R. v. Clayton (W.) et al., (2007) 227 O.A.C. 314 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: July 06, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 227 O.A.C. 314 (SCC);2007 SCC 32

R. v. Clayton (W.) (2007), 227 O.A.C. 314 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] O.A.C. TBEd. JL.052

Her Majesty The Queen (appellant) v. Wendell Clayton and Troy Farmer (respondents) and Attorney General of Canada, Attorney General of British Columbia, Canadian Association of Chiefs of Police, Canadian Civil Liberties Association and Criminal Lawyers' Association (Ontario) (intervenors)

(30943; 2007 SCC 32; 2007 CSC 32)

Indexed As: R. v. Clayton (W.) et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

July 6, 2007.

Summary:

The accused were charged with a number of weapons offences. Police received a 911 call that four of a group of black men outside a strip club were holding handguns. The caller identified the colour and make of the four vehicles he associated with the four men. Police responded in minutes and decided to stop all vehicles exiting the club's parking lot, intending to question the occupants and to some extent search the vehicles and occupants. The accused's vehicle, not one of the four described, was the first to leave and be stopped. Both the accused and his passenger matched the description of the alleged gunmen (black). The accused, who were detained and subsequently searched, alleged that they were arbitrarily detained (Charter, s. 9) and subjected to an unreasonable search and seizure (Charter, s. 8), and that the evidence should be excluded under s. 24(2) of the Charter. The trial judge, in convicting the accused, found that the vehicle stop was constitutional. Subsequent police conduct violated the accused's Charter rights, but the evidence was not excluded under s. 24(2). The accused appealed, submitting that the initial vehicle stop violated their Charter rights. The Crown disputed racial profiling and the violation of any Charter rights and argued that in any event, the trial judge did not err in refusing to exclude the evidence.

The Ontario Court of Appeal, in a judgment reported (2005), 196 O.A.C. 16, allowed the appeals, set aside the convictions and substituted acquittals. The decision to stop all vehicles regardless of whether the vehicle or occupants met the description provided by the 911 caller violated that accused's ss. 8 and 9 Charter rights. The evidence obtained (handguns) should have been excluded under s. 24(2) of the Charter. The Crown appealed.

The Supreme Court of Canada allowed the appeal and restored the convictions.

Civil Rights - Topic 1217

Security of the person - Lawful or reasonable search - What constitutes unreasonable search and seizure - [See Police - Topic 3109 ].

Civil Rights - Topic 1409

Security of the person - Law enforcement - Motor vehicles - [See Police - Topic 3109 ].

Civil Rights - Topic 1651

Property - Search and seizure - Warrantless search and seizure - Motor vehicles - [See Police - Topic 3109 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See Police - Topic 3109 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - Police responded to a 911 call of persons with handguns outside a strip club - Notwithstanding a description by the caller of the persons and vehicles involved, police set up a roadblock stop at the exit of the parking lot to stop all vehicles and persons exiting the parking lot - The Ontario Court of Appeal held that stopping of the accused, whose vehicle was neither one of the four vehicles nor resembled the four vehicles, violated their ss. 8 and 9 Charter rights (unreasonable search and seizure and arbitrary detention) - The court held that the evidence obtained (handguns in possession of both accused) was excluded under s. 24(2) of the Charter - Although admission of the evidence would not affect trial fairness, the Charter breaches were serious where they resulted from inadequate police training in the scope of an officer's ancillary common law powers in relation to the Charter - The court stated that "courts can best demonstrate that constitutional rights are to be taken seriously by those who exercise powers that may impinge on those rights by excluding evidence obtained by constitutional violations that reflect an institutional failure to equip officers with the training necessary to perform their duties within the strictures of the Charter" - The Supreme Court of Canada held that there was no violation of the Charter, making a s. 24(2) analysis unnecessary - However, the court opined that police "conduct", not police "training" was what was under constitutional scrutiny - The officers' good faith was in issue - The court stated that "to go further and examine the training behind such conduct would risk transforming the inquiry into a protracted pedagogical review of marginal relevance to whether the police conduct itself represented a breach of sufficient severity to warrant excluding the evidence." - See paragraphs 50 to 51.

Police - Topic 3024

Powers - Common law - Scope of - The Supreme Court of Canada agreed that "the power of the police to detain for investigative purposes in some circumstances and the power to search as an incident of arrest are two of the better known examples of the exercise of the common law ancillary police power. ... Where the prosecution relies on the ancillary power doctrine to justify police conduct that interferes with individual liberties, a two-pronged case-specific inquiry must be made. First, the prosecution must demonstrate that the police were acting in the exercise of a lawful duty when they engaged in the conduct in issue. Second, ... the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty" - See paragraph 22.

Police - Topic 3109

Powers - Investigation - Motor vehicles - Police received a 911 call that four of a group of black men outside a strip club were holding handguns - The caller identified the colour and make of the four vehicles he associated with the four men - Police responded in minutes and decided to stop all vehicles exiting the club's parking lot, intending to question the occupants and to some extent search the vehicles and occupants - The accused's vehicle, not one of the four described, was the first to leave and be stopped - Both the accused and his passenger matched the description of the alleged gunmen (black) - The Supreme Court of Canada rejected the submission that "notwithstanding the seriousness of the crimes and the inevitability that the perpetrators would use one of the exits, the police were not entitled to stop a car leaving the area unless it and the occupants matched exactly the information provided by the 911 caller ..." - There were reasonable grounds to believe public safety was at risk, that handguns could be in any exiting vehicle and that stopping all vehicles could result in apprehending the handguns - The police conduct was reasonable and reasonably tailored to the information they had - The court stated that "in the totality of the circumstances, therefore, the initial detention in this case was reasonably necessary to respond to the seriousness of the offence and the threat to the police's and public's safety inherent in the presence of prohibited weapons in a public place, and was temporally, geographically and logistically responsive to the circumstances known by the police when it was set up. The initial stop was consequently a justifiable use of police powers associated with the police duty to investigate the offences described by the 911 caller and did not represent an arbitrary detention contrary to s. 9 of the Charter." - The further detention and search of the accused and passenger was not an unreasonable search and seizure (Charter, s. 8) - A pat-down search for weapons was necessarily incidental to the lawful investigative detention - See paragraphs 18 to 49.

Police - Topic 3188

Powers - Search - Weapons search of persons, vehicles, etc. - [See Police - Topic 3109 ].

Police - Topic 3204

Powers - Direction - Stopping vehicles - General - [See Police - Topic 3109 ].

Cases Noticed:

R. v. Mann (P.H.), [2004] 3 S.C.R. 59; 324 N.R. 215; 187 Man.R.(2d) 1; 330 W.A.C. 1; 2003 SCC 52, refd to. [para. 14].

R. v. Murray (1999), 136 C.C.C.(3d) 197 (Que. C.A.), refd to. [para. 14].

R. v. Hufsky, [1988] 1 S.C.R. 621; 84 N.R. 365; 27 O.A.C. 103, refd to. [para. 21].

R. v. Ladouceur, [1990] 1 S.C.R. 1257; 108 N.R. 171; 40 O.A.C. 1, refd to. [para. 21].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 21].

R. v. Godoy (V.), [1999] 1 S.C.R. 311; 235 N.R. 134; 117 O.A.C. 127, refd to. [para. 25].

R. v. Simpson (R.) (1993), 60 O.A.C. 327; 79 C.C.C.(3d) 482 (C.A.), refd to. [para. 25].

R. v. Dedman, [1985] 2 S.C.R. 2; 60 N.R. 34; 11 O.A.C. 241, refd to. [para. 26].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 36].

R. v. Felawka, [1993] 4 S.C.R. 199; 159 N.R. 50; 33 B.C.A.C. 241; 54 W.A.C. 241, refd to. [para. 36].

R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), refd to. [para. 61].

R. v. Orbanski (C.); R. v. Elias (D.J.), [2005] 2 S.C.R. 3; 335 N.R. 342; 195 Man.R.(2d) 161; 351 W.A.C. 161; 2005 SCC 37, refd to. [para. 66].

R. v. Stenning, [1970] S.C.R. 631, refd to. [para. 68].

R. v. Knowlton, [1974] S.C.R. 443, refd to. [para. 68].

Cloutier v. Langlois and Bédard, [1990] 1 S.C.R. 158; 105 N.R. 241; 30 Q.A.C. 241, refd to. [para. 68].

R. v. Mellenthin, [1992] 3 S.C.R. 615; 144 N.R. 50; 135 A.R. 1; 33 W.A.C. 1, refd to. [para. 68].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 78].

