R. v. Clayton

R. v. Clayton
Collection
Supreme Court Judgments
Date
2007-07-06
Neutral citation
2007 SCC 32
Report
[2007] 2 SCR 725
Case number
30943
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Ontario
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 30943
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32
Date: 20070706
Docket: 30943
Between:
Her Majesty The Queen
Appellant
and
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)
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 54)
Concurring Reasons:
(paras. 55 to 132)
Abella J. (McLachlin C.J. and Bastarache, Deschamps, Charron and Rothstein JJ. concurring)
Binnie J. (LeBel and Fish JJ. concurring)
______________________________
R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32
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) Interveners
Indexed as: R. v. Clayton
Neutral citation: 2007 SCC 32.
File No.: 30943.
2006: June 19; 2007: July 6.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Constitutional law — Charter of Rights — Arbitrary detention — Search and seizure — Roadblocks — Search power incidental to investigative detention — Police officers responding to report that prohibited firearms openly displayed in parking lot by blocking exit from lot and preventing two accused from leaving in their vehicle — Officers asking accused to exit vehicle — Officers searching accused — Accused carrying prohibited firearms — Whether police conduct in detaining and searching accused constitutional — Whether search incidental to investigative detention unreasonable — Canadian Charter of Rights and Freedoms, ss. 8 , 9 .
Criminal law — Police powers — Search incidental to investigative detention — Whether police officers acting within scope of common law police powers when they detained and searched accused.
A 911 call recorded at 1:22 a.m. reported that four of about ten “black guys” in a parking lot in front of a strip club were openly displaying handguns. The caller identified four vehicles. The dispatcher put out a gun call and a number of police immediately responded. At 1:26 a.m., Constables R and D positioned their police vehicle at the rear exit of the club’s parking lot. Almost immediately, a car left the area identified by the 911 caller and drove towards the exit. It was not one of the four cars referred to by the 911 caller. R and D stopped the car at 1:27 a.m. On stopping the car, they observed that the occupants, F and C, were black males. D approached F, the driver, and told him that there had been a gun complaint. He asked F to step out of the car and became concerned for his safety because F protested twice before getting out of the car. He asked F to put his hands on the top of the car. Meanwhile, R approached C and began questioning him. C gave strange and evasive answers and stared straight ahead, avoiding eye contact. He was wearing gloves even though it was not “glove weather”. R asked C to get out of the car and to place his hands on the rear of the car. C got out of the car but stood blocking R’s visual access to the inside of the car. When R put his hand on C’s shoulder to direct him to the back of the car, C shoved R and ran away. D and R chased him while another constable, M, watched F. After police officers in front of the club subdued C, R searched him and found a loaded, prohibited handgun in his pocket. M arrested F for possession of a loaded prohibited weapon. F was searched and a loaded prohibited handgun was found under his jacket.
The trial judge held that the initial stop of both accused was lawful but that their further detention and search violated ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . He admitted the guns into evidence under s. 24(2) of the Charter . The accused were convicted of carrying concealed weapons and the possession of loaded, prohibited firearms but appealed successfully to the Court of Appeal on the basis of alleged violations of ss. 8 and 9 of the Charter . The evidence of the handguns was excluded by the appellate court and acquittals on all charges were entered.
Held: The appeal should be allowed and the convictions should be restored.
Per McLachlin C.J. and Bastarache, Deschamps, Abella, Charron and Rothstein JJ.: R and D lawfully exercised their common law powers when they detained and searched the accused. There was no violation of ss. 8 or 9 of the Charter . [19] [49]
A law authorizing detention is subject to Charter scrutiny. The common law regarding police powers of detention requires the state to justify any interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive than reasonably necessary to address the risk. In determining the boundaries of police powers, caution is required to ensure the proper balance between enabling the police to perform their duties and the accused’s liberty and privacy interests. The determination will focus on the nature of the situation, including the seriousness of the offence; the information known to the police about the suspect or the crime; and, the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether the nature of the stop is no more intrusive than reasonably necessary. Searches incident to an investigative detention can be justified if the officer believes, on reasonable grounds, that his or her safety, or that of others, is at risk. [21] [26] [29] [31]
In the totality of the circumstances, the initial detention of the accused was reasonably necessary to respond to the seriousness of the offence and the threat to safety inherent in the presence of prohibited weapons in a public place and was temporally, geographically and logistically responsive to the circumstances known to the police. It was a justifiable use of police powers associated with the police duty to investigate the offences described by the 911 caller. The police had reasonable grounds to believe that there were several handguns in a public place. This represented a serious offence, accompanied by a genuine risk of serious bodily harm to the public. Requiring the police to stop only those vehicles described by the 911 caller would impose an unrealistic burden on the police, inconsistent with their duty to respond in a timely manner to the seriousness of the circumstances. [33] [37] [41]
The continued detention of the accused was also justified. The police view that the accused were implicated in the offence under investigation was reasonable. They knew that some people leaving the parking lot would have guns and that the suspects were black males. Both accused came from the scene of the reported crime, in the first vehicle to leave the lot within minutes of the 911 call, and matched the 911 caller’s description. [45‑47]
D and R’s safety concerns justified the searches of both accused as incidental to their lawful investigative detentions. The relevant time for assessing D and R’s conduct is the time of the actual search and seizure. By that time, they had the requisite subjective and objective grounds to search the accused. [48‑49]
Per Binnie, LeBel and Fish JJ. : On occasion the Crown will argue (as here) that a common law which authorizes police conduct that infringes individual Charter freedoms may nevertheless be justified in the larger interest of society. The majority applies the pre‑Charter test set out in Waterfield. However, continued use of the Waterfield approach without modification not only adds to the problematic elasticity of common law police powers, but sidesteps the real policy debate in which competing individual and societal interests should be clearly articulated in the established framework of Charter analysis. The common law Waterfield test should be modified where police claim a common law power that is challenged on Charter grounds by requiring a court first to determine whether the power claimed by the police exists at common law, and if so whether the common law would, if valid, authorize police interference with Charter rights, and finally whether the interference thus authorized can be justified under s. 1 of the Charter . If necessary, the court may also have to determine in a particular case whether the power was exercised reasonably by the police in the totality of the circumstances. [59‑61]
Individuals going about their ordinary business should not be blocked by the police and required to account for themselves unless there exists legal authority for the detention. When the police blocked the accused’s car, they were implementing a strategy to stop all cars without any criteria to select the drivers to be stopped. The accused were arbitrarily detained within the meaning of s. 9 of the Charter . [62] [65‑66]
Justification for the accused’s arbitrary detention must come from statute or the common law. Here there is no statute and no existing jurisprudence authorized the blockade. The trial judge found that unlike in Mann the police here did not have reasonable grounds for individualized suspicion of the accused when they stopped their car. Nor was the initial detention of the accused based on the police power to detain in dangerous circumstances such as when a violent crime has been committed or as in Murray when dangerous criminals are in fresh flight. Nor can the police turn to case law that affirms the lawfulness of a blockade in support of road safety because the roadblock in this case had nothing to do with road safety. It is contended that at common law, however, the police may authorize blockades to stop, detain and question motorists where interference with an accused’s liberty is reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the police interference. [58] [67‑68] [70-71] [81] [84] [86] [98]
At common law, police interference with liberty interests must be necessary to carry out a police duty. Police duties include the preservation of the peace, the prevention of crime, and the protection of life and property. Here the police had reasonable grounds to believe that a serious crime had been committed and that the perpetrators might be apprehended by a quick roadblock. Gun calls import a threat to public order and concerns for safety. In this case, the proximity of the roadblock to the reported offence, in place and time, increased the likelihood of effective police action and any interference with exiting motorists was of relatively short duration and of slight inconvenience. The roadblock was authorized at common law. [68‑69] [90] [99-100]
The common law ostensibly authorized limited infringement of motorists’ Charter liberties. The purpose of the roadblock was to determine the whereabouts of guns reported in a 911 call and to obtain information leading to the arrest of those guilty of the reported firearms offences. A law authorizing the roadblock must necessarily include interference with civil liberties of passing motorists to the extent reasonably necessary to achieve the purpose of the blockade. The law afforded the police an initial opening to engage with the motorists who were stopped, and to proceed (or not) according to whatever information emerged from a view of the occupants and the vehicle’s interior and some quick screening questions. [72] [97]
The common law authority of detention by a carefully tailored blockade in response to a 911 gun call constitutes a reasonable limit under s. 1 of the Charter on the rights of the accused guaranteed by s. 9 of the Charter to be free of arbitrary detention. Section 1 is the proper place to weigh the accused’s individual rights against society’s collective rights. The protection of society from the flaunting of illegal handguns in a crowded public place is clearly a pressing and substantial public purpose. An investigation prompted by a gun call engages fundamental issues of public peace and public order. Handguns pose a serious and growing societal danger. The roadblock was a rational response to the 911 gun call. The blockade in this case minimally impaired the accused’s right to be free from arbitrary detention. The roadblock was tailored to the information given to the police and anything less than a full blockade would not have served the purpose of the roadblock. The salutary effects of the roadblock exceeded its deleterious effects. [102] [106] [108] [113] [115‑118] [122]
On the facts here the police exercised their blockade powers reasonably “in the totality of the circumstances”. It would not have been prudent for the police to assume that the people reported by the 911 caller would necessarily leave in the vehicles described by the caller. The police should not be required to rely on an unknown 911 caller’s ability to recognize vehicle makes. The blockade involved no more than a brief imposition on the time of motorists departing from the parking lot. The police did not overreach their powers by stopping the accused. [121‑122]
The searches of the accused did not violate s. 8 of the Charter . By the time C was asked to step out of the car, the police had sufficient individualized suspicion to detain and search him. His appearance corresponded to the 911 call and he was wearing gloves on a warm night explicable by a concern about fingerprints. When C was told police were responding to a gun call he bolted. The gun found when he was searched was properly admitted into evidence. The case of F is more problematic but it would have been unrealistic to treat F as unconnected to C. Both, being black, fit the general description by the 911 caller. F was quickly leaving the parking lot immediately after the gun call in the same car as C. Once sufficient grounds arose to require C to get out of the car and submit to a search for reasons of police safety, it would have been foolhardy for the police to leave F, possibly armed, in the car. There were sufficient grounds for a pat‑down search of F for officer safety incidental to his continued detention. His gun thereby disclosed was also properly entered into evidence. [123‑124]
Cases Cited
By Abella J.
Applied: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; referred to: R. v. Murray (1999), 136 C.C.C. (3d) 197; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Simpson (1993), 79 C.C.C. (3d) 482; Dedman v. The Queen,
[1985] 2 S.C.R. 2; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; R. v. Felawka, [1993] 4 S.C.R. 199; R. v. Waterfield, [1963] 3 All E.R. 659.
By Binnie J.
Applied: Dedman v. The Queen, [1985] 2 S.C.R. 2; R. v. Oakes, [1986] 1 S.C.R. 103; discussed: R. v. Murray (1999), 136 C.C.C. (3d) 197; R. v. Waterfield, [1963] 3 All E.R. 659; distinguished: R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52; R. v. Simpson (1993), 12 O.R. (3d) 182; referred to: R. v. Orbanski, [2005] 2 S.C.R. 3, 2005 SCC 37; R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257; R. v. Stenning, [1970] S.C.R. 631; Knowlton v. The Queen, [1974] S.C.R. 443; Cloutier v. Langlois, [1990] 1 S.C.R. 158; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Godoy, [1999] 1 S.C.R. 311; R. v. Wray, [1971] S.C.R. 272; Hogan v. The Queen, [1975] 2 S.C.R. 574; Terry v. Ohio, 392 U.S. 1 (1968); Indianapolis v. Edmond, 531 U.S. 32 (2000); R. v. Asante‑Mensah, [2003] 2 S.C.R. 3, 2003 SCC 38; Ogg‑Moss v. The Queen, [1984] 2 S.C.R. 173; Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1; Perry v. State of Florida, 422 So.2d 957 (1982); R. v. Swain, [1991] 1 S.C.R. 933; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Spence, [2005] 3 S.C.R. 458, 2005 SCC 71; United States v. Clipper, 973 F.2d 944 (1992); Printz v. United States, 521 U.S. 898 (1997); R. v. Collins, [1987] 1 S.C.R. 265.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 8 , 9 , 24 .
Crimes Act 1961 (N.Z.), 1961, No. 43, s. 317B.
Criminal Code, R.S.C. 1985, c. C‑46 .
