R v Clayton: Further developing the common law power of police detention
In many ways, it is difficult to argue with the result of the Supreme Court of Canada’s (“SCC”) decision in R v Clayton,  2 SCR 725 [Clayton] released on July 6, 2007. In Clayton, the court restored the convictions of two accused who had been found in possession of loaded handguns, and were part of a larger group who were seen displaying large guns in a public urban area. Moreover, the kind of policing that was conducted in this case seems to be the kind of responsive yet measured police work that will be required if we are to deal with what appears to be a dramatic and dangerous rise of gun use in Canadian cities.
At the same time, there is much to criticize in the analytical approach taken by the majority of the Court in reaching this result. The majority judgment of Justice Abella (McLachlin C.J., Bastarache, Deschamps, Charron and Rothstein JJ. concurring) accepts with little comment that it is entirely appropriate for the SCC to expand police powers of detention and search through the common law, rather than reserve these questions for Parliament. Even more disappointing, however, is their position that so long as the actions of the police in detaining suspects are authorized by the common law, there is no reason to go further and scrutinize whether those same actions violate the Charter. As a result of the majority’s reasoning, not only has the SCC in Clayton continued down the path of developing common law police investigative powers without legislative guidance, it will now do so without ensuring that the common law in fact complies with the specific rights and protections in the Charter.
By way of contrast, Binnie J.’s reasons (Lebel and Fish JJ. concurring), lamented that Parliament’s lack of action in the area of police detention required the SCC, as a “least worst solution,” to develop the common law in that area. More importantly, in articulating that “least worst solution,” Binnie J. held that police actions that are authorized under the common law must also be scrutinized as to whether they comply with the Charter. Thus, on the facts in Clayton, Binnie J. found that while the actions of the police were authorized under the common law, they also violated s.9 of the Charter but that the infringement could be reasonably justified under s.1 of the Charter.
The singular advantage of Binnie J.’s insistence of utlizing Charter provisions, over the majority’s reliance on the common law alone, is that it provides some guidance to citizens and police officers alike as to where to draw the line between legitimate proactive policing, and unconstitutional police action. It is true that even under the minority approach there is no “bright line” test. It is suggested, however, at the conclusion of this case comment, that in addressing these kinds of basic questions, involving the interaction of law enforcement interests and liberty rights, “bright lines” are neither feasible, nor, in all likelihood, desirable.
The Majority Judgment
No Charter Scrutiny of the Common Law Power to Detain
As a starting point, Abella J., for the majority, held that if police conduct in detaining and searching suspects amounts to a lawful exercise of their common law powers, there is no violation of a suspect’s Charter rights (para 19). If, on the other hand, the police conduct falls outside the scope of these powers it represents an infringement of the right under the Charter not to be arbitrarily detained or subjected to an unreasonable search and seizure.
Abella J. qualified this easy equation of the common law with Charter compliance by pointing out that the common law authorizing the detention of suspects is itself subject to Charter scrutiny. Ultimately, however, the kind of Charter scrutiny that Abella J. has in mind is really only a restatement of the common law test for police powers originally set out in R v Waterfield,  3 All ER 659 [Waterfield]. As pointed out by Binnie J., the Waterfield test does not constitute “any recognizable Charter scrutiny” (para 61). Because she simply relied on the Waterfield test as a substitute for Charter analysis, Abella J. was able to conclude, without discussing any particular Charter rights or provisions, that the common law powers of the police to detain are consistent with Charter values. She found this consistency simply on the basis that under the common law “the state must 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 liberty at stake, and no more intrusive to liberty than is reasonably necessary to address the risk” (para 21).
The majority’s exclusion of a formal structured Charter analysis from an assessment of the legality of police detention powers, and its substitution of the general Waterfield common law test in its place, serves to ensure that the question of whether the police have acted illegally will inevitably be determined on a fact specific basis, rather than flowing from the application of set principles as is required under the Charter. Binnie J. recongnized this outcome:
… Conflating in a Waterfield-type analysis the consideration of the individual’s ss. 8 and 9 rights and society’s s. 1 interests can only add to the problematic elasticity of common law police powers, and sidestep the real policy debate in which competing individual and societal interests are required to be clearly articulated in the established framework of Charter analysis (para 61).
