Case Law Discussion

[vanisleflamesfan]

Wow... so the judge conceded that there were no grounds to detain (no 'reasonable' suspicion), but then said that the interaction did not constitute detention! So far... very interesting and CLEARLY laying the groundwork for the appeal! The guy's lawyer only had one more thing to prove!!

However, I still believe that the alleged 'detention' would fall into the category of psychological compulsion. I will say that I still believe that the appeals court overturned the trial court decision. In my opinion, this case is pretty clear. I am not in favour of criminals being able to argue such 'technicalities', as most people refer to them... however, if this guy's lawyer did not argue for psychological compusion in the appeal when he had his case nearly half won...

I should add that this is difficult as I don't know the exact specifics of the interaction. However, as Jolinar described it initially, I would think that there was compulsion.

Very interesting though. You picked a good case to discuss here.

[jolinar of malkshor]

Justice Laskin, authoring the unanimous appeal court judgment, first reviewed what constitutes a detention. Under the Charter, a detention can occur two ways: physical or "psychological". A psychological detention can occur when a police officer gives direction or demand to a citizen in which the citizen feels (reasonably believes) they have no choice but to obey (and submits or acquiesces to the direction or demand) - even if there is no legal authority for the demand or direction, and thus no offence committed for failing to comply.

Laskin noted: The definition of "psychological detention" reflects a judicial balance between competing values. On the one hand, the police have the duty and the authority to investigate and prevent crime in order to keep our community safe. In carrying out their duty, they must insteract daily with ordinary citizens. Not every encounter between the police and a citizen amounts to a constitutional "detention". This court and other courts have recognized that police must be able to speak to a citizen without triggering that citizen's Charter rights.

On the other hand, ordinary citizens must have the right to move freely about their community. Thus, the police cannot detain a citizen for questioning unless they are authorized by law to do so.

A "psychological" detention includes three elements: a police direction or demand to an individual; the individual's voluntary compliance with the direction or demand, resulting in a deprivation of liberty or other serious legal consequences; and the individual's reasonable belief that there is no choice to comply.

In this case Laskin ruled the accused was psychologically detained.
- The uniformed officer's intitial demand was made while standing in front of Grant. His path was blocked and he was told to keep his hands in front of him. This was a demand which Grant wasn't free to ignore.
- The actions of the plainscloths officers. They did not stay in their car, but got out, showed Grant their police badges and stood behind the uniformed officer.
- The three officers were bigger than Grant and effectively formed a small phalanx blocking his path, exerting control over his movements throughout the encounter.
- The uniformed officer's questions went well beyond a mere request for identification or other non-incriminating information. These questions amounted to further "demands".
- Grant acquiesced to all the officers' demands. he put his hands in front of him and gave incriminating answers, leading to his arrest, the search and the ultimate deprivation of his liberty.
- Grant's manner in answering the questions suggested he did not believe he had the right to walk away and end the conversation, but rather believed he had no choice.
- The duration of the encounter was about 7 minutes. It wasn't a long encounter, but it wasn't so short that it could not give rise to a detention.

The final decision: Although Grant's s.9 Charter right had been breached, the evidence was nonetheless admisible under s. 24(2). Even though the revolver was "derivative evidence" that arose from his answers, he had a lesser expectation of privacy in a public area, the detention was briefm the questions minimally intrusive, police did not physically restrain him until after the arrest and they acted in good faith. Furthermore, possession of a loaded firearm in a public place is very serious, the accused was near several schools, the evidence was crucial to the Crown's case and was entirely reliable. Therefore, admitting it would not bring the administration of justice into disrepute.

Grant's conviction appeal was dismissed. (meaning the original sentence stood).

R. v. Grant (2006) Docket: C43132 (OntCA).

Note: This case overview was taken out of the "Blue Line" magazine.

[jolinar of malkshor]

Originally Posted by Table 5

so I'm going to assume that jolinar posted this because the judge excluded the evidence, and he wants to rant against political correctness or something...

but anyway, I think part of being a good officer is being able to read when people are acting weird and suspicious (after all body language can speak volumes), and then further investigate the matter. it's a file line, but do i blame a police officer for following through on a hunch, especially when in the end it turned out to be accurate? not really.

Thanks for the assumtion Table.......WRONG!!

[vanisleflamesfan]

Here is one that Canadians can feel good about. See... the justice system DOES work sometimes. He was psychologically detained. Good work by the judge there. This one worked within the laws and upheld 'justice' as most people would see it.

