Alain Beaudry, Appellant
v.
Her Majesty the Queen, Respondent, and
Attorney General of Canada and Canadian Professional
Police Association, Interveners.

[2007] S.C.J. No. 5
2007 S.C.C. 5
File No.: 31195

Supreme Court of Canada

Heard: May 12 3006;
Judgment: January 31, 2007

The appellant was a shift supervisor for the Repentigny Police. He was charged with obstructing justice (s. 139(2) of the Criminal Code, R.S.C. 1985, c. C-46). On Sept 22, 2000 Sergeant Beaudry stopped a minivan whose driver was behaving in an erratic fashion. The driver made it plain he was also a police officer. Sergeant Beaudry was acquainted with this officer. He knew htat the officer was having personal problems. It was apparent on the day in question that the officer had consumed alcohol and was probably intoxicated.

The officer, the driver of the van, was made to attend the police station. However, Sergeant Beaudry failed to administer a breathalyzer. He neither arrested nor charged the officer. Sergeant Beaudry was ordered to produce an impaired driving report and breathalyzer analysis but failed to do so, saying that he had exercised his discretion and decided that the officer in question was in need of treatment and a helping hand rather than “a blow to the head”.

The court convicted Sergeant Beaudry of obstruction of justice. On the issue of police discretion the court acknowledged that while police must exercise some discretion in order for our criminal justice system to function, such discretion is not endless. The court promulgated a two part test to determine when police discretion is permissible:

38 The required justification is twofold. First, the exercise of the discretion must be justified subjectively, that is, the discretion must have been exercised honestly and transparently, and on the basis of valid and reasonable grounds (reasons of Chamberland, J.A., at para. 41). Thus, a decision based favouritism, or on cultural, social or racial stereotypes, cannot constitute a proper exercise of police discretion. However, the officer’s sincere belief that he properly exercised his discretion is not sufficient to justify his decision.

39 Hence, the exercise of police discretion must also be justified on the basis of objective factors. I agree with Doyan J.A. that in determining whether a decision resulting from a exercise of police discretion is proper, it is important to consider the material circumstances in which the discretion was exercised. However, I do not agree with him on the importance of the factors he regarded as part of the legal context, that is, the administrative directives and the administration of justice in the province.

The court went on at paragraph 40 to discuss the role of material circumstances play in determining whether an exercise of police discretion is warranted:

However, this does not mean that the police have no discretion left when the degree of seriousness reaches a certain level. In the case of a robbery, or an even more serious offence, the discretion can be exercised to decide not to arrest a suspect or not to pursue an investigation. However, the justification offered must be proportionate to the seriousness of the conduct and it must be clear that the discretion was exercised in the public interest. Thus while some exercises of discretion are almost routine and are clearly justified, others are truly exceptional and will require that the police officer explain his or her decision in greater detail.

This case is of importance to police managers and police in the field. Its elements should be taught at initial training and as part of ongoing training in the field.