Grant and Suberu: The Supreme Court’s Synthesis of the Law of Detention and Search Incident to Investigative Detention 
Published: February 05, 2011

Grant and Suberu:  The Supreme Court’s Synthesis of the Law of Detention and Search Incident to Investigative Detention.

Written By:  Scott Bergman and Corie Langdon[1]for OBA Institute 2011

“A materially refreshed analytical lens is to be applied to the adjudication of most of the Charter claims advanced in this case.  The new methodology is consistent with an historical transition in the Supreme Court’s analytical approach to criminal law issues, moving from categoricalism to flexibility.  It may not amount to a paradigm shift, but there can be little doubt that jurists entertaining ss. 9, 10(b) and 24(2) Charter claims have been handed a substantially new tool box (R. v. Peacock,[2]per Green J.)”

[A] INTRODUCTION

The Supreme Court of Canada has recently clarified the law in relation to the rights protected by ss. 8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.  In the companion cases of R. v. Grant[3]and R. v. Suberu[4], the Supreme Court of Canada provided much needed guidance in understanding when an exchange between a police officer and a civilian becomes a detention, thereby engaging the civilian’s Charter rights. These cases have also clearly articulated when a detained person’s right to counsel is engaged.  In clarifying the interplay between investigative interrogation and investigative detention, Grant and Suberu have provided a new analytical “toolbox” to assist in the analysis of arbitrary investigative detentions and unreasonable searches.  This paper will explore what ‘tools’ Grant and Suberu have provided, and how these tools have been used by judges in their assessment of claims of arbitrary detentions and unreasonable searches following those detentions.

[B]       WHAT ARE THE TOOLS PROVIDED BY GRANT AND SUBERU: THE CURRENT STATE OF THE LAW OF INVESTIGATIVE DETENTION

R. v. Mann: Investigative Detention and Search Incident to Investigative Detention

One of the first significant common law developments in understanding the scope of investigative detentions came in 2004 with the Supreme Court of Canada’s decision in R. v. Mann[5].  While Mann clarified the police power of investigative detention and set out the boundaries of that power, it did not provide specific guidance on how to determine when a person is detained.  In articulating the outer limits of the authority to conduct an investigative detention, the majority in Mann concluded that while officers are empowered to investigate crime, they must stay within the boundaries permitted by law during those pursuits. The majority indicated that a lawful detention for investigative purposes must be “reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.”[6] The detention should be brief in duration, and while officers are permitted to ask questions, there is no obligation on the detainee to provide answers.[7]

Although searches incident to investigative detentions had long been accepted in Canadian jurisprudence, Mann was the first time that the Supreme Court considered the lawfulness of the practice in a Charter context. Iacobucci J., writing for the majority of the Court held:

[t]he general duty of officers to protect life may, in some circumstances, give rise to the power to conduct a pat-down search incident to an investigative detention.  Such a search power does not exist as a matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. [8]

…

where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual.  Both the detention and the pat-down search must be conducted in a reasonable manner. [9]

This broad framework understandably left the police and judiciary with uncertainties regarding the legal boundaries of:

1. What constitutes a detention within the meaning of section 9 of the Charter?  More specifically, when do interactions between police officers and citizens transition from permissible (non-Charter) questioning to the point where Charter rights, and the protections flowing from those rights, become engaged;
2. How one determines whether an investigative detention, i.e., a detention within the meaning of section 9, is arbitrary or not;
3. How one determines whether a warrantless search incident to an investigative detention is reasonable or not.

Following Mann, some guidance had been provided by decisions like R. v. Moran[10], however there was still no clear direction from the Supreme Court on the principle issue of when a detention crystallizes. Without clear guidance on the constituent elements of a “detention”, trial judges were left with a difficult analytical framework to maneuver within. This difficulty remained until 2009 when the Supreme Court, in the companion cases of R. v. Grant and R. v. Suberu, provided the new analytical “toolbox”. Importantly, these companion cases also articulated when the right to counsel is triggered in the context of an investigative detention and helped provide insight into when a search incident to an investigative detention is unreasonable.

Grant and Suberu: The crystallization of “detention” for Charter purposes

In Suberu, Chief Justice McLaughlin and Justice Charron, writing for the majority, affirmed that “not every interaction between the police and members of the public, even for investigative purposes, constitutes a “detention” within the meaning of the Charter [emphasis added].”[11] Rather, the majority in Grant confirmed that for Charter purposes, “detention” refers to “a suspension of the individual’s liberty interest by a significant physical or psychological restraint…”.[12]  This means that when police conduct general inquiries with members of the public, they have the ability to detain individuals and restrain their liberties, without becoming a “detention” within the meaning of s.9 (investigative inquiries), as long as that restraint is not significant.  The point at which the restraint becomes a significant one is the point at which the investigative inquiry turns into a s.9 detention and that citizen’s Charter interests become engaged.

In addition, in Suberu, the majority of the Court confirmed that from the moment a detention crystallizes, the police have an obligation to inform the detainee of his or her s. 10(b) Charter right to counsel “without delay”. For clarification, the majority defined the phrase “without delay” as meaning “immediately”, noting that the immediacy requirement is only subject to concerns for officer or public safety, or reasonable limitations under s. 1 of the Charter.[13]

Given the majority’s holding that a person’s Charter rights become engaged when the restraint placed upon him or her becomes significant, the question then becomes: when is restraint on a person’s liberty significant, i.e., when does the interaction become a detention? If a person is physically restrained or put under a legal obligation to comply with an officer’s demand, the answer may be simple.  In the absence of these indicators however, the question of when a detention “crystallizes” (in this context a psychological detention), may not be as clear.

In Grant, the majority provided much needed guidance on the issue, holding that psychological detention can arise in one of two ways, namely: (i) where the individual is legally required to comply with the restrictive direction or demand; or (ii) where there is no legal obligation to comply but a reasonable person would conclude by reason of the state conduct that he or she was not free to go and had to comply.[14]

In determining whether a situation rose to the level of a psychological detention, a trial judge must consider “whether a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. As with all Charter applications, the onus is on the applicant to make out a s. 9 “detention”, the applicant must show that, in the circumstances, he or she was effectively deprived of his or her liberty of choosing to walk away.[15] The Court provided the following non-exhaustive list of factors to be considered in this assessment:

1.  The circumstances giving rise to the encounter as they would reasonably be perceived by the individual, including whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation.
2. The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
3. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.[16]

The majority in Grant also addressed the question of whether an unlawful detention is necessarily ‘arbitrary’ and contrary to s. 9 of the Charter.  Some earlier Charter cases held that an unlawful detention would not be “arbitrary” if it was not “capricious” or “random”[17].  The majority in Grant rejected this approach.  Following the reasoning in Mann, which held that a lawful detention is one that is based on a “reasonable suspicion”, the majority held that in order for a detention to be lawful it must be conducted pursuant to a lawful authority.[18]

[C]       HOW ARE THE ‘TOOLS’ PROVIDED BY GRANT AND SUBERU BEING USED: TRENDS IN THE JURISPRUDENCE

Given the added clarity in understanding when investigative inquires or questioning rises to the level of an investigative detention (and therefore a detention within the meaning of s.9 of the Charter), trial courts seem to be consistently finding that a detention has crystallized in circumstances where an accused is approached and asked pointed questions about his or her involvement in criminal activity, or if his or her movement is significantly restricted.   Further, courts are finding these detentions arbitrary if:

1.  there is no clear nexus between the targeted individual and a recent or ongoing crime;
2. officers detain an individual based on a hunch or intuition; or
3. officers lawfully detain an individual for investigation based upon reasonable suspicion but at some point the detention continues after the suspicion ceases to be reasonable.

These legal trends are illustrated in the following cases:

 i)      Pointed questioning and no clear nexus between the targeted individual and a recent or ongoing crime.

