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“Where is the Framework?”: A Criticism of Investigative Detention in Canada - Robert Johnstone

Investigative detention has consistently proved troubling for Canadian courts when attempting to regulate and contain its idiosyncratic applicability. Founded on the pre-existing power of detention and amongst the historic backdrop of American caselaw, it must be acknowledged that the deployment of this notion has been influential in evolving the relationship between police powers and individual liberty. Despite this, I submit that although its purpose has been successful in ensuring that police officers can fulfill their necessary duties, the principle’s confounding origins and lack of a restrained or fundamental framework has created the need for the courts to place further criterion on when resulting search powers are justified. Not only would this lead to better and more effective policing strategies, but it would also respect the inherent dignity and rights of the Canadian public.

The Origins of Investigative Detention: R. v. Simpson

In order to determine why the parameters of investigative detention should be refined, it is helpful to explore how this principle is intrinsically grounded. A good starting point is the decision of R. v. Simpson (Simpson) in 1993, which created drastic change for Canadian investigative detention practices in a multitude of ways. The facts of the case involved a police officer pulling over a suspected drug trafficker, who also indicated that he had previously been in trouble "for theft and a knife."[1] During the initial questioning, the officer noticed a bulge in Simpson’s pant pocket. He then proceeded to touch the pocket and felt a "hard lump."[2] This led him to reach inside and remove a bag containing cocaine. Simpson was subsequently arrested for the possession of a banned substance. [3]

On appeal, Simpson’s conviction and the collected evidence was dismissed based on a violation of section eight and nine Charter rights.[4] The Ontario Court of Appeal concluded in this case that for investigative detention and the ancillary power of a frisk search to be deemed lawful, the officer must have "articulable cause" for the detention. This term includes the utilization of several objectively discernible facts which give the officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.[5] The Supreme Court would later state that they preferred the term “reasonable grounds to detain” rather than “articulable cause,” on the basis that it had inherent connections to Canadian sources.[6] However, due to the result of the appeal, Simpson failed to give a definitive test for the determination of lawful investigative detention. The Court of Appeal had rejected the officer’s expressed intention to detain based solely on suspicion, which was certainly justified in my view. Would the subjective standard of officer suspicion always be enough to balance the totality of rights inherent to Canadians in various circumstances? I have serious doubts. However, another case was approaching that would lead to further development of the principle.

The Next Step: R. v. Mann

R. v. Mann (Mann) is now regarded as the landmark case for investigative detention in Canada, but it is also influential because of its demonstration of other necessary requirements for incidental pat-down searches. In the case, Winnipeg police officers received a radio dispatch message detailing a break and enter in progress.[7] The suspect was described as a 21-year-old Aboriginal male with the name of Zachary Parisienne.[8] As the officers approached the scene of the reported crime, they observed an individual walking along the sidewalk. The police would later testify that the individual matched the description of the suspect "to the tee."[9] The officers stopped the individual, who declared himself as Philip Mann and complied with a pat-down search. Mann was wearing a pullover sweater with a pouch pocket in the front. During the search, one officer felt a soft object in this pocket. The officer then reached into the pocket and found a plastic bag containing a large quantity of marijuana.[10]

Key Investigative Detention and Search Power Developments from Mann:

  • Verified the standard to detain: “an officer must have reasonable and probable grounds to believe an offence has been committed”[11]

  • Purpose of a search: the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk prior to search.[12]

  • Reasonable suspicion cannot be based merely on a hunch or intuition of the officer.[13]

  • The duration and nature of an investigative detention must relate to the purposes for which the detention was held.[14] This includes concerns regarding officer safety or relating to the complexity of the investigation.

In the context of Mann, there was reasonable grounds for a protective search of the individual. This was founded on the logical possibility that Mann, suspected on reasonable grounds of having recently committed a break-and-enter, was in possession of break-and-enter tools, which could be used as potential weapons.[15] Mann was later acquitted on the basis of the officer’s search of the inner pocket outweighing any reasonable basis for justifying officer safety regarding a soft object, despite a pat-down search itself remaining minimally intrusive. Further, the Court acknowledged that Mann had a reasonable expectation of privacy in his pockets, which was unnecessarily violated by the officer looking for tools.[16] Evidently, the search of the pocket in this instance went beyond what was required to mitigate concerns about officer safety and reflects a breach of the individual’s protection against unreasonable search and seizure.

