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.

Sunday, 25 September 2011

Investigative Detention - Ambiguity, Abuse and A Call for Reform - Part 3 of 5

More Questions Than Answers – Ambiguity and Uncertainty

     While both the Court of Appeal and the Supreme Court of Canada employed a typically reasoned approach in an attempt to balance civil liberties with effective policing practice, their decisions, when viewed as a whole, have left an indelible cloud of ambiguity, creating confusion when considered alongside the reality of police-citizen interaction.  In an occupation already plagued by a complex series of uncertainties,[1] the common law’s bestowing of an additional ambiguous detention authority is highly problematic, especially in light of the Constitutional protections afforded to citizens in a liberal democratic state.

1) Reasonable Grounds, Articulable Cause, Reasonable Suspicion          
     To begin with, the legal standard already in place that an officer is required to meet to effect a lawful arrest (reasonable grounds), although articulated by legislative enactment, provides minimal guidance to police.  This inexact standard can result in honest police mistakes, or worse, it may serve to mask the misuse or even the abuse of police arrest powers.  Moreover, as discussed above, Canadian jurisprudence has exacerbated this existing uncertainty by using a variety of terms meant to capture the elusive concept of what is sufficient to authorize the police to detain a person for investigation.  Terms like “articulable cause” and “reasonable suspicion” may be the threshold criterion for legitimate state intrusion, but they are standards that defy rational evaluation.[2] The terms are far from self-defining; they fall short of providing clear guidance dispositive of the myriad of factual situations that can arise.

"The expression articulable cause, no doubt, comprises something more than mere surmise, but determining with any useful measure of precision what it means beyond that poses intractable problems both for the police and the courts."[3]

     In the clinical confines of a courtroom, viewed calmly through the dispassionate lens of the trial process and with the benefit of hindsight, the options available to a police officer can seem deceptively clear.  Conversely, in the field, where the vast majority of these interactions occur, the distinction between mere suspicion and the reasonable and probable grounds needed for an arrest can be meaningless.  As events unfold quickly on the street, there may be little opportunity for self-reflection when making a decision and the idea that police officers readily distinguish between suspicion and the reasonable and probable grounds has not been borne out by experience.[4]  The establishment of abstract standards of evaluation does little to assist the beat officer in determining the legitimate point of intrusion.[5]            
     Furthermore, the essence of these judgments is that the totality of the circumstances - the whole picture - must be taken into account.[6]  Of course, simply telling the police to take the “totality of circumstances” into account or to make sure they possess a “constellation of objectively discernible facts” does little to make up for the inherent uncertainty of the detention standard.            
     Even more troubling, however, is the possible effect that such an ambiguous standard can have on the behaviour of some police officers.  Whenever rules of constraint are ambiguous, they strengthen the very conduct they are intended to restrain.[7]  Thus, the police officer already committed to the notion of law as an instrument of order rather than as an end in itself is likely to utilize the ambiguity of the rules of restraint as a justification for testing or even violating them.[8]  Quite simply, the same officer who is inclined to stop individuals unjustifiably is also likely to use malleable legal standards like “articulable cause” or “reasonable suspicion” as a cloak.  For such an officer, the standard will serve as a pliable measurement against which to construct reasons justifying those groundless investigatory stops that happen to yield evidence and which may need to be defended in court as a result.[9]           
     These vague and confusing ideas can also present real conceptual difficulties for private citizens.  The principle of legality is closely related to the rule of law and to its requirement of fair notice - the notion that individuals should know in advance what the law demands so that they can comply with it.[10]  Undoubtedly, the Canadian public, without the benefit of police or legal training, will be left in an even more dubious position when confronted by an officer intent on detaining them on a standard based on less than that required for a lawful arrest.  How should they respond?  Do they have to answer questions?  What are the repercussions of non-compliance?  Are they able to consult with legal counsel pursuant to section 10(b) of the Charter?[11]  It is highly unlikely that the average citizen could speak to these issues intelligently given their lack of legal knowledge.