In R. v. Peacock, Green J. held that the accused’s detention was arbitrary and that the search incident to that detention was unreasonable.[19]  The accused was seen leaving a house known to be a drug house, which was under police surveillance.  The accused was stopped and questioned about what was in his pocket.  Officers indicated that they saw a bulge in the accused’s shirt pocket.  When questioned by the officers, the accused admitted to having a piece of crack cocaine (which the officers all agreed was the size of a dime) in his pocket.  One of the officers testified that prior to stopping the accused, he (the officer) had not observed any drug related activity, nor was there anything suspicious about the accused’s appearance or behaviour.  Finding that the police ordered the accused to “stop” and immediately launched into a pointed inquiry focused on suspicions of criminal conduct which (even on the police evidence) quickly escalated into questions about any contraband, Green J., held that the accused was subjected to a Charter protected detention. Green J. further held that the detention was arbitrary as the officers lacked reasonable grounds:

even if something was apparent in the accused’s pocket, it, combined with the observation of the accused leaving a suspected drug house, did not provide sufficient grounds for an investigatory detention. The conduct of the police took on the character of an interrogation to the point where the police had effectively taken control over the accused and were attempting to elicit incriminating evidence, which amounted to a detention.[20]

In commenting on the reasonableness of the search incident to what was held to be an arbitrary (investigative) detention, Green J. further held that: “where, as here, there is no constitutionally permissible basis for an investigatory detention, it is difficult to see how a search incidental to such unlawful detention could itself be lawful or reasonable.”[21]  The evidence was excluded.

Similarly, in R. v. Lee,[22]Reinhardt J. found that a detention was arbitrary and the resulting search was unreasonable because there were no reasonable grounds for the detention and therefore no reasonable grounds for the search.  In Lee, two officers were driving by an underground parking lot when they saw the accused and another male in between two cars.  One officer testified that he saw one of the men kneel down near the driver’s side door.  The officers became suspicious and parked their car in such a manner that they blocked the accused’s ability to leave the garage.  The accused and other male were stopped and questioned while attempting to walk out of the garage. Almost immediately after the accused was stopped, the officer said: “[e]xcuse me gentlemen, we want to talk to you” and then asked Mr. Lee if he was in possession of drugs and that Mr. Lee should “[b]e honest, because if we find it on you you’re in bigger trouble.”[23]  The accused was quickly handcuffed and investigated for almost an hour.  It was conceded at trial that the accused was both physically and psychologically detained such that his Charter rights were engaged.

With respect to the grounds for the detention, the officers testified that the two men were clearly not breaking into cars and that they could have been visitors to the parking lot.  Reinhardt J. held that the detention was arbitrary because there were no reasonable and probable grounds to believe that the accused was involved in any criminal activity.  In the trial judge’s view, the officers had acted on mere suspicion or hunch as the basis for significantly curtailing the accused’s liberty rights.  On this basis, Reinhardt J. found the detention to be arbitrary and therefore a violation of the accused s. 9 rights.

Reinhardt J., found that a search had transpired when the police engaged in pointed questioning of Mr. Lee and whether he was in possession of drugs.  In discussing the unreasonableness of the search, Reinhardt J. held that:

In this case, there was no “nexus” with the officers’ observations, even if I accept their evidence, which I don’t, between Mr. Lee and any possible drug offence. If the search of Mr. Lee was for officer safety, this cannot justify an otherwise unlawful search for drugs.[24]

The search was held to be unreasonable and the evidence was excluded.

In assessing whether there are reasonable grounds upon which a detention can be lawful, the jurisprudence also reflects a growing concern with individuals being unlawfully detained as a result of their mere presence in so-called “high crime” areas.[25]  Courts also continue to reiterate that Highway Traffic Act investigations cannot be used as a pretext to detain for unrelated criminal investigations.[26]

ii)       Significant physical restraint and detention based on a mere hunch or intuition

In R. v. Osolky,[27]  Shamai J.,\ found that an investigative detention premised solely on the officer’s “spidey sense” that the accused was involved in a drug transaction, did not constitute sufficient grounds for a lawful investigative detention.

