Statutory Law
Statutory law is written law enacted by different levels of government. These written laws
regulate the conduct of citizens. Laws are enacted with escalating levels of authority from the
three levels of government in Canada. The most serious laws are the domain of the federal
government, which takes responsibility for controlling criminal conduct under the Criminal Code
of Canada, as well as criminal conduct ascribed to be of national concern under a broad
spectrum of other federal statues, such as:
1. The Criminal Code of Canada
2. The Controlled Drug and Substances Act for drugs offences
3. The Fire Arms Act for the control of firearms and restricted weapons
4. The Canadian Environmental Protection Act for environmental offences
5. The Canada Revenue Agency Act for Income tax offences
6. The Canadian Customs and Border Services Act for border security
Statues, such as the Motor Vehicles Acts or the Liquor Control and Licencing Acts, are enacted
by the provincial governments, and these laws vary somewhat from province to province. Each
province has discretion to independently regulate issues, such as speed-limits or minimum
drinking age, reflecting the cultural tolerances and social norms of their jurisdiction. At the
lowest level, municipal governments enact by-law statues exclusive to their local concerns, such
as parking or littering laws.
The Criminal Code of Canada is the most important and instructive federal statute for
investigators. It provides police investigators with their authorities to use force, make arrests,
enter private property, search for and seize evidence, and to lay charges against offenders. The
wording of the Criminal Code of Canada is very clear regarding the types of action and conduct
that constitute criminal offences. The Criminal Code also is generally clear about the rules for
when and how a police officer may use force, arrest a suspect, enter private property, search and
seize evidence, and lay a criminal charge against a suspect. However, there remains a significant
amount of subjective interpretation in the code that must be done in the mind of an investigator
to effectively use the various stated authorities to enforce the law. This need to interpret statutory
law exists because of case law decisions and the common law precedents that have been
established from those case law decisions.
Common Law (Case Law)
Common law is law that is not written down as legislation or a statue and is based on rulings and
precedents of past cases to guide judges in making later decisions in similar future cases. It
cannot be found in any statute or body of legislation, but only in past decisions. It is flexible and
adapts to changing circumstances.
Fulfilling the role of a police investigator requires an understanding of specific statutory
authorities, along with the case law and common law definitions for utilizing those authorities.
Statutory authorities provide powers for arrest and use of force, powers for entry to private
property, and powers to search for and seize evidence. Case law and common law are procedural
in nature. They help define limits within statutory authorities and dictate the way the law is
administered by the court. By extension, case law and rules of evidence define the way police
investigations should be conducted, the way suspects should be treated, and the processes for
collecting evidence and preserving it for court. The ability of an investigator to properly interpret
and follow these statutory laws, case laws, and rules of evidence, can play a large part in
determining if the evidence from an investigation is accepted or rejected by the court.
Case law and common law exist because, over the years, the courts have continually found that
applying statutory law cannot happen without interpretation and consideration of exceptions.
Critical points of subjective analysis, deciding issues of fairness to the accused, and balancing
the need to protect society from criminal conduct have caused the courts to interpret how the law
should be applied. These interpretations, when accepted by the judicial system, become
precedents and sometimes even doctrines of law. Many of them directly comment on the matters
an investigator should consider when making specific decisions to take action. With these stated
matters of case law in mind, investigators are called upon to subjectively interpret the
circumstances, evidence, and information relating to an event, and to determine if the specific
facts and circumstances will meet the tests that allow action to be taken.
Many of an investigator’s interpretations and subsequent actions can be critical to the court
accepting the evidence collected when the case goes to court, such as:
• Using physical force, up to and including deadly force
• Forming reasonable grounds to detain or arrest suspect
• Entering private property with or without a warrant
• Using the rules of exigent circumstances to protect life and safety of person or evidence
• Using discretion to take actions, other than charges, when an offence has been committed
In addition to these case law decisions, common law also provides several doctrines of law that
define consistent rulings of the courts when making assessments of the evidence being presented
in relation to some specific common issues. A doctrine is established through repeated
application of the same legal precedents, and there is an expectation that the lower courts will
respect the application of these legal precedents in stated cases of the higher courts. Knowing
these doctrines, and considering how the court might apply them to the evidence being presented,
assists investigators on the proper ways to collect evidence that will best inform the court.
