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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CHA PTER 2

NATURE OF THE

INTER ACTION BETWEEN

POLICE AND INDIVIDUALS

A. SOURCES OF POLICE POWERS

1) Introduction

Police powers in Can ada 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 st atutory 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. Thi s was because unlawfully obtained evidence was

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

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

or not.1 Occa sionally, an accused faced a charge of resisting arre st or

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

cases the Court had to determine t he lawf ulness of police action, a nd

it seemed to the majority of the Court then that the question was a n

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 Biro n,3 a case to be discussed in deta il

elsewhere,4 the division of the Court was precisely on thi s 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 ar rested indiv idual could be said to have had the right to

resist in the circumstances and thus be entitled to an acquittal on t he

crimina l charge of resisting arrest. To La skin C.J.C., the question of

civil liability wa s 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 La skin

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

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

accused com mitti ng”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 w rote

the majorit y judgment,6 held that the focus needed to be on the time

the police acted and not at some later ti me when the courts had had

a ch ance to decide whether the off‌icer’s belief that he had found t he

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

off‌icer was acting lawfully or he was not and the majority t herefore

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, t hen, 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 cour ts when analyzing the law fulness question. It

did, though, have the effect of increasing t he 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 als 7

Once the Charter came into effect, many wondered how Martland

J.’s approach would apply to sect ion 9 of the Charter, which says that

“[e]veryone has the right not to be arbitrar ily detained or impri soned.”

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 a llowed

the police to act unlawf ully without breaching the arrested person’s

Charter rights, where the police act ion did not depart from lawfulnes s

by an unacceptable degree. The leading c ase soon became t he decision

of the Ontario Court of Appeal in D ugua y.8 There the court recognized

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

arbitrary only if t hat act ion departed from the police’s law ful powers

in such a way that it could be considered capricious and thus arbitrary.

The court said:

It can not b e t hat ever y unlawfu l 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 con stituting reasonable and probable

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

ly, believe th at rea sonable and probable grounds for t he arrest ex ist

and there may be some b asis for that belief. In those circumsta nces

the ar rest, though subsequent ly found to be unlawful, could not be

said to be capricious or arbitrary. On the other h and, 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 ca ses, the conclusion would be

that the per son arrested was arbitra rily detai ned. Between the se two

ends of the sp ectrum, shading from wh ite to grey to bl ack, the is sue

of whethe r a n acc used 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 t he extent of

the departure from the stand ard 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-