2) Use of Force          
     Section 25 (l) of the Criminal Code authorizes a police officer to “use as much force as is necessary” in carrying out an arrest.[12]  For our purposes, it is important only to recognize that these provisions provide legislative direction vis-à-vis the allowable use of force by police in performing their duties.  But how much force is a police officer authorized to use to effect an investigative detention?  Minimal force?  Reasonable force?  Deadly force?  Neither the Simpson nor Mann decisions addressed the issue of the acceptable amount of force to be used on an individual who does not acquiesce to police authority in this context.  Although it has been suggested that section 25 might apply to investigative detentions,[13] subsection (1) only licenses the use of force by a police officer who “acts on reasonable grounds,” the more onerous standard historically associated with conventional arrests.  Therefore, absent legislative intervention, the force that can be used to effect an investigative stop will continue to be determined on a case-by-case basis.  This approach tends to legitimize the force actually used by police, while rarely supplying guidance about the outer limits of police authority.[14]  Moreover, citizens are generally uneducated about their rights or the scope of police powers, especially those created by the common law.  As a consequence, it should be no surprise that some suspects will flee or resist when faced with investigative detention.  Indeed, one can readily foresee an innocent person being far more apt to resist such a detention since she/he would be more resentful of the police intervention.[15]  It is disturbing then for the courts to uphold force as an adjunct to brief investigatory detentions, since a consequence of that additional power will undoubtedly be more “police-generated” offences, such as obstruction, resisting arrest, or assaulting a peace officer, committed when “innocent” citizens defy a perceived illegitimate state intrusion.

3) Length of the Detention
     Among the most vexing questions concerning investigative detention is: how long is too long?  At what point are the detainee’s rights protected by section 9 of the Charter?[16]  Although the judgment in Simpson suggested that investigative detentions should be kept “brief,” it did not set out any clear temporal limits.[17]  The ensuing Mann decision has done nothing to fill this lacuna in the law.[18]  Despite the cases being bereft of clear guidance on how much time might serve to transform an investigative detention into the sort of intrusive encounter that will be considered a conventional arrest, one supposes that the duration is intended to be slight in order to minimize the interference with personal liberty guaranteed by the Charter.  Ultimately, the detention should only be for as long as the officer requires it, to either substantiate or quell his/her suspicion.  However, the lack of temporal guidelines permits field officers to employ their own discretion in determining how much time elapses before an arrest or release is made.  The length of the detention becomes more easily justifiable and seemingly less significant when considered in the context of a detainee who is eventually arrested.  In contrast, for the “innocent” detainee, who is released from the detention unconditionally, each passing minute represents a further intrusion into his/her privacy and legal rights.  In most circumstances, it has been my experience as a police officer that these detentions are limited to anywhere from two to twenty minutes, depending on the complexity of the circumstances.  However, that has not always turned out to be the case.  For instance, in R. v. Dupuis,[19] the Court approved the detention by police of a group of people for over an hour.  Is an hour too long?  What about two hours?  Realizing that any actual temporal constraint will likely be an unfair arbitrary exercise, the lack of sufficient guidance still serves to muddy the already murky waters.

4) Search and Seizure          
     Lawful arrests carry with them certain incidental powers at common law.  Chief among these is the power to search incidental to arrest.  The Supreme Court of Canada held that a search incidental to arrest could be justified by a need to search for weapons or to preserve evidence. [20]  But is searching a person detained for investigation permitted?  If so, to what extent?  Is a cursory search permitted?  What about a full personal search?  The existence and scope of such a search power is far from settled.  The Simpson Court did not suggest that the power it was creating would carry with it the authority to search investigatory detainees.  However, the Mann Court proceeded to grant police considerable discretion in deciding when to conduct a more intrusive search:

