C. Common Law Powers of Detention
| Author | Steve Coughlan - Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan |
| Pages | 124-144 |
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For a long time, there was a phrase in law-enforcement parlance that the law ignored. In various contexts, police were often heard to say that a given individual was a "person of interest" in their investigation. Until about the year 2000, the law had steadfastly been of the view that a citizen on the street had "the right to be let alone" and that, unless the police had "reasonable and probable grounds" to arrest an individual, they had no power to stop, question or search that person unless and until the individual voluntarily agreed to stop and subject him or herself to police interrogatories. On the other hand, in an influential 1991 article, Professor Alan Young argued:
It is naive to believe that the state will restrict itself only to such non-invasive investigative procedures until such time as it acquires the requisite grounds to effect a proper arrest. Of necessity, the state
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will employ liberty-restraining practices of low visibility that manage to escape public and judicial scrutiny. In particular, the practice of brief investigative detention is carried out on a daily basis with little or no accountability. The police power to restrain liberty when the requisite grounds to effect an arrest are lacking is not a power that is recognized or accepted in the common law world; however, investigative detention is part and parcel of the routine activities of all police forces.97The realization that such steps were a routine practice for police in Canada prompted Canadian courts to focus their attention on the issue. It was the Ontario Court of Appeal that first recognized the power for a "brief investigatory detention." In Simpson,98that court saw a need for the common law to recognize such a power, short of arrest, a power the U.S. Supreme Court had recognized in its 1963 decision in Terry v. Ohio99(which became known south of the border as the "stop and frisk" power). Ten years after Simpson, the Supreme Court of Canada also decided that it was time to begin to regulate an activity that the law had for too long ignored. One possibility open to them, in the face of police acting in the absence of any power, was to find the practice in violation of the Charter and put a stop to it. In fact, the Court took the opposite approach and created a power authorizing what the police were doing, though within some limits. In Mann the Court, for the first time, recognized and attempted to delineate this common law power to detain on less than a reasonable belief in criminal offending.100
The 2004 decision in Mann represented a major step in the creation of police powers at common law, a step not yet fully understood nor fully clarified. The Waterfield test for the creation of common law powers was once again invoked by the Court as it took a major step in the creation of police powers, seemingly on the basis that Parliament was not interested and, with a sort of reverse logic, that the Court needed to start regulating actions that are occurring with or without parliamentary action. How far the Court went, though, remains an area of confusion and disagreement among the various appeal court justices across the country.
In Mann, two police officers received a radio dispatch about a break and enter in progress. They were given a description of the suspect, in-
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cluding approximate height, weight, and age, his name, and a description of his clothing; he was also identified as Aboriginal. As the officers approached the scene of the reported crime, they observed the accused walking casually away. They stopped him and asked him to identify himself, in response to which he gave his name and date of birth. The officers then performed a pat-down search of his person. The accused was not connected with the break and enter, but in the course of the pat-down search one officer felt a soft object in his pocket and reached inside. The accused was found to be in possession of narcotics and was arrested for that offence. He argued that there had been a violation of his Charter rights: specifically, that the police had violated his section 9 right to be free from arbitrary detention by stopping him without any power to do so, and his section 8 right to be protected against arbitrary search and seizure.
Justice Frank Iacobucci, for the majority, suggested that the Court should not "recognize a general power of detention for investigative purposes"; instead, its "duty is to lay down the common law governing police powers of investigative detention in the particular context of this case."101Nonetheless, the majority did indeed go on to recognize that these officers had the power to detain Mann in the circumstances.102As
noted above, the majority seemed of the view that the common law had an obligation to regulate this area; they noted that "the unregulated use of investigative detentions in policing, their uncertain legal status, and the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons why the Court must exercise its custodial role."103In their judgment, the majority almost presupposes the existence of the power to detain in appropriate circumstances on this basis. Indeed, the major part of the judgment is focused on the limits of the power in question. Justice Iacobucci says:
Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest.104
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The Court acknowledges the American approach and the Ontario Court of Appeal’s decision in Simpson that adopted "articulable cause" as a standard less than the reasonable grounds needed for an arrest. On the other hand, the majority in Mann is not satisfied either with the phrase articulable cause or with its common synonym, "reasonable suspicion," but rather is of the view that a better formulation would be "reasonable grounds to detain":
The caselaw raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions 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 officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.105It is necessary to "unpack" the above quotation to determine what the Court was trying to say. By using the phrase "reasonable grounds to detain," the majority seemed to want to stress the stringency of the standard that they intend to employ. On the other hand, they acknowledge that the standard in question is less than reasonable grounds to believe and indeed can be seen as a standard of suspicion. We will discuss this requirement in Section C(1)(a) below. Further, the majority says that the suspicion must be of a recent or ongoing criminal offence. This requirement ought to operate to help keep the power confined within some limits, a point that is discussed in Section C(1)(b) below. In Mann itself, the information available to the officers was that there was an ongoing break and enter at a nearby business premise. Lastly, the majority states that the detention must, in all the circumstances, be "necessary" to the performance of the officer’s duty. This latter requirement seems to require an objective assessment that the detention in the
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circumstances was justifiable as a limit on the suspect’s right to be let alone. This will be discussed in Section C(1)(c) below.
As noted above, the Court in Mann adopted the phrase "reasonable grounds to detain" as the appropriate standard for an investigative detention. It appears that this language was chosen to stress that a multi-factorial approach is necessary to make the decision.
"Reasonable grounds to detain" were intended to include "reasonable suspicion," which appears to be the same standard as Simpson’s "articulable cause." On the other hand, it also appears, based on the majority’s judgment in Mann, that reasonable suspicion alone is not sufficient to allow a valid Mann detention. The majority held that the suspicion must be that the accused has a "nexus" to a recent or ongoing criminal offence and that the detention be "necessary" in the circumstances. One therefore needs to be somewhat careful in simply following cases on reasonable suspicion from other contexts, like the sniffer-dog cases106and those cases involving the assessment of the grounds under section 254 of the Criminal Code relating to roadside breath testing...
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