In the early years of the Charter, the Supreme Court of Canada pledged to interpret the section 8 right to be secure against unreasonable search or seizure restrictively — the Constitution “does not itself confer any powers, even of ‘reasonable’ search and seizure, on … governments” (Hunter v. Southam (1984)). Two decades later, without government advancing statutory authority, the Court recognized, in effect created, an investigative detention power as an integral and necessary aspect of street policing and exception to the arbitrary detention protection of section 9 of the Charter (R. v. Mann (2004)). This police-initiated detention, effectively a warrantless seizure of the person, in turn raises issues of search of the detainee, questioning of the detainee on occasion amounting to a search, and the exercise of incidental powers raising section 8 Charter issues. The investigative detention power, immersed in a matrix of search and seizure issues, but currently analyzed exclusively in section 9 Charter language, might more purposively be measured for compliance with constitutional principles through section 8 analysis with the onus upon government to justify circumstances of warrantless detention/seizure of the pedestrian or driver. With the low visibility of investigative detention, the absence of effective administrative review of its exercise, and its disproportionate impact on the young, the poor and visible minorities, the courts, in the absence of Parliamentary action, must discharge their duty to bring greater clarity, if not accountability, into the process.
"Investigative Detention: A Search/Seizure by Any Other Name?."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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