This week on Legally Speaking with Michael Mulligan:
When are the police permitted to arrest or detain someone?
In the context of discussions concerning unbiased policing and identification checks, various common circumstances that do permit a police officer to arrest or detain someone are discussed:
1) If they have reasonable grounds to believe they have committed a criminal offence.
2) If they have reasonable grounds to believe someone is about to commit an offence.
3) For “investigative detention”, short of an arrest, where a police officer has reasonable grounds to suspect an individual is connected with a particular crime.
4) If there is an outstanding warrant.
5) In order to issue a ticket: the leading case on this is from Victoria. It involved a man who rode his bike through a red light and then refused to identify himself so as to permit a police officer to write him a ticket. The case went all the way to the Supreme Court of Canada. The man rode his bike from Victoria to Ottawa for the hearing but was unsuccessful.
6) Pursuant to provincial mental health legislation, when someone is believed to be a danger to themselves or others.
7) Where someone is in a “state of intoxication” in a public place, pursuant to provincial liquor legislation.
8) At any time someone is driving a vehicle, in order to ensure sobriety, licence, insurance coverage, or any other requirement of the Motor Vehicle Act.
Where someone is not driving a vehicle, or subject to a lawful arrest or detention, there is no general obligation to talk to the police or provide identification.
Police officers are, however, permitted to talk to anyone they wish. They may also ask questions or request identification. There is not a corresponding obligation to answer questions or produce the requested identification, absent circumstances such as those discussed.
The challenge for someone who is approached by a police officer and asked for identification is that it can be difficult to know if the police officer has the legal authority to arrest or detain them. Some people may also feel intimated or obliged to comply with a request for identification.
On January 15, 2020, pursuant to the Police Act, the Province of British Columbia issued a Provincial Policing Standard that set out criteria for police identification checks to ensure that they are conducted in an unbiased way, and not based on personal characteristics.
The unfortunate reality in British Columbia, and elsewhere, is that there is a correlation between ethnicity and the probability of being asked for identification by the police.
It is also true that someone who is impoverished, homeless, or addicted to drugs or alcohol, is much more likely to come to the attention of the police and be subject to a request for identification.
There is an overrepresentation of minority groups, including aboriginal people, who are experiencing homelessness, poverty, and drug or alcohol addiction. This makes the interpretation of statistics concerning the ethnicity of people asked for ID by the police difficult to interpret.
Also discussed on the show is a decision by the Supreme Court of Canada to deny leave for an appeal from the Quebec Court of Appeal concerning a charge of sexual assault arising on an international flight from Paris to Montreal.
The Criminal Code permits prosecutions for offences alleged to have occurred on international flights to Canada, however, where the accused person is not a Canadian citizen, the consent of the Attorney General of Canada is required within 8 days of the charge being laid.
In the Quebec case, the required consent wasn’t obtained in time. Once the Crown realized that they had missed the deadline, they tried dropping the charges and then charging the suspect again with the same thing. That scheme, to avoid the time limit, was not successful in court.
An automated transcript of the show:
Legally Speaking July 16, 2020
Adam Stirling [00:00:00] It’s time for, Legally Speaking, with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers. Good morning, Michael, how are you doing?
Michael T. Mulligan [00:00:06] I’m doing great. How about yourself?
Adam Stirling [00:00:08] I’m just fine, thank you. A couple of really interesting stories on the docket this week.
Michael T. Mulligan [00:00:12] Yes, indeed. The first issue that I thought would be of some use for people, particularly in the context of the discussion about banning police carding or interactions of people.
Adam Stirling [00:00:27] Yes.
Michael T. Mulligan [00:00:28] Would be a discussion about the circumstances in which the police are permitted to arrest or detain somebody and then what your obligations would be in terms of the police stopping you if those things don’t apply.
Adam Stirling [00:00:40] That would be perfect. Yes, let’s do it.