R. v. Hogan, [1975] 2 S.C.R. 574; 2 N.R. 343; 9 N.S.R.(2d) 145, refd to. [para. 78].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 79].

Terry v. Ohio (1968), 392 U.S. 1, refd to. [para. 81].

Indianapolis (City) v. Edmond (2000), 531 U.S. 32, refd to. [para. 81].

R. v. Asante-Mensah (D.), [2003] 2 S.C.R. 3; 306 N.R. 289; 175 O.A.C. 317; 2003 SCC 38, refd to. [para. 96].

R. v. Ogg-Moss, [1984] 2 S.C.R. 173; 54 N.R. 81; 5 O.A.C. 81, refd to. [para. 96].

Brown et al. v. Durham Regional Police Force (1998), 116 O.A.C. 126; 131 C.C.C.(3d) 1 (C.A.), refd to. [para. 98].

Perry v. Florida (1982), 422 So.2d 957 (Fla. Dist. Ct. App.), refd to. [para. 99].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580 et al., [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 102].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 102].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 102].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 102].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 102].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, refd to. [para. 109].

United States v. Clipper (1992), 973 F.2d 944 (D.C. Cir.), refd to. [para. 111].

Printz v. United States (1997), 521 U.S. 898, refd to. [para. 112].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 28].

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England (1765), Book 1, c. 16 [para. 96].

Canada, Department of Justice, Canadian Firearms Centre, Firearms, Accidental Deaths, Suicides and Violent Crime: An Updated Review of the Literature with Special Reference to the Canadian Situation (1998), pp. 34, 35 [para. 110].

Canada, Department of Justice, Research and Statistics Division, Firearm Statistics: Update Tables (2006), Tables 15, 17 [para. 110].

Canada, Statistics Canada, Canadian Centre for Justice Statistics, Homicide in Canada (2005), 26:6 Juristat 1, pp. 1, 4, 5, 8, Table 11 [para. 110].

Healy, Patrick, Investigative Detention in Canada, [2005] Crim. L.R. 98, generally [para. 61]; pp. 103, 107 [para. 74].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2007 Update, Release 1), vol. 2, p. 37-25 [para. 102].

Leigh, L.H., Police Powers in England and Wales (1975), p. 29 [para. 68].

Stribopoulos, James, In Search of Dialogue: The Supreme Court, Police Powers and the Charter (2005), 31 Queen's L.J. 1, p. 19 [para. 74].

Counsel:

Michal Fairburn and Lisa Joyal, for the appellant;

Heather A. McArthur and Mara Greene, for the respondent, Wendell Clayton;

Deepak Paradkar, Faisal Mirza and S. Jay Passi, for the respondent, Troy Farmer;

Robert W. Hubbard and Marian E. Bryant, for the intervenor, Attorney General of Canada;

M. Joyce DeWitt-Van Oosten, for the intervenor, Attorney General of British Columbia;

Greg Preston and Bonnie Bokenfohr, for the intervenor, Canadian Association of Chiefs of Police;

Jonathan C. Lisus and Christopher A. Wayland, for the intervenor, Canadian Civil Liberties Association;

Frank Addario and Jonathan Dawe, for the intervenor, Criminal Lawyers' Association (Ontario).

Solicitors of Record:

Attorney General of Ontario, Toronto, Ontario, for the appellant;

Wasser McArthur, Toronto, Ontario, for the respondent, Wendell Clayton;

Deepak Paradkar, Thornhill, Ontario, for the respondent, Troy Farmer;

Attorney General of Canada, Toronto, Ontario, for the intervenor, Attorney General of Canada;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor,

Attorney General of British Columbia;

Edmonton Police Service, Edmonton, Alberta, for the intervenor, Canadian Association of Chiefs of Police;

McCarthy Tétrault, Toronto, Ontario, for the intervenor, Canadian Civil Liberties Association;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervenor, Criminal Lawyers' Association (Ontario).

This appeal was heard on June 19, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On July 6, 2007, the judgment of the Court was delivered in both official languages and the following opinions were filed:

Abella, J. (McLachlin, C.J.C., Bastarache, Deschamps, Charron and Rothstein, JJ., concurring) - see paragraphs 1 to 54;

Binnie, J. (LeBel and Fish, JJ., concurring) - see paragraphs 55 to 132.