Law Enforcement (Powers and Responsibilities) Act 2002 (N.S.W.), 2002, No. 103, s. 37.
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, ss. 1, 4.
Police Powers and Responsibilities Act 2000 (Qld.), 2000, No. 5, s. 26.
Police Powers (Vehicle Interception) Act 2000 (Tas.), 2000, No. 46, s. 5.
Police Services Act, R.S.O. 1990, c. P.15, s. 42(3).
Summary Offences Act 1953 (S.A.), 1953, s. 74B.
Authors Cited
Blackstone, William. Commentaries on the Laws of England, Book I. Oxford: Clarendon Press, 1765.
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. Working Document by Yvon Dandurand. Ottawa: Department of Justice Canada, September 1998.
Canada. Department of Justice. Research and Statistics Division. Firearm Statistics: Updated Tables, by Kwing Hung, Statistical and Methodological Advisor. Ottawa: Department of Justice Canada, January 2006.
Canada. Statistics Canada. Canadian Centre for Justice Statistics. “Homicide in Canada” (2005), 26:6 Juristat 1.
Healy, Patrick. “Investigative Detention in Canada”, [2005] Crim. L.R. 98.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. supp. (loose-leaf). Scarborough, Ont.: Thomson Carswell, 2007.
Leigh, L. H. Police Powers in England and Wales. London: Butterworths, 1975.
Stribopoulos, James. “In Search of Dialogue: The Supreme Court, Police Powers and the Charter ” (2005), 31 Queen’s L.J. 1.
APPEAL from a judgment of the Ontario Court of Appeal (McMurtry C.J.O. and Doherty and Lang JJ.A.) (2005), 196 O.A.C. 16, 194 C.C.C. (3d) 289, 27 C.R. (6th) 197, 129 C.R.R. (2d) 82, [2005] O.J. No. 1078 (QL), setting aside the accused’s convictions for unlawfully carrying concealed weapons and possessing loaded prohibited firearms. Appeal allowed.
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 intervener the Attorney General of Canada.
M. Joyce DeWitt‑Van Oosten, for the intervener the Attorney General of British Columbia.
Greg Preston and Bonnie Bokenfohr, for the intervener the Canadian Association of Chiefs of Police.
Jonathan C. Lisus and Christopher A. Wayland, for the intervener the Canadian Civil Liberties Association.
Frank Addario and Jonathan Dawe, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of McLachlin C.J. and Bastarache, Deschamps, Abella, Charron and Rothstein JJ. was delivered by
1 Abella J. — Within minutes of receiving a 911 call indicating that a number of persons were openly displaying handguns in a strip club’s parking lot, the police stopped the first car leaving from the lot’s rear exit. The car’s two occupants, Wendell Clayton and Troy Farmer, were searched. Each had a loaded semi-automatic handgun, weapons prohibited by the Criminal Code, R.S.C. 1985, c. C-46 . The issue in this appeal is the constitutionality of the police conduct in stopping and searching Clayton and Farmer.
I. Background
2 At 1:22 a.m. on Friday, September 24, 1999, a dispatcher received a 911 call from an agitated caller who said he was inside a Coffee Time donut store across the street from the Million Dollar Saloon, a strip club. He said there were about ten “black guys” in the parking lot at the front of the club and that four of them had handguns “like glocks”. He said about their guns that “they had them and took them out and they put them back in all together”. He was able to identify four cars in the parking lot because their headlights were on: a black GMC Blazer, a black Jeep Cherokee, a tan-coloured Lexus LS and a white two-door Acura Legend. The Blazer had already left the parking lot when the call was made.
3 At 1:24 a.m., the dispatcher called the police in the area and told them that a 911 caller “can see a bunch of male blacks with guns out front of the Million Dollar . . . [C]omplainant saw approximately 10 parties. Four of them with guns”. The dispatcher then described the four vehicles, indicating that the Blazer had left. A number of police immediately converged on the club, and set up perimeter surveillance posts around it.
4 There are two entrances to the club’s parking lot, one in front and one at the rear. At 1:26 a.m., P.C. Andrew Robson and P.C. Jeff Dickson positioned their vehicle so they could watch the rear exit. The purpose of the “perimeter”, according to P.C. Dickson, was to “make sure everything stays inside it”. Almost immediately, a black car drove from the front of the building towards the rear exit. P.C. Robson and P.C. Dickson blocked the exit, stopping the car. On stopping the car, they observed that the two occupants were black males.