Michael T. Mulligan [00:00:43] So, the police have a number of basis upon which they could arrest somebody, lawfully. They would include through the most common one people would be familiar with, which would be to arrest somebody if they have reasonable grounds to believe that the person who’s committed a criminal offence. The police are then, of course, permitted to arrest you. The police would also arrest you. If they if there was a warrant for your arrest. Right. Something issued by a court or a judge. There are other circumstances, however, short of the police officer having reasonable grounds to believe you’ve committed a criminal offence, that they would also be permitted to arrest or detain you or stop you in some various way. And one of those bases would be if the police are wanting to issue you with a ticket of some sort. And actually, there’s a I think, a great fact pattern in the case, which is the leading case on that point that actually came out of Victoria. And it’s a 1979 case, which is Moore versus the Queen, and this fellow, Richard Harvey Moore was riding his bicycle in Victoria and a Victoria Police officer observed him ride his bicycle through a red light. So, the police officer stopped Mr. Moore and asked for his name and address so that he could write him out a ticket for going through the red light. Well, Mr. Moore refused, says I’m not providing you my name and address so you can write me a ticket, and so the police officer then moved up and arrested him for obstructing a peace officer.
Adam Stirling [00:02:35] Hmm.
Michael T. Mulligan [00:02:35] The case went off to trial for some reason, the Crump refuted by indictment. He had a jury trial, but the judge directed the jury that there was no evidence that he had obstructed the police officer and directed the jury to acquit him, which the jury dutifully did. But the crown appealed that to the Court of Appeal, who disagreed and said, no, this is an obstruction, there is an obligation to provide your name and address so the police can issue you a ticket. Mr. Moore appealed that decision to the Supreme Court of Canada to which he rode his bicycle. Hopefully not going through any red light but was unsuccessful in the Supreme Court of Canada. so the upshot of all of that interaction from Victoria the late 1970s is that, it is clear that if the police are trying to issue you a ticket, you’re obliged to give them your name and address so they can write the ticket out for you. And if you don’t do that, you’re obstructing them. And that would also permit the police to get that point to rescue. And even short of that, getting to that stage. The police would be permitted to detain somebody for the purpose of writing out the ticket. You’re not permitted to just take off on your bicycle if the police are trying to issue you a ticket of that sort.
Adam Stirling [00:03:50] I was going to ask about that. The distinction between detaining someone and arresting someone sometimes lost on ordinary person such as myself. So how does it work?
Michael T. Mulligan [00:04:00] Yeah. You’re quite right. And actually, that language, can get blurred together. Both of those things are important because, of course, when you if you look at the Charter, it would tell you that you’ve got the right upon arrest or detention to be advised of the reason for that and to be told about your right to counsel and various rights like that accrue to you and protections accrue to you, whether you are arrested or detained. And of course, that doesn’t always happen. And I suppose that’s another thing that people should be aware of, is that the only kind of interactions with the police that are likely to ever get any scrutiny in court are cases where there’s a person who’s actually charged with a criminal offence and the thing winds up at a trial. Most interactions with the police, of course, never wind up being subject to any careful legal scrutiny or review by a judge because nothing ever comes of it and nobody’s ever there to review it. And so, for example, if the police need you on your bicycle as you ridden through the red light, hey, you stop. Get over here.
Adam Stirling [00:05:08] Yes.
Michael T. Mulligan [00:05:08] What’s your name? And I’m writing you a ticket, and they don’t ever tell you about your right to counsel. In the course of that interaction, which they should, because, of course, they’re clearly detaining you and they say, get over here, you’re not going anywhere until I finish writing this ticket out.
Adam Stirling [00:05:22] Indeed, yes.
Michael T. Mulligan [00:05:23] That interaction is never likely to be reviewed by anyone. Right. In most cases, what’s going to happen is the police are going to write you a ticket for going through the red light-handed to you and off you’ll pedal on your bicycle. Right. Probably being the ticket. Yes. And that never winds them getting reviewed. Right. There’s no court process whereby somebody’s scrutinizing well, hey, hold on just a minute, you know, that person should have been told about the right to counsel, in that context. And that’s true with most police interactions. Right. And that’s a challenge, of course, because even though in a theoretical way, if somebody has constitutional rights were breached by, for example, not telling the person why they were being detained.
