POLICE ACADEMY

715 McBride Blvd. New Westminster B.C. V3L 5T4

IN SERVICE:10-8
A newsletter devoted to operational police officers across British Columbia.

INVESTIGATIVE
DETENTION: CANADA’S
STOP AND FRISK
Sgt. Novakowski

Encounters
on
the
street
between the police and the
citizen take on a variety of
forms. These encounters range
from friendly exchanges of
greetings,
innocuous
social
conversation, useful information
sharing to highly charged and volatile arrest situations.
Transcending the “investigative” spectrum are
essentially three levels of street encounters between
the police and the citizens they serve.
Consensual
Encounters

Investigative
Detention

Arrest

Consensual Encounters (Field Inquiries)
The law recognizes that a police officer is entitled to
approach and question any person, however there is no
general power for the police to detain the person for
questioning1 nor compel answers. The individual is free to
ignore police questions and may exercise that right by
walking (or running) away. The officer's motivation for
such an encounter is often driven by curiosity and the
officer seeks contact with the person, perhaps inquiring
into circumstances surrounding the persons presence (a
new face), chatting with people on their beat (the
essence of community policing), or questioning persons of
potential interest in an investigation. The officer
approaches the person and contact is made through
inquisitive dialogue. The person may leave at anytime and

IN THIS ISSUE
Investigative Detention: Canada’s Stop & Frisk…..1

the officer must let the individual proceed. In this sense
the contact is mutual, to be terminated by either the
officer or the individual. A non-consensual search is not
permitted during this encounter, nor may a person be
compelled to remain in the presence of the officer,
compelled to empty their pockets, compelled to answer
questions, or compelled to identify themselves.

Arrest
A lawful arrest requires both a legal and factual basis.
Firstly, the arrest must be authorized by law. The
officer must be able to point to a statute or common
law authority permitting the arrest. Generally, a
factual predicate of reasonable grounds2 must exist. If
one or both of these criteria are not satisfied the
arrest is unlawful. With an arrest, a reasonably
conducted incidental protective and evidentiary search
is permitted. In addition, a person may be taken into
custody, subjected to an interrogation, and must
identify themselves or be subject to an obstruction
charge3.
Between a field inquiry and an arrest lies an
investigative detention. Like an arrest, an investigative
detention requires both a legal and factual predicate.
When existing, a valid investigative detention is
permitted. Although an investigative detention is
similar to an arrest in that
it is a forced encounter, it
is
distinguishable
in
purpose, character, and
extent.

THE AMERICAN EXPERIENCE
Although Canadian courts recognize that "American
decisions can be transplanted to the Canadian context
only with the greatest caution4", the BCCA held "the
reasoning in Terry v. Ohio [392 U.S. 1 (1968)] applies
equally to the Canadian experience" and "[t]he concept

1

R. v. Esposito (1985) 24 C.C.C. (3d) 88 (Ont.C.A.) leave to appeal to the S.C.C. refused (1986), see
also R. v. Moran (1987) 36 C.C.C. (3d) 225 (Ont.C.A.) at p. 258, R. v. Willimott [2000] O.J. No. 1530
(Ont.S.Crt.Jus.),., R. v. Dedman (1981) 59 C.C.C. (2d) 97 (Ont.C.A.) at p.108-109, see also comments
of Melnick J. in R. v. Arkinstall [1994] B.C.J. No.612 (B.C.S.C.) at para.37.

Volume 1 Issue 7
September 2001

2
3
4

See Volume 1 Issue 3 of this publication for a review of reasonable grounds.
R. v. Moore [1979] 1 S.C.R. 195., see s.129 Criminal Code.
Hunter et al. V. Southam Inc. (1984) 14 C.C.C. (3d) 97 at p. 109.

of ‘stop and frisk’ meets the Waterfield test5"6.
Before discussing the Canadian concept of investigative
detention as it has developed, it would be appropriate
to first examine its U.S. counterpart; “stop and frisk”.
The U.S. Supreme Court recognizes the general
interest of the government in "effective crime
prevention and detection" warrants a police officer on
the street "in appropriate circumstances and in an
appropriate manner [to] approach a person for the
purpose of investigating [possible] criminal behaviour
even though there is no probable cause7 to make an
arrest8". For a stop to be lawful it must be both
justified at inception and be reasonably related in
scope to the circumstances.