Psychological detainment, but it didn't end there. In an angle that, I admit, I never even considered, the decision of the judge to allow the evidence under Section 24 (2) was, in this case, a very good one. 24(2) is a tricky little thing and is open to being abused, but it appears that the judge acted in careful consideration of the situation (most notably, the proximity to the schools, and probably (although not stated) the combination of the weapon with the Mary Jane.

A nice contribution to the case law on psychological detention, while still serving justice under 24(2). Exactly what 24(2) was intended to do.

Good case.

[jolinar of malkshor]

Thanks to everyone for their contribution. It was fun looking at other peoples perspective.

I love this stuff Jolinar. Keep it comig. I can't remeber who mention this, but 'reasonableness' in accordance with police actions is the determining factor in most cases. What is most interesting is that those in charge in determining this (judges), are not necessarily the most reasonable people. Moreover, they are making decisions based on situations they have never been in nor ever will.

Articulation by police is key in determining the outcome of trials and setting good case law.

[jolinar of malkshor]

Originally Posted by Bent Wookie

I love this stuff Jolinar. Keep it comig. I can't remeber who mention this, but 'reasonableness' in accordance with police actions is the determining factor in most cases. What is most interesting is that those in charge in determining this (judges), are not necessarily the most reasonable people. Moreover, they are making decisions based on situations they have never been in nor ever will.

Articulation by police is key in determining the outcome of trials and setting good case law.

I will do another one tomorrow. If you or anyone else have any cases to discuss...by all means contribute.

[Azure]

Suspicion is not proper grounds upon which to conduct a search?

The witness/s were their own two eyes...and the belief that the person was doing something suspicious.

[jolinar of malkshor]

Originally Posted by Azure

Suspicion is not proper grounds upon which to conduct a search?

The witness/s were their own two eyes...and the belief that the person was doing something suspicious.

I should have went a little more indepth with regards to the search aspect. Here is what Laskin had to say about the search.

Grant also argued the police questioning amounted to a search that began when they asked him whether he had anything he shouldn't have. Laskin disagreed with this submission, stating:

The divide between questions that begin a search and questions that do not is sometimes not easy to draw. In this case, I am not persuaded that the police's question to the accused "if he ahd anything that he shouldn't" began a search. In my view, the search began at the earliest, after the accused admitted to the possession of marijuana. At that point, however, the police had reasonable and probable grounds to arrest the accused. Then, when in answer to (the uniformed officer's follow up question, "is that it?" the accused admitted to carrying the revolver, the police had the right to search the accused, incident to arresting him. Indeed they had that right even if they did not arrest him.

The question was general in nature and police had not already formed the intention to conduct a search. This is unlike other cases, where accused persons were asked to empty their pockets, questioned about the content of their open gym bag or asked what was in their pocket after police had touched it and felt a hard lump. Although those questions amounted to a search, the nature of the officer's question in this case did not since they were asked in a different context. Since there was no search, there was no violation under S.8 of the Charter (Unreasonable search).

So technicaly it wasn't a search as far as the Charter was concerned. They were just asking questions.

[vanisleflamesfan]

Originally Posted by Azure

Suspicion is not proper grounds upon which to conduct a search?

The witness/s were their own two eyes...and the belief that the person was doing something suspicious.

Nope. I'm not sure if you are asking that in regards to this particular case, or in general, but this case is a good example of the law here.

The police knew that their 'suspicion' was not grounds to conduct a search, nor should it ever be. That is why they didn't search this individual. Commend the cops here for knowing their jurisdiction and abiding by it.

If we allowed cops to justify searches based on 'suspicion' (not 'reasonable' suspicion involving one of the aforementioned forms of evidence), then it would open the door for cops to (legally) indiscriminately search anyone they wanted to, and to justify it based on 'suspicion'. This would constitute a HUGE threat to the civil liberties of privacy of 'innocent' or law-abiding citizens. Innocent until proven guilty. You have to consider that this could be taken to a level off the street. Police could legally kick your door down and rummage through your house, without any 'evidence'. They could justify it by saying that there was 'suspicion'. This is the kind of thing that happens in totalitarian regimes. This is what it means to live in a democratic society. We are afforded a right to a 'reasonable' level of privacy. This is a good thing.

The ungrounded or, more properly, unreasonable, 'suspicion' of police officers, if allowed as evidence for a search, could be abused in an unimaginable number of ways. Again, you must remember that these laws are in place to protect the innocent.

Edit: The afformentioned section 24(2) of the charter is a tricky law that (sort of) deals with your concerns. In this case, it was not abused and was used, in my opinion, exactly as it was intended. I would urge you to look it up.

[Gugstanley]

This starts some fun conversations. It sure is interesting to see other peoples interpretation. When I get back to work I will look post some situations if you guys don't mind stuff from the US.

