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SCC says deference must be given to cops when guns found

|Written By Shannon Kari

The recent Supreme Court of Canada decision in R v. Clayton has someobservers suggesting the court may have muddied the waters in definingpolice powers to set up a roadblock and search cars when officers areanswering a 911 gun call.

In overturning a decision of the Ontario Court of Appeal, the Supreme Court suggested there needs to be deference to police when a handgun is recovered, despite allegations of Charter breaches.

The ruling also goes farther than the U.S. Supreme Court in granting the power to stop cars without “individualized suspicion” if there is a gun call.

“They are going to be very forgiving to police decision-making when there is a need to act quickly, says Jonathan Dawe, a lawyer at Sack Goldblatt Mitchell LLP who acted for the Criminal Lawyers’ Association as an intervener in Clayton.

The ruling was issued nearly eight years after Wendell Clayton and Troy Farmer were arrested by Peel Regional Police outside a Brampton, Ont., strip club.

Police arrived five minutes after a 911 caller said he saw 10 black men outside the club and four of them were displaying handguns. The caller provided a detailed description of four cars in which he said the men arrived.

The first officer to arrive indicated he did not see anyone with guns and police did not find the weapons that formed the basis of the 911 call.

Clayton and Farmer were driving a “unique”-looking Jaguar that was not one of the cars described by the caller and their clothes did not match the description of the suspects. During their trial, police said any car leaving the parking lot would be stopped because it was a gun call.

When they were asked to get out of the car, Clayton tried to flee. Both men were found to be in possession of a loaded handgun.

Superior Court Justice Bruce Durno found a Charter breach because police intended from the outset to stop the car and search its occupants. There was no specific plan once the car was stopped and one officer told his colleague, “Let’s see what these guys are up to,” as they approached the vehicle.

The handgun evidence was admitted because the officers were involved in a “fast-paced situation” and acted in good faith.

The Ontario Court of Appeal acquitted the defendants, in a decision written by Justice David Doherty, with then-chief justice Roy McMurtry and Justice Susan Lang concurring.

Police must have reasonable grounds to believe that a serious crime has been committed and that a roadblock stop “may apprehend the perpetrator,” wrote Doherty.

The roadblock was not properly tailored and police chose “to ignore significant parts of the information,” from the 911 call, said the Court of Appeal.

“Where, as in this case, constitutional violations reflect an institutional indifference to, if not disregard for, individual rights, judicial failure to disassociate itself from that conduct must have long-term negative consequences for the proper administration of justice,” wrote Doherty.

The main Supreme Court decision, written by Justice Rosalie Abella, found that police were justified under common law powers to set up a roadblock. The 911 call provided “reasonable grounds” to believe there were several handguns in a public place which posed a “genuine risk” to the public.

Abella said Doherty was wrong to conclude police could not stop a car “unless it and the occupants matched exactly the information provided by the 911 caller.” (In fact, Doherty did not suggest police could only search vehicles that were an exact match. The breach was that Farmer’s vehicle “was in no way similar to the vehicles described by the caller.”)

The intention of the officers to search the car and its occupants before speaking to the suspects was not a Charter violation, said Abella. “The relevant time is the time of the actual search and seizure,” she wrote.

The search was reasonable because both men “matched the race” of the suspects and Clayton was wearing leather gloves “despite the weather not being glove weather,” she wrote.

Don Stuart, a criminal law professor at Queen’s University, says he agrees with the Supreme Court’s conclusion that the search was justified in this case.

But he suggests the ruling does not provide sufficient guidance for other cases and the court should have adopted the test set out by Doherty.

“What he did was come up with a nuanced roadblock power. I think it was good law,” says Stuart.

In a concurring decision, Justice Ian Binnie found there is a common-law power for police to impose an arbitrary detention and that this rule is saved by s. 1 of the Charter.

“A balance that might have tilted the law in favour of civil liberties in a society less infected with an urban gun problem, now tips the other way,” said Binnie, who noted that the common law must “adapt itself” to the evolution of society.

He was joined by justices Morris Fish and Louis Lebel in the concurring judgment, even though they rejected this approach to common law police powers in a sharply worded dissent two years ago in R. v. Orbanski.

“The adoption of a rule limiting Charter rights on the basis of what amounts to a utilitarian argument in favour of meeting the needs of police investigations through the development of common law police powers would tend to give a potentially uncontrollable scope to the doctrine developed in the Waterfield-Dedman line of cases.

The doctrine would now be encapsulated in the principle that what the police need, the police get,” they said in Orbanski.

The rulings in Clayton appear to permit police to ignore limiting information about suspects when dealing with a gun call, says Dawe.

“This has all sorts of implications. Where do you draw the line?” he asks.

The Supreme Court recently granted leave in another significant case involving a clash between Charter values and the recovery of a handgun.

In R v. Grant, the Ontario Court of Appeal found that a handgun possessed by an 18-year-old black man who was stopped by Toronto police for walking “suspiciously” was conscriptive evidence. The handgun evidence was admitted, in part because police “did not grossly overstep the bounds of legitimate questioning,” or use force, wrote Justice John Laskin.

If evidence is routinely allowed because it is a gun, “it gives police strong incentive to conduct illegal searches,” suggess Dawe, who is acting for Donnohue Grant in the Supreme Court appeal.

University of Saskatchewan law professor Tim Quigley warns that an “end justifies the means” philosophy to police powers will likely result in improper searches that are never made public because a weapon was not found.

“I always ask my students to imagine if there hadn’t been a gun. How would you feel about this invasion of

privacy?” says Quigley.

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