Justified at Inception
A police officer lacking the level of information
necessary for probable cause to arrest is not required
"to simply shrug [their] shoulders and allow a crime to
occur or a criminal escape9". The police may stop and
briefly detain a person for investigative purposes if
the officer has a reasonable suspicion10 supported by
articulable facts that criminal activity "may be afoot",
even if the officer lacks probable cause11.
The concept of reasonable suspicion is not "readily, or
even usefully, reduced to a neat set of legal rules"12. In
fact, there could be circumstances in which wholly
lawful conduct might justify suspicion that criminal
activity is afoot13. However, the relevant inquiry is not
whether particular conduct is "innocent" or "guilty" but
the degree of suspicion that attaches to particular
types of non-criminal acts14. Where conduct justifying
a stop is suspicious, but "ambiguous and susceptible to
innocent explanation", officers may detain the person
to resolve the ambiguity15. In Houston v. Clark County
Sheriff Deputy 174 F.3d 809 (6th Cir.1999), the Sixth
Circuit Court of Appeals reviewed the standard of

5

The Waterfield test is derived from an English case R. v. Waterfield [1963] 3 All E.R. 659,
commonly referred to as the ancillary power doctrine.
6
R. v. Ferris (1998) 126 C.C.C. (3d) 298 (B.C.C.A.) appeal to the Supreme Court of Canada dismissed
[1998] S.C.C.A. No. 424,
7
The Canadain equivalent of "probable cause" is "reasonable grounds to believe". See Hunter et al.
V. Southam Inc. (1984) 14 C.C.C. (3d) 97 at p. 114.
8
Terry v. Ohio 392 U.S. 1 (1968) at p. 22.
9
Adams v. Williams, 407 U.S. 143, 145 (1972)
10
Other terms used to define a reasonable suspicion include individualized suspicion, reasonable
cause, specific and articulable facts, particularized and objective basis for suspecting,
independently suspicious circumstances, articulable reasons, founded suspicion, particularized
suspicion, substantial possibility, and individualized suspicion. Standards not amounting to a
reasonable suspicion include pop guess, inchoate and unparticularized suspicion, off chance, or a
hunch.
11
See U.S. v. Sokolow 490 U.S. 1 (1989) at p.7.
12
See U.S. v. Sokolow 490 U.S. 1 (1989) at p.7 citing Illinois v. Gates 462 U.S. 213, 238 (1983).
13
See Reid v. Georgia 448 U.S. 438 (1980) per curiam.
14
U.S. v. Sokolow 490 U.S. 1, 10 (1989)
15
Illinois v, Wardlow U.S. Supreme Court No. 98-1036 decided January 12, 2000.

Volume 1 Issue 7
September 2001

suspicion required for a permissible investigative
detention:
Police may briefly stop an individual for investigation if they have
a “reasonable suspicion” that the individual has committed a
crime….”Reasonable suspicion” is more than an ill-defined hunch; it
must be based upon “a particularized and objective basis for
suspecting the particular person…of criminal activity.”…It
requires “specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant” an
investigatory stop…. The standard…is not onerous. The requisite
level of suspicion “is considerably less than proof of wrongdoing
by a preponderance of the evidence….Moreover, reasonable
suspicion can arise from evidence that is less reliable than what
might be required to show probable cause. (references omitted)

In forming a reasonable suspicion, a police officer is
entitled to assess the facts in light of their
experience16 and may draw inferences and make
deductions that could elude any untrained person
observing the same conduct17. It is not a requirement
the suspicion be based solely on an officer's personal
observation but may be based on "information supplied
by another person"18. A person's presence in an area of
expected criminal activity, standing alone, is not enough
to support a reasonable suspicion a person is
committing a crime19. However, "officers are not
required to ignore relevant characteristics of a
location in determining whether the circumstances are
sufficiently
suspicious
to
warrant
further
investigation" and a person's presence in a high crime
area is a relevant fact to be considered20. Similarly,
unprovoked flight from the police, is insufficient on its
own to warrant an investigative detention. Unprovoked
flight from police, although not necessarily indicative
of wrongdoing, is certainly suggestive of such and may
contribute to a reasonable suspicion "based on
commonsense judgements and inferences about human
behaviour"21. In assessing reasonable suspicion, the
“the whole picture" must be considered22.

