This forum is not purely dedicated to legal discourse. While I may attempt to 'raise the bar' with some pieces relating to law and being a criminal defense lawyer in Toronto, I also plan to use this blog as a medium to express my often critical thoughts on the daily grind that is life. Throw in some random videos and internet fodder, and the bar is sure to be lowered.

Wednesday, 14 September 2011

Investigative Detention - Ambiguity, Abuse and A Call for Reform - Part 1 of 5

     A central tenet of the rule of law known as the “principle of legality” demands that “every official act must be justified by law.”[1]  Respecting this principle, the Anglo-Canadian common law has long required that any interference with individual liberty be based on lawful authority.  A person’s right to liberty is presumed, as restraints on freedom are viewed as the exception and not the rule.[2]  However, infringement on civil liberty is justified when the state is required to effectively deal with acts of criminality.  Consequently, the state invokes its power to detain individuals via its social order agents, the police.[3]  The power to detain individuals is arguably the most invasive power the Canadian state possesses.  Accordingly, abuses of such power shatter the tenuous sense of freedom and autonomy that we espouse in a liberal democracy.
     Historically, first at common law and later through legislation [4], police officers have had the authority to interfere with an individual’s liberty by effecting a lawful arrest, provided that the officer possessed the requisite reasonable grounds.[5]  Absent these grounds, the police lacked the power to interfere with an individual’s free movement.  As certain forms of detention, such as pre-conviction arrest and post-conviction imprisonment, have gained acceptance and legitimacy, they do not exhaust the coercive arsenal of the state.  Although the Canadian state, by design or fortuity, has not been plagued by state-sponsored abduction or dragnet detention of political dissidents, the state does possess an additional mechanism for wide-scale detention.[6]  
     In the name of law enforcement, the common law has recently widened the powers of the police to restrict and suspend the liberty of individuals via power of investigative detention.  In short, this practice is an effective seizure of an individual’s civil liberties by the police for investigative purposes where an officer has reasonable grounds to suspect that the individual could be connected to a crime.  This standard is to be contrasted with the standard required for an officially sanctioned arrest; reasonable grounds to believe that an individual has committed a crime.  
      It is the contention of this paper that this judicially crafted authority, while beneficial to the police as agents of social control, is wrought with contextual ambiguities, provides insufficient direction and raises more questions than answers.  In particular, confusion over the prescribed standards and the scope of police authority surrounding use of force, length of detention, and search authority presents difficulties for both the police and public alike.  The result has been an irreconcilable blurring of the line between investigative detentions and those encounters historically characterized as arrests, while expanding and further legitimizing police authority.  
      Additionally, the investigative detention experiment holds larger lessons about the dangers inherent in the widening of the discretionary power of the police.  This is especially troubling in the context of the restraint of civil liberties based on judicially imposed standards that are less demanding than those provided by the elected legislature.  These dangers are manifested through an increased potential for abusive practices which, with a broadening discretionary authority, can serve to act as a discriminatory instrument.  The resulting perversion is unlikely to be used as much against the economically favoured or powerful as against the disadvantaged.  
     Finally, I will recognize the inherent inadequacies involved in the common law’s attempt to manage this detention authority given the court’s reactionary role in legal discourse and the relatively low visibility involved in most applications of investigative detention.  Effectively, a call will be made for Parliament to properly adopt its role by enacting appropriate legislation, designed to more effectively regulate this obscure and ambiguous police practice.

[1] P. W. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1997).
[2] J. Stribopoulos, "A Failed Experiment? Investigative Detention: Ten Years Later" (2003) 41 Alta. L. Rev. 335.
[3] Ibid. 
[4] s. 495. Criminal Code, R.S.C. 1985, c. C-46. 
[5] Stribopoulos, supra.
[6] A. Young, “All Along the Watchtower: Arbitrary Detention and the Police Function” (1991) 29 Osgoode Hall L. J. 329

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