A. Sources of Police Powers
| Author | Steve Coughlan - Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan |
| Pages | 5-24 |
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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 practices. 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 powers, 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 necessary for a court to decide whether a particular police action was lawful or not.1Occasionally, an accused faced a charge of resisting arrest or obstruction of a police officer in the lawful execution of duty.2In 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
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unlawfully. Indeed, in 1975 in Biron,3a case to be discussed in detail elsewhere,4the 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 lawful execution of duty (on the facts, because the officer did not "find the accused committing"5the 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 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 "apparently" 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 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.
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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.8There 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 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 making the arrest may honestly, though mistakenly, 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 absence 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 these two ends of the spectrum, shading from white to grey to black, the issue of whether an accused was arbitrarily detained will depend, basically, on two considerations: first, the particular facts of the case, and secondly, the view taken by the court with respect 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
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The idea that a police action might be unlawful but not arbitrary seemed to come down strongly on the part of the police and to remove the old line between lawfulness and unlawfulness. It should be noted that the law around section 9 of the Charter has taken a long time to develop, owing to the fact that in a typical case section 8 and/or section 10 of the Charter have also been in play and those sections have tended to receive the most attention from the courts.
Recently the Supreme Court of Canada has shown it has come to disagree with Duguay and has started to clarify the limits on police powers to arrest or detain individuals under section 9 of the Charter. In Mann the Court said:
As stated earlier, the issues in this case require the Court to balance individual liberty rights and privacy interests with a societal interest in effective policing. Absent a law to the contrary, individuals are free to do as they please. By contrast, the police (and more broadly, the state) may act only to the extent that they are empowered to do so by law. The vibrancy of a democracy is apparent by how wisely it navigates through those critical junctures where state action intersects with, and threatens to impinge upon, individual liberties.10
The principle stated here is that the police are allowed to do what they are authorized to do by law. After Mann the Court has made clear that an unlawful detention is also arbitrary. In Clayton, for example, Justice Rosalie Abella said:
If the police conduct in detaining and searching Clayton and Farmer amounted to a lawful exercise of their common law powers, there was no violation of their Charter rights. If, on the other hand, the conduct fell outside the scope of these powers, it represented an infringement of the right under the Charter not to be arbitrarily detained or subjected to an unreasonable search or seizure.11Likewise, in the subsequent decision in Grant, the majority said:
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The s. 9 guarantee against arbitrary detention is a manifestation of the general principle, enunciated in s. 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice. As this Court has stated: "This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law" (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 88). Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9 (Mann, at para. 20), unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9.12Nevertheless, it is clear that, following the enactment of the Charter, the issues have become (and will remain) much more focused and commonplace than they were before. That is because, prior to the enactment of the Charter, and owing to the absence of a meaningful exclusionary rule, the lawfulness of police arrests was an issue only in those cases in which the accused or the police officer was charged with an offence arising out of an altercation which gave rise to the question of whether the officer was acting in the "lawful execution of his or her duties." Only in those relatively rare situations was the issue central to the litigation. Today, even without an "altercation," the lawfulness of police action can give rise to arguments about the actions of the police. Post-Charter, that is, courts are regularly faced with deciding whether the police action in question might be considered lawful or not.
Further, part of the reason for this result has been the Supreme Court’s determination in a number of cases that police action is, in the absence of clear notice to the individual...
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