The Common Law Doctrine of Necessity
Under criminal law, the defense of necessity can be invoked by the defence in cases where the
accused seeks to provide a rationale that committing the offence was the unavoidable result of
some serious circumstance beyond his or her control. In considering this defence, the court will
apply a very strict standard in order to meet the conditions prescribed in the common law
doctrine of necessity (Gecker, 1989). It is important for an investigator to know the criterion that
the court will apply, in-as-much as it will allow the investigator to seek out evidence that either
supports or negates the necessity defense. The leading case in Canada for such a defence is R v
Perka where Justice Dickson described the rationale for the defence as a recognition that:
A liberal and humane criminal law cannot hold people to the strict obedience of laws in
emergency situations where normal human instincts, whether of self-preservation or of
altruism, overwhelmingly impel disobedience.
However, it must be “strictly controlled and scrupulously limited.” and [sic] can only be
applied in the strictest of situations where true “involuntariness” is found. Three elements are
required for a successful defence:
1.the accused must be in imminent peril or danger
2.the accused must have had no reasonable legal alternative to the course of action he or
she undertook
3.the harm inflicted by the accused must be proportional to the harm avoided by the
accused
The peril or danger must be more than just foreseeable or likely. It must be near and
unavoidable.
At a minimum the situation must be so emergent and the peril must be so pressing that
normal human instincts cry out for action and make a counsel of patience unreasonable.
With regard to the second element, if there was a reasonable legal alternative to breaking the
law, then there can be no finding of necessity. Regarding the third element requiring
proportionality, the harm avoided must be at least comparable to the harm inflicted (R v
Perka, 1984).
Clearly, the standard for the defense of necessity sometimes requires the interpretation of
complex issues. This interpretation determines if the circumstances and evidence fall within the
ascribed definitions to be considered necessity. This interpretation is the job of the court
assessing the evidence to reach their belief beyond a reasonable doubt.
If an investigator has discovered sufficient evidence and has reasonable grounds to believe an
offence has been committed, there are sufficient grounds to lay the charge. In serious cases,
where harm to persons, or significant property damage has occurred, police investigators do not
have the discretion to consider if an accused person should be afforded the defence of necessity
due to the complexity of the issues. In lesser cases, for instance where a police officer stops a car
for speeding and the driver shows that they are speeding to get a critically injured person to the
hospital, a police officer might use discretion and accept the excuse of necessity to forgo the
speeding ticket. Conversely, if an accused person made the decision to cut a lifeline that caused a
mountain climber to fall to his death to save himself from being pulled over the edge, that
decision of necessity needs to be made by a judge in a court of law.
In serious cases, it is important for an investigator to remember that their job does not include
making any final interpretation regarding the defense of necessity, even if evidence of necessity
may exist. The investigator’s task is restricted to recognize and collect all evidence that may
assist the court to make their decision on the issues of necessity. This would include recognizing
and collecting evidence to show:
1. The nature of the danger being imminent or not
2. Evidence of other legal alternatives or actions that were available to the accused
3. Evidence that might indicate the danger was either avoidable or unavoidable
4. Evidence to demonstrate the anticipated harm from the threat, compared to the harm
resulting from the accused’s action
Doctrine of Recent Possession
The doctrine of recent possession refers to the possession of property that has been recently
stolen. It permits the court to make the inference that the possessor of the stolen property had
knowledge that the property was obtained in the commission of an offence, and, in certain
circumstances, was also a party to the initial offence (R v Terrence, 1983; & R v Kowlyk, 1988).