Adam Stirling [00:06:04] Yes.
Michael T. Mulligan [00:06:04] Or not telling a person about the right to counsel and right to silence or various other things the police are constitutionally obliged to tell you about unless you were bound and determined to go off and seek some theoretical remedy in court. Nobody’s ever likely to review how exactly that interaction went, right. Most interactions would end on the street and nobody there is there to scrutinize them, and even if there were to be some scrutiny of, you know, for example, the circumstance of the police stopping somebody to issue them a ticket, and I’m not telling you about your right to counsel during that time when they’re writing the ticket out and handing it to you. Nobody’s ever likely to look at that. And if it ever was reviewed, if you were the person sort of fellow who was prepared to ride your bicycle to Ottawa and go to court without limit, even at the end of that, the likely remedy isn’t likely to be very much right. Yes, well, what came of it? The person standing there for three minutes without being allowed to talk to a lawyer, police handed them a ticket and off they went. And so that’s a challenge because, you know, I can tell you here about the legal obligations, but the practical reality on the street may not always accord with the legal advice.
Adam Stirling [00:07:22] Indeed.
Michael T. Mulligan [00:07:22] But that’s not the end of it for police. They’ve got more grounds they can stop you.
Adam Stirling [00:07:28] Yeah, for the purpose of preventing a breach of the peace, it says here. What does that mean?
Michael T. Mulligan [00:07:32] Yeah, they unlike a circumstance where ordinary citizen could arrest somebody for having committed an offence. Like if you see somebody smashing the window of your car with a baseball bat, whether it’s a wise idea or not, you’d be lawfully entitled to run over and arrest them. Hold them there and phone the police to come and get them.
Adam Stirling [00:07:52] Yes
Michael T. Mulligan [00:07:53] The police have some additional latitude. They can, in fact, arrest somebody to prevent the person from committing an offence. They don’t have to wait for the person to commit the offence if they’ve got reasonable grounds to believe that somebody is about to commit an offence of some sort. They would be permitted to arrest them to stop that from happening. Right.
Adam Stirling [00:08:13] Yes.
Michael T. Mulligan [00:08:13] You know, let’s say you had an angry looking person walking up to somebody else who’s huffing and puffing and making fists with their hands. Have they committed an offence at that point? Not really. But the police don’t have to stand there and wait for the person to punch the other individual before they intervene. They can say, look, it looked like this guy who was going to go over and start a fight, so I arrested him. I just stopped that before it happened. So, there’s some additional authority they have there. The police also have authority to arrest somebody pursuant to provincial mental health legislation. And that would be if they had a basis to believe that somebody was a danger to themselves or others, they would be permitted to arrest them, take them into custody and bring them to a hospital for assessment and treatment.
Adam Stirling [00:08:57] Now is that distinct from an apprehension or is it the same thing?
Michael T. Mulligan [00:09:01] That would be, I think the language is used interchangeably.
Adam Stirling [00:09:03] Okay
Michael T. Mulligan [00:09:04] I think most people would call that an arrest. But really, it’s a similar thing. And also, you would have a constitutional right to counsel in those circumstances.
Adam Stirling [00:09:13] Interesting.
Michael T. Mulligan [00:09:13] They should be telling somebody, look, you’ve got a right to counsel. But on the other hand, the police have got a right to lawful authority to arrest you and take you to the hospital, too, for assessment and treatment and that sort of thing. My general advice to people who are apprehended in that fashion is to say, look, you know, the police are usually pretty busy people. And if they’re taking you to get some help at the hospital, usually somebody will be well served to accept whatever help they’ve got or are on offer. But that, of course, may not coincide with somebody whose mental state, they’re just not in a position to appreciate that they’re being taken to see a doctor.
Adam Stirling [00:09:49] Indeed, because the doctor themselves will be the one that performs the assessment and the certification if necessary. It’s just being sectioned is when the police are involved. Right?
