- C. Tess (law student)
Policing the Racialized: Is Investigative Detention a Race-based Practice?
Like so many legal problems, the question of whether the practice of investigative detention is one affected by racism is a complicated one.
In order to examine racial bias in investigation detention, it is necessary first to understand investigative detention, and the legal test for it. So, what is investigative detention? Put simply, investigative detention is a common law ancillary police power, which allows police to temporarily detain a person suspected of criminal wrongdoing, with less than the reasonable and probable grounds required for an arrest.
This power gained traction in a case called R v Simpson. It was an open question prior to Simpson whether the police had more than two options in engaging a suspect: letting the suspect go, or, if they felt they had the requisite reasonable and probable grounds, arresting them. The middle ground of detention was contestable. Of course, whether police forces admit it or not, investigative detention has long been a practice in Canada.1 In Simpson, the Ontario Court of Appeal brought further clarity to the issue.
In Simpson, a police officer on patrol received an internal memo that described a certain residence as a “crack house”.2 After watching the suspect emerge from the house, enter the car and drive off, the officer proceeded to follow the car and pull it over. After pulling the car over, the officer questioned Simpson and noticed a bulge in his pocket, which he asked him to produce. Simpson instead attempted to throw the baggie away. A short struggle ensued, where the baggie with cocaine was seized. Simpson was arrested and charged with possession of narcotics for the purpose of trafficking.
The central issue in the case was whether Simpson has been arbitrarily detained in violation of his section 9 rights under the Charter of Rights and Freedoms. In answering this question, the court undertook the two-step section section 9 analysis. The first step in a section 9 analysis requires the court to determine if there was a detention. As the Court later stated in R v Grant: not every trivial or insignificant interference with a person’s liberty attracts Charter scrutiny.3 The Simpson court answered this first step in the affirmative. As the accused was travelling in a vehicle, the stop was necessarily a detention, according to previous precedent. Once a detention is found, the second step of the test requires deciding whether the detention is arbitrary. In this case, the court ultimately could find no statutory authority for the stop and proceeded to contemplate whether there existed a “common law authority” for the stop. The court then stated that although the precedents simply denied a “general power to detain whenever that detention will assist a police officer in the execution of his or her duty”, the precedents do not foreclose the authority of police officers to detain in investigative circumstances short of arrest.4 In effect, the court relied on the ancillary powers doctrine articulated in R v Deadman to develop the power of investigative detention based on the concept of articulable cause.
The Current Test
The most authoritative recent iteration of the power to detain for investigative purposes comes from the Supreme Court of Canada case R v Clayton. In Clayton, the police received a 911 call stating that there was a group of four to ten “black guys” handling firearms in the parking lot of a strip club.5 The police immediately responded and set up a roadblock to prevent cars from exiting the parking lot. Soon after they set up the roadblock, one of the cars attempted to exit the area. It was not one of the cars described by the 911 caller. The police stopped the car, which contained the two accused: Clayton and Farmer. According to the officers, Clayton gave strange and evasive answers and stared straight ahead when answering. Additionally, Clayton was wearing gloves when it was purportedly not “glove weather”.6 The officer asked Clayton to step out of the car, and upon stepping out, Clayton shoved the officer and ran away. The officers caught Clayton and searched both Clayton and Farmer. The accused were arrested and charged with of carrying concealed weapons and the possession of loaded, prohibited firearms.
The central issue before the Court was whether the detention of the two accused was arbitrary. The Court of Appeal held that the detention was arbitrary because the vehicle the accused men were driving was not the one that referred to by the 911 caller. The Supreme Court overturned this decision and restored the convictions, noting that the type of detailed decision-making required to differentiate between cars would burden the police in the execution of their duties.
In articulating the scope of investigative detention in Clayton, the Supreme Court of Canada restated the earlier grounds for investigative detention from in R v Mann:
Investigative detention is to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officers’ reasonable suspicion that the particular individual is implicated in the criminal activity under investigation.7
This threshold test has also been followed with a justification analysis
The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk.8
What is the potential for racial bias and discrimination in investigative detention?
It is no secret that the Canadian criminal justice system and its actors are not free from racial prejudice. In fact, in recent years more evidence has emerged to confirm what common sense would have predicted: that members of Aboriginal and Black communities are over policed.9 Although these facts paint a grim picture, this is not to suggest that Canadian police officers are inherently racist. Rather, as James Stribolpolous points out, what is more likely is that police offers operate on the basis of “stereotypical assumptions” regarding visible minorities. Thus, an encounter with a non-racialized person that may not appear suspicious to a police officer may appear to be suspicious in a racialized person through the lens of an officer operating under stereotypical assumptions.
Using Clayton as an example, it seems undeniable that race plays a role in the decision making power of the police. As the Court of Appeal aptly noted, the descriptions of the car in question did not adequately match the car of the two accused. The criteria that did match, however, was the geographic situation in a public space and behaviors that subjectively seemed suspicious to the police officers. Thus, using the fact that the suspects were Black men, their behaviors could have been filtered though the lens of what they consider to be suspicious behavior. It is difficult, if not impossible to tell in cases like these, what is objectively suspicious, and what has been filtered through the lens of racial stereotyping, resulting cases whereby minority groups are unfairly targeted for investigative detention.
It is important to ask ourselves the following questions: Would the outcome have been the same if the suspects had been white? Would the police offices have thought that Clayton’s “evasive answers” were as a result of the coercive nature of a police interaction? Would the police officers had thought that wearing gloves in “not glove weather” was a fashion statement, rather than a reasonable indication of wrongdoing? Ultimately, we can only guess the answer to these questions, as the Court did not acknowledge the role of race in investigative interrogation.
The ancillary powers doctrine and the common law police power of investigative detention raises a host of issues, however, it is clear that race should be a central consideration. Race-based decision-making in investigative detention should be a leading concern, not only due to its importance but also due to lack of acknowledgement from the Court.
It seems clear from the social science evidence that the race of the suspect either consciously or unconsciously plays a role in the discretion of police officer to stop and detain for investigative purposes. The ancillary power doctrine (which authorizes investigative detention) seems to only be expanding as the court continually uses it to justify new police powers in the absence of statutory authority. Yet, despite the court’s willingness to use the doctrine, it has yet to engage in a thorough discourse in its potential for abuse, particularly within racialized communities.
In conclusion, is investigative detention an inherently racist practice? Probably not. Does investigative detention have the potential for abuse? Definitely. Among other issues, the court has yet to engage in a meaningful dialogue and consideration of how racial biases can influence police practices, and what their role is in choosing to expand police powers through the ancillary doctrine.
1 James Stribopolous, “A Failed Experiment? Investigative Detention: Ten Years Later” (2003) 41:2 Alberta Law Review [Stribopolous].
2 R v Clayton, 2007 SCC 32 [Clayton].
3 R v Grant, 2009 SCC 32 [Grant].
4 Clayton, supra note 2.
5 Ibid at para 33.
6 Clayton, supra note 2 at para 9.
7 Clayton, supra note 2 at para 28
8 Clayton, supra note 2 at para 31.
9 Stribolplous, supra note 1 at page 342.