Life, Liberty, and the Pursuit Against Arbitrary Detention - Dustin Seguin

When can the police stop you from your day-to-day activities and subject you to detention? If this occurs, what type of search can you be subjected to? How have new drugs and Covid-19 impacted your ability to remain free from arbitrary detention? In this BLAWG, I will provide an analysis to these questions by using research conducted from the book Privacy in Peril (2019) and online media sources. I will also extend an opinion on how the Supreme Court of Canada (“the Court”) has gone too far in providing police with detention powers.

The Beginning of the End

Section 9 of the Canadian Charter of Rights and Freedoms (“the Charter”) guarantees the right against arbitrary detention or imprisonment. In the case of R v Waterfield (“Waterfield”), British Courts identified that the police are required to act “according to their common law duties” and that it must be determined that police were not unlawfully interfering with an individual’s “liberty or property”. If police are interfering, it is necessary to determine whether

• such conduct falls within the general scope of any duty imposed by statute or recognized at common law; and

• such conduct... involved an unjustifiable use of powers associated with the duty.”

Waterfield was incorporated into Canadian common law in 1974 to justify an obstruction of peace officer charge and has since been used to expand warrantless search powers.

The Court applied the second portion of the test from Waterfield (“the Waterfield test”) in R v Dedman (“Dedman”) to expand the police power to stop motorists with the intention of discovering impaired drivers. A “reasonable interference” was used by the Court to justify the decision. However, the dissent in Dedman, written by Dickson CJC, provided a different perspective. Dickson CJC wrote that “(t)he fact that a police officer has a general duty to prevent crime and protect life and property does not mean that he or she can use any or all means for achieving these ends”. He also warned that it was not the intended purpose of the Court to generate police powers; rather, that this should be left to the legislative authorities. By the Court permitting itself to become the “originating locus of police powers” and allowing police to breach the liberty of individuals on the “basis that it is reasonably necessary to carry out general police duties”, individual protection is eroded.

R v Mann

The case of R v Mann (2004) (“Mann”), further demonstrated how police powers could be developed by the Court under common law authority. In Mann, Mr. Mann was stopped by police while walking down a sidewalk as he matched the description of a suspect for a recent break and enter in the area. The police conducted a search while Mr. Mann was under investigative detention; they located a soft small bag of marijuana in his pocket. The Court reasoned that, if “reasonable grounds to detain” could be proved based on the totality of the circumstances, then a search could be conducted for weapons. Mr. Mann was ultimately acquitted as the Court opined that the removal of a soft object from his pocket could not be justified; soft objects, at the time, were not considered to be potentially dangerous.

New Drugs Could Mean New Rules

The police can lawfully search a person under investigative detention for officer safety or the safety of the public. In Mann, the removal of a soft bag was not considered to be a reasonable search as it was not viewed as a weapon. However, could this standard be lowered even further for the average citizen based on new illegal substances? The recent rise in fentanyl overdoses has become a major cause of concern for law enforcement across North America. In 2018, the US (National Institute of Environmental Health Sciences) reported that overdoses from fentanyl rose 540% in the previous three years. In Canada, the expected deaths due to fentanyl are also expected to increase from previous numbers during the Covid-19 pandemic.

The increase of fentanyl and the threat caused by exposure could necessitate further searches under investigative detention. If a police officer interacts with a person and places them under investigative detention, they could argue that a search for ‘soft’ articles could directly impact their safety. The extreme health consequences of contacting miniscule amounts of drugs such as fentanyl could be argued to be an officer safety concern; it could also be argued to be a potential weapon. “The potency of the substance is at the center of this crisis; a grain of salt is a lethal dose.” A ‘soft’ bag of marijuana would most likely not be construed as dangerous; fentanyl however, has the ability to cause an overdose through a simple touch. Law enforcement can argue that searches of soft objects are necessary for their safety during an investigative detention due to fentanyl concerns. The Court could then—by applying a broad interpretation of officer safety and the definition of weapons—justify these types of searches and further infringe on the rights of individuals to be secure against unreasonable search and seizure.

From Fentanyl to COVID-19

While dangerous narcotics such as fentanyl have the ‘potential’ to change the procedures surrounding detention, we have witnessed COVID-19 expand law enforcement powers in real-time. The “overly broad, vague and confusing” laws that have been implemented since the start of the pandemic have begun to place individuals in contravention of novel orders. Canadians across the country have reported “being stopped, questioned or ticketed” for violating new laws they were not aware of or for “minor technical violations”. In Newfoundland and Labrador, police have been given authorization through a recently passed bill to “stop vehicles, detain and remove anyone in the province...” who fail to abide by COVID-19 public health regulations. This type of increase in law enforcement authority may seem necessary by some but it could cause more cases of arbitrary detention for those confused by the rules.

In December 2020, a 21-year-old male was arrested for failing to adhere to guidelines while at an outdoor ice skating rink in Calgary. At the time, Albertans were permitted to gather in sizes of up to forty people at outdoor skating rinks. An ever vigilant citizen reported the gathering to authorities and a by-law officer attended to disperse the unruly ice skaters. When the 21-year-old was requested to provide his identification, he sought clarification as to the law surrounding the health order. Police arrived on scene and when the young man was again asked to provide his name—for the purposes of being issued a ticket—he again requested clarification as to why he was forced to depart the rink. The officers then stated he was under arrest and threatened to deploy an electronic control device (TASER) for non-compliance. He was eventually taken to the ground and arrested for obstructing a peace officer and resisting arrest. The Chief of the Calgary Police Services stated “... (w)e do not live in a society where a person can pick and choose the laws they follow.”

It could also be challenging to provide a defence for the violation of these indistinct orders as “(i)gnorance of the law by a person who commits an offence is not an excuse for committing that offence”. It is difficult to grasp how members of the public can adhere to stringent and novel standards—and be subjected to detention and arrest—for laws that are unclear and changing in quick-time.

Conclusion

The right to be secure against unreasonable search and seizure is a fundamental principle that should be provided to all Canadians. The Court has allowed for this standard to be lowered and is currently of the belief that it is their duty to provide police with increasing powers upon request. As unexpected events arise, such as the illegal use of fentanyl and the COVID-19 pandemic, this type of unbridled granting of novel authority can cause pervasive legal consequences for those failing to adhere to changing policies. Going forward, it will be interesting to observe if the new powers issued to authorities will be so easily removed and if they will provide a gateway to re-enacting these types of detention policies. If the Court continues to travel down the path of abatement for individual rights, the line between arbitrary detention and liberties we so cherish will cease to exist.