5 The police got out of their cruiser and approached the car, a Jaguar. It was not one of the four vehicles specifically identified by the 911 caller. P.C. Robson went to the passenger’s side where Clayton was sitting and P.C. Dickson approached the driver, Farmer.
6 P.C. Dickson told Farmer that there had been a gun complaint and asked him, for his own safety, to step out of the car. In his words:
For my safety I wanted to — just so I could see around. I could see around, make sure he didn’t have — wasn’t holding a gun. And if he stepped out I could see his hands better. Might be able to see anything if there was anything in pockets or anything. So, it’s just to see in the car, if there’s anything maybe on the seat . . . .
Farmer responded, “You’ve got to be kidding.” P.C. Dickson again asked him to get out of the car. Once again Farmer protested, saying “This is ridiculous.” P.C. Dickson asked him a third time and was met with the same response. Farmer finally got out of the car.
7 Suspicious because of Farmer’s reluctance to get out of the car and concerned for his safety, P.C. Dickson asked him to turn around and put his hands on the top of the car. He explained his conduct as follows:
A. After he got out I asked the driver if he could turn around and put his hands on top of the car.
Q. Why? Why did you ask him to do that?
A. For my safety. Like, at this point I had no idea what — just that it’s suspicious of what was going on. I wanted to make sure I could see everything first. Like, right away I asked him to turn around. I was going to — I had the full intention, right at that time, to search the driver. I went to put my hand on him.
Q. And why were you planning to search the driver?
A. Just that, this time with the seriousness of the call, and everything with the description, we were just going to see if he was carrying any weapons.
8 Clayton was in the passenger seat. P.C. Robson told Clayton that their car had been stopped because there had been a gun call and they were looking for guns. Clayton told him that they had just arrived at the club, prompting P.C. Robson to ask why they were leaving. Clayton paused and again said, “But we just got here.” When asked if they had seen anything at the front of the club, Clayton repeated, “We just got here.”
9 During this discussion, Clayton stared straight ahead, making no eye contact. P.C. Robson noticed that Clayton was wearing black leather driving gloves despite being the passenger and the night being, as P.C. Robson said at trial, “certainly not glove weather”.
10 Because of the gloves, the way he was responding to his questions, and the fact that this was the first and only car to leave the area, P.C. Robson asked Clayton to get out of the car in order to search it. P.C. Robson testified that since Clayton was “a heavy set individual”, it would be easier to search the two-door sports car if no one occupied the seat. Clayton complied, but looked nervous and was swaying from side to side, blocking visual access to the inside of the car. For his own protection, P.C. Robson asked him twice to move to the rear of the car and place his hands on the car where he could see them, but Clayton simply responded that he had nothing on him. P.C. Robson then put his hand on Clayton’s shoulder to direct him to the back of the car. Clayton shoved him, causing him to lose his balance, and ran towards the front of the club.
11 P.C. Dickson, who was with Farmer but saw the struggle, joined P.C. Robson in chasing Clayton. He turned Farmer over to P.C. Lance Mulholland, who had stopped his cruiser behind P.C. Robson’s.
12 When they got to the front of the club, P.C. Robson and P.C. Dickson found Clayton lying on the ground, subdued by other officers. While Clayton was on the ground, one of the club’s bouncers told the police that Clayton was one of the men with the guns. P.C. Robson escorted Clayton, who had by now been handcuffed, back to the police cruiser. On their way back, P.C. Robson asked Clayton if he had any guns. When Clayton nodded, P.C. Robson asked where it was. Clayton told him it was in his pant pocket, and P.C. Robson pulled what turned out to be a loaded semi-automatic pistol from Clayton’s pocket. There were eight rounds of ammunition in the gun.
13 P.C. Mulholland, who had seen the struggle between Clayton and P.C. Robson, ordered Farmer to put his hands on the car roof. Because, after a few seconds, he said he heard P.C. Robson confirm over the radio that Clayton was in custody and had been in possession of a firearm, P.C. Mulholland immediately arrested Farmer for possession of the gun found on Clayton. He then turned Farmer over to another officer, P.C. Pidano, who found a loaded handgun when he lifted Farmer’s jacket.
