R v Beaudry: Accountability and the Exercise of Discretionary Police Power?
While on duty in the early morning hours of September 22, 2000, Sergeant Beaudry and two of his colleagues on the Repentigny Police Service noticed a vehicle traveling at high speed with a flat tire. They pursued the vehicle, which ran a stop sign and almost hit the median before stopping. When Sergeant Beaudry approached the vehicle, the driver banged his head several times against the steering wheel and responded to the officer’s requests by crying and talking in a confused manner. After several minutes, the driver finally exited the vehicle and threw himself on the ground showing Sergeant Beaudry his police badge.
When the driver, now identified as Officer Patrick Plourde of the Repentigny Force, resisted being handcuffed (after banging his head repeatedly on the hood of the car), the police officers noticed the smell of alcohol on his breath. Then, when they arrived at the station, the officers noticed him staggering. In his testimony, Sergeant Beaudry admitted that at this time he had reasonable and probable grounds to believe that Mr. Plourde had been driving while impaired. Yet, Sergeant Beaudry decided not to demand a breathalyzer and instead allowed Mr. Plourde to “calm down” in the youth detention room at the station.
Sergeant Beaudry was eventually charged with obstruction of justice. In his defense, Sergeant Beaudry claimed that he had simply exercised his discretion in deciding not to request a breathalyzer test or pursue charges against Officer Plourde. A Québec trial judge and the Québec Court of Appeal dismissed this defence (see 2005 QCCA 966) and found that Sergeant Beaudry had chosen not to gather the requisite evidence for charges and to “favour” Officer Plourde because he was a fellow police officer.
The SCC Decision
In R v Beaudry, 2007 SCC 5, Justice Charron of the Supreme Court of Canada (“SCC”) emphasized that although the ability to exercise discretion is fundamentally necessary for effective policing, the exercise of police discretion is not limitless. Police officers must justify their decision to exercise discretion rationally on a subjective and objective basis.
the discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds. Thus, a decision based on favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper exercise of police discretion.
Second, the exercise of discretion must be justified on the basis of objective factors, namely the consideration of material circumstances and legal factors.
The fact that the SCC split 5-4 in this decision is a little misleading. The entire bench was in agreement that there was sufficient evidence on the record for a trier of fact to reasonably find Sergeant Beaudry guilty of obstructing justice. The dissent, written by Justice Fish, argued that the judge’s reasons for convicting Beaudry were not consistent with the evidence on the record. He noted that the there was no evidence that Mr. Beaudry had attempted to conceal Mr. Plourde’s offence, and that “his conduct in this affair has been marked by transparency and not concealment throughout.”
It is noteworthy that the remedy sought by the minority was a new trial and not an acquittal – specifically because the verdict could be reasonably supported by the evidence on the record. In contrast, Justice Charron relied on the trial judges’ finding that several police witnesses had lied to the court about their decision not to pursue an investigation into Mr. Plourde’s conduct, gave testimony that was inconsistent with incident reports, and were generally not credible. After reviewing all the evidence, Justice Charron held that the trial judge’s verdict was supported by a reasonably plausible interpretation of the evidence.
This brings me back to the accountability question. Why would a case such as Sergeant Beaudry’s find its way to the highest court in Canada? Clearly, his superiors were sufficiently concerned about this exercise of discretion to determine that pursuing charges against him was appropriate. Yet this begs the question of whose interests were being served by the persistent appeals in this case when it was clear that neither Sergeant Beaudry’s superiors, nor the trial judge, nor the Québec Court of Appeal, nor the entire bench of the SCC found any difficulty in making out the offence as charged? Perhaps the police association was hoping for a clarification of the parameters of police discretion.
Though Justice Charron obliged, the truth is that discretionary decisions “based on favouritism, or on cultural, social or racial stereotypes” likely permeate the daily routine of police forces nationwide. These decisions and the justification for them are rarely analyzed in a court of law. This rare opportunity makes Justice Charron’s judgment all the more important. The SCC’s message is clear – the parameters for exercising discretion inherent in police power are not limitless. Unfortunately, if a survey of the media reporting on the judgment is any indication, it is likely that few were listening.