Monday, July 09, 2007

Lawfulness, arbitrariness and road blocks

When the police, in an effort to catch someone who has committed a serious crime, set up a road block and question motorists, are they subjecting the occupants of the cars to arbitrary detention if there is no statutory authorisation for it? This question was considered in R v Clayton [2007] SCC 32 (6 July 2007).

The Supreme Court of Canada unanimously restored the convictions of the two respondents for offences involving firearms. Within minutes of receiving a “911” call concerning apparent armed offending in a car park, police set up a roadblock at its exit. Although the respondents’ car did not match the description given by the caller, it was the first and only car to leave. Clayton, the passenger, was wearing gloves, although the weather was warm. Clayton and the driver, Farmer, were consistent with the description of the offenders that the caller had given, in that they were “black males”. Evasive behaviour by Clayton contributed to the police decision to search the car.

Although the result was unanimous, the Court split in its reasoning. The majority judgment, by Abella J, of herself and McLachlin CJ, Bastarache, Deschamps, Charron and Rothstein JJ reasoned that the detention in this case was lawful at common law so there was no violation of the Charter right against arbitrary detention.

The other judges, Binnie (who delivered their judgment), LeBel and Fish JJ held that, yes, the detention here was lawful at common law, but it was still necessary to consider arbitrariness under the Charter; since there was a breach in that the detention was arbitrary (because everyone was to be stopped), the next question was whether this was a justified limitation (s 1) on the right not to be arbitrarily detained. Application of Charter jurisprudence (R v Oakes [1986] 1 S.C.R. 103) indicated that this limitation was justified.

Both approaches involve balancing exercises. Abella J pointed out (para 21) that there is a consistency between common law powers and Charter values, because under each the state must justify interference with liberty. The common law balancing, pursuant to LeDain J’s dictum in Dedman v. The Queen, 1985 CanLII 41 (S.C.C.), [1985] 2 S.C.R. 2, 35 requires that

“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.”

The Court in Clayton unanimously held that under this test the police action here was lawful at common law (Abella J at 32, Binnie J at 94).

At that point, Abella J held that there was therefore no arbitrary detention (para 41). This reflected her initial proposition (para 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.”

Binnie J, however, thought differently. His position (para 101) can be summarised as, some detentions may be lawful because they are arbitrary but justified limitations under s 1 of the Charter, so just because a detention is lawful does not mean that it is not arbitrary. Here is what he said:

“101   On the facts, I believe the police roadblock in this case, although authorized by the common law, did infringe the respondents’ rights under s. 9 of the Charter, which states as follows:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

An arbitrary detention can be upheld if found to be prescribed by a law which in itself constitutes a reasonable limit under s. 1 (see Hufsky [1988] 1 S.C.R. 621 and Ladouceur [1990] 1 S.C.R. 1257). It is in this sense, I believe, that the obiter in Mann [2004] SCC 52 that “a lawful detention is not ‘arbitrary’” (para. 20) should be understood. A detention, though arbitrary, may still be constitutional if the law on which the detention rests is a “reasonable limit” within the meaning of s. 1. The specific point in Mann itself was that a detention based on individualized suspicion is based on rational criteria and is not, therefore, arbitrary.”

This reasoning assumes that the notion of arbitrariness has not already been taken into account in the common law balancing exercise. What amounted to arbitrariness here, as Binnie J put it (para 103) was “…there was no individualized suspicion of them or the vehicle in which they were travelling (which did not match the 911 caller’s description) or other criteria to “tailor” the roadblock more precisely.”

One would have thought that the Dedman test, above, encompasses those matters. Binnie J did address this, however, saying (para 78):

“I do not believe the Dedman analysis and the s. 1 analysis are duplicative of one another. While both involve a measure of balancing, Dedman is a creature of the common law, and nothing is said explicitly in that case about the presumptive paramountcy of “the liberty interfered with” or putting the onus on the Crown to “demonstrably justify” the measure as a “reasonable limit”. Nor does Le Dain J. speak explicitly of such concepts as minimal impairment. The Charter standard is higher. The pre-Charter common law position was more loosely framed in recognition perhaps of the reality that relevant evidence would generally have been admissible even if the police conduct was unauthorized: R. v. Wray, 1970 CanLII 2 (S.C.C.), [1971] S.C.R. 272; Hogan v. The Queen, [1975] 2 S.C.R. 574.”

That is to take a rather static view of the common law balancing exercise, treating it as something to be done as if the Charter did not exist. Binnie J’s analysis produces the potentially confusing concept of the “lawful but arbitrary” detention. We might wonder, also, whether the detention here was really “arbitrary”: to detain for brief questioning all the people leaving the scene of a crime in the circumstances of this case did not involve the capriciousness or randomness that “arbitrary” connotes. Having found the search lawful at common law because it was reasonable, the conclusion should have been that there were no Charter issues. That was Abella J’s reasoning.

Of course Binnie J concluded that the detention was, although arbitrary, justified under s 1 of the Charter. There is merit in considering all rights balancing within the framework of the Charter, where the balancing process has received greater analysis than at common law. While this case is relatively uncontroversial, because of the potential public safety concerns, where the facts are innocuous the balancing can be controversial, and the influence of a Bill of Rights may not make the balancing exercise easier, as we saw in discussing Brooker v R [2007] NZSC 30 (blogged here, 4 May 2007).

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