When considering whether to make the inference of recent possession, the prosecution must
consider all the circumstances (R v Abernathy, 2002). This includes common sense factors, such
as the amount of time that passed between possession and the offence (R v Gagnon, 2006).
Factors to consider whether the possession was recent include the nature of the object, the
rareness of the object, the readiness with which the object can and is likely to pass to another,
and the ease of identification. To achieve an inference, the Crown must establish that the accused
was found in possession of the item and that the item was recently stolen without an explanation
(R v Gagnon, 2006). When the accused is found in recent possession without explanation, the
prosecution can draw the inference and make the presumption that the accused had a role in the
theft or related offences. The defence can present an argument to counter the presumption by
providing evidence of a reasonable explanation (R v Graham, 1974).
Doctrine of Wilful Blindness
Wilful blindness, also called ignorance of the law or contrived ignorance, is something the court
will consider when an accused provides a defense claiming that they were not aware of the facts
that would make them either criminally or civilly liable for a criminal offence or a civil tort. As
an example, this can arise where a person has purchased an expensive item of stolen property for
a very small price, then attempts to defend against a charge of possession of stolen property by
claiming that they did not to know the item was stolen and/or did not know the true value of the
item. In applying the doctrine of wilful blindness, the court will carefully examine the
circumstances to determine what the accused should have known or if the accused should have
inquired further.
The Supreme Court of Canada articulated the thinking behind the assessment of wilful blindness
in R v Briscoe:
“Wilful blindness does not define the mens rea required for particular offences. Rather, it can
substitute for actual knowledge whenever knowledge is a component of the mens rea. The
doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to
the point where he or she sees the need for further inquiries, but deliberately chooses not to
make those inquiries” (R v Briscoe, 2010).
The manner in which the court should examine these issues is further expressed in Sansregret v
The Queen, [1985] 1 S.C.R. 570 and R v Jorgensen, [1995] 4 S.C.R. 55. As Sopinka J. succinctly
put it in R v Jorgensen (at para.
103):
“[a] finding of wilful blindness involves an affirmative answer to the question: Did the
accused shut his eyes because he knew or strongly suspected that looking would fix him with
knowledge? Courts and commentators have consistently emphasized that wilful blindness is
distinct from recklessness. The emphasis bears repeating.”
As the Court explained further in Sansregret v The Queen (at p. 584):
…while recklessness involves knowledge of a danger or risk and persistence in a course of
conduct which creates a risk that the prohibited result will occur, wilful blindness arises
where a person who has become aware of the need for some inquiry declines to make the
inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The
culpability in recklessness is justified by consciousness of the risk and by proceeding in the
face of it, while in wilful blindness it is justified by the accused’s fault in deliberately failing
to inquire when he knows there is reason for inquiry“ (Sansregret v The Queen, 1985).
For an investigator who anticipates that wilful blindness may become an issue at trial, it is
important to recognize the need to gather the additional evidence that might demonstrate the
accused knew or should have known the nature of the offence taking place, and deliberately
failed to inquire.
Actus Reus and Mens Rea
To recognize the types of evidence that need to be collected with respect to various offences, an
investigator must become intimately familiar with the concept of actus reus, which is a Latin
term definable as “the guilty act” or “the criminal act”, and the concept of mens rea, another
Latin term meaning “guilty mind” or “the intent to commit a crime”. For any specific offence,
the actus reus will be described by the wording of the statute that prohibits the conduct. For
example, for the offence of theft, under the Criminal Code of Canada, the guilty act of theft, and
variations of what constitute theft, are described in detail under section 322 (Criminal Code,
1985, s 322(1, 2)) of the Criminal Code of Canada:
Theft 322. (1) Every one commits theft who fraudulently and without colour of right takes,
or fraudulently and without colour of right converts to his use or to the use of another person,
anything, whether animate or inanimate, with intent
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a
special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who
parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in
which it was at the time it was taken or converted.
