Standard of Review Analysis: Adaikin v. Calgary Police Service

Standard of Review Analysis: Adaikin v. Calgary Police Service
Name
University
Introduction
This case comment focuses on the standards of judicial review applied in Canadian courts, with regards to the duties, rights and liabilities of police officers during a traffic stop. It analyzes legal provisions and circumstances under which traffic police officers are justified or otherwise, to direct a driver’s movements or threaten an arrest during the course of a traffic stop.
In brief, the narrative of the case under examination is as follows. On May 3, 2009, shortly after midnight, Constable Adaikin, the appellant, flagged down a speeding motorist at a traffic stop. After obtaining the driver’s information, he went back into his cruiser to write a speeding ticket. However, the motorist did not think he was speeding, and consequently became irate, left his car, and advanced towards the cruiser. The police officer got out of his car and, with his hand near his gun should the need to use it arise, ordered the motorist to get back into his car and wait for the speeding ticket. This order was ignored by the motorist, and the police officer repeated it with the warning that the motorist could be arrested if he refused to return to his car or move to the sidewalk. The motorist obeyed this second instruction and the police officer proceeded to serve him with a speeding ticket.
Subsequently, the Constable was sued by the motorist before the Calgary Police service for allegedly surpassing his authority in threatening the motorist with an arrest. After investigating the matter, the Calgary Chief Police determined that the police officer exceeded his powers in advising the motorist that he risked getting arrested if he did not get back to his car. The officer appealed before the Law Enforcement Review Board, contending that he acted appropriately under the circumstances. However, the Review Board held the Chief of Police’s position by pointing out that the motorist had stopped as instructed, did not confront the officer physically, maintained reasonable distance and was not abusive towards the officer. Consequently, the Board determined that the motorist had not committed any offense in this regard as to warrant the threat of arrest from the police officer; hence the appellant was ruled to be at fault for exceeding his authority.
The police officer appealed again, before the Court of Appeal for Alberta, arguing that the Law Review Board was in error in concluding that his ordering the motorist to get back to his car and threatening an arrest if he disobeyed was unlawful. The Court of Appeal returned the matter to the Chief of Police for reconsideration, with the following observations. The Appeal Court cited legal provisions which allow a police officer to arrest or threaten to do so only if he is given such powers under statutory or common law. Although the law gives police officers the authority to arrest motorists who violate traffic laws, it does not give specific provisions under which a police officer can direct an individual’s movements at a traffic stop. Consequently, the Court of Appeal interpreted the relevant appeal as follows:
The issue is not whether the officer had the authority to tell the driver to return to his car or face arrest, but whether the exercise of this power was reasonably necessary in light of the totality of the circumstances. Such a question involves balancing the seriousness of the risk to the public or individual safety (in this case the officer was performing his duty to enforce traffic safety) with the liberty interests of members of the public (restricting the driver's physical movements to his care for a few moments).
Agreeing with a previous ruling of the Supreme Court of Canada, the Appeal Court noted that it would be a rare situation where it will be reasonably necessary for a police office to detain a motorist a regular traffic stop. The court further recommended that training police officers to be more courteous and less aggressive would help avoid most troublesome incidences and defuse others. Regardless, the Appeal Court directed the matter back to the Chief of Police for reconsideration by focusing on whether the appellant had at his disposal alternative and less intrusive means of ensuring his safety and carrying out his duty while ticketing the motorist for speeding.
Ruling History
In making its ruling, the Court of Appeal made reference to the Traffic Safety Act, R.S.A. 2000, c. T-6 under Use of Highway and Rules of the Road Regulation. Section 166 (2.c) states that “When signaled or directed to stop by a peace officer who is readily identifiable as a peace officer; (c): a driver of a vehicle shall remain stopped until permitted by the peace officer to leave.” However, this provision does not touch on the expected conduct of the driver under the obligation “to remain stopped” until a police officer gives permission to leave. The court should have made an extended interpretation to determine if the driver’s obligation to remain stopped includes the condition of remaining in the vehicle. The arising issue is whether the driver is free to abandon the vehicle during the course of a traffic stop. If so, is the driver at liberty to move near a police officer’s car while the officer is writing a ticket. Would the constable have threatened the driver with an arrest if the driver had abandoned the car and moved in a different direction, other than towards the officer’s car? This consideration brings into the fore the limitation of section 166 (2.c) of the Traffic Safety Act regarding the expected conduct of motorists at a traffic stop. The Court of Appeal, however, limited its consideration of the matter to the fact that the driver in the case had stopped his car as instructed and provided the required information without verbally abusing or confronting the police officer physically. It was unwarranted, therefore, for the police officer to threaten the driver with an arrest, the latter having complied with the traffic regulations as outlined in the relevant parts of section 166.