14 The trial took place prior to this Court’s decision in R. v. Mann, [2004] 3 S.C.R. 59, 2004 SCC 52. Relying on R. v. Murray (1999), 136 C.C.C. (3d) 197 (Que. C.A.), a decision which affirmed the constitutionality of a roadblock, the trial judge, Durno J., held that the initial stopping of Farmer and Clayton’s vehicle was lawful, but that the further detention and search violated ss. 8 and 9 of the Canadian Charter of Rights and Freedoms . He declined, however, to exclude their guns from the evidence under s. 24(2) , concluding that the Charter breaches occurred in a “fast-paced situation” in which the officers had “little time for reflection”, that the admission of the guns into evidence would not affect trial fairness, that there was no bad faith on the part of the police, and that the exclusion of the guns would do more to bring the administration of justice into disrepute than their admission ([2001] O.J. No. 2393 (QL)). Both Farmer and Clayton were convicted of unlawfully carrying a concealed weapon and possessing a loaded prohibited firearm.
15 In the Ontario Court of Appeal, Doherty J.A., writing for a unanimous court, allowed Farmer and Clayton’s appeals, quashed the convictions, and entered acquittals on all charges ((2005), 194 C.C.C. (3d) 289). The court concluded that the “roadblock” was unlawful because there was no imminent danger and because the police did not tailor their intervention to stop only the four vehicles identified in the 911 call. Had they properly tailored their response, Farmer and Clayton’s vehicle would not have been detained. As a result, their detention and subsequent searches violated ss. 9 and 8 of the Charter .
16 In its s. 24(2) analysis, the Court of Appeal found the Charter breaches to be of such severity as to justify the exclusion of the evidence. The court concluded that, in stopping the car, the police did not turn their minds to the ancillary powers doctrine and consider the limits of their powers. This failure, the court concluded, was a result of the training they had received, which “left no room for a fact-specific assessment once a ‘gun call’ went out” (para. 84). The guns were therefore excluded to send an “emphatic” message to the police about their “institutional failure”, which the court found “significantly aggravate[d]” the seriousness of the breach.
17 The Crown appealed, arguing, persuasively in my view, that the police had lawful authority for the methodology used in this case and that, accordingly, there were no violations of ss. 8 or 9 of the Charter .
II. Analysis
18 The Crown conceded that the initial stopping of Clayton and Farmer resulted in their detention within the meaning of s. 9 of the Charter . The Crown also acknowledged that the subsequent police examination of the interior of the car and its occupants constituted a search for the purposes of s. 8 . Those provisions of the Charter state:
8. Everyone has the right to be secure against unreasonable search or seizure.
9. Everyone has the right not to be arbitrarily detained or imprisoned.
19 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.
20 The following passages from Mann are instructive:
A detention for investigative purposes is, like any other detention, subject to Charter scrutiny. Section 9 of the Charter , for example, provides that everyone has the right “not to be arbitrarily detained”. It is well recognized that a lawful detention is not “arbitrary” within the meaning of that provision. Consequently, an investigative detention that is carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under s. 9 of the Charter .
. . .
The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention. Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. [Emphasis added; paras. 20 and 40.]
Thus, a detention which is found to be lawful at common law is, necessarily, not arbitrary under s. 9 of the Charter . A search done incidentally to that lawful detention will, similarly, not be found to infringe s. 8 if the search is carried out in a reasonable manner and there are reasonable grounds to believe that police or public safety issues exist.
21 The statement that a detention which is lawful is not arbitrary should not be understood as exempting the authorizing law, whether it is common law or statutory, from Charter scrutiny. Previous decisions of this Court are clear that where a detention by police is authorized by law, the law authorizing detention is also subject to Charter scrutiny: R. v. Hufsky, [1988] 1 S.C.R. 621; R. v. Ladouceur, [1990] 1 S.C.R. 1257. The courts can and should develop the common law in a manner consistent with the Charter : Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at pp. 875-78. The common law regarding police powers of detention, developed building on R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), and Dedman v. The Queen, [1985] 2 S.C.R. 2, is consistent with Charter values because it requires the state to justify the interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive to liberty than reasonably necessary to address the risk. The standard of justification must be commensurate with the fundamental rights at stake.
