Policing in the Defund Era: The SCC, Parliament, and the Contours of Police Powers - Keelin Griffin

In the wake of recent high profile cases of police violence in the United States, calls for reform and even defunding of the police became a rallying cry throughout the country and beyond.[1] Polling conducted north of the border in 2020 found that Canadians are divided on the idea of defunding the police, with a slim majority (51%) expressing support.[2] The role of police in society is clearly controversial, and amid calls for reform, it is worthwhile to consider how police powers have expanded and evolved over time. One important agent of this evolution has been the highest court in Canada. Over the past several decades, the Supreme Court has shown a willingness to expand common law policing powers under the ancillary doctrine, while Parliament has thus far declined to legislate police powers in a comprehensive way.[3] In light of recent controversies, I argue that it is more important than ever for Parliament to take up the mantle of legislating police powers, and, in so doing, to deepen the dialogue between the courts and the legislature.[4]

Expanding Police Powers at the SCC

There is no single statutory repository of police powers in Canada. Instead, a patchwork exists across a number of criminal and quasi-criminal statutes, including, among others, the Criminal Code and the Controlled Drug and Substances Act.[5] Amid statutory gaps, common law police powers have developed ostensibly to address situations wherein it appears reasonable for police to act but there is no clear authorizing statute or pre-existing common law basis upon which to do so.[6] The SCC’s role in expanding police powers via the ancillary doctrine first materialized in the 1985 case of Dedman v The Queen, wherein the Court deployed the Waterfield test, drawn from British jurisprudence, to recognize a common law police power to conduct random stops at sobriety checkpoints.[7]

The Waterfield framework is comprised of two considerations. It asks (1) whether such conduct falls within the general scope of police duties, either imposed by statute or recognized at common law, and (2) whether such conduct, albeit within the scope of such duties, involved an unjustifiable use of powers associated with the duty.[8] Despite a relative lull in the immediate wake of Dedman, over the course of the next several decades, the court would deploy Waterfield to expand police powers in a number of areas including: warrantless dog sniff searches in a variety of contexts (R v Kang-Brown, R v A.M., R v Chehil and R v MacKenzie); warrantless home entry in response to dropped emergency calls (R v Godoy); warrantless protective searches at the front door of a home when responding to a noise complaint (R v MacDonald); warrantless roadblock powers in response to a 911 dispatch near a purported crime scene (R v Clayton); as well as a number of powers in the context of searches incident to arrest (see e.g.: R v Caslake, R v Golden, R v Saeed and R v Fearon).[9]

It is worth mentioning, however, that this expansion of police powers did not occur unopposed. As far back as Dedman, dissenting justices raised the alarm concerning the use of Waterfield as a generative test.[10] In his dissent in that case, Justice Dickson noted his belief that the creation of police powers was a matter best left to legislatures and further expressed a prescient concern that the Court might go on to effectively grant police arbitrary powers on the basis of the majority decision.[11] In the years to come, some members of the Court took up Dickson’s critique of the application of Waterfield, including in the dog sniff search cases of Kang-Brown and AM. A segment of the Court opposed the development of ancillary police powers, noting that, unlike Parliament, it was not equipped with the knowledge required to develop sweeping police powers.[12] Members of the Court went so far as to argue that the ex post facto creation of police powers by the Court troubled the balance of constitutional democracy and blurred the lines between the rightful roles of the Court and the legislative branch.[13]

Critiquing the Court’s Role in Expanding Police Powers

Critiques of the Court’s role in expanding common law police powers are relatively well-established and might usefully be thought of as falling within two non-exclusive categories: those that deal with the institutional limitations of the Court itself and those that focus on the relationship between the Court and Parliament. The former category of critiques centre on the challenges resulting from the structure and function of courts as they grapple with common law police powers. Courts are limited to the cases and issues that come before them and, thus, cannot deal with the whole field of police powers in a comprehensive or prospective manner.[14] In deciding individual cases on their facts, their scope is unlikely to include the whole range of relevant social facts that are essential for establishing sound policy.[15] Moreover, courts are often dealing with situations where the accused has committed a crime. As such, it is possible that hindsight exerts subtle pressure to uphold police conduct in order to ensure that wrongdoing does not go unpunished.[16] Once they have made their decisions, courts also lack the ability to monitor the effects of their judgements and to modify rules in a timely manner to address said effects.[17] In short, courts are not legislatures, and when they act to expand police powers, they do so lacking many important tools that lie in the hands of lawmakers.

