The Common Law, always concerned with preserving the sound administration of justice and the rights set out by the Canadian Charter of Rights (Charte canadienne des droits et libertés) and Freedoms, frames the investigative powers of the police.
When objective and subjective reasons support the conduct of an investigation, the law gives the police the power to make 'investigative detentions' and to perform 'frisk searches'. As the Supreme Court specifies:
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.[1]
Section 9 of the Charte states that 'everyone has the right to be protected against arbitrary detention or imprisonment.' Detention means the suspension of a person's right to freedom following constraint. An investigative detention must be brief. Either it quickly leads to an arrest or a release. If the detention exceeds a certain objectively reasonable time (which depends on the circumstances), it becomes illegal and arbitrary: When the police only have suspicions and cannot legally obtain other evidence, they must then leave the suspect alone, and not go ahead and obtain evidence in an illegal way.[2]
An investigative detention that does not respect Article 9 of the Charter will be considered arbitrary. Determining whether there has been a violation of this provision of the Charter involves two steps. First, it must be established whether the plaintiff was subject to any detention. Second, if so, it must be determined whether the detention was arbitrary.
In the Mann decision, the Supreme Court ruled that police officers can conduct preventive searches when they have reasonable grounds to suspect that a person is armed and dangerous. Thus, an investigative detention authorizes the police to conduct a 'search incidental to detention for security purposes.' However, if the search incidental to the detention is not focused on security considerations but rather aims at detecting and collecting evidence, it is abusive and violates the individual's rights regarding respect for their privacy (Article 8 of the Charter).
Police stops of motorists, carried out, for example, for license verification or sobriety checks, are constitutionally justified even if they resemble arbitrary detentions violating Article 9 of the Charter.
1.1. The Moment of Detention.
The question of whether and when there has been a detention is a question of law, subject to an objective assessment, which takes into account all the circumstances of the contact between the police and the individual. Detention requires physical or psychological constraint. Specifically, the Supreme Court ruled in the Grant decision that psychological detention by the police can occur in two ways: (1) when the plaintiff is legally required to comply with a police officer's order or demand, or (2) when the plaintiff is not legally required to comply with an order or demand, but a reasonable person in the same situation would feel compelled to do so:
After all, most citizens will not know exactly the limits imposed on the power of the police and may, depending on the circumstances, perceive a routine interaction with the police as obliging them to comply with any request..[3]
1.2. Determining the Arbitrary Nature of a Detention:
For a detention to be non-arbitrary, it 'must be judged reasonably necessary following an objective consideration of all the circumstances that underlie the officer's belief that there is a clear link between the individual who will be detained and a recent or ongoing criminal offense'[4]. The relevant question to ask in the context of an investigative detention is: do the facts indicate, objectively, the possibility of criminal behavior given all the circumstances? If the answer is no, the detention is illegal. The standard of reasonable suspicion is specifically designed to prevent blind and discriminatory police conduct. It is imperative that investigative detention be based on factual elements that can be presented in evidence and subjected to independent judicial assessment:
L’exigence de soupçons raisonnables fondés sur des faits objectivement discernables permet un examen judiciaire ultérieur et protège contre l’action arbitraire de l’État. Selon le cadre établi dans l’arrêt Collins, le ministère public a le fardeau de prouver que les faits objectifs font naître des soupçons raisonnables, de sorte qu’une personne raisonnable à la place du policier aurait soupçonné raisonnablement la tenue d’une activité criminelle.
[...]
La formation et l’expérience du policier peuvent fournir un fondement expérientiel, plutôt qu’empirique, aux soupçons raisonnables. Toutefois, il ne s’ensuit pas que l’intuition fondée sur l’expérience du policier suffira ou que le point de vue de ce dernier sur les circonstances commandera la déférence (voir Payette, par. 25). Une supposition éclairée ne saurait supplanter l’examen rigoureux et indépendant qu’exige la norme des soupçons raisonnables[5].
As the Supreme Court reiterates in the recent case R. v. Ahmad, 2020, objective reasonable suspicion ensures judicial control of police conduct:
This standard requires the police to disclose the basis for their belief and to show that they had legitimate reasons related to criminality for targeting an individual or the people associated with a location (K. Roach, “Entrapment and Equality in Terrorism Prosecutions: A Comparative Examination of North American and European Approaches” (2011), 80 Miss. L.J. 1455, at pp. 1472-73; Ashworth, at pp. 304-5). An objective standard like reasonable suspicion allows for exacting curial scrutiny of police conduct for conformance to the .[Canadian Charter of Rights and Freedoms and society’s sense of decency, justice, and fair play because it requires objectively discernible facts. As is the case with warrantless searches, “the trial judge [must be] . . . in a position to ascertain [these objective facts], and not bound by the personal conclusions of the officer who conducted the [investigation]” (P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 126 (emphasis added)). This is essential to upholding the rule of law and preventing the state from arbitrarily infringing individuals’ privacy interests and personal freedoms (Chehil, at para. 45)[6].
The standard of reasonable suspicion requires an assessment of all the circumstances, incriminating and exculpatory, to determine whether there are objectively discernible grounds for suspecting that a person is engaging in criminal activity. In assessing the circumstances surrounding the detention, the court should not evaluate the contextual factors individually, but rather as a whole.
The obligation of police officers to inform a person of their right to assistance of counsel guaranteed by Article 10b) of the Charter applies from the beginning of an investigative detention. 1.3. Consequence of an Investigative Detention Not Justified by Reasonable Suspicion
If a judge concludes that an investigative detention was not previously justified by reasonable suspicion as required by the Constitution, the court will generally want to distance itself from the offending conduct of the state, and the application of the three prongs of the analysis required by Article 24(2) of the Charter may lead to the exclusion of evidence collected by the police (including incriminating statements made to the police), which in practice can often lead to acquittals.
1.4 Considerations Accessory to Investigative Detention
In 2009, the Supreme Court of Canada concluded that the decision to use a sniffer dog to conduct a search satisfies the same criteria justifying an investigative detention. In both cases, the police must have reasonable suspicion, based on objectively discernible facts, that evidence establishing the commission of an offense will be discovered.
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[1] R. c. Mann, 2004 CSC 52, paragr. 35. [2] R. c. Kokesch, [1990] 3 R.C.S. 3
[3] R. c. Le, 2019 CSC 34, paragr. 26.
[4] R. c. Mann, supra, note 1, paragr. 35
[5] R. c. Chehil, 2013 CSC 49, paragr. 45 à 47.
[6] R. c. Ahmad, 2020 CSC 11, paragr. 24.
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