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, Saskatchewan
• Pages: 5-100

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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 Canada has played a large

role in the f‌ield as it has interpreted the various statutory police pow-

ers, 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 Charter in 1981, 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

either/or proposition. Either the police or the resisting individual acted

1 R. v. Wray, [1971] S.C.R. 272.

2 R. v. Biron, [1976] 2 S.C.R. 56 [Biron].

DETENTION AND AR REST

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

elsewhere,4 the division of the Court was precisely on this point. In

dissent Chief Justice Bora Laskin, supported by Justice (as he then was)

Brian Dickson and by Justice Wishart Spence, attempted to separate

the question of an off‌icer’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 C.J.C., the question of

civil liability was to be determined 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

C.J.C.’s view, then, an off‌icer could be said to be not acting in the law-

ful execution of duty (on the facts, because the off‌icer did not “f‌ind the

accused committing”5 the summary conviction offence there in ques-

tion) 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 C.J.C., 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,6held 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.7In other words,

to the majority it made no sense to bifurcate the analysis. Either the

off‌icer was acting lawfully or he was not and the majority therefore

felt compelled to read in to the statute in question the word “appar-

ently” to make clear that an off‌icer acted lawfully if he or she found the

eventual accused “apparently committing” 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 unlaw-

ful 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, Sect ion C(2)(b)(iii).

5 Biron,above note 2 at 67–68 .

6 Martla nd J. wrote for four judges. De Grandprè J. concurred w ith 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 Individu als7

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 arbitrar y 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 the court recognized

that, while unlawful, a police action in arresting individuals became

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 can not be that ever y unlawful ar rest necessar ily falls within t he

words “arbitrari ly detained.” The grounds upon which an ar rest was

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

cause. The person making the arrest may honestly, though mistaken-

ly, believe th at reasonable and probable grounds for t he arrest exist

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

the ar rest, though subsequent ly 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 support

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 the se two

ends of the sp ectrum, shading from white to grey to black, the issue

of whether an accused was arbitrar ily detained will depend, basic-

ally, on two considerations: f‌irst , the particular facts of the case, and

secondly, the view taken by the cour t with re spect to the extent 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 person making

the arrest.9

8 R. v.Duguay(1985), 50 O.R. (2d) 375 (Ont. C.A.) [Duguay]. The decision was

upheld on the facts i n R. v. Duguay, [1989] 1 S.C.R. 93, where the majority of the

Supreme Court, in t hree short paragraphs, d ismissed the appea l, saying, inter

alia: “The majority i n the Court of Appeal for Ontar io did not enunciate any

principle or rule of l aw with which we disagr ee” (at para. 2).

9 Duguay, ibid . at para. 25. It is interesting to note t hat a similar debate occu rred

early in the dec isions on s. 8 of the Charter where early cou rt of appeal deci-