(2)A person commits theft when, with intent to steal anything, he moves it or causes it to
move or to be moved, or begins to cause it to become movable.
The definition of the offence of theft provides a broad range of actions that will constitute the
guilty act of theft. It defines items that can be stolen as anything, whether animate or inanimate.
It includes conversion of the use of an item as being a theft, and it even defines the time a theft is
completed, saying theft occurs when a person merely begins to cause something to be movable.
For an investigator to collect evidence to prove the guilty act of theft, these definitions create a
range of activities where evidence can be collected to illustrate a theft has occurred; but, just
proving one of the actions that define the guilty act of theft occurred is insufficient because theft
is one of the criminal offences that requires the act to be intentional. This is where the concept of
mens rea comes into play.
The concept of mens rea seeks to determine if the accused person had the intent to commit the
offence. Going back to the wording for the offence of theft, you will see that the words “with
intent” are part of that offence wording. The words “with intent” allow that if a person takes
someone’s property by accident or without the intent to steal, the offence of theft is not
completed. For an investigator, this is an important concept because with this term, there is an
added obligation to look for evidence that can assist the court in determining if the accused did in
fact have the intent to commit the offence.
In the case of a theft, evidence of intent may be part of the observed actions of the accused, such
as where a shoplifter is seen stuffing store merchandise into their pockets and then walking out
the nearest exit of the store without paying. In such a case, it would not be enough for the
investigator to show that the accused removed the property from the store. The act of concealing
the items in the pockets is critical to demonstrate the intent to commit the offence. So, for
offences where the term “with intent” forms part of the wording of the offence, the investigator
needs to look for those extra pieces of evidence to demonstrate intent to the court.
It should be noted that intent does not form part of the wording for all offences. There are some
offences where intent is not required. These are called a “strict liability offence” in Canada, and,
with these offences, it only needs to be shown that the guilty act occurred. Some less serious
offences, like speeding or failing to stop at a stop sign, are “strict liability” offences, and the
investigator does not need to show that there was intent to commit the offence. There are also
more serious strict liability offences, such as criminal negligence causing death or bodily harm,
where proof of intent is not required. For offences sometimes called “crimes of omission,” it is
only necessary to find evidence showing that the accused failed to meet the standard of care that
is expected, and that they acted in a reckless manner. In other words, their reckless disregard
caused or allowed the harm to occur.
Criminal negligence
219. (1) Everyone is criminally negligent who
(a)in doing anything, or
(b)in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Definition of “duty”
(2) For the purposes of this section, “duty” means a duty imposed by law (Criminal Code,
1985, s 219).
Even though intent in not a required element for this kind of charge, careful investigation of the
evidence could elevate the offence from criminal negligence causing death or bodily harm to
assault or even murder, if evidence of intent can be demonstrated. To demonstrate this point, let
us examine a case where three men go hunting together and each is carrying a rifle. A shot is
fired and one of the men is killed. The investigation of this death reveals that the shooter had
been drinking heavily and was walking along with his loaded rifle and the safety on the rifle was
off. The muzzle of his rifle was pointed in the direction of the victim walking beside him. The
shooter confesses that he stepped over a log, tripped, and the gun discharged killing the victim.
This evidence of drinking, the safety being off, and pointing a gun at the victim might support a
charge for criminal negligence causing death.
Further investigation results in a statement from the third hunter who states that the victim and
the shooter were business partners, and they had been arguing all morning over how they should
divide the assets of the business they were selling. At one point, the shooter was heard telling the
victim, “Be reasonable or I will just get rid of you and keep it all for myself.” This statement
could be interpreted as an indication of motive and perhaps even intent to kill, and could be
enough to elevate the criminal negligence causing death to a charge of murder. Hence, Actus
Reus and Mens Rea become core concepts of investigative thinking. As the investigation
proceeds, the investigator will undertake an ongoing process of evidence collection, offence
recognition, and theory development to determine if an offence occurred, how the offence
occurred, and why the offence occurred or is there evidence of intent. These concepts and the
thinking to conduct theory development and evidence collection will be discussed in greater
detail in the proceeding chapters of this book.