The latter category of critique focuses on the relationship between courts and legislatures. As courts take on the task of expanding police powers, they effectively usurp the role of legislatures and preemptively shut down potential dialogue between the two.[18] So long as courts are content to fill gaps by retroactively articulating police powers, there is little impetus for Parliament itself to get involved. However, Parliament has tools at its disposal that courts do not, including access to stakeholders, experts, and ordinary citizens; and the institutional capacity to legislate in a comprehensive manner. Proponents of a dialogic model of legislature-court interaction argue that citizens are best served by Parliament making use of the considerable tools at its disposal to delineate police powers, with the Court taking up the role of assessing the constitutional compliance of laws, including compliance with the Charter of Rights and Freedoms.[19] The dialogue does not end there; legislative responses often follow, refining any invalid enactments. The Court may consider the refined laws, should the correct case come before them, and so on.[20]

The Need for Legislating Police Powers in the Defund Era

As previously noted, a slim majority of Canadians support defunding the police. In addition, surveys conducted by StatCan in 2019 found that less than half of Canadians thought their local police were doing a good job at enforcing the law (46%), ensuring the safety of citizens (44%), and treating people fairly (42%).[21] The same study found that Canadians with disabilities, Indigenous peoples, and visible minorities were significantly less likely to report having significant confidence in the police compared to white, able-bodied Canadians.[22] Minimally, these results suggest that a non-negligible segment of Canadians are dissatisfied with the work of police in this country. As such, I argue that it is more urgent than ever that Parliament legislate and engage in a renewed dialogue with the Court. My reasons are two-fold. First, as noted above, there is little impetus for Parliament to act when the Court has been willing to do so on its own; this is a situation likely exacerbated in the present moment given the politically-fraught status of policing. However, citizens deserve a say in the manner in which they are policed, and, as an elected body, Parliament has the ability (and the duty) to be responsive to citizens’ needs in a way that the courts simply cannot. Parliament should not be permitted to back away from its duties because the unelected judiciary is taking up the slack or because there may be political consequences for doing so. Citizens can and should demand better from their elected officials.

Second, so long as police powers are being developed on a one-sided basis, with the Court taking the lead, the institutional limitations outlined above function such that uncertainties and gaps are bound to remain. On the ground, in encounters between the police and citizens, even the best informed among the two groups cannot distinguish with absolutely certainty the operant legal boundaries.[23] A citizen might have to wait for a court to decide that, in fact, their rights were justifiably transgressed under the auspices of a subterranean common law authority as yet unarticulated at the time of their arrest; conversely, a police officer might discover that their conduct was not in fact legally authorized and be subject to legal sanctions of their own.[24] In the context of significant tensions and fraught relationships, such uncertainty can only spell disaster. It is time for the Court to step back from legislating and return to its role as constitutional steward, and it is past time for Parliament to take the up the task of delineating police powers in clear, comprehensive, and prospective terms. Anything less is likely to deepen the complex conflicts at the heart of policing in this country.

[1] Amira Elghawaby, “Canadians Are Talking About ‘Defunding the Police’. Here’s What That Means and What It Could Look Like” (16 May 2021), online: Press Progress <pressprogress.ca/canadians-are-talking-about-defunding-the-police-heres-what-that-means-and-what-it-could-look-like/>. [2] Ipsos, News Release, “Canadians Divided on Whether to Defund the Police: 51% Support the Idea, 49% Oppose It” (27 July 2020), online: Ipsos <www.ipsos.com/en-ca/news-and-polls/Canadians-Divided-On-Whether-To-Defund-Police>. [3] Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections (Vancouver: UBC Press, 2019) at 74 [Jochelson & Ireland]. [4] Peter W Hogg & Allison A Bushell, “The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Such a Bad Thing after All)” (1997) 35:1 Osgoode Hall LJ 75 at 82. [5] Richard Jochelson et al, “Generation and Deployment of Common Law Police Powers by Canadian Courts and the Double‐Edged Charter” (2020) 28 Critical Criminology 107 at 120 [Jochelson et al]. [6] Ibid at 111. [7] Dedman v The Queen, [1985] 2 SCR 2, 20 CCC (3d) 97. [8] Ibid at 14. [9] R v Kang-Brown, 2008 SCC 18; R v AM, 2008 SCC 19; R v Chehil, 2013 SCC 49; R v MacKenzie 2013 SCC 50; R v Godoy, [1999] 1 SCR 311, 168 DLR (4th) 257; R v MacDonald 2014 SCC 3; R v Clayton 2007 SCC 32; R v Caslake [1998] 1 SCR 51, 155 DLR (4th) 19; R v Golden 2001 SCC 83; R v Saeed 2016 SCC 24; R v Fearon 2014 SCC 77; Jochelson et al, supra note 5 at 113. [10] Jochelson & Ireland, supra note 3 at 78. [11] Ibid. [12] Ibid at 95. [13] Jochelson et al, supra note 5 at 113. [14] James Stribopoulos, “In Search of Dialogue: The Supreme Court, Police Powers and the Charter” (2005) 31 Queen’s LJ 1 at 27 [Stribopoulos]. [15] Ibid. [16] Ibid at 28. [17] Ibid at 27. [18] Jochelson & Ireland, supra note 3 at 98. [19] Stribopoulos, supra note 14 at 30. [20] Ibid. [21] Statistics Canada, Public perceptions of the police in Canada’s provinces, 2019, by Dyna Ibrahim, Catalogue no. 85-002-x (Ottawa, Statistics Canada, 25 November 2020) at 3. [22] Ibid. [23] Jochelson & Ireland, supra note 3 at 96. [24] Stribopoulos, supra note 14 at 26.