[Azure]

Okay..I worded my question wrong.

I never really meant a search, but rather just a simple procedure to ask questions, see if there is something wrong.

Must you have a warrent to ask questions?

I must say, I agree with you on the search part. There is no reason for cops to infringe on the personal property of another person without a court order.

Originally Posted by Azure

Suspicion is not proper grounds upon which to conduct a search?

The witness/s were their own two eyes...and the belief that the person was doing something suspicious.

The Canadian Charter of Rights and Freedoms severly limited police powers upon its introduction. Generally, police can only conduct a warrantless search incident to arrest. Further, this search in can only be conducted for 3 main purposes: to gather evidence, safety reasons or some sort of object that could facilitate and escape. One of these 3 reasons must be in mind when an officer conducts the search. Simply stating that you conducted a search because it is police policy or it is a matter of routine is not good enough. The scope of the search is also limited to persons, and objects nearby including a vehicle. However the scope of that search is also limited to and determined by the events themselves.

Keep in mind that an arrest can only be made based on reasonable grounds that the particular individual commited an offense. Reasonable grounds are based on a combination of subjective and object grounds (physical evidence) determined by an officer during an investigation.

Mere suspicion certainly can give an officer powers to detain (a relatively recent development in Canadian law) but NOT powers to search beyond a mere 'pat down' for officer safety reasons. Justify the uncovering of evidence during an investgative detention search is, at present, an issue still under consideration.

Originally Posted by Azure

Okay..I worded my question wrong.

I never really meant a search, but rather just a simple procedure to ask questions, see if there is something wrong.

Must you have a warrent to ask questions?

I must say, I agree with you on the search part. There is no reason for cops to infringe on the personal property of another person without a court order.

I touched on this above but will elaborate bsaed on your question.

Technically, a person NEVER has to answer a question put forth by a police officer. However, upon arrest or upon violating any provincial or municipal piece of legislation, you must provide identification. Failing to do so (wither refusing or lying about you identity) will either add an additional charge or get you arrested as in the case of provincial or municipal violations.

[Language]

Correct me if I'm wrong, but doesn't a police officer have a right to search and detain anyone who is 1) reasonably suspected of a crime or 2) in the act of a crime? I ask because I seem to remember reading about the tort of false imprisonment and this case seemed to flow with that tort.

I'm asking because I also seem to remember that unlike a police officer, a citizen or security guard can only arrest someone if they are in the actual act of commiting a visible crime, and not one that is reasonably suspecte by them.

I know the resolution of this case has already been posted, but based on what I just wrote, if the undercover cops went up and questioned him without calling the police officer that was uniformed, would all of the evidence been thrown out if the accused actually complied, assuming he argued after that he was "psychologically" imprisoned?

Thanks.

[jolinar of malkshor]

Originally Posted by Gugstanley

This starts some fun conversations. It sure is interesting to see other peoples interpretation. When I get back to work I will look post some situations if you guys don't mind stuff from the US.

Go for it.

[jolinar of malkshor]

Originally Posted by leonk19

Correct me if I'm wrong, but doesn't a police officer have a right to search and detain anyone who is 1) reasonably suspected of a crime or 2) in the act of a crime? I ask because I seem to remember reading about the tort of false imprisonment and this case seemed to flow with that tort.

I'm asking because I also seem to remember that unlike a police officer, a citizen or security guard can only arrest someone if they are in the actual act of commiting a visible crime, and not one that is reasonably suspecte by them.

I know the resolution of this case has already been posted, but based on what I just wrote, if the undercover cops went up and questioned him without calling the police officer that was uniformed, would all of the evidence been thrown out if the accused actually complied, assuming he argued after that he was "psychologically" imprisoned?

Thanks.

The Appeal court ruled that he was "psychologically"detained. And he did comply with all the officers requests. So technically it was an unlawful detention, but in this case it was for the betterment of the public and the administration of Justice would not come into disrepute.

Originally Posted by leonk19

Correct me if I'm wrong, but doesn't a police officer have a right to search and detain anyone who is 1) reasonably suspected of a crime or 2) in the act of a crime? I ask because I seem to remember reading about the tort of false imprisonment and this case seemed to flow with that tort.

I'm asking because I also seem to remember that unlike a police officer, a citizen or security guard can only arrest someone if they are in the actual act of commiting a visible crime, and not one that is reasonably suspecte by them.

I know the resolution of this case has already been posted, but based on what I just wrote, if the undercover cops went up and questioned him without calling the police officer that was uniformed, would all of the evidence been thrown out if the accused actually complied, assuming he argued after that he was "psychologically" imprisoned?

Thanks.