Prima Facie Case, Elements of the Offence, and the Criminal Information (Charge)
It is the job of the crown prosecutor to present evidence to the court that proves a prima facie
case. Prima facie means at first sight and is the minimum amount of evidence required to prove
each element of the formal charge against the accused. The elements of the offence include
proving the specific acts alleged in the offence, such as assault or robbery; however, the elements
of the offence also include other critical facts that a police investigator must consider to collect
the correct evidence. It is the presentation of evidence that, if believed, would establish each of
the elements necessary for the prosecution to succeed. In assessing whether a prima facie case is
made, a judge does not decide whether the evidence is likely to be believed; but merely whether,
if it were, it would establish the necessary elements for a conviction (Legal Information Institute,
2016).
The duty to investigate and the use of discretion
An appointment as a peace officer and the duties of a police officer in Canada are made under
the authority of various provincial police acts and at the federal level under the RCMP Act. The
designation of a peace officer under any one of these acts enables the appointed person to
exercise the powers and authorities of a peace officer described in those acts, as well as the
powers and authorities to function as a peace officer under the provisions of the Criminal Code
of Canada and any other federal and provincial statutes. In addition to these powers and
authorities to act, persons designated as peace officers also have some limited protection from
criminal charges and civil liabilities in cases where they unintentionally make an error or cause
injury to a person. These protections from criminal and civil liability are provided under the
Criminal Code for some criminal acts and under Provincial Police Acts and the RCMP Act for
civil torts. These protections are not available, or can be withheld, where an officer is found to
have acted with criminal intent or is found to have been reckless or criminally negligent in the
execution of their duties.
So, police officers are endowed with powers and authorities to act as keepers of the peace. For
the police, this responsibility is equated to doing their duty. To fully understand what this entails,
one must consider these two most critical questions:
• What are those duties?
• Who decides when or if they have been properly done?
These questions have a long history of both philosophical and legal arguments, dating all the
back to the origins of policing in England (Reith, 1943). In those early times, the police were
predominately considered to be peace-keepers. As such, the neighbourhood “Bobby” would
intervene to settle local disputes. Criminal charges were the last resort. This ability of police
officers to settle local disputes using their own judgement and discretion became a valued
function of policing skills. The use of discretion remains today at the core of community
policing, restorative justice initiatives and alternate dispute resolution programs.
The arguments surrounding police use of discretion and alternate dispute resolution are twofold.
Some have argued that police with too much discretion will misuse it and become corrupt, while
others contend that the justice system will become overloaded with minor cases if the police do
not have the discretion to try to resolve some disputes without laying charges (R v Beare, 1988).
Directly on this point, Justice La Forest J. stated; Discretion is an essential feature of the
criminal justice system. A system that attempted to eliminate discretion would be unworkably
complex and rigid” (R v Beare, 1988).
Implicitly supporting the ongoing use of discretion, legislators continue to only provide very
general definitions regarding what the duties of the police should be. Statements of police duties,
such as the following are the norm.
“… (Police Officers) must perform the duties and functions respecting the preservation of
peace, the prevention of crime and offences against the law and the administration of justice
assigned to it or generally to peace officers by the chief constable, under the director’s
standards or under this Act or any other enactment” (Government of British Columbia,
2015).
Even under the Criminal Code of Canada, there is an implied discretion indicating that the
laying of an information is a matter of may and not a requirement of will.
Section 504 CCC. Anyone who, on reasonable grounds, believes that a person has
committed an indictable offence may lay an information in writing and under oath before a
justice, and the justice shall receive the information, where it is alleged
(a)that the person has committed, anywhere, an indictable offence that may be tried in the
province in which the justice resides (Criminal Code, 1985, s 504(1)(a)).
