Social Justice: Investigative detention

We see it in every police procedural on television.
“Sir, I have a few questions for you.”
“Am I under arrest?”
“No, no, I just have a few questions, if you don’t mind answering them.”

“Do I have to?”
“Well you don’t have anything to hide do you?”
“Well, OK.”
From these brief exchanges come difficult issues.

In a democratic society people have the right to venture in the public without fear of arbitrary arrest or unlawful interference by the police.

But where the police are investigating a crime and are not exercising any arrest powers, do they have the right to stop and question those they reasonably believe have information germane to their investigation? Do the police have to caution everyone before they ask any questions? If no caution is given, are the answers admissible at trial?

All of this brings us to an appeal heard by the Supreme Court of Canada on April 15 in R. v. Suberu.
Musibau Suberu engaged in some petty larceny involving the use of a stolen credit card in Coburg and was ultimately found guilty of two minor offences and given a sentence of three months plus 12 months probation.

Key evidence was obtained by police after Suberu was detained by a police officer and asked a few preliminary questions before being formally read his rights. His incriminating answers were used against him at trial.
It’s a fairly commonplace situation. The officer was investigating reported criminal activity. He didn’t have reasonable cause to arrest but he needed information. He didn’t want to caution Suberu presumably because human nature is such that people may be less likely to be forthcoming once read their rights.

But s. 10 of the Charter throws a potential monkey wrench into this scenario when it states that “[e]veryone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be informed of that right.”

It may seem strange but it wasn’t until the R. v. Simpson decision in 1993 that the Ontario Court of Appeal ruled the police have the legal right to actually detain people on the street or in their cars merely to ask questions relating to an investigation.

Prior to this, the police relied on voluntary compliance or their arrest powers, as there is nothing in the Criminal Code concerning investigative detentions. The OCA ruled that police do have the right to engage in investigational detentions provided they have “articulable cause” to do so.

In 2004 the SCC upheld this right in R. v. Mann provided “there are reasonable grounds to suspect . . . that the individual is connected to a particular crime,” but the detention “must be brief,” and “there is no obligation on the detained individual to answer questions.” As well, the reason for the “detention” must be disclosed.

Last year in the Suberu case the OCA ruled that police needn’t immediately advise people of their Charter rights provided that the delay is but a “brief interlude” so that the officer can make a “quick assessment” to determine if more than a brief detention is warranted.

What’s at stake at the SCC in the Suberu case is what does “without delay” mean in the context of an investigatory detention. Must police advise people of their right to retain and instruct counsel every time they want to ask a few questions connected to an investigation? The answer seems self-evident to me.

Do we really want police to caution every person they speak with? Remember we’re not dealing with the questioning of persons who have been arrested. If police have reasonable and probable cause to arrest, they must give the s. 10 caution, but why should this be necessary for all investigatory questioning?

Unfortunately the Suberu case is not likely to answer other equally important questions raised by these detentions.  Just how brief is brief? If there is no obligation to answer, can the person being questioned just turn around and walk away, or may the police use force to enforce the brief detention? Can the detained person refuse to identify himself? Can the police require that the questioning take place “at the station?”

Having the courts handle these issues on a case-by-case basis is a poor use of scarce legal resources. If we have to wait for each issue to arise and go through each level of the courts to get guidance, it will take many years before we have answers to all of the questions that relate to investigatory detentions.

That’s not fair to the police who need to have specific guidelines to assist them in effective investigations, and it’s not fair to the public who have to potentially endure violations of their rights and go through potentially unnecessary court hearings.

If we want to reconcile these competing interests, let’s have the federal government listen to all interested parties and introduce legislation setting forth reasonable standards. There’s no reason to have a legislative vacuum for this important area.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College.  His email address is [email protected]

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