Michael T. Mulligan [00:09:58] Right. And from the police perspective, what it really amounts to is sitting there in the intake waiting room of the hospital for many hours waiting for the doctor to be ready. And there aren’t too many police who are keen to sit on the, sit in the waiting room of the hospital unless they’ve got some real, genuine concern that somebody is going to hurt themselves or somebody else, because, frankly, it’s going to take hours of their time.
Adam Stirling [00:10:20] Alright
Michael T. Mulligan [00:10:21] There’s also authority for the police to arrest somebody if they’re in a state of intoxication, in a public place. That’s under the Provincial Liquor Control and Licensing Act. That’s an interesting thing. That language is pretty broad. There’s a little bit of judicial gloss that’s been put on that in terms of or what is intended there is of the person who had one glass of wine with lunch? Well, I suppose in some way intoxicated. But the judicial gloss on that would be effectively somebody is intoxicated to the extent they’re going to pose a danger.
Adam Stirling [00:10:53] Okay.
Michael T. Mulligan [00:10:53] You know, the person who was wandering into traffic or that sort of thing.
Adam Stirling [00:10:56] Okay.
Michael T. Mulligan [00:10:57] Again, there’s another ground to arrest somebody. There’s also this is important for people to know. There are, unlike the circumstance where you’re just walking down the sidewalk, the police have very broad authority to stop somebody if they’re driving a car. And the theory of that is that driving a car is a licensed activity. You’re not just free to do it if you want to. And police are permitted to stop anyone, with no basis to believe they’ve done anything wrong, while driving. If the stop is for the purpose of making sure the person sober, they have a driver’s license, they have insurance, or there isn’t some other motor vehicle act problem. They can’t do it for some ulterior reason. Like they couldn’t say, aha, I’m going to use my Motor Vehicle Act authority to stop somebody and cheque their license when I’m really trying to find out if they’re a drug dealer.
Adam Stirling [00:11:48] Yeah
Michael T. Mulligan [00:11:48] That would not be one. But, but for that authority, you could then drive around with no license and no insurance with impunity as long as you didn’t go through a red light like Mr. Moore did on his bike. So, if you’re driving a car, you are subject to being stopped really at any time, as long as you’re being checked for those purposes.
Adam Stirling [00:12:05] Interesting. All right, I didn’t know that.
Michael T. Mulligan [00:12:07] So this is a lot. This is a long list of various ways in which the police would be lawfully permitted to arrest you, detain you, stop you, require ID so on from you. And all of those various reasons are separate from, oh I should say one more, there’s another one which came to mind, which is a stop for an investigative detention.
Adam Stirling [00:12:29] Mmhmm.
Michael T. Mulligan [00:12:29] And an investigative detention would be something short of arresting somebody for committing a criminal offence. The idea there would be that if, if a police officer has reasonable grounds to suspect that somebody is associated with a particular criminal activity, they would be permitted to, at least in a brief, we stop them and ask them questions. And in that context, even do things like pat them down for weapons. If there was a safety consideration.
Adam Stirling [00:12:59] Hmm.
Michael T. Mulligan [00:12:59] And the case from the Supreme Court of Canada that confirmed all of that is a case called Mann from back in 2004. And that was a case where the police were responding to a break and enter and they observed an individual who matched the general description of the B and E suspect walking away from the location on the sidewalk, casually. The police stopped this fellow and then they patted him down, searching for what they said were concealed weapons. They felt a soft object in his pocket, not a weapon feel, and then decided to search his pocket where they found a bag of marijuana with a marijuana offence. The Supreme Court of Canada finally said the stop was okay, right, because they had this they were investigating a particular thing this break and enter. This guy was walking away from the area. He generally matched the description. So far, we’re good. And even you could do a brief pat down search for officer safety, for weapons. But that interaction went off the rails once they reached into the pocket to pull out the soft object to find the marijuana. And so that was the limit of what was permitted. The marijuana was properly excluded, and he was acquitted of the marijuana offence.
Adam Stirling [00:14:06] Interesting.