For investigators, this implied discretion to not take the action of laying a charge seems to leave
the door open for a great deal of latitude and interpretation. Historically, this has been the case;
but recently, there have been several cases where the incorrect use of discretion has resulted in
case law providing more prescriptive direction and defined process for the use of discretion (R v
Beaudry, 2007).
To examine the use of discretion, R v Beaudry (2007) has been very instructive in defining the
criterion for officers. The brief facts of the case are as follows: the accused, Sgt. Beaudry, was a
Quebec police officer who stopped a vehicle on September 22, 2000. The driver turned out to be
intoxicated. Upon discovering that the driver was also a police officer whom he had met on a
previous occasion, Sgt. Beaudry decided not to demand a breathalyser test from the driver. Sgt.
Beaudry believed the driver to be depressed and stated that he was using discretion to give him a
chance. Sgt. Beaudry was charged with and convicted of obstruction of justice. The court ruled
that he had improperly used his discretion by allowing favouritism. Ultimately, the Supreme
Court of Canada’s ruling clarified some of the limitations that they would assign to police
discretion. It stated:
“discretion is not absolute. Far from having a carte blanche, police officers must justify their
decisions rationally.”
In R v Beaudry, SCC ruled that the justification or using discretion must have three elements:
1. It must be an informed decision, based on evidence that constitutes reasonable ground
2. There must be concrete reasons for the decisions to use discretion that are not based
on favouritism or bias
3. The officer must have both a subjectively and objectively honest belief in the reason
for using the discretion, and the judge must determine that the officer’s belief reflected
reality (R v Beaudry, 2007).
In addition to these three elements, the Supreme Court also stated that:
“Justification for discretion has to be proportional to the offence and has to be in the interest
of public safety (R v Beaudry, 2007).”
From the R v Beaudry (2007) ruling, a set of seven principles were outlined and these principles
serve as guidelines for police use of discretion in Canada:
1. Discretion is vital to the operation of the criminal justice system. Not all offenders must
be charged.
2. The police still have discretion, but it is not absolute, it is limited.
3. Limited discretion means discretion must be proportional to the seriousness of the
offence.
4. Use of discretion must be justified with concrete reasons.
5. Improper use of discretion does not automatically constitute “Obstruct Justice”.
6. A simple error of judgement is not “Obstruct Justice”.
7. “Obstruct Justice” is committed when discretion is disproportionate, unjustified, and
intended to obstruct, pervert, or defeat the course of justice (R v Beaudry, 2007).
In 2007 following this ruling, in the landmark civil case of Hill v Hamilton-Wentworth Regional
Police, the
Supreme Court of Canada added an additional rule to the existing Beaudry list of principles:
The decision not to charge an offender cannot be based on the selfish desire to avoid
potential civil liability (Hill v Hamilton-Wentworth Regional Police Services Board, 2007).
Arrest and Detention
Arresting or detaining a suspect are two of the most critical actions that a police investigator can
take in the process of any investigation. Each is a distinct course of action and offers the
investigator strategic advantages to control the investigative environment by:
• Bringing suspected persons under control in secure custody;
• Stopping an offence in progress or preventing an offence about to be committed;
• Enabling the search for items that may cause danger to the police investigator or others;
• Enabling the search for evidence of the offence;
• Establishing the identity of suspected persons; and
• Compelling accused persons to attend court to face charges.
The concept of arrest for police investigators relates to the process of taking a person into
custody upon reaching reasonable grounds to believe that an offence has been committed by the
person being arrested. There are many statutes, both federal and provincial, that provide the
police with powers of arrest. However, the Criminal Code of Canada provides direction for all
police investigators in Canada. Section 495 of the Criminal Code of Canada states:
Arrest without warrant by peace officer
Section 495
(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable
grounds, he believes has committed or is about to commit an indictable offence;
(b)a person whom he finds committing a criminal offence; or
(c)a person in respect of whom he has reasonable grounds to believe that a warrant
of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in
force within the territorial jurisdiction in which the person is found.
