Knowing the limits of police authority

The phrase “judicial activism” made it back into the news in late May when the Supreme Court of Canada ruled that Alexandre Bissonnette — in prison for fatally shooting six people at a Quebec City mosque in 2017 — would not have to wait more than 25 years to apply for parole. But as the SCC’s decision to strike down a sentencing provision as unconstitutional triggered the predictable political argy-bargy, criminal law and constitutional experts were warning of a longer trend in court-driven lawmaking — one that has dramatically extended police powers over the past 37 years without any input at all from legislatures.

The expansion of common law police powers (CLPP) by the courts is — according to one academic behind a new project on CLPP funded by the CBA Law for the Future Fund — especially alarming because it happens after the fact and very few Canadians are aware of it.

“The big problem is that you can’t know for certain what police are permitted to do until you’re in court, because the test (for establishing a new CLPP) works retroactively,” said David Ireland, an associate professor of law at the University of Manitoba. He helped lead a project that built a website to track CLPP jurisprudence and provide plain-language guidance to the public on police powers.

“That’s what is so worrying about it, especially when you consider that the vast majority of interactions between police and civilians never see the inside of a courtroom,” he added. “There’s a general lack of good information about police powers.”

CLPP cases emerged following the introduction of the Charter of Rights and Freedoms as courts moved to address gaps between what police were doing to detain, investigate and search and what the written law allowed.

The trend started in 1985 with Dedman v. The Queen, which decided that police had the power to detain drivers to test for impairment. Setting the pattern for future CLPP cases, the SCC majority repurposed a test from U.K. law — the Waterfield test, used by British courts to decide whether a police action falls within the course of police duties — to decide whether a new common law police power was justified.

Adapting the Waterfield test to CLPP cases led to a long series of court decisions enshrining new CLPPs that police officers in Canada now use every day — powers to detain for investigative purposes, to search incident to investigative detention, and to stop vehicles at random, among others.

That run of decisions was interrupted only recently, in 2019, by Fleming v. Ontario, in which the SCC declined to create a new CLPP to preventatively arrest someone to protect them from harm by third parties.

But that decision was less of a wholesale departure from the trend than it may have appeared. Instead of simply rejecting outright the notion of a CLPP to arrest someone who hadn’t broken the law, the court still applied the Waterfield test and concluded that police had other options available to prevent a breach of the peace.

“The real problem with the power sought was not that it failed to satisfy Waterfield’s demand of reasonable necessity,” wrote the University of Ottawa’s Terry Skolnik and Vanessa MacDonnell in a 2021 paper. “The issue was that it would have permitted the police to arrest a person not suspected of wrongdoing.

“In other words, the court in Fleming arrived at the right outcome for the wrong reasons.”

Critics of court-made CLPPs say these decisions undermine the Charter in various ways. The retroactive nature of many of the decisions means, for example, that neither civilians nor police can always know in advance how far police powers extend.

“It’s sometimes hard for people to understand exactly what police are and are not permitted to do,” said Winnipeg-based criminal lawyer Saul B. Simmonds. “Every time the court creates a new police power, we’re taken aback.”

Court-made CLPPs can also short-circuit the legislative route for setting limits on police authority, according to James Stribopoulos, a former associate dean at Osgoode Hall Law School and now an Ontario Superior Court of Justice.

In a 2005 paper, Stribopoulos argued that by extending CLPPs instead of throwing the question back to legislatures, the courts did away with the necessary “dialogue” between legislatures and courts and let politicians off the hook.

“Validating police conduct meant that a parliamentary response was not impelled,” he wrote. “Throughout the 1990s, only the judiciary’s voice was heard on the subject of police detention powers … the result was mostly uncertainty and a considerable expansion of police authority.”

Legislatures can consult widely and assemble a broad set of facts when drafting new laws or amending old ones, and are accountable to the public for the results. Courts can’t, and aren’t. Critics of court-made CLPPs say legislatures should take the initiative back from the courts by defining police powers in law.

“Good facts make good law. Bad facts make bad law,” said Simmonds. “Parliament could step in. It could introduce legislation outlining the powers police have and what it means for them to act outside that authority.”

“The need to maintain a central role for arbitrariness as a check on police power explains why Parliament should specifically legislate law enforcement powers and why courts should be reluctant to recognize new common law arrest powers,” wrote Skolnik and MacDonnell in their 2021 paper.

But the Waterfield test is part of SCC jurisprudence now; it was deployed even when the high court chose not to create a new CLPP (Fleming). Ireland said that strongly suggests the courts aren’t going to suddenly start deferring to legislatures in such cases.

“The courts could stop. The Supreme Court could conclude it’s going down the wrong path, but the jurisprudence suggests that’s not going to happen,” he said. “Legislation can’t constrain the court. The government could pass legislation defining police powers in detail.

“But I’m not naïve enough to say that everything the police can do must be written down in legislation. Policing is a dynamic, dangerous field, and police have to respond to circumstances.”

Which explains why Ireland’s project is tackling the problem from the other end. By assembling detailed information about CLPPs in one online portal, he hopes to make it easier for Canadians and their legal representatives to understand exactly what police officers can and can’t do — and to be prepared for future arguments in favour of extending new CLPPs.

“We’re striving with our research to put that information within reach of the public,” he said. “We’re not saying that’s the end of the road. But it’s a start.”