investigative_detention_session_slides-24541-20211216.pdf

www.opcva.ca Federal Law 8 Investigative Detention Version: BCT Federal Law | January 2022SL © Queen's Printer for Ontario, 2018 Objectives • Understand the meaning of investigative detention • Understand your authorities as it relates to investigative detention • Understand your search author...

www.opcva.ca Federal Law 8 Investigative Detention Version: BCT Federal Law | January 2022SL © Queen's Printer for Ontario, 2018 Objectives • Understand the meaning of investigative detention • Understand your authorities as it relates to investigative detention • Understand your search authority as it relates to investigative detention • OPVTA video to determine if or when an investigative detention is justified in the circumstances 2 Remember Reasonable Grounds • Reasonable Grounds – will always be a question of fact depending on the circumstances of each case • Suspicious circumstances will never be enough. • Reasonable Grounds mean that there must be such facts as would cause a reasonable person to believe that the suspect has committed or is about to commit an offence. • It means that the officer’s belief must be justifiable not only from a subjective point of view, but also from an objective point of view. 3 Remember Reasonable Grounds Questions to ask for Reasonable Grounds 1. Is there some basis in fact as opposed to mere suspicion or hunch for my decision to arrest? 2. Can I point to some fact (apart from suspicion) by which reasonable people would say that I had cause to act? 4 Remember Psychological Detention When police conduct is in such a manner that a citizen concludes that they have no choice but to comply they are psychologically detained. “Psychological detention is a suspension of an individual's liberty by psychological restraint.” 5 Charter Rights S. 9 and 10(a) and 10(b) S. 9 Everyone has the right not to be arbitrarily detained or imprisoned s. 10 Everyone has the right on arrest OR detention (a)To be informed promptly of the reasons therefor; (b)To retain and instruct counsel without delay and to be informed of that right; 6 Common Law Investigative Detention Common law duty that has evolved over time through court treatment It has carved out a limited sphere for police to intrude on individual rights Investigative detention provides limited police powers 7 Investigative Detention What is it? Investigative detention is when there are no reasonable ground to arrest a person but there are reasonable grounds to suspect a person is connected to a particular crime. You can detain that person in an effort to determine whether that person was involved in the crime being investigated Investigative detention does not impose an obligation on the person being detained to answer questions 8 Investigative Detention Supreme Court Says “although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances.” 9 Investigative Detention To detain a person, you must be able to articulate a clear connection between the individual and the recent or ongoing crime. This will be assessed in light of ALL the circumstances including: Was the interference: i. Necessary, given the extent of the risk and liberty at stake ii. No more intrusive then reasonably necessary to assess the risk 10 Investigative Detention Further considerations: • The seriousness of the offence • Information known to police about the suspect in the crime • The extent to which the detention was reasonably responsive or tailored to the circumstances including length of time and location • Balances seriousness of risk to public or individual safety with the liberty interests of members of the public 11 Search Incident to Investigative Detention There must be reasonable grounds to believe that the officer’s safety or the safety of anyone is at risk. Officer’s subjective belief must be supported by reasonable grounds based on all the known facts and circumstances May only be a protective pat down search for safety reasons Search can also include asking questions such as, “do you have anything on you that can hurt me or someone else?” It is not a licence to search for evidence 12 Search Incident to Investigative Detention To be valid a search incident to a lawful investigative detention must: i. Fall within the general scope of the duty of police officers to protect life and property ii. Involve a justified use of police powers associated with that duty AND iii. Be based on the officer’s reasonable belief (reasonable grounds) that their safety or safety of others is at risk 13 Right to Search Red Light!!!! EVIDENCE Yellow Light!!!! NOT SURE WHY Green Light!!!! OFFICER SAFETY Must be able to articulate reasons 14 Use of Force R v. Wainwright 1999 O.J. No. 3539 (Ont. C.A.) The courts have recognized that the right to conduct an investigative detention also carries with it the right to physically restrain the suspect. Police were entitled to briefly detain the appellant to investigate their suspicions. They were denied that opportunity when the appellant chose to flee. 15 Investigative Detention Voluntary Accompaniment vs Detention Voluntary Accompaniment: A person that choose to accompany or remain with police for investigative purposes and is not under arrest. This must be made very clear that the person is free to leave at any time and is not under arrest Detention: When a reasonable person would feel obligated to comply with a police demand or direction and they are not free to leave 16 Investigative Detention Rights to Counsel At a minimum you must advise the person they are being detained and the reasons for the detention. You must tell them something like: “You are under investigative detention “and before any questioning inform them of their rights to counsel and their right not to make any statements 17 OPVTA Video Pedestrian in Parking Garage 18 Group Questions 1. When did a detention take place? 2. Articulate the grounds for the detention. 3. What might be some defense arguments arising out of this scenario? 4. When were there reasonable grounds to arrest? 5. What action would the officer take if no break in tools were found on the subject? 19 Detention Controlling People at a Crime Scene How much can you control people at a crime scene without triggering s.9 and s.10 of the Charter? 20 Final Thoughts Investigative Detention Suspect behaviour Officer Experience May add to reasonable grounds to suspect 21 Final Thoughts Investigative Detention Three Main Points 1. Need reasonable grounds to suspect to detain 2. May only search for safety reasons when there are reasonable grounds to believe officer safety or safety of others is at risk 3. Need reasonable grounds to believe to arrest 22 Homework Assignment Workbook Questions 23