Limitation
(2) A peace officer shall not arrest a person without warrant for
(a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which
he is punishable on summary conviction, or
(c)an offence punishable on
summary conviction, in any case
where
(d)he believes on reasonable grounds that the public interest, having regard to all
the circumstances including the need to
(i)establish the identity of the person,
(ii)secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission
of another offence, may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person,
the person will fail to attend court in order to be dealt with according to law
(Criminal Code, 1985, s 495(1, 2)).
As a specific power to take action, arrest provides police investigators with a means to intervene
in criminal situations and stop persons in the process of dangerous or unlawful acts by taking
them into custody. With any arrest, there is an obligation to bring the arrested person before the
court for release or otherwise to release the person but compel them to court by other means,
such as a summons or promise to appear.
As a lesser power, the police action of detaining a suspect has evolved in common law to allow
police to take a person into custody for a shorter time. This detention can be used where
reasonable grounds to believe the person has committed an offence have not yet been
established, but there is some evidence or circumstances that point to the person as a suspect in
the offence being investigated.
For police investigators, the actions of arrest and detention need to be considered as strategic
functions of the investigative process. Making an arrest or detaining the suspect are not final
outcomes, but merely strategic steps in the process of identifying the offender and gathering
sufficient evidence to proceed with a charge. The powers and authorities that exist for police
investigators to detain a subject or make an arrest are complex. Detaining a suspect or making an
arrest may damage the investigation and threaten the admissibility of evidence flowing from
detention or arrest if it is not done on the basis of real facts and circumstances that the officer can
adequately articulate to the court.
There is extensive case law that speaks to the issues surrounding both the detention and arrest of
a suspect. Case law makes a significant distinction that an investigator needs to consider if they
are about to detain or arrest a subject. In the simplest of terms that distinction is:
• To arrest a suspect, a police investigator needs to have reasonable grounds to believe
that a person has committed the offence and in contrast,
• To detain a suspect, a police investigator only requires a reasonable suspicion that a
suspect is somehow implicated in the offence under investigation.
The distinction between forming reasonable grounds to believe a person has committed the
offence and having a reasonable suspicion that a person is somehow implicated in the offence
under investigation is a matter of evaluating the evidence available at the time detention or arrest
are being considered.
To form reasonable grounds to believe a suspect has committed the offence, the investigator
must have evidence that points directly to that suspect. This kind of evidence could be a witness
identifying the suspect as committing the offence or strong circumstantial evidence such as
fingerprints or DNA connecting the suspect to the scene or the victim. These types of evidence
could provide the necessary reasonable grounds to believe the suspect committed the offence. In
contrast, reasonable suspicion that a person is implicated in the offence under investigation
requires significantly less concrete evidence. An investigator finding circumstantial evidence that
points to a person as being implicated can be sufficient to make the detention. In articulating case
law, judges have elaborated on the police common law powers to utilize detention as part of an
investigation.
In 2004 in the case of R v Mann, the Supreme Court of Canada stated that, in spite of the fact
that there is no general power for investigative detention, police may detain a person if there
are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a
crime and the detention of that person is reasonably necessary on an objective view of the
circumstances. The circumstances to be considered should include the extent to which a
suspect’s liberty is interfered with in order for the police officer to conduct the required duties,
and the individual being detained for investigation, must be told in simple language about the
reason for that detention. The detention must be as short as possible in duration, and detention
does not impose any obligation to answer questions. In addition, if a police officer has
reasonable grounds to believe his safety or the safety of others is at risk, the officer may
conduct and pat-down search on the detained subject and this kind of search is not the same as
a search subsequent to an actual arrest (R v Mann, 2004).