In Clayton, above, the primary issue involved the constitutionality of a police roadblock. A secondary issue revolved around the legality of the subsequent detention and the search of the two accused who were the driver (Farmer) and passenger (Clayton) in a car that had been stopped in the road block. The police set up a roadblock immediately after they received a “911” call in the early hours of the morning. The caller reported that there were four “Black guys“ who had guns among a group of ten in the parking lot of a strip club. The caller also identified by type four cars that he saw in the parking lot. The police immediately set up a roadblock in the rear of the strip club parking lot. The police stopped the car driven by the accused as it left the parking lot. The accuseds’ car did not match any of the cars identified by the 911 caller. Both of the accused were Black.
Roadblock Authorized by the Common Law
Abella J. set out the relevant factors to be used in determining whether the police roadblock was authorized under the common law, and by extension the Charter, in the following passage:
The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on 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, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk (para 31).
In applying these factors, Abella J. concluded that the initial stop was a justifiable use of police powers associated with their duty to investigate the offences described by the 911 caller. For this reason, the roadblock did not represent an arbitrary detention under s.9 of the Charter. In reaching this conclusion, Abella J. the majority emphasized the following features of the case:
- The information conveyed in the 911 call provided reasonable grounds for the police to believe that there were several handguns in a public place;
- This information suggested a serious offence that contained a genuine risk of serious bodily harm to the public;
- The individuals who had vehicles would leave the parking lot through one of the two available exits;
- The detention took place within minutes of receiving the 911 call; and
- The police set up the vehicles at the exit of the parking lot so as to detain only those individuals who were still in the parking lot at the time.
Most importantly, the majority of the court rejected the position held by the Ontario Court of Appeal that the police acted without lawful authority to detain the accused’s car since it did not match the description of the four cars provided in the 911 call. The majority held that requiring the police to only stop those vehicles described in the 911 call would impose an “unrealistic burden on the police in this case, and one inconsistent with their duty to respond in a timely manner, at least initially, to the seriousness of the circumstances” (para 37).
Subsequent Detention and Search Authorized Under the Common Law
In Clayton, above, the majority went on and held that, in the circumstances of this case, the subsequent removal and search of the accused from the car constituted a justifiable exercise of police powers. In reaching this conclusion, the majority again emphasized the following factors:
- The police knew that some of the people leaving the parking lot would have guns;
- They knew that the accused’s car was the first to leave the parking lot within minutes of crime being reported, and the car had initially avoided the front exit of the parking lot, where other officers were arriving, and instead went to the back exit;
- The occupants of the car matched the race of the suspects identified in the 911 call;
- It took three requests from the police before the driver (Farmer) agreed to get out of the car;
- The passenger (Clayton) was wearing gloves, even though it was not “glove weather, and gave strange evasive answers to police questions;
The majority held that, based on the above, the police had a reasonable suspicion that the occupants of the car that they stopped could be in possession of the handguns reported in the 911 call, and, as result, the lives of themselves, and of the public were at risk. At the same time, the majority agreed with the Ontario Court of Appeal that had the police stopped the vehicle and discovered that the occupants did not correspond to the description given by the 911 caller there would be no reasonable grounds for the continued detention of the occupants.
Guns Should have been Excluded
The majority concluded, assuming that the accuseds’ Charter rights had been violated, that the Ontario Court of Appeal erred in finding that evidence of handguns obtained in the course of the violation should be excluded under s.24(2). The majority judgment took particular umbrage with the position of the Ontario Court of Appeal that the seriousness of the Charter violation in this case was exacerbated by the lack of police training on how to respond to “gun calls.” Abella J. stated that examining the adequacy of police training in an assessment of whether evidence obtained in violation of the Charter should be excluded under s.24(2) risks “transforming the inquiry into protracted pedagogical review of the marginal relevance to whether the police conduct itself represented a breach of sufficient severity to warrant excluding the evidence” (para 51).
