committing an oence was correct.9 In other words, to the majority, it

made no sense to bifurcate the analysis. Either the ocer was acting

lawfully or he was not, and the majority therefore felt compelled to read

in to the statute in question the word “apparently” to make clear that

an ocer acted lawfully if they found the eventual accused “apparently

committing” an oence. The majority in Biron, then, rejected the shield/

sword analysis of the chief justice and refused to see an ocer’s actions

as lawful for one purpose and unlawful for another.

That approach to police powers had ramif‌ications beyond the par-

ticular “f‌inds committing” arrest in question. On the one hand, this

4 Ibid.

5 See Chapter 4, Section C(2)(b)(iii).

6 RSC 1985, c C-46 [Code].

7 Biron, above note 3 at 67–68.

8 Justice Martland wrote for four judges. Justice De Grandpré concurred with

Martland J but wrote a short judgment of his own.

9 Biron, above note 3 at 76.

DETENTION AND AR REST8

approach presented a bright-line, simple method for courts analyzing

the lawfulness question. On the other hand, however, it had the eect

of increasing police powers. For practical purposes, that approach

amounted to concluding that if the police had not committed a crime or

a tort, then they had the power to do what they did.10

Once the Charter came into eect, many wondered how MartlandJ’s

approach would apply to section 9 of the Charter, which says that

“[e]veryone has the right not to be arbitrarily detained or imprisoned.”

It should be noted that the law around section 9 of the Charter took a

long time to develop, owing in part to the fact that in a typical case, sec-

tion 8 and/or section 10 of the Charter have also been in play, and those

sections have tended to receive the most attention from the courts (see

the discussion of this issue in Chapter 5, Section B). At least initially,

the question became muddied as the courts struggled with the concept

of “arbitrariness.” The early decisions under the Charter allowed for the

possibility of police action that was unlawful but nonetheless not arbi-

trary. Such unlawful but constitutional police action allowed the police

to act without legal authority but without breaching the arrested person’s

Charter rights, where the police action did not depart from lawfulness

by an unacceptable degree. The leading early case was the decision of

the Ontario Court of Appeal in R v Duguay.11 That court concluded that

a police action in arresting individuals, even if unlawful, was “arbitrary”

only if that action departed from the police’s lawful powers in such a way

that it could be considered capricious and thus arbitrary. The court said:

It cannot be that every unlawful arrest necessarily falls within the

words “arbitrarily detained.” The grounds upon which an arrest was

made may fall “just short” of constituting reasonable and probable

10 For example, see Dedman v The Queen, [1985] 2 SCR 2 [Dedman], involving a

vehicle stop for breath-testing purposes. The reasoning of the Ontario Court of

Appeal had explicitly been that “in signalling the appellant to stop the police o-

cer was not committing a crime or a tort, and that since the ocer had reasonable

suspicion at the time the s. 234.1(1) demand was made that the appellant had

alcohol in his blood and had not placed himself in a position to make the demand

by the commission of a crime or a tort, the demand was valid” (at para 54). See

also the discussion of this issue in Steve Coughlan, “Charter Protection Against

Unlawful Police Action: Less Black and White Than It Seems” in Benjamin L. Berger

& James Stribopoulos, Unsettled Legacy: Thirty Years of Criminal Justice Under the

Charter (Toronto: LexisNexis Canada, 2012).

11 (1985), 50 OR (2d) 375 (CA) [Duguay]. The decision was upheld on the facts in

R v Duguay, [1989] 1 SCR 93, where the majority of the Supreme Court, in three

short paragraphs, dismissed the appeal, saying, inter alia: “The majority in the

Court of Appeal for Ontario did not enunciate any principle or rule of law with

which we disagree” (at para 2).