Nature of the Interaction Between Police and Individuals

• Author: Steve Coughlan; Glen Luther
• Pages: 7-115

7

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 divi sions among the members of the Supreme Court

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

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

tices. We shall see that the Supreme Court of Can ada 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 de-

lineation and exposition of such powers.

Prior to enactment of the Charte r in 1982, the existence of police

powers was not something in the forefront of the Supreme Court of

Canada’s agenda. This was becaus e unlawfully obtai ned evidence was

generally admissible in cr iminal tr ials so that it was usually not neces-

sary for a court to decide whether a particular police action was lawful

or not.1 Occasionally, an accused faced a charge of resisting arrest or

obstruction of a police off‌icer in the lawf ul execution of duty.2 In such

cases the Court h ad to determine the lawfulness of police action, and

it seemed to the majority of the Court then t hat the question was an

1 R v Wray, [1971] SCR 272.

2 R v Biron, [1976] 2 SCR 56 [Biron].

DETENTION AND AR REST8

either/or proposition. Either the police or the resisting indiv idual acted

unlawfully. Indeed, in 1975 in Biron,3 a case to be discussed in det ail

elsewhere,4 the division of the Court was precisely on th is point. In dis-

sent Bora Laskin CJC, supported by Br ian Dickson J (as he then was) and

by Wishart Spence J, attempted to separate the question of an off‌icer’s

civil liabilit y for false arrest from that of whether the arrested individ-

ual could be said to have had the r ight to resist in the circumst ances

and thus be entitled to an acquitt al on the criminal charge of resisting

arrest. To Laskin CJC, the question of civil liability was to be deter-

mined by application of section 25 of the Criminal Code, which he held

presented a shield, but not a sword, to the off‌icer when the off‌icer acted

upon reasonable grounds. In Laskin CJC’s view, then, an off‌icer could

be said to be not acting in the law ful execution of duty (on the facts, be-

cause the off‌icer did not “f‌ind the accused comm itting”5 the summar y

conviction offence there in question) even though he may have been

protected from civil liability by the shield of section 25 (because the

off‌icer acted on reasonable grounds). Accordingly, to Laskin CJC, the

question of lawful police action was multi-layered a nd 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 Ronald Mar tland, who wrote

the major ity judgment,6 held that the focus needed to be on the time

the police acted and not at some later time when the courts had h ad

a chance to decide whether the off‌icer’s belief that he had found the

accused committing an offence was correct or not.7 In other words, to

the majority it made no sense to bif urcate the analysis. Either t he of-

f‌icer was acting lawfully or he was not and the majority therefore felt

compelled to read in to the statute in quest ion the word “apparently”

to make clear that an off‌icer acted l awfully if he or she found the even-

tual accused “apparently comm itting” an offence. The majority in Biron,

then, rejected the shield/sword analysis of the chief justice and refused

to see an off‌icer’s actions as lawful for one purpose and unlawful for

another. If nothing else, this approach presented a brightline, simple

question for courts when analyzing the lawfulness que stion. It did,

though, have the effect of increasing t he police power in question.

3 Ibid.

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

5 Biron, above note 2 at 67–68.

6 Martland J wrote for four judge s. De Grandpré J concurred wit h Martland J but

wrote a short judgment of h is own.

7 Biron, above note 2 at 76.

Nature of the Intera ction Between Police and Individua ls 9

Once the Charter ca me into effect, 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.”

At least initially, the question became muddied as the courts struggled

with the concept of arbitrary detention. The early decisions under the

Charter introduced the concept of unlaw ful police action which was

not arbitrary. Such unlawful but constitutional police action allowed

the police to act unlawfully without breaching the arrested person’s

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

by an unacceptable degree. The leading ca se soon became the decision

of the Ontario Court of Appeal in Duguay.8 There that court concluded

that a police action in arrest ing individuals, even if un lawful, was only

“arbitrary” if th at 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 ever y unlawful a rrest necessa rily falls w ithin the

words “arbitrari ly detained.” The grounds upon which an arre st was

made may fall “ju st short” of constituting reas onable and probable

cause. The person ma king the arrest may honestly, though mist aken-

ly, believe that reasonable and probable g rounds for the arrest ex ist

and there may be some ba sis for that belief. In tho se circumstance s

the arrest, t hough subsequently found to be unl awful, could not be

said to be capricious or a rbitrary. On the other hand, t he entire ab-

sence of reasonable and probable g rounds for the arrest could sup-

port an inference th at no reasonable person could h ave genuinely

believed that such g rounds existed. In such c ases, the conclusion

would be that the pers on arrested was arbit rarily detai ned. Between

these two ends of t he spectrum, shading from white to g rey to black,

the issue of whether an acc used was arbitrarily det ained will depend,

basically, on two consideration s: f‌irst, the particular fact s of the case,

and secondly, the view taken by t he court with respe ct to the ex-

tent of the departure f rom the standard of rea sonable and probable

grounds, and the honest y of the belief and basi s for the belief in the

existence of rea sonable and probable grounds on the par t of the per-

son making t he arrest.9

8 R v Duguay (1985), 50 OR (2d) 375 (CA) [Duguay]. The decision was upheld on

the facts in R v D uguay, [1989] 1 SCR 93, where the majority of the Supreme

Court, in th ree short paragraphs, di smissed the appeal, s aying, inter alia: “The

majority in t he Court of Appeal for Ontario d id not enunciate any principle or

rule of law wit h which we disagree” (at para 2).

9 Duguay, ibid at para 25. It is intere sting to note that a simil ar debate occurred

early in the dec isions on s 8 of the Charter where early cour t of appeal decisions