The Minority Opinion
Binnie J., for the minority concurring opinion, agreed with the result reached by the majority. Binnie J. came to that conclusion, however, by a markedly different analytical route. He held that in assessing the constitutionality of the police actions in this case the court must determine not just whether the actions were authorized under the common law, but also whether they complied with the Charter, and if they violated the Charter whether those infringements could be reasonable justified under s.1 of the Charter.
In applying this test, Binnie J. agreed with the majority that the police blockade in this case was authorized under the common law. He went on and held, however, that it constituted an arbitrary detention in violation of s.9 in that there was no “individual suspicion” that the accused or his vehicle were involved in criminal activity when it was stopped. He concluded that this s.9 violation, since it involved an investigation of guns being openly displayed in a public place, was justified under s.1 of the Charter.
Binnie J., also held, largely for the same reasons of the majority, that once the police stopped the car they soon acquired the requisite “reasonable suspicion” to conduct a warrantless pat-down search of the occupants for reasons of police safety. Finally, he agreed with the majority that the Ontario Court of Appeal erred in excluding the evidence under s.24(2) of the Charter.
Is there a Better “Least Worst Solution”?
Those looking for a “bright line” test for resolving questions of where legitimate proactive policing ends, and the right of citizens to be left alone begins, will not be satisfied even by Binnie J.’s concurring opinion in Clayton. There is a substantial body of impressive academic thinking that suggests that a move away from a pure fact-based approach towards the question of police detention powers towards a kind of bright line or principled analysis can only be achieved by Parliament enacting legislation to guide and limit police conduct (see Professor Stribopoulos’s paper “In Search of Dialogue: The Supreme Court, Police Powers and the Charter” (2005), 31 Queen’s L.J. 1, which was cited in Binnie J.’s judgment).
If the ultimate goal is to have Parliament to act in this area, it is clear that there is nothing in the majority’s reasoning in Clayton that provides an incentive for Parliament to do so. That is to say, any legislation that Parliament decides to enact with respect to police powers of detention and search would be carefully scrutinized under a formal Charter analysis to ensure that it complies with the Charter. According to the majority in Clayton, however, there is no need for such scrutiny where the police act under the common law in the absence of any statutory authority.
If one accepts the perspective that Parliament is the best way to advance a bright light test for determining police powers, the Court in Clayton, and Binnie J., in particular, could have structured their reasons in such a way as to compel Parliament to devise legislation about police powers of detention. Theoretically, at least, the court might have taken the position, similar to their reasoning warrantless search and seizure cases in 1990s, that the legality of police conduct in detaining suspects depends on Parliament providing them with the legislative authority to do so. Thus, as was done in R v Silveira,  2 SCR 297, the court could have admitted the evidence obtained by the unconstitutional detention in this case but warned Parliament that in future cases, if it does not enact legislation, the evidence obtained by these kind of Charter violations will be excluded. According to this “pro-Parliament” perspective, this would have been the better “least worst solution” that should have been adopted in Clayton. (I am extremely grateful to Professor James Stribopoulos for sharing this critical perspective on Clayton with me in correspondence. I apologize in advance for how I have created, for my own rhetorical purposes, a “straw person” from what is obviously a subtle and nuanced perspective.)
There are number a difficulties with this more sweeping criticism of Clayton, all of which are at least alluded to by Binnie J. in his reasons. One, it is not clear, as a matter of jurisprudence, that it would have been open to the Court to find, in a way analogous to the warrant requirement for police searches, that the police require specific legislative authority to detain suspects for reasons short of arrest. That argument appears to have been eliminated by R v Mann,  3 SCR 59.
More generally, even if Parliament provided legislation with respect to the parameters of police power to detain in an investigative context this would not necessarily prevent or even lessen the confusion that currently exists both “on the street” and in-court. Certainly, in areas where Parliament has acted to delineate police powers (eg impaired driving, search warrants), this has not limited the degree of confusion, at least as evidenced by the amount of litigation, in those areas. On a philosophical level, there is a simple explanation for this continued proliferation of disputes between agents of the state and individuals in these legislated areas. There is an inevitable grey area whenever we as a society try to define – either by legislation or by hindsight by way of litigation – the appropriate line between proactive policing and the right of persons to be left alone. The answer as to where that line is to be drawn will always depend on the particular circumstances of the case. No amount of legislation can change that.
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