Reasonably Related in Scope
The detention must be "brief23" and “last no longer
than is necessary to effectuate the purpose of the
stop"24. In assessing whether the stop was too long,
the Court must “examine whether the police diligently
pursued a means of investigation that was likely to
confirm or dispel their suspicions quickly, during which
16

U.S. v. Brigoni-Ponce, 422 U.S. 873 (1975) (opinion of Powell J.)
Florida v. Royer, 460 U.S. 491, 524 (1983) (footnote 5) (opinion of Rehnquist J. in dissent)
Adams v. Williams, 407 U.S. 143, 147 (1972)
19
Brown v. Texas, 443 U.S. 47 (1979)
20
Illinois v, Wardlow U.S. Supreme Court No. 98-1036 decided January 12, 2000.
21
Illinois v, Wardlow U.S. Supreme Court No. 98-1036 decided January 12, 2000.
22
See U.S. v. Sokolow 490 U.S. 1 (1989) at p.7 citing U.S. v. Cortez 449 U.S. 411, 417 (1981).
23
Florida v. Royer, 460 U.S. 491, 510 (1983)
24
Florida v. Royer, 460 U.S. 491, 501 (1983)
17
18

2

time it was necessary to detain”25. Courts must avoid
“unrealistic second-guessing” and engaging in “post hoc
evaluation of police conduct” by imagining some
alternative means by which the objectives of the
detention might have been accomplished26. Forcibly
removing a detainee from their home or other place in
which they are entitled to be, and transporting that
person to a police station for an investigative purpose,
even though for a brief time, is not permitted27.
U.S. courts recognize that when a suspect is
"dangerous", they are no less dangerous simply because
they are not arrested28. If an officer is entitled to
make an investigative stop and has reason to believe
the suspect is dangerous, a search limited in scope for
the purpose of protecting the officer may be
undertaken29. With respect to the "frisk search", the
Court in Terry held they could not "blind [themselves]
to the need of law enforcement officers to protect
themselves and other prospective victims of violence in
situations where they lacked probable cause for an
arrest". However, the scope of the search must be
"strictly circumscribed by the exigencies which justify
its initiation". To this end, a protective search of a
detained person in the absence of probable cause must
be limited in scope to a search necessary for the
discovery of weapons that might be used to harm the
officer or others nearby.

could contain a weapon32. In Michigan v. Long, 463 U.S.
1032 (1983), the U.S. Supreme Court stated:
Just as a Terry suspect on the street may, despite being under
the brief control of a police officer, reach into his clothing and
retrieve a weapon, so might a Terry suspect…break away from the
police control and retrieve a weapon from his automobile

If during the search, the officer should discover
contraband other than weapons, the officer "cannot be
required to ignore the contraband", and its seizure is
lawful and does not violate the Fourth Amendment.

THE CANADIAN EXPERIENCE
Detention: The Stop

This protective search incidental to the "stop" does
not carry with it the relatively extensive explorative
search that accompanies a search incident to arrest
(fruits or instrumentalities of the crime, or evidence).
The Supreme Court made it clear that the officer need
not be certain the individual is armed with a weapon,
but "whether a reasonably prudent [person] in the
circumstances would be warranted in the belief that
[their] safety or that of others was in danger"30.

Investigative detention,
as it is known in Canada,
is a common law power
that authorizes police
officers
to
briefly
detain individuals in the course of a police investigation
(even in the absence of reasonable grounds to effect
an arrest33) and deals with “on-the-street observations
by police officer’s who must act quickly”34. In R. v.
Dedman [1985] 2 S.C.R. 2 (S.C.C.), Dickson C.J. stated
that "short of arrest, the police have never possessed
legal authority at common law to detain anyone against
[their] will for questioning, or to pursue an
investigation". Although this statement would appear
to prohibit forced encounters other than arrest, it
addressed a purely arbitrary stop (no articulable cause)
and not the developed concept of investigative
detention. Within the last decade, Canadian courts
have recognized, largely by adopting American
jurisprudence in the area of "stop and frisk", that
police do have a common law authority to detain
individuals for the purpose of an investigation.

