Clayton Revisited

In the past few years, the Supreme Court of Canada (“SCC”) seems to have been drifting aimlessly without a well-defined criminal justice destination. Many speak fondly of the bold and innovative approach the SCC adopted in the early 1990’s to champion the right to be left alone, but in recent years the SCC has exchanged courage for complacency, and liberty for security. Last month’s decision in R v Clayton, [2007] 2 SCR 725, is yet another example of the SCC’s descent into a very casual and almost cavalier disregard for the future implications of its decisions on police powers.

On the one hand the decision appears sensible. The police received a 911 call indicating that a number of men in a larger crowd outside a club were seen to be waving guns. The caller provided descriptions of 4 vehicles which appeared to be related to the gun holders. Within 5 minutes the police set up a roadblock at the club’s parking lot, and the first vehicle stopped belonged to Clayton and Farmer, even though they were not driving one of the vehicles identified by the caller. Clayton and Farmer acted suspiciously and evasively, and an eventual search yielded handguns. In a nutshell, the SCC authorized the use of indiscriminate roadblocks in response to a reasonable fear that a number of people were in possession of guns in a public space. It is hard to argue against the nature of the police conduct in these circumstances, as most people would have considered the police to be derelict in their duties if they did not respond to a gun call in this fashion.

The Court of Appeal found an arbitrary detention primarily on the basis that the police were stopping vehicles that did not match the description provided by the caller. The SCC concluded that it was an unnecessary burden upon the police to exercise fine judgment in these circumstances and that a blanket and indiscriminate roadblock was reasonably necessary. If there is truly a well-defined risk of gun violence within a well-defined geographical area, I think that the SCC is right in finding favour with the blanket roadblock, but the route taken by the SCC to reach this conclusion is a bit scary.

It seems to me that when Justice of Appeal Doherty imposed the requirement on the police of exercising individualized judgment he was doing so in recognition of the fact that the police had no statutory authority for this action. The courts were creating this power under the common law “ancillary powers” doctrine, and some limits had to be placed upon this ill-defined doctrine which continues to evolve under the common law. The grant of power had to be narrowly tailored to the particular circumstances of the case and this may be the reason why Justice Doherty concluded that the roadblock had to be designed to target the identified vehicles which were the subject-matter of the tip received by the police. The description of the vehicles was the most particularized aspect of the tip coming from a caller of unknown veracity, and it is this particularization which provided the reasonable suspicion needed to justify an investigative detention.

The SCC delivered reasons which indicate little or no need to impose some workable constraints on a judicial grant of police power. The SCC has become so comfortable with the ancillary powers doctrine that it has forgotten that it is an extraordinary event for the judiciary to be overtly operating in lawmaking capacity. The doctrine was designed to provide temporary respite to the police when they respond to an unexpected and rapidly-evolving threat without an explicit grant of statutory authority for their response. The doctrine was designed to shield the police and was never really intended to become a sword in their arsenal. For this reason, the common law doctrine must have a limited and constrained operation in the context of empowering the police.

The system operates in a more transparent and accountable way when the legislature designs the power and the judiciary determines if the legislature has gone too far and has violated a recognized right under the Charter. When the judiciary enters the lawmaking arena under the guise of a common law doctrine it has the potential to dilute the essence of judicial review – a sober, second thought based upon principles enshrined in the Constitution. More significantly, the judicial creation of police powers provides lawmakers with little incentive to enter the fray and construct a meaningful legislative regime which can provide flexibility and appropriate limits on the exercise of intrusive powers.

Other jurisdictions have created statutory roadblock powers but it is unlikely that Parliament will address the issue now that the SCC has given its seal of approval to indiscriminate roadblocks. Hopefully, the future operation of police roadblocks will not be as uncertain as the future operation of the SCC’s 2005 creation of an ancillary power of investigative detention and search. By creating this power it is unlikely that Parliament will step in and address some of the basic questions the SCC failed to resolve – critical questions like the brevity of the detention, the location of the detention and the applicability of right to counsel.

Clearly the SCC is content with addressing these questions in a piecemeal, case-by-case basis. Of course this means that in the interim the question of appropriate limits will be left to academic speculation. This does not bode well for guiding the police on the streets. To add insult to injury, the SCC goes out of its way to downplay the significance of police training in the determination of whether a constitutional violation is serious. Once the SCC determined that Clayton and Farmer’s constitutional rights were not violated, its musing on police training and its impact on the s.24(2) exclusionary rule were not at all necessary.

The Court of Appeal had noted the growing body of precedent indicating that the failure of the police to receive proper training is a systemic failure which aggravates the seriousness of a rights-violation. Clearly, inducing compliance with Charter demands is a worthy goal of constitutional adjudication and the Court of Appeal recognized that the long-term consequences of turning a blind eye to police indifference undercuts the whole point of having a regime of constitutional rights. For some strange reason the SCC felt compelled to minimize the importance of proper police training which is responsive to constitutional, statutory and common law limits. So at the end of the day the SCC has left us with an ill-defined roadblock power, little incentive for legislative intervention and no need for some form of police training to ensure that future roadblocks are carefully tailored to prevent real and imminent risks of harm.