In Osolky, two officers were in their car patrolling what was known by them as an area commonly frequented by drug users and drug traffickers. As the officers were patrolling they purportedly saw Mr. Osolky receive what they thought was money during the course of a suspected hand-to-hand transaction. The officers continued on in their vehicle and after several blocks, they decided to do a u-turn and question the accused.  The officers found Mr. Osolky in a coffee shop and promptly advised him, in front of other patrons, that he was under investigative detention for drug trafficking.  He was then immediately placed in handcuffs and his pockets were searched.

Given that the accused was advised that he was under investigative detention and handcuffed immediately upon being detained, the primary issue for the trial judge to rule upon was whether there were sufficient grounds for the detention.  In finding that it was unlawful and Mr. Osolky was subjected to an arbitrary detention, Shamai J. held:

In this case there was very little beyond the officer’s subjective belief that Mr. Osolky had been trafficking drugs to justify his detention for investigation…I find no reasonable, objective basis in the evidence, to ground the suspicion which the officer claims… The hand to hand is itself suspicious only because of the unstated experience of the officer, and his conclusion as to what happened during this moment… With nothing more than a general belief that drug traffickers are dangerous and that based on the above, this man had trafficked drugs, the officer concluded that the man in the coffee shop was violent and for the purpose of investigative detention needed to be handcuffed to the rear, and searched.[28]

All evidence was excluded on the basis that the search, which was incident to an arbitrary detention, was unreasonable.  Further, because the officers exceeded the lawful scope of investigative detentions by searching Mr. Osolky’s pockets Shamai J. held that the search was conducted in an unreasonable manner.  Given what we know about the limits of a search incident to investigative detentions (Mann), it would seem that the unreasonableness of the search could not have been rectified by a finding that the investigative detention was itself lawful.

iii)        Where officers detain an individual based on reasonable suspicion, but the detention continues after the suspicion ceases to be reasonable

Unlike the preceding fact scenarios, there are certain instances when officers have a reasonable suspicion authorizing a Charter compliant investigative detention. However, if such suspicion ceases to be reasonable and there is no basis to continue the detention or effect an arrest on the higher standard of reasonable and probable grounds, the detained individual must be released.  If the detention continues in the absence of reasonable suspicion, trial courts are consistently finding arbitrary detentions.

In the case of R. v. Watson[29], Daley J. excluded evidence seized following an arbitrary detention and searches of Mr. Watson’s person and home.  Mr. Watson was in an area known for drug transactions and one of the officers who came upon Mr. Watson recently saw a police bulletin advising that a male known as “Bricks” was thought to be in possession of a firearm.  One officer approached Mr. Watson, finding that he looked similar to the description of Bricks.  The officer spoke with Mr. Watson and another male and conducted a pat down search of the two men (without providing RTC – which must be done immediately upon the crystallization of an investigative detention).

It became evident early in the interaction that Mr. Watson was not “Bricks” yet the officer nonetheless continued to detain and investigate. It was conceded by the Crown that Mr. Watson was in fact detained when the officers initially approached him. In finding that the detention was arbitrary, Daley J. wrote:

[t]he investigating officers were in the area of Fleetwood Crescent for the purpose of undertaking an investigation regarding a suspect known as Bricks.  It became evident very early on in the encounter between the police and the accused that he was not Bricks and as such the police activity from that point on was not in respect of that specific suspect and alleged criminal activity in which he was alleged to be involved.

