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.
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
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