There is no question that this decision provides a basic formalization to the deployment of investigative detention and any resulting search powers, but is it sufficient in protecting an individual’s privacy? Not quite. The necessary means to avoiding initial and subjective profiling from figures of authority are still missing. It is also more likely that if the standards for investigative searches to ensure “officer safety” are justified too broadly, then it can inflict a larger quantity of unwarranted privacy violations. This was demonstrated by the Court in Mann, where the correct conclusion was achieved by dismissing both the evidence and charge of possession for the purpose of drug trafficking. It is unreasonable to conclude that a “soft” bag in the front of a sweater pocket should be rationally connected to any sort of potentially dangerous break and enter tool. The policeman in this context had no justifiable right to reach for the bag after the frisk. However, officers must have the right to feel safe, and if an incidental pat-down search is how that can be achieved, then it should be pursued to a reasonable degree. To find an appropriate balance, we must continue to hold Mann’s validation of the purpose of a search to a higher standard in order to avoid any further violations to personal privacy.

Further Issues: What are the Ramifications?

Iacobucci J. of the Supreme Court once stated that law officials do not have a “carte blanche” to detain and search.[17] While this statement might be true on a fundamental basis, the lack of a decisive framework troubles the applicable limits of investigative detention. In R. v. Clayton (Clayton), the reproving dissent claimed that the current Waterfield test was inappropriate for the expansion of police powers.[18] Privacy issues that had plagued the Hunter-Southam decision were used to justify the demand for a “more principled Charter-based analysis.”[19] Importantly, they noted how the courts needed to address the impact on everyday citizens that were in no way connected to the criminal matter, which was exemplified to the fullest extent in Mann. It is clear that “individuals going about their ordinary business… should not have their way blocked by the police and be required to account for themselves unless there exists a Charter-proof legal authority for the detention.”[20]

Since the Mann decision, critics have voiced concern over “the existence of the objective component, the judicial creation of a police power to detain for investigative purposes on a low-level standard of belief holds implications for racial profiling or at least a disproportionate impact on visible minorities.”[21] Objectiveness held with a low standard for deployment can be a recipe for injustice. Racial profiling is an issue propagated on select officers making inappropriate decisions, which could be abused rather easily through the current investigative process or any stage of detention. A study from Kingston, Ontario demonstrated that visible minorities “were three times more likely to be arrested or detained than their white counterparts.”[22] Further, it is relevant to look at the four detainees of the three cases discussed. In Simpson and Clayton, all three individuals were black males, while Philip Mann was Indigenous.[23] Racial profiling is especially notable in certain communities, where stereotypes can influence pre-existing officer belief and apply inappropriately to the subjective standards of the detainment. In essence, the neglection of investigative detention’s foundational standards has created a potential vacuum for exploitation. Unfortunately, a common outcome is that “ambiguity in rules of constraint does more to encourage certain behaviors than to discourage them, eventually leading to an abuse of police powers.”[24]

Possible Solutions: A Difficult Task…

Since the developments of Mann and the verification of Clayton, very few changes have occurred regarding the framework of investigative detention in Canada. The courts appear content to deploy a “wait and see” policy and watch developments unfold.[25] Do I have the answers to solve the enigmatic framework? Besides the hope of addressing the issues previously discussed, the answer is unfortunately no. It is a complex, fundamental problem with many caveats involving officer safety and individual privacy. In due time, another investigative detention case will approach the Supreme Court docket. This will be the awaited opportunity for the Court to address the practical application of search powers and the ambiguous developments of Mann. Until then, the principle of investigative detention will remain in full effect as it currently stands.

[1] R v Simpson, (1993) 12 OR (3d) 182, 79 CCC (3d) 482 (C.A.) [Simpson]. [2] Ibid. [3] Bianca Pietracupa, “Investigative detention in Canada” (2014) 1:1 RJUEL at 15. [4] Ibid. [5] R v Mann 2004 SCC 52, [Mann] at para 58. [6] Richard Jochelson & David Ireland, Privacy in Peril: Hunter v Southam and the Drift from Reasonable Search Protections, (Vancouver: UBC Press, 2019) at 86. [7] Supra note 5 at para 1. [8] Ibid at para 4. [9] Ibid at para 5. [10] Ibid. [11] Ibid at para 34. [12] Ibid at para 40. [13] Ibid at para 35. [14] R v McGuffie, 2016 ONCA 365 at para 38 [McGuffie]. [15] Supra note 5 at para 48. [16] Ibid at para 56. [17] Ibid at para 35. [18] Supra note 6 at 91. [19] Ibid. [20] Ibid. [21] J Stribopoulos, “The Limits of Judicially Created Police Powers: Investigative Detention After Mann” (2007) 52 Crim LQ 299 at 304. [22] Supra note 3 at 25. [23] Ibid. [24] Ibid. [25] Ibid at 24.

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