…

Once it became evident to the investigating officers that the accused was not Bricks, it is my view that the initial detention of the accused by Macklin was arbitrary on the record available, and it is evident that the encounter turned into an interrogation based on a hunch or intuition only.[30]

Daley J. held that there were insufficient grounds to support a lawful investigative detention given that Mr. Watson was detained based on the officer’s hunch, intuition, or prior knowledge that the accused might have had a history in dealing drugs.  Further, Mr. Watson was subjected to questions with respect to potential illegal activity and he was required to submit to at least one pat-down search if not two.” [31]

In R. v. Davidson [32]similar reasoning was applied.  While on routine patrol, two officers noticed two men standing in the entrance of a housing complex.  The officers decided to question them to investigate a potential violation of the Trespass to Property Act.  The two men complied and provided identification upon request. In running their identification, the officers discovered that the accused had two previously withdrawn weapons charges. Based on this information, the officers began questioning the accused, followed by an attempt to conduct a pat down search.  When the accused attempted to leave, a struggle ensued and a firearm was located.

In articulating why the detention was arbitrary, Wilson J. held that “[o]nce PC Brett confirmed that the individuals were clear of any breaches, their identification documents should have been immediately returned to them, and the police should have moved on.”[33]  The continued detention turned arbitrary when there no longer remained any reasonable suspicion connecting the accused to an offence. Given the arbitrariness of the detention, the incidental search was found to be unreasonable and the evidence (a gun) was excluded.

[D]       HAVE THE ‘TOOLS’ PROVIDED BY GRANT AND SUBERU CHANGED THE SEARCH INCIDENT TO INVESTIGATIVE DETENTION LANDSCAPE?

As discussed above, a search incident to a lawful detention has long been accepted under the common law.  Grant and Suberu affirm the lawfulness of the practice and its permissible scope: a reasonable search incident to a lawful investigative detention may arise “where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk.”[34]  What has been clarified is when a detention crystallizes and therefore when the limited scope of a search incident to a lawful detention arises. The majority reiterated that such searches are not permitted as a matter of course, nor can they be used as a pretext for de facto evidence gathering based on an officer’s hunch or intuition.  If an officer, following a lawful detention and based on the totality of the circumstances, reasonably believes there to be safety concerns, then and only then can the officer lawfully conduct a pat down (and only a pat down) search of the detained person.   It is now abundantly clear that such a search must be limited to a protective or pat-down search for weapons and it cannot be a search for evidence.

By clarifying the permissible triggering events and scope of a search incident to investigative detention, the Supreme Court has, of necessity, also reaffirmed the clear distinction between searches incident to detention and arrest.  Whereas the former simply require reasonable grounds to justify a safety concern (a relatively low threshold) in the context of an otherwise lawful detention, the precondition for a reasonable search incident to arrest is a lawful arrest based upon reasonable and probable grounds (obviously a much higher threshold).

[E]       CONCLUSION

Jurists, Crown and defence counsel have indeed been provided with new analytical tools to approach ss. 9, 10 and related s. 8 Charter applications.  Grant and Suberu have synthesized the approach to be taken when faced with cases involving police interactions with civilians which result in questioning, detention and searches.  This synthesis, or tool box, will assist jurists in logically and systematically analyzing the interaction along a continuum:

1.  investigative inquiries which do not attract Charter scrutiny or engage Charter rights;
2. investigative detentions which, to avoid being arbitrary, must be reasonably connected to the officer’s investigation of an offence;
3. upon entering into an investigative detention, the accused must be advised of the right to counsel;
4. reasonable searches incident to investigative detentions, a prerequisite being that the search occurs in the midst of a lawful detention;
5. lawful arrests arising from:

• a lawful investigative detention
• likely followed by a reasonable search resulting in the discovery of reasonable and probable grounds to believe an offence has been committed.

As illustrated above, the tools to be used in determining when Charter rights are engaged and/or contravened during interactions between officers and civilians will depend greatly upon the nature, context and evolution of the situation.  Given this new ‘tool box’, not only will there be more clarity in assessing when a detention occurs, there will also be more clarity in assessing if that detention is arbitrary and if a search conducted incident to that detention is unreasonable.

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[1]Mr. Bergman and Ms. Langdon are both associates atCooper, Sandler Shime & Bergman LLP.