Sections 58, 61, and 101(1) of the Use of Highway and Rules of the Road Regulation permit a traffic officer to direct traffic. The definition of “traffic,” however, must include a vehicle that’s manned. It could have been a different case, and one that clearly puts the motorist at fault, if the driver had moved his car towards where the police officer had packed his cruiser. The point is that a driver ceases to be part of “traffic” once he or she gets out of the vehicle. The motorist in this case had obeyed the police officer in accordance to the relevant parts of sections 58, 61 and 101of the Use of Highway and Rules of the Road Regulation by stopping his car as directed by the police officer. It was in light of this consideration that the Appeal Court agreed with the Law Review Board’s determination that the motorist had observed all the traffic laws in the circumstances.
In R. v. Sharma, [1993] 1 S.C.R. 650, the Court of Appeal of Ontario ruled that a peace officer had both common and statutory authority to enforce a by-law, whereby a street flower vendor was found operating without a license. The police officer instructed the vendor to collect his wares and leave, but refused, and was subsequently charged for willfully obstructing a peace officer. The court further held that the existence of other means to deal with the vendor’s refusal did not erode him of the authority to carry out his duty. Although this ruling was brought up in Adaikin v Calgary Police Service, the circumstances of the case did not find specific application in the law whereby the motorist’s getting out of the car can be interpreted as willful obstruction of a law enforcement officer, unless it is argued and proven, that the motorist’s advancing towards the peace officer, if allowed to go further than at the point at which the officer cautioned the driver with the warning of an arrest, could have hindered the officer from executing his duty effectively. It is interesting that the court did not consider the appellant’s instructions as a caution rather than an explicit threat. It is reasonably logical to propose that the appellant simply “informed” the driver, in the sense of furnishing information relevant to a situation, of what would happen should he continue advancing on him. Perhaps critical to the case is whether the officer threatened to make the arrest himself. Telling the driver that he could be arrested could refer to the police officer informing the relevant authorities of the driver’s conduct, who would then make the arrest.
Nevertheless, the two cases are different in that the peace officer in R v Sharma was enforcing a by-law by ordering the vendor to pack up and leave, while the appellant in the case in question was trying to navigate through an obstacle in his duty to enforce a traffic law. In this light, it reasonable to expect that traffic police officers should have legal avenues to deal with situations that hinder their duties. In his submission, the appellant argued that the threat of an arrest had the desired effect because it compelled the driver to get back into his car, thereby allowing the appellant to successfully execute his duty. Thus, it is a matter of legal interest for the Canadian Law Review Board to provide a more comprehensive interpretation of sections 58, 61, and 101(1) of the Use of Highway and Rules of the Road Regulation to help determine whether a police officer’s power to includes the power to direct the movements of a driver who gets out of his car during a traffic stop. Similarly, it should be determined whether drivers are at liberty to get out of their vehicles at a traffic stop as they may wish, and if so, whether a police officer has the power to overrule this liberty, and under what circumstances.
In arriving its ruling, the Appeal Court also referred to a ruling by the Supreme Court, in R. v. Aucoin, 2012 SCC 66, 353 D.L.R. (4th) 417. In that case, a peace officer driving in a crowded place stopped a motorist for an offence related to a license plate. Concerned that the offender might disappear into the crowd, the police officer decided to put him in the back of his car while he wrote the ticket. As a safety precaution, he patted the motorist and discovered a sachet of cocaine in one of the motorist’s pockets. The majority ruling determined that the issue in question was not the police officer’s power or lack thereof to detain the driver at the back of his car having lawfully stopped him for a traffic offense, but whether, under the circumstances, his action to do so was reasonably justifiable under common law. Citing another ruling by Supreme Court of Canada in R. v. Clayton, [2007] 2 S.C.R. 725, 2007 SCC 32, the Appeal Court raised the issue of reasonability in an officer’s conduct. In R. v. Clayton, two police officers responding to a 911 call at 1:22 a.m. about “four of ten” people openly displaying guns in the parking lot of a strip club stopped a car (albeit not the one described by the caller) exiting the said lot and driven by two black males. Upon searching them, the officers discovered a loaded and prohibited gun, and charged the two for possession of a prohibited weapon. During the trials, the trial judge ruled that although the initial stop was within law, the officers violated sections 8 and 9 of the Canadian Charter of Rights and Freedoms in detaining and searching the accused. Those provisions of the Charter state:
  8.  Everyone has the right to be secure against unreasonable search or seizure.
  9.  Everyone has the right not to be arbitrarily detained or imprisoned.
However, the court conceded that
The common law regarding police powers of detention requires the state to justify any interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive than reasonably necessary to address the risk.
There is a parallel between Adaikin v. Calgary Police Service and R. v. Clayton in terms of the circumstances under which a police officer may reasonably exceed his powers so a to discharge his duties efficiently; the extent of the risk and the liberty at stake. In R. v. Clayton, the police officers had been warned that there were people displaying guns, it is 1 a.m., and outside a strip club. The environment in and the time at which the appellants were apprehended could be described as risky, and therefore the responding police officers were reasonably justified to detain and search the two black males exiting the lot, considering the information supplied by the 911 caller; “black guys” openly displaying guns.
Similarly, the police officer in Adaikin v. Calgary Police Service was operating in an environment that could have been risky, and required him to take safety precautions. It was in recognition of this fact, evidently, that the Appeal Court for Alberta directed the matter back to the Chief of Police for reconsideration, specifically with a view of determining whether the officer had less intrusive mechanisms at his disposal to deal with the motorist’s act of leaving his car and advancing towards the officer’s car. At the same time, it was not lost to the Appeal Court’s attention that the appellant’s action could be justified in the circumstances he found himself in. The court acknowledged that “the appellant was performing his duty to enforce traffic safety, with the level of imposition on the driver's liberty - restricting his physical movements to his car for a few moments.” The issue here is not whether the peace officer exceeded his powers by threatening the driver with an arrest, but whether doing so violated the driver’s freedoms, and if at all he did, whether that violation was necessary within the context of the need to balance “the seriousness of the risk to the public or individual safety (in this case the officer was performing his duty to enforce traffic safety) with the liberty interests of members of the public by temporarily restricting the driver’s movements. The Court subsequently placed the burden of determining whether the peace officer’s actions were necessary on the Chief of Police by asking him to consider whether the appellant had alternative and more reasonable means of carrying out his duty whilst ensuring his safety and respecting the liberty of the driver.
Standard of Review Analysis
Traditionally, Canadian high courts (Supreme and Appeal Courts) have showed a tendency to go along with the decisions of lower tribunals during judicial review appeals, unless the contested decisions were found to be significantly unreasonable. During applications for a judicial review, the courts have maintained regularly that they will “treat decisions of the Tribunal with deference, so that a court will only interfere with a Tribunal decision if it is found to be “irrational.” For many years, they have referred to several standards of review, including procedural fairness (legitimate expectation and duty of fairness), reasonableness simpliciter, correctness, and patent unreasonableness. Nevertheless, the standard of “patent unreasonableness” was considered to be the highest of the four, and therefore the most commonly applied “gold” standard of judicial review. The concept of “patently unreasonable” was, however, difficulty to define since a judicial review was justified upon proving that the contested decision failed to comply with all the legal facts of a case, or misstated it completely.
The ambiguities of patent unreasonableness as a standard of review presented several challenges when determining whether a decision deserves a judicial review. In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 48, the Supreme Court of Canada, through a majority agreement, determined that the findings of law and the findings of fact articulated patent unreasonableness differently with regards to a decision being reviewed. In the interpretation of legislative provisions, the test is whether the decision under review “"cannot be rationally supported by the relevant legislation and demands intervention by the court upon review.” As a result of the challenges of legal interpretation presented by this standard, the Supreme Court of Canada ruled in Dunsmuir v New Brunswick [2008] 1 S.C.R. 190 that patent unreasonableness would no longer be a recognized standard of judicial review. Consequently, reasonableness emerged as a gold standard of review, although correctness has been applied in some other cases (e.g. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 81. In some other rare instances (Rodrigues v. Ontario (Workplace Safety & Insurance Appeals Tribunal) (2008) 92 O.R. (3d) 757) the ...