To engage in an area search for safety (weapons) "the
officer must have an articulable suspicion that the
suspect is potentially dangerous"31. A limited protective
search authorizes the search of the passenger
compartment (interior) of a motor vehicle provided the
officer restricts the search to those areas where the
detainee would generally have immediate control and

Investigative detention recognizes the police have the
general duties of investigating and preventing criminal
activity35. However, "the fact that a police officer has
a general duty…does not mean that [they] can use any
or all means of achieving these ends36". As such, a valid
investigative detention involves a two-prong analysis to
determine its validity. The officer must have an

25

32

26

33

U.S. v. Sharpe et al 470 U.S. (1985) per Buregr C.J.
U.S. v. Sharpe et al 470 U.S. (1985)
27
Hayes v. Florida 470 U.S. 811 (1985)
28
See Michigan v. Long, 463 U.S. 1032 (1983) at p.1050
29
Adams v. Williams, 407 U.S. 143, 146 (1972)
30
Terry v. Ohio 392 U.S. 1 (1968)
31
Michigan v. Long, 463 U.S. 1032, 1050 (1983) (footnote 16)

Volume 1 Issue 7
September 2001

See Michigan v. Long, 463 U.S. 1032 (1983)
R. v. Bisson 2000 ABPC 30 at para. 21.
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p.309.
35
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p.307, R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p499.
36
R. v. Dedman [1985] 2 S.C.R. 2 (S.C.C.) per Dickson C.J. at p.12.
34

3

articulable cause and the detention must be reasonably
justified in the circumstances.
articulable cause. Did the police officer who
initiated the detention have an articulable cause
sufficient to support an investigative detention?37
In justifying a detention, “the police need not
perform a legal analysis as to whether an offence
could be made out; rather, they must determine
whether there is an ‘articulable cause’ for such
detention”38. An articulable cause requirement
properly balances societal’s interest in the police
detecting and preventing crime (the need for
police enquiry) and the liberty interests of the
individual (to be free from police detention)39.
reasonably justified. Was the detention and the
measures employed by the police officer in the
course of the detention reasonably warranted and
justified in the circumstances? The nature of the
detention must be circumscribed by the reasons
warranting it. A detention that exceeds the
boundaries imposed by the common law may be
found to be an unjustifiable use of police powers.

Articulable Cause
"Articulable cause" is a legal standard providing
justification for state action (ie. detention) and is the
yardstick by which an arbitrary detention is measured.
"Articulable cause" is a "reasonable suspicion40" and
has been synonymously referred to as reasonable cause
to suspect41, a reasonable basis to suspect42,
particularized and objective basis for suspecting43, a
reasonable and articulable suspicion44, reasonably
based suspicion45, objectively based high level of
suspicion46, or reasonable grounds to suspect47. A
reasonable suspicion lies between subjectively based
suspicion (mere suspicion or curiosity), and reasonable
belief48 or grounds. It is considered a lesser but
included standard of reasonable grounds and is clearly

37

See R. v. Hall (1995) 22 O.R. (3d) 289 (Ont.C.A.), R. v. Simpson (1993) 79 C.C.C. (3d) 482
(Ont.C.A.), R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C.
dismissed [1998] S.C.C.A. No. 424 (S.C.C.), R. v. Johnson [2000] B.C.C.A.
38
R. v. Reid [2000] O.J. No.2969 (Ont.P.C.)
39
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p.308, R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.)
40
See R. v. Lal [1998] B.C.J. No. 2446 (B.C.C.A.) leave to appeal to dismissed [1999] S.C.C.A. No. 28
(S.C.C.), R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p503.
41
R. v. Brisson 2000 ABPC 30 at para. 24., see also R. v. Perrault [1992] R.J.Q. 1848 (Que.C.A.) at
p.183
42
R. v. J.R. [2000] O.J. No. 930 (Ont.S.C.J.) at para.15.
43
R. v. Lee [1993] B.C.J. No.1220 (B.C.S.C.)
45

R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p503.
R. v. Pena [1996] B.C.J. No.2821 (B.C.S.C.) at para.36.
R. v. Burke (1997) 118 C.C.C. (3d) 59 Nfld.C.A.) per Marshall J.A. at p.76.
48
R. v. Granston (2000) Docket: C29926 (Ont.C.A.)
46
47

Volume 1 Issue 7
September 2001

not as high49. A hunch50, unfounded suspicion51,
speculation52, intuition53, or guess54 do not amount to
articulable cause. In articulable cause cases "the
circumstances as a whole [cry] out for further
investigation55". Doherty J.A. in R. v. Simpson (1993)
79 C.C.C. (3d) 482 (Ont.C.A.) defined investigative
articulable cause as:
[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.

