Nature of the Interaction Between Police and Individuals

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

7

CHAPTER 2

NATURE OF THE

INTERACTION

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 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 Charter in 1982, the existence of police

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

Canada’s agenda. This was because unlawfully obtained evidence was

generally admissible in criminal trials 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 lawful execution of duty.2 In such

cases the Court had to determine the lawfulness of police action, and

it seemed to the majority of the Court then that 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 detail

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

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

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

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

ual 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 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 committing”5 the summary

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 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 Ronald Martland, who wrote

the majority 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 had

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 bifurcate the analysis. Either the of-

f‌icer 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 off‌icer acted lawfully 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 question. It did,

though, have the effect of increasing the 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 ls9

Once the Charter came 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 unlawful 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 case soon became the decision

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

that a police action in arresting individuals, even if unlawful, was only

“arbitrary” 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

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

ly, believe that reasonable and probable grounds for the arrest exist

and there may be some basis for that belief. In those circumstances

the arrest, though subsequently found to be unlawful, could not be

said to be capricious or arbitrary. On the other hand, the entire ab-

sence of reasonable and probable grounds for the arrest could sup-

port an inference that no reasonable person could have genuinely

believed that such grounds existed. In such cases, the conclusion

would be that the person arrested was arbitrarily detained. 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 the court with respect to the ex-

tent of the departure from the standard of reasonable and probable

grounds, and the honesty of the belief and basis for the belief in the

existence of reasonable and probable grounds on the part of the per-

son making the arrest.9

8 R vDuguay (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