Investigative Powers: Detention and Arrest Flashcards
ch 3 (31 cards)
Detention Powers
s. 31Breach of the Peace
– not for an offence
– deliberately vague and undefined?
Non-criminal Detention Powers:
– Intoxicated in Public (prov. Liquor laws)
– Mental Health Act
– Other statutory powers
Common law powers of detention
Detention pre-1990:
R v Dedman (1981)
Although a police officer is entitled to question any person in
order to obtain information with respect to a suspected offence, he has no lawful power to
compel the person questioned to answer. Moreover, a police officer has no right to detain a
person for questioning or for further investigation
Charter Issues:
s. 9: arbitrariness
s. 10: rights on arrest or detention –
triggered by arrest or detention
What is arbitrary?
R v Grant (2009)(SCC)
-Exclusion of evidence
-Also addresses meaning of “detention”
-Unlawful detention is necessarily arbitrary only when unvalid
Police stop young man and question him
– Nature of the questioning focuses on
incrimination
– Power imbalance (youth and inexperience)
Full court finds a detention
Majority sets a test that focuses on claimant’s
perception of psychological pressure, albeit in
an objectified form
Some key factors (summary: para. 44)
– Focused suspicion
– Nature of interaction; nature of the language; length
of encounter; place; presence of others; physical
contact (holding an arm)
– Age; stature; minority status; sophistication
R v Grant (2009)(SCC)
1.Detention under s. 9 and 10 of the Charter
refers to a suspension of the individual’s liberty
interest by a significant physical or psychological
restraint.
- Psychological detention: a legal obligation to comply with the restrictive request or demand, or a reasonable person would say reason of the state conduct had
no choice but to comply
- It may not be
clear whether a person has been
detained if no physical or legal restraint.
- Test for reasonable person in the individual’s
circumstances would say that they had been deprived by the state of the liberty of choice, the court may consider,
inter alia, the following factors:
(a) The circumstances, reasonably be perceived by the individual: whether the police gave general assistance; maintaining general order;
making general inquiries regarding a particular occurrence; or,
singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language, physical contact, place of interaction, other ppl, duration of encounter
(c) The particular characteristics or circumstances of the
individual where relevant, age; physical stature; gender;
minority status; level of sophistication
R. v. Suberu (2009)(SCC)
“…he did this, not me, so I guess I can
go.”
“wait a minute, I need to talk to you before
you go anywhere.”
Held: merely a preliminary or exploratory
line of questioning – no detention under
the Grant criteria
…the fact that a person is delayed by the
police is insufficient to ground a
reasonable conclusion that he or she was
not free to go, or that he or she was bound
to comply with the officer’s request for
information…
Detention from Grant (2009) and Le (2019)
Encounter: the circumstances gave rise to encounter, objective? identify someone? maintain order?
Police Conduct: What was the nature of the police action? how many and how they talk to you
Individual: circumstances of the person affects how you interact, could be unreasonable
Arrest/Detention
Constitutional Minimum Standards
– R v Hufsky (1988)(SCC)
random spot check at a fixed location
– R v Ladouceur (1990)(SCC)
roving random stops
– R v Mellenthin (1992)(SCC)
questioning drivers absent police suspicion
R v Mann (2004)(S.C.C.)
-A significant investigative detention case.
Employs the ancillary powers doctrine.
Detention for the purposes of investigation
prior to arrest is permissible as long as the
officer has “reasonable grounds to detain.”
-Objectivly reasonably necessary on the
totality of the circumstances, informing the officer’s suspicion that there is a connection to person being detained and a recent or ongoing criminal offence
-The detention must be brief and there is
no obligation to answer questions.
-A power to do a pat-down search may
exist incidental to the power to detain, but can’t go through pockets.
The officer must believe on reasonable grounds that their safety and others is at risk: a “protectivesearch.”
R v McKenzie (2013)(SCC)
Highway traffic stop.
Involved use of a police dog to sniff for drugs.
Court analyzed the stop and detention
separately from the use of the dog.
Sniff search not incident to investigative
detention (like in Mann), but treated as a
separate incident.
Why?
R v Clayton (2007)(S.C.C.):
Roadblock Detentions
911 call reported that black men had guns in car which left the area identified by the 911
caller and drove towards the exit. It was not one of the four
cars referred to by the 911 caller.
Officers stopped the car, observing that the occupants were
black males.
Officers told the driver there had been a gun complaint,
Other officer approached the passenger and began
questioning him.
– gave strange and evasive answers
– stared straight ahead, avoiding eye contact.
– wearing gloves even though it was not “glove
weather”.
-Officer put his hand on C’s shoulder to direct him to the back of the car, but ran away
-He was searched and found a loaded, prohibited handgun in his pocket. The driver
was searched and a loaded prohibited handgun was
found under his jacket.
-had subjective and objective grounds to search the accused.
R v Aucoin (2012)(SCC)
A stopped by police for plates not
matching vehicle, wanted to ticket and impound car.
Fearing A would meld into the crowd, he
was given a pat down search and placed
in the police cruiser
-Drug evidence found in the search
-issue: whether detaining A in this
manner was reasonably necessary in the
totality of the circumstances?
A problem arises from the shift in the
nature and extent of A’s detention that
flowed from the police officer’s decision to
secure A in the rear of his cruiser while he
wrote up the ticket for the motor vehicle
infractions.
-Those factors altered the nature and extent of
A’s detention in a fairly dramatic way,
especially when one considers that the
infractions for which he was being detained
consisted of two minor motor vehicle
infractions.
Were there other reasonable means by which
the officer could have addressed his concern
about A disappearing into the crowd?
-The officer’s actions, though carried out in
good faith, were not reasonably necessary.
Because A’s detention in the back of the
cruiser would have been unlawful, it cannot
constitute the requisite basis in law to
authorize the warrantless pat‑down search.
BUT…. Evidence admitted
R v Le, 2019 SCC 34
Expands on the Grant test for detention
Three (non-exhaustive) factors
– 1. Circumstances giving rise to the encounter.
Failure to give reasons for entering property and
questioning. Reasonableness assessment.
– 2. Conduct of the police. Entered property as
trespassers. Took control right away.
– 3. Particular characteristics or circumstances of
the individual. Looks at historic and social context
of race relations.
Non arbitrary detention if…
- It was authorized by law.
- The authorizing law was not arbitrary.
- The manner in which the law was carried out
was reasonable. (R v Le (2019))
Police/state detention based on racial
profiling will support a finding that detention
was arbitrary
R v Lafrance, 2022 SCC 32
Police suspected Lafrance of killing a drug
dealer, executed a search warrant at his
home, was eventuallyreleased but arrested three weeks later and questioned again, confessing to the killing
Right to counsel issues were addressed
issue: whether he was detained on the day of the search did they have warrant execution
The court split 5:4 on whether he was
detained
Majority relies on the test set out in Grant
and Le.
Terry v Ohio (1968)(USSC)
(dissent)
We hold today that the
police have greater
authority to make a
‘seizure’ and conduct
a ‘search’ than a judge
has to authorize such
action. We have said
precisely the opposite
over and over again.”
(392 U.S. 1, at 37). …
-“To give the police greater power than a
magistrate is to take a long step down the
totalitarian path. Perhaps such a step is
desirable to cope with modern forms of
lawlessness. But if it is taken, it should be
the deliberate choice of the people through
a constitutional amendment.” (392 U.S. 1,
at 38)
R v Loewen, [2011] 2 SCR
Detecting the smell of “burnt marijuana”
emanating from a car stopped by the police
and finding the driver to possess over $5000 in
cash gives rise to grounds for arrest as having
been (or being?) in possession of drugs
The court found the officer had “reasonable
grounds to believe that the accused was in
possession of sufficient marijuana [over 30 g]
to constitute an indictable offence”
Racial Profiling
R v Brown (2003)(Ont CA)
“the attitude underlying racial profiling is one
that may be consciously or unconsciously held.
That is, the police officer need not be an overt
racist. His or her conduct may be based on
subconscious racial stereotyping.”
– See also: D. MacAlister “The Law Governing Racial
Profiling: Implications of Alternative Definitions of
the Situation” (2011) 53 Can. J. Criminology &
Crim. Justice 95-103
s. 494 Individual Arrest Powers
– finds committing an indictable offence
– other powers
s. 495 Peace Officer Arrest Powers
– extra powers beyond the individual?
Citizen’s Arrest and Self-defence Act
SC 2012, c 9
- (1) Subsection 494(2) of the Act is replaced by the
following:
(2) The owner or a person in lawful possession of property, or
a person authorized by the owner or by a person in lawful
possession of property, may arrest a person without a warrant
if they find them committing a criminal offence on or in relation
to that property and
(a) they make the arrest at that time; or
(b) they make the arrest within a reasonable time after the
offence is committed and they believe on reasonable
grounds that it is not feasible in the circumstances for a
peace officer to make the arrest
s. 495
(1) reasonable grounds to believe:
– past and future indictable offences
– Also: finds committing: summary conviction
– warrant (somewhere)
(2) no arrest for:
– summary, hybrid, 553, unless:
– public interest requires it (likely to fail to
appear; need to identify; secure/preserve
evidence; prevent reoffence - F.I.S.P.)
R v Storrey (1990)(SCC)
Cory J. discusses r+p grounds:
– police officer must believe has the
grounds to arrest, PLUS
– a reasonable person standing in the shoes
would have believed the grounds existed
– BUT, need not amount to a prima facie case
for conviction
Arrest (cont.)
Reasonable grounds to arrest: must show
1. honest, subjective belief that suspect made offence and,
2. reasonableness of the belief
warrantless arrests (Criminal Code):
citizen’s arrest (s. 494)
arrest by peace officer (s. 494 (1))