"it would not be reasonable to place too rigid a restraint on a police officer’s right to ensure that the detainee has no weapon or other object with which he might cause harm to the police, himself or members of the public…so long as the court is satisfied that the search for weapons was conducted in good faith - and not as an excuse to search the detainee for evidence of a crime - the officer should be allowed some latitude.[21]"                                                                     
      Respecting a detainee’s rights means that the scope of any search power would have to be quite limited, permitting only a true “pat-down” designed solely to detect weapons.  Probing into and removing items from inside pockets would have to be restricted to those situations where the object felt, from an objective standpoint, could potentially be a weapon.  However, under the court’s deferential approach, a police officer’s plausible safety concerns are a sufficient basis for justifying a more probing search.  Since, as a practical matter, given that “anything hard in the accused’s pocket could be a weapon, and anything soft could be covering something hard”,[22] the decision serves to make intrusive personal searches a routine part of most investigative stops.  This represents a problem in reconciling reasonable privacy expectations with a protective search power if individual privacy interests are to be respected.  It is not unusual for the suspect’s section 8 Charter rights[23] to get lost in the shuffle to uphold a police officer’s right to safety.[24]  By not clearly characterizing the scope and nature of the investigative detention search authority, the decisions effectively invite pre-textual searches and overrun the innocent individual’s legitimate privacy interests.[25]
     It must be understood that the courts have an understandable tendency to continually expand particular rules to endorse certain police conduct that is being challenged in a given case.  After all, the case before the court is always one where charges stem from a search that actually yielded a weapon, contraband, or some other valuable evidence.  In such cases, it is difficult for a court to conclude, given the benefit of hindsight, that the decision to search or the level of intrusiveness was unreasonable.  All the same, the cumulative effect of these decisions is a blurring of any distinction between the type of search authority accompanying investigative stops and those historically associated with arrests.[26]            
     Police officers conducting investigative detentions necessarily come into close proximity with potentially dangerous suspects without being afforded any real guidance on the measures they can lawfully take to ensure their safety.  Of course, this does not mean that police officers are not searching detainees.  Rather, when police are not provided with explicit authority to deal effectively with the problems they encounter, they often unwittingly become “dirty workers, furtively doing what has to be done” [27] through the exercise of their discretion.  This is a direct result of a discretionary interpretation exercise that allows officers to make their own judgments absent established procedural limitations on their actions.  During this exercise, the lack of pre-determined boundaries leaves open a host of possibilities which are subject only to judicial review, most likely in the form of evidence admissibility.  This entire procedure assumes, however, that the primary goal of the police is to produce judicially acceptable evidence. Yet the goals of law enforcement are much broader than this: the prevention of crime, maintaining order, self-protection, and apprehension of criminals.[28]  In other words, successful prosecution is often only a subsidiary goal in many police actions.  While convictions stemming from an officer’s investigative work are important to his superiors, an officer is sometimes willing to quietly violate procedural rules in the name of the “higher” justification of reducing criminality.[29]  All this means that for at least some questionable police activity, the judicial exclusionary rule may not be an effective control of potential abuse.[30]

[1] Manning, supra.

[2] Young, supra.
[3] La Forest J in R. v. Landry (1986) 25 C.C.C. (3d) 1 (S.C.C.).
[4] Canada, Commission for Public Complaints Against the RCMP, Annual Report 1997-1998 (Ottawa: Minister of Public Works and Government Services Canada, 1999) (Chair: Shirley Heafey).
[5] Young, supra. 
[6] Stribopoulos, supra. 
[7] J. H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society (New York: Macmillan, 1994).  
[8] Ibid. 
[9] Stribopoulos, supra. 
[10] J. Stribopoulos, “In Search of Dialogue: The Supreme Court, Police Powers, and the Charter” (2005) 31 Queen’s L.J.   
[11] s. 10(b). Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982 (79): Everyone has the right on arrest or detention to retain and instruct counsel without delay. 
[12] s. 25 (1). Criminal Code, R.S.C. 1985, c. C-46. 
[13] S. Coughlan, "Police Detention for Questioning: A Proposal" (1985) 28 Crim. L.Q. 64 
[14] Stribopoulos 2003, supra. 
[15] T. Quigley, “Brief Investigatory Detentions: A Critique of R. v. Simpson” (2004) 41 Alta. L. Rev. 
[16] s. 9. Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982 (79): Everyone has the right not to be arbitrarily detained or imprisoned. 
[17] L. A. McCoy, "Liberty’s Last Stand? Tracing the Limits of Investigative Detention" (2002) 46 Crim. L.Q. 319. 
[18] Marin, supra.  
[19] R. v. Dupuis (1994), 162 A.R. 197 (C.A.).
[20] Cloutier v. Langlois (1990) 1 S.C.R. 158.
[21] R. v. Mann, supra. [22] S. Coughlan, "R. v. Mann: Annotation" (2003) 5 C.R. (6th) 306. 
[23] s. 8. Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982 (79): Everyone has the right to be secure against unreasonable search or seizure. 
[24] P. Sankoff, "Articulable Cause Based Searches Incident to Detention - This Cooke May Spoil the Broth" (2002) 2 C.R. (6th) 41.
[25] Stribopoulos 2003, supra.
[26] Ibid 
[27] G. L. Kelling & C. M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities (New York: Free Press, 1996).  
[28] Manning, supra.
[29] Strauss, supra.
[30] Ibid.

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