Michael T. Mulligan [00:14:06] But the police do have that power, which is where they have something short of reasonable grounds to believe the person has committed a criminal offence, but do have enough there to reasonably conclude that this person is connected with a particular crime and that a detention is reasonably necessary to investigate, they have reasonable suspicion enough to investigate that particular thing. So, all of what I’ve talked about so far are grounds the police could arrest, stop, or detain you that are separate from what’s currently being debated publicly concerning these stops of people.
Adam Stirling [00:14:46] Yeah.
Michael T. Mulligan [00:14:46] That are referred to as street checks, and the street cheque would really be the kind of cheque which is for none of the above purposes. Right. They’re not investing in a particular crime. They’re not trying to give you a ticket. They don’t think you’re drunk. They don’t think you’re about to commit a criminal offence. They’re just stopping and talking to you and potentially saying, may I see some identification?
Adam Stirling [00:15:09] Hmm.
Michael T. Mulligan [00:15:09] Now, here’s the thing.
Michael T. Mulligan [00:15:11] There’s a person in that circumstance when the police have none of the above things we just talked about reasons for arresting or detaining. You don’t have any obligation to speak to the police or to provide identification. The rub is that there’s nothing stopping the police from asking you for identification.
Adam Stirling [00:15:30] Yes
Michael T. Mulligan [00:15:31] It’s just like you’d be free to walk up to a police officer and say, may I see your driver’s license? Right. There quite free for you to say no. And you’re quite free to say no when they’re asking you for identification or your license.
Adam Stirling [00:15:43] Interesting.
Michael T. Mulligan [00:15:44] But the problem for people, of course, is that you can’t know whether the police have any of the grounds that might exist that would permit them to lawfully permit, permit them to require identification of you. Right. It’s almost impossible for you to know. You know, do they have grounds to believe that I was about to commit a crime or that I did commit a crime or that they are investigating that B and E that I’m walking away from? And so, it can be very hard for people to know what their obligations are. And, of course, that can be very intimidating. Right.
Adam Stirling [00:16:18] Yeah.
Michael T. Mulligan [00:16:18] If you a peace officer who’s armed, they come up to you and say to you in an official sounding way, you know, please give me your driver’s license. You know, what’s your name and address. It is going to it’s going to be the bold person who says, I don’t have any obligation to do that. Why are you asking me for that?
Adam Stirling [00:16:33] Well, Mr. Moore found himself of these from Court of Canada for doing that after committing a violation. And I guess that’s the material difference.
Michael T. Mulligan [00:16:40] Yes. But even there, of course, there are differences of opinion. The trial judge didn’t think he had any obligation to do anything at all. And so, for the average person, it can be really difficult to know what you’re required to do and not required to do. And there is concern that there could be police asking for these things for some improper purpose. And there’s been talk of a study that was done over in Vancouver where they looked at the ethnic background of the people who were stopped for this kind of a check.
Michael T. Mulligan [00:17:11] Not to be arrested. And one of the things that concluded was there was a higher proportion of people who were Aboriginal that were stopped and asked for identification than the percentage of Aboriginal people in the population generally. Right.
Adam Stirling [00:17:26] Yes.
Michael T. Mulligan [00:17:26] So I think it was 15 percent of the people who were stopped were Aboriginal. And I’ve heard varying figures about the percentage of Aboriginal people in the population as a whole. I’ve heard figures anywhere between 2 and5 percent is where you look now. Might also depend how you define Aboriginal. Right. But one of the problems when you look at that statistics is that in Canada, we have a really unfortunate combination of people who are Aboriginal and people who are experiencing poverty and homelessness.
Adam Stirling [00:17:57] Yes.
Michael T. Mulligan [00:17:57] And that comes from our long and really unfortunate history of treatment of Aboriginal people in this country.
Adam Stirling [00:18:04] Yes.
Michael T. Mulligan [00:18:04] And the other reality is that your prospects of being having the police come up to you and talk to you or ask you what your name and identification is, are far greater, than if you’re poor and homeless and spend time sort of in the city streets than if you’re hopping in your BMW at the end of the day and driving home to Oak Bay.
Adam Stirling [00:18:21] I can see that.
