The Call for Reform
How, then, is it possible to cure the affliction of uncertainty and potential for abuse created by the common law’s recognition of investigative detention? This is an intriguing question, especially since the courts themselves have recognized the dubious character of judicial law reform in regulating expanded police authority.In a constitutional democracy such as ours it is the legislature, and not the courts, which has the major responsibility for law reform; and for any changes to the law, which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society.
Although the Court acknowledged that Parliament was free to legislate in this area, it explained the need for judicial intervention by noting that the unregulated use of investigative detentions, their uncertain legal status, and the potential for abuse inherent in such low-visibility exercises of discretionary power are all pressing reasons for the court to exercise its custodial role.
However, courts, unlike legislatures, are ill-suited to the task of creating the sort of comprehensive and prospective rules that are essential if police discretion is to be meaningfully structured and confined. In propounding common law rules, judges attempt to solve precise legal problems raised by the parties appearing before them derived from the narrow facts of a given case. Since, the development of the common law is quintessentially an after-the-fact type of reasoning, the courts are unable to lay out appropriate prospective procedural guidelines that might strive to effectively regulate the broad range of police investigative powers.
It is also important to remember that the courts usually grapple with the subject of police powers in cases involving individuals who are, in fact, “guilty.” In this context, enforcement of judicially-created rules typically depends on judicial censure, usually through the exclusion of evidence found on the accused. However, since the vast majority of unjustified stops do not result in the acquisition of any evidence, they do not lead to the laying of charges. Redress in cases where innocent individuals are unjustifiably detained is quite unlikely due to the low visibility of an investigative detention that results in no further legal consequence. Consequently, judicial regulation of investigative detention practices is incapable of addressing these low-visibility encounters. Finally, as the experience in the United States has shown, the development of police powers through the common law leads to unnecessary and excessive complexity in the law.
Effective regulation of police detention practices will require a legislative scheme that recognizes the proper role of Parliament. First, the legislature should take responsibility for the expansion of police powers to solve the fundamental rule of law problem. Second, it is Parliament’s responsibility to enact prospective and (hopefully) comprehensive legislation since clarifying both the extent of police powers and the duties of citizens is of utmost importance. Of course, even well-drafted legislation cannot expressly address every eventuality, and some interpretation of the language used is inevitable. However, this is preferable to judicially created authority made in a piecemeal and retroactive fashion. More fundamentally, the proper place to settle the parameters of police powers over citizens is surely through the democratic process. While we may lament that Parliamentary scrutiny of legislation is not as thorough, informed, and vigourous as it might be, it is preferable to appointed judges establishing rules without the opportunity for public debate and amendment by our elected members.
In sum, it would be far better to have clear legislative prescriptions characterizing the power of state actors, rather than adapting the common law to suit new and ever-differing situations. This is especially pressing given the attendant risks associated with the judicially engineered expansion of state power and the potential for ever-increasing discriminatory effects. This type of reform is sorely needed, but it is this type of reform that political players might ignore because of its intrusiveness on the day to day functioning of the police.
A final question: what might this legislation look like? The experiences of our neighbours to the south might add some valuable insight. While the current legislation in many states is still elliptical and vague, it at least attempts to place tangible limits upon the exercise of investigative detention. First, some states place limits upon the type of offences that allow for investigative street detention. Second, the legislation may prescribe the permissible duration of an investigatory detention. Third, the legislation may specify the permitted location for the questioning and address whether or not the detainee may be moved from the location at which he or she was stopped. Fourth, the legislation may prescribe a series of admonitions or warnings to apprise the suspect of his or her rights and legal status during questioning. Finally, the legislation may detail the amount of force that can be used by an officer to accomplish a detention. While not advocating a holistic adoption of American legal policy, their commitment to formal legislative involvement signifies a noteworthy acknowledgment of its necessity in governing discretionary police authority.
Despite a call for legislative reform, the shortcomings of such regulation are easily identifiable. While such parameters might lift investigative detention practices out of the shadows, neither public awareness nor written legal code guarantees a transformation of the underlying personal and institutional factors which contribute to these potentially abusive practices. However, effective legislation would make the practice of investigative detention more transparent, legitimate, predictable, and reviewable, adding a little certainty to an uncertain area of law.
This paper has attempted to define, historically contextualize, and question the ambiguities produced by the recently formed common law authority of investigative detention. While it is recognized that this relatively new power is essential for effective policing, its judicial construction has created more questions than answers. This is particularly evident in the vague theoretical standards prescribed by our highest Court when weighed against the reality of street level policing. The uncertain scope of police authority regarding the use of force, duration of detention, and incidental search power is both antithetical to the rule of law and conceptually difficult for both the police and public alike. As a result, a blurring of the line between investigative detentions and traditional arrests is clearly identifiable, serving to further legitimize police authority.
The ineffective judicial management of investigative detention and deferential approach adopted by the Courts has resulted in a broadening of the discretionary apparatus available to police. This has exacerbated the ever-increasing risk of abusive application of police authority, especially against the socially marginalized. The potential for investigative detention to be used as an instrument of discrimination is both palpable and undesirable. It is therefore up to the elected members Parliament to take positive action in an attempt to elucidate the current ambiguity surrounding this police practice. This step is crucial to effectively regulate a police practice which is predominantly characterized by its low visibility and potential for abuse. Only by filtering the murky waters upon which the investigative detention vessel navigates can it be determined if meaningful answers to the many challenging questions are forthcoming.
 Iacobucci J in R. v. Mann, supra.
 R. v. Mann, supra.
 Stribopoulos 2005, supra.
 R. v. Daviault, (1994) 3 S.C.R. 63.
 Quigley, supra.
 Stribopoulos 2005, supra.
 Young, supra.
 Virginia requires that the offence be a felony or criminal possession of a concealed weapon: Va. Code Ann. 19.2-83 (1990).
 Arkansas permits fifteen minutes: Ark. Stat. Ann. 43-429(a) (1977).
 Florida legislation states that the detention "shall not extend beyond the place where it was first affected or the immediate vicinity thereof": Fla. Star. Ann. 901.151(3) (1985).
 Montana legislation requires the officer to identify himself or herself as an officer and to inform the suspect that the stop is not an arrest but a temporary detention and that upon completion of the investigation the person will be released unless arrested: Mont. Code. Ann. 46-5-402(3) (1983).
* please note: this paper was written in 2009 before the Supreme Court Trilogy of Grant, Harrison & Suberu