22 The key question in this appeal, therefore, is whether the police were acting within the scope of their common law police powers when they detained Clayton and Farmer. These common law powers were described by Doherty J.A. in his reasons at paras. 35-37 with great clarity, requiring no further refinement here:
The powers and duties of constables at common law were described in R. v. Waterfield, [1963] 3 All E.R. 659 (C.C.A.) at 661:
In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.
The powers of police constables at common law, often described as the ancillary police power, as set out in Waterfield have been accepted by the Supreme Court of Canada as part of the Canadian common law in several decisions rendered both before and after the proclamation of the Charter : see e.g. Knowlton v. The Queen (1973), 10 C.C.C. (2d) 377 (S.C.C.) at 379-80; Dedman v. The Queen (1985), 20 C.C.C. (3d) 97 (S.C.C.); R. v. Godoy (1999), 131 C.C.C. (3d) 129 (S.C.C.) at 135-36; R. v. Mann [(2004), 185 C.C.C. (3d) 308 (S.C.C.)], at 320-1. 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: R. v. Mann, supra; R. v. Caslake (1998), 121 C.C.C. (3d) 97 (S.C.C.) at 107-108.
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, and in addition to showing that the police were acting in the course of their duty, the prosecution must demonstrate that the impugned conduct amounted to a justifiable use of police powers associated with that duty: Brown v. Durham Regional Police Force (1998), 131 C.C.C. (3d) 1 (Ont. C.A.) at 23-24. [Emphasis deleted.]
23 Doherty J.A. accepted that the first prong of the analysis was met in this case. In his view, which I share, the police “were clearly acting in the course of their duty to investigate and prevent crime” when they stopped the car and detained its occupants (para. 38). It is true that the police had no specific statutory authority for the initial stop but, as Doherty J.A. pointed out, and as s. 42(3) of the Police Services Act, R.S.O. 1990, c. P.15, confirms, “[i]t is . . . well established that the police power to interfere with individual liberties reaches beyond those powers specifically enumerated in statutes” (para. 34).
24 On the specific facts of this case, however, Doherty J.A. was not persuaded that the conduct was a justifiable use of police powers associated with their duty. With great respect, the facts lead me to a different conclusion. I agree with the trial judge, Durno J., that on the information available to the police, they were justified in stopping “all vehicles” emerging from the parking lot and “would have been derelict in their duties had they sat by and watched vehicles leave” (para. 56).
25 In R. v. Godoy, [1999] 1 S.C.R. 311, at para. 18, this Court accepted the following test developed by Doherty J.A. in R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.), at p. 499, for assessing whether police interference with individual liberties was justified:
[T]he justifiability of an officer’s conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.
26 In determining the boundaries of police powers, caution is required to ensure the proper balance between preventing excessive intrusions on an individual’s liberty and privacy, and enabling the police to do what is reasonably necessary to perform their duties in protecting the public. It was expressed by Le Dain J. in Dedman, as follows:
The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference. [p. 35]
27 The Court’s most recent delineation of this complex assessment is found in Mann, where Iacobucci J. described the interplay as follows:
[O]ur duty is to lay down the common law governing police powers of investigative detention in the particular context of this case.
. . . Over time, the common law has moved cautiously to carve out a limited sphere for state intrusions on individual liberties in the context of policing. The recognition of a limited police power of investigative detention marks another step in that measured development. It is, of course, open to Parliament to enact legislation in line with what it deems the best approach to the matter, subject to overarching requirements of constitutional compliance. [Emphasis added; paras. 17-18.]
28 Mann dealt with the detention of an individual walking on the sidewalk during the investigation of a break and enter. The Court concluded that the detention was lawful since the accused not only closely matched the description given by the radio dispatcher, which had included the age, race, height, weight, and clothing of the suspect, but also because the accused was only two or three blocks from the scene of the reported crime. While the circumstances in this case are different from those in Mann since the police in this case were obviously unable to identify any particulars about the occupants before their initial detention, some of the analysis in Mann is nonetheless helpful in assessing whether the police were acting within the scope of their common law powers:
The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officers’ reasonable suspicion that the particular individual is imp