When a police officer witnessed two individuals leaving a suspected “crack house” in a vehicle, he followed them, pulling the vehicle over several blocks away. While questioning the occupants of the vehicle, he noticed a bulge in the passenger’s front pocket, and asked the passenger to remove the object which proved to be a bag of cocaine.
The accused was charged with possession of cocaine for the purpose of trafficking, but defended the charge on the basis that he had been arbitrarily detained and subject to an unreasonable search. Although these arguments were unsuccessful at trial, the Ontario Court of Appeal reversed the trial judge’s conclusion.
The court found that although Ontario’s Highway Traffic Act authorized the police to pull over any vehicle for the purpose of enforcing traffic laws, this power did not extend to a general power of detention for the purpose of a criminal investigation. Instead, police require “articulable cause” that the specific individual being detailed is involved with the specific criminal activity being investigated:
“In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some “articulable cause” for the detention …
These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power (R. v. Storrey 1990 CanLII 125 (SCC), (1990), 53 C.C.C. (3d) 316 at p. 324, [1990] 1 S.C.R. 241, 75 C.R. (3d) 1), and serves to avoid indiscriminate and discriminatory exercises of the police power. A “hunch” based entirely on intuition gained by experience cannot suffice, no matter how accurate that “hunch” might prove to be.”
Simpson places much-needed limits on the power of police to detain individuals for investigative purposes. These limits were affirmed and implemented by the Supreme Court of Canada in the later case of R. v. Mann, 2004 SCC 52.
Decided by the Ontario Court of Appeal on February 11, 1993.
Click here for the full text of the decision.
Simpson confirms that the power to detain for investigative purposes can only be exercised where there is “a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation.