• Lewis Waring

Life, Liberty, and the Pursuit Against Arbitrary Detention - Dustin Seguin

When can the police stop you from your day-to-day activities and subject you to detention? If this occurs, what type of search can you be subjected to? How have new drugs and Covid-19 impacted your ability to remain free from arbitrary detention? In this BLAWG, I will provide an analysis to these questions by using research conducted from the book Privacy in Peril (2019) and online media sources. I will also extend an opinion on how the Supreme Court of Canada (“the Court”) has gone too far in providing police with detention powers.

The Beginning of the End

Section 9 of the Canadian Charter of Rights and Freedoms (“the Charter”) guarantees the right against arbitrary detention or imprisonment. In the case of R v Waterfield (“Waterfield”), British Courts identified that the police are required to act “according to their common law duties” and that it must be determined that police were not unlawfully interfering with an individual’s “liberty or property”. If police are interfering, it is necessary to determine whether

  • such conduct falls within the general scope of any duty imposed by statute or recognized at common law; and

  • such conduct... involved an unjustifiable use of powers associated with the duty.”

Waterfield was incorporated into Canadian common law in 1974 to justify an obstruction of peace officer charge and has since been used to expand warrantless search powers.

The Court applied the second portion of the test from Waterfield (“the Waterfield test”) in R v Dedman (“Dedman”) to expand the police power to stop motorists with the intention of discovering impaired drivers. A “reasonable interference” was used by the Court to justify the decision. However, the dissent in Dedman, written by Dickson CJC, provided a different perspective. Dickson CJC wrote that “(t)he fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends”. He also warned that it was not the intended purpose of the Court to generate police powers; rather, that this should be left to the legislative authorities. By the Court permitting itself to become the “originating locus of police powers” and allowing police to breach the liberty of individuals on the “basis that it is reasonably necessary to carry out general police duties”, individual protection is eroded.

R v Mann

The case of R v Mann (2004) (“Mann”), further demonstrated how police powers could be developed by the Court under common law authority. In Mann, Mr. Mann was stopped by police while walking down a sidewalk as he matched the description of a suspect for a recent break and enter in the area. The police conducted a search while Mr. Mann was under investigative detention; they located a soft small bag of marijuana in his pocket. The Court reasoned that, if “reasonable grounds to detain” could be proved based on the totality of the circumstances, then a search could be conducted for weapons. Mr. Mann was ultimately acquitted as the Court opined that the removal of a soft object from his pocket could not be justified; soft objects, at the time, were not considered to be potentially dangerous.

New Drugs Could Mean New Rules

The police can lawfully search a person under investigative detention for officer safety or the safety of the public. In Mann, the removal o