To answer your question, yes and no. Police can detain someone they reasonably suspect of a crime. Known as investigative detention, it is generally used when a recent crime has occured and several objective factors have led the officer to this suspicion. For example, a local corner store gets robbed and the store owner gives only a vague description and direction of travel. An officer comes across a person that slighty resembles the suspect and is in the general area. Detention would be reasonable under the circumstances. The issue arises then- can this subject be searched? Yes. However, he CANNOT be searched for one of the 3 reasons I mentioned above (evidence, weapons, items to facilitate escape) and can only be searched as a matter of affording the officer some degree of safety. Further, it is only limited to a pat down search.

As for detaining and searching someone in the ACT of commital, yes, you can arrest (detain) and search for the 3 reasons mentioned above.

You are correct. Citizens and security guards do have powers of arrest. However, they are limited to arresting only for indictable offences (includes indictable and dual procedure offences) that they observe. It also includes a continuity clause meaning that they must continue ot keep the suspect in plain view. Only police officers can arrest, after the fact, based upon reasonable grounds.

[Language]

Originally Posted by Bent Wookie

To answer your question, yes and no. Police can detain someone they reasonably suspect of a crime. Known as investigative detention, it is generally used when a recent crime has occured and several objective factors have led the officer to this suspicion. For example, a local corner store gets robbed and the store owner gives only a vague description and direction of travel. An officer comes across a person that slighty resembles the suspect and is in the general area. Detention would be reasonable under the circumstances. The issue arises then- can this subject be searched? Yes. However, he CANNOT be searched for one of the 3 reasons I mentioned above (evidence, weapons, items to facilitate escape) and can only be searched as a matter of affording the officer some degree of safety. Further, it is only limited to a pat down search.

As for detaining and searching someone in the ACT of commital, yes, you can arrest (detain) and search for the 3 reasons mentioned above.

You are correct. Citizens and security guards do have powers of arrest. However, they are limited to arresting only for indictable offences (includes indictable and dual procedure offences) that they observe. It also includes a continuity clause meaning that they must continue ot keep the suspect in plain view. Only police officers can arrest, after the fact, based upon reasonable grounds.

Thanks for clearing that up. Makes sense now.

[jolinar of malkshor]

CASE 2

Two police officers responded to reports the accused ("Fowler") drove his truck into a vehicle parked at his estranged wife's residence, left to go to his parent's home and was possibly impaired. The officers proceeded to Fowler's parent's home and saw a truck parked in the driveway that had been recently running, as evidence by heat emanating from its underside and a ticking sound coming from the engine. The house was in total darkness but some windows were wide open.

Wanting to speak to the occupants to further their investigation, the officers knocked on both the front and rear doors but received no response. While returing to their vehicle, they heard a voice from inside the house state "Don't answer the door, I've been home all night. I've been home all night". The officers returned to the back door and knocked again.

Fowler answered the door but was wearing only his underwear. He had a strong odour of liquor on his breath, his eyes were red and glassy and he was unsteady on his feet. One of the officers told Fowler he had reasonable and probable grounds to believe he left the scene of an accident and was impaired. Fowler replied he had been home all night and closed and locked the door.

While the officer discussed the matter with a supervisor, Fowler exited the house and approached the officers. He was cautioned, advised of his right to silence and breath samples were demanded. Two breath samples subsequently obtained revealed a blood alcohol level of 150mg%. Fowler was charged with impaired operation of a motor vehcile with a blood alcohol content over 80mg%.

At trial in New Brunswick Provincial Court, Fowler argued the certificate of analysis was inadmissible because police violated his right to be secure against unreasonable search and seizure under S.8 of the Charter. In Fowler's view, police could not attend at the home and knock without a search warrent - and because there was no warrant, the observations they made during the unreasonable search tainted the certificate of analysis.

The Crown submitted that police had the right to enter on the property to communicate with its occupants under the implied licence doctrine. Their observations therefore did not constitute an unreasonable search, it argued, and the certificate shouldbe admitted.

(Under Common law there is a longstanding principle that people, including police officers, have impliedlicence to approach and knock on someone's door for the purpose of convenient communication with the occupant(s). If the police purpose is to communicate with the occupant(s), there is no search for constitutional purposes. However, if the police approach the residence to secure evidence against the occupant, then a search has taken place and reasonableness enquiry will be undertaken under S.8. Similarly, if the police have dual purpose in mind (communication with the occupant and secure evidence against the occupant), their conduct will constitute a search and S.8 is engaged.)

So....was the certificate of conviction thown out?

They must have had some pretty solid eye witness evidence to even lay the original charge of driving over, since the police did not actually see him commit the offence.