Michael T. Mulligan [00:18:22] I daresay if you’re driving home, don’t be in your car you’re never being giving, interaction with the police at all. You wouldn’t know what any of this is all about. But if you spend your days sleeping and living on the street, you’re much more likely to come into contact with the police and have these sorts of enquiries made of you. And from the police perspective, there is a strong correlation between people who are living on the street, experiencing poverty and homelessness or drug addiction or mental illness, because all of those things go hand-in-hand with being on the street and the commission of crime. Right.
Adam Stirling [00:18:56] Yeah.
Michael T. Mulligan [00:18:56] Because of how we deal with drugs in this country, people who are addicted to drugs are living on the street are much more likely to be involved with petty criminal activity in order to pay for those things. So you have this negative feedback of people who are in some ethnic minorities experiencing poverty, and therefore they wind up with greater interactions with the police and they’re much more likely to have these sort of negative interactions about you, what’s your name? Can I see your I.D? Which you’re not experiencing, if you are not living in that circumstance. So, it’s really complicated and really hard for the person who’s finds himself in that position to know just exactly what they are required to do.
Adam Stirling [00:19:33] Let’s get a break in. Sorry I’m a little late on that, but I don’t want to interrupt that stream of thought because I think it was very beneficial for all of us to hear that. Michael, thank you so much. A quick break. We’re back right after this.
Adam Stirling [00:19:44] All right. We’ve got about three minutes left in today’s conversation with Michael Mulligan is legally speaking, continues her mike. We’ve got a couple of different stories we could do, one with respect to class actions, the other with respect to consent required from the Attorney General of Canada and an interesting fact pattern with which would you like to address?
Michael T. Mulligan [00:20:02] Well, why don’t we start with the airplane one. We’ll see how far we get.
Adam Stirling [00:20:06] All right.
Michael T. Mulligan [00:20:07] So this was a decision, today, by the Supreme Court of Canada, to refuse leave or permission for a Quebec Court of Appeal decision to be reconsidered. And so, the net result is that the decision of the Quebec Court of Appeal stands. And here’s the fact pattern. There is a French citizen who was on a flight from Paris to Montreal and during the flight, it’s alleged that he had engaged, committed sexual offences, specified exactly what that was, but something that occurred on the airplane. Now Canada has in the Criminal Code an interesting series of circumstances in which we purport to extend our jurisdiction to prosecute criminal offences outside of Canada. And those provisions found in Section 7 of the Criminal Code include provisions that allow for the prosecution of somebody who’s on a plane and then a variety of things like registered in Canada or flying into Canada, various different things. But it says that if the person that the crown is trying to prosecute is not a Canadian citizen on one of these types of planes flying to Canada, it’s required that the Attorney General of Canada, within eight days of laying the charge, provide written consent to the charge proceeding. It’s really buried in there. And it would seem that in Montreal, I can only assume the crown there wasn’t familiar or hadn’t read far enough into Section 7 and so they didn’t get the required consent when they tried to prosecute, prosecute this man. They realized that after the eight days had lapsed and so they thought they could cure the problem by dropping those charges and in just re-laying them and then and then getting the Attorney General to contend. Well, it was a nice try. But the trial court, the Court of Appeal and now the Supreme Court of Canada have had none of it. And so the upshot is that if you want to prosecute somebody who’s not a Canadian citizen and your crown for something alleged to have happened on the airplane on the way into Canada, you best get that consent within eight days or you’re not going to be permitted to do little end run by stopping and restarting the whole process.
Adam Stirling [00:22:21] There we go.
Michael T. Mulligan [00:22:21] So there it is.
Adam Stirling [00:22:23] That is all the time for a very Michael Mulligan. Thank you, as always, for your knowledge and your insight. And I do enjoy these segments so much and we look forward to next week.
Michael T. Mulligan [00:22:30] Always a pleasure. Thank you so much for having me.
Adam Stirling [00:22:32] All right. Legally Speaking, during the second half of our second hour every Thursday here on CFAX 1070 with Michael Mulligan Barrister and Solicitor with Mulligan Defence Lawyers.
Automatically Transcribed on July 16, 2020 – MULLIGAN DEFENCE LAWYERS