Articulable cause, like reasonable belief, “must be both
subjectively held and objectively verifiable"56.
Objectively, a court "must be supplied with sufficient
information to support an independent judgement that
there was articulable cause to make the stop"57. The
objective standard provides a constitutionally
recognized basis by which a neutral arbiter may judge
the conduct of the police. This is similar to the
reasonable grounds standard authorizing arrest "and
serves to avoid indiscriminate and discriminatory
exercises of the police power58". Succinctly, the "police
officer must be able to demonstrate an objective basis
in fact that gives rise to [their] suspicion59". In
comparing the standard of reasonable grounds to
articulable cause, Osborne J.A. in R. v. Hall (1995) 22
O.R. (3d) 289 (Ont.C.A.) stated:
Both "articulable cause" and "reasonable and probable grounds",
as related to an investigative detention and an arrest without
warrant respectively, are subject to objective assessment. That
is to say there must be a constellation of objectively discernible
facts amounting to articulable cause for a lawful investigative
detention and a constellation of objectively discernible facts
amounting to reasonable and probable grounds for a lawful arrest
without warrant

Acknowledging "the officer has to make a quick
judgement 'in the field' as to whether [they] should
intervene", it is sufficient that the facts objectively
observed "give rise to a reasonable suspicion of the
existence of potentially illegal activity which would
justify intervention"60. The combination of the facts
49

R. v. Pearce (1997) 120 C.C.C. (3d) 467 (Nfld.C.A.) at p.470
R. v. Pearce (1997) 120 C.C.C. (3d) 467 (Nfld.C.A.) at p.470, R. v. F.L. [1996] B.C.J. No. 3010
(B.C.S.C.) Lander J. at para. 15, R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p.501.
51
R. v. Arkinstall [1994] B.C.J. No.612 (B.C.S.C.) at para.40.
52
See R. v. Cox [1999] N.B.J. No. 86 (QL) (N.B.C.A.) per Ryan J.A. at para.12, R. v. Simpson (1993)
79 C.C.C. (3d) 482 (Ont.C.A.) at p502.
53
R. v. Lal (1996) Docket:CC940845 (B.C.S.C.) affirmed [1998] B.C.J. No. 2446 (B.C.C.A.) leave to
appeal to dismissed [1999] S.C.C.A. No. 28 (S.C.C.),
54
See R. v. Cox [1999] N.B.J. No. 86 (QL) (N.B.C.A.) per Ryan J.A. at para.12, R. v. Simpson (1993)
79 C.C.C. (3d) 482 (Ont.C.A.) at p502.
55
See R. v. D.I. [1996] B.C.J. No. 2750 (QL) (B.C.YouthCt.) per Rae Youth Ct. J. at para.17.
56
R. v. F.L. [1996] B.C.J. No. 3010 (B.C.S.C.) Lander J. at para. 15..
57
R. v. Lal [1998] B.C.J. No. 2446 (B.C.C.A.) leave to appeal to dismissed [1999] S.C.C.A. No. 28
(S.C.C.)
58
R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.)
59
See R. v. Mulligan [2000] O.J. No. 59 (Ont.C.A.)
60
R. v. Pearce (1997) 120 C.C.C. (3d) 467 (Nfld.C.A.) at p. 471-2.
50

4

and the officer’s understanding of them form the
objective basis of articulable cause even though levels
of suspicion have not risen sufficiently to permit an
arrest based on reasonable grounds. The factors are
not to be isolated and looked at individually and thus
said to be insufficient. The factors must be viewed
collectively as a whole in determining whether the
circumstances gave rise to properly constituted
articulable cause61. In short, the validity of the
detention must be determined in relation to the
circumstances that were apparent to the police
officer. Of course, looking suspicious is not enough.
The officer must be able to articulate reasons for
their actions that may be judicially reviewed.
The “constellation of objectively discernible facts”
forming an articulable cause may collectively find a
valid basis anchored in the following:
Personal observations. Police may consider their
personal observations such as the spatial proximity
between the suspect and the crime62, temporal
connection between the detention and the crime63,
suspicious (peculiar) driving pattern64, furtive
movements of occupants of vehicles65, an unnatural
bulge in the clothing of the person66, or the
unannounced arrival of a person at a building
devoted entirely to a marihuana grow operation67.
Information. The officer is entitled to rely on
information they receive from others, such as
personal observations relayed by other persons
including police colleagues (which may be assumed
to be reliable68), information provided by an
informant69, CPIC queries70, information bulletins,
or other sources of reliable second hand
information. Like reasonable grounds for belief,
reasonable suspicion is dependent on both the
content of the information provided to the police
and its degree of reliability. Since the standard
for reasonable suspicion is less demanding than
that for reasonable belief, articulable cause may

arise from information that is less reliable than
that required to show reasonable grounds71.
Experience. Experience is not to be discounted in
the formulation of articulable cause72. The general
category of experience may incorporate personal
experience, corporate experience, and training73.
"When assessing the objective grounds…it is
proper to consider that the person drawing the
inferences is a police officer with experience and
training in investigating criminal activity"74. In
addition, the officer may make rational inferences
from the articulable facts to demonstrate the
police suspected the person of unlawful behaviour.
Like reasonable grounds for belief, the reputation of
the individual or the reputation of the area, may
contribute to articulable cause. On the other hand,
reputation alone, such as having a criminal record,
would never provide articulable cause75. Similarly,
attendance at a location of ongoing criminal activity,
such as a crack house, may add to articulable cause.
However, if the information about the area is of
unknown age or reliability, no articulable cause exists
and the police are not entitled to detain anyone who
happened to be at the site of the suspected criminal
activity76.

Reasonably Justified
When detaining a person, it is not sufficient that only an
articulable cause exists. In addition to articulable cause,
the detention must also be reasonably justified77. The
justifiability requirements include the following:
reasonable proximity
reasonable duration
reasonable intensity

Reasonable Proximity
Investigative detention “is associated with unplanned …
police investigations of contemporaneous crimes”78.
With this in mind, the detention must occur
sufficiently proximate with the criminal activity under

61

R. v. Bullock [2000] O.J. No. 796 (Ont.Crt.J.) per Mossip J. at para. 24.
U.S. v. Bush (2000) Case No. CR-3-99-046 (U.S.Dist.Crt.)
U.S. v. Bush (2000) Case No. CR-3-99-046 (U.S.Dist.Crt.)
64
R. v. Arkinstall [1994] B.C.J. No.612 (B.C.S.C.) at para.32.
65
R. v. Arkinstall [1994] B.C.J. No.612 (B.C.S.C.) at para.32.
66
R. v. F.L. [1996] B.C.J. No.3010 (B.C.S.C.)
67
R. v. McAuley [1998] M.J. No.194 (Man.C.A.)
68
In R. v. Lal [1998] B.C.J. No. 2446 (B.C.C.A.) leave to appeal to dismissed [1999] S.C.C.A. No. 28
(S.C.C.,). However, the officer who provided the information must demonstrate a reasonable
suspicion for the detention.
69
See for example R. v. Devine [1996] Y.J. No.26 (Yuk.S.C.) where an anonymous tip that was
reasonably specific and confirmed substantially provided a sufficient bassis for articulable cause.
70
R. v. Cheng [1995] B.C.HJ. No.2838 (B.C.P.C.),
62
63

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September 2001

71

R. v. Lal {1998] B.C.J. No. 2446 (B.C.C.A.) at para.30.
R. v. F.L. [1996] B.C.J. No. 3010 (B.C.S.C.) Lander J. at para. 15, R. v. Bullock [2000] O.J. No. 796
(Ont.Crt.J.) per Mossip J. at para. 24.
73
R. v. F.L. [1996] B.C.J. No. 3010 (B.C.S.C.) Lander J. at para. 15
74
R. v. F.L. [1996] B.C.J. No. 3010 (B.C.S.C.) Lander J. at para. 15, R. v. C.M.G. [1996] M.J. No.428
(Man.C.A.).
75
R. v. Yau [1994] O.J. No. 60 (Ont.Crt.Jus)
76
R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.)
77
R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.)
78
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p.302., see also R. v. Lee [1993] B.C.J. No.1220 (B.C.S.C.)
72

5

investigation where immediate action is required to
address the suspected crime. An investigative
detention may be justified when the detention occurs
during79 (engaged in), shortly after80 (just committed),
or shortly before81 (about or poised to commit) the
suspected unlawful activity. Because there is an
urgency of police intervention, the reasonable suspicion
of unlawful activity does not necessarily require an
ascertainable crime or victim82.
Recognizing that investigative detention involves a
fluid, rapidly evolving, spontaneous, unplanned
investigation, if a crime was committed in the distant
past other investigative techniques should be
considered by police (such as photo lineups, detailed
follow-up interviews, crime scene analysis, surveillance,
or informants). If nothing further arises to justify an
arrest, the suspect must be left alone. The comments
of Doherty J. in Simpson are apposite:
[A] reasonably based suspicion that a person committed some
property-related offence at a distant point in the past, while an
articulable cause, would not, standing alone, justify the detention
of that person on a public street to question him or her about
that offence. On the other hand, a reasonable suspicion that a
person had just committed a violent crime and was in flight from
the scene of that crime could well justify some detention in an
effort to quickly confirm or refute the suspicion.

Reasonable Duration
An investigative detention authorized by articulable
cause is designed to be brief and must be for a
reasonable duration in time83. The purpose of this
momentary encounter is to clarify a suspicious (perhaps
ambiguous) situation, and confirm or refute suspicion84.
The length of the detention must not exceed what is
necessary to effectuate the purpose, or reason, of the
stop. Although there are no rigid time limitations,
brevity is an important factor and each detention will
be assessed on a case by case basis. In Lal85, an 18
minute delay during an investigative detention while the
officer was awaiting back-up required for a Code 5
procedure on a suspected armed and dangerous driver,
was found to be reasonable. During the temporary
detention and the expeditious investigation undertaken

by police, the officer's reasonably held suspicion may
be dispelled (and the individual permitted to proceed),
or may be elevated to reasonable grounds (and the
individual subject to arrest). However, detention is not
permitted for a lengthy or prolonged investigation nor
to continue indefinitely to develop reasonable grounds
upon which to justify an arrest. In short, the police
must act “legitimately and responsibly86”.

Reasonable Intensity
Just as a person has an obligation to submit to a lawful
arrest87, so too does a person who is subject to a
lawful investigative detention88. Police officers "may
use reasonable force in the exercise of their duties
apart from their powers of arrest"89. If a person
refuses to submit to a lawful detention, police are
entitled to physically restrain the suspect. Similarly, if
the person flees from police attempting to effectuate
a lawful detention, the officer may pursue and
physically restrain the person90.
The police must not engage in any more intrusive a
detention than is necessary in the circumstances91 and
may detain a person only in a reasonable way92. The
intensity, level of coercion, or use of active constraints
imposed by police during an investigative detention
must be reasonable under the circumstances and not
unreasonably harsh. A prismatic approach to affecting
an investigative detention is calculated on the
underlying circumstances confronting the officer at
the time the detention is initiated. Verbal commands,
handcuffing93, confinement to police vehicles94, or
displaying of a police firearm95 may in some cases be
warranted. Different variables may change the
intensity of the detention and it may be necessary to
engage the suspect at a more intense level at the
genesis of the detention.
When using restraint, the officer must be both
flexible to the underlying factual predicate that
initiated the detention as well as the reasonableness in
which the restraint is affected. Physical restraint may
be appropriate in those cases where the officer
86

79

R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.), R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.)
application for appeal to the S.C.C. dismissed [1998] S.C.C.A. No. 424 (S.C.C.)
80
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p.306, R. v. Johnson
81
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p..306.
82
R. v. Arkinstall [1994] B.C.J. No.612 (B.C.S.C.)
83
See R. v. Dupuis (1994) 162 A.R. 97 (Alta.C.A.), R. v. Wainwright [1999] O.J. No. 3539 (Ont.C.A.)
84
R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p503.
85
R. v. Lal (1996) Docket:CC940845 (B.C.S.C.) affirmed [1998] B.C.J. No. 2446 (B.C.C.A.) leave to
appeal to dismissed [1999] S.C.C.A. No. 28 (S.C.C.),

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R. v. Clarke [2001] O.J. No.66 (Ont.Crt.Jus.)
See R. v. Whitfield [1970] S.C.R. 46 (S.C.C.) per Hall J., R. v. Richards (1999) Docket:C29243
(Ont.C.A.) at para. 12.
88
See R. v. Wainwright [1999] O.J. No. 3539 (Ont.C.A.)
89
See Kellins v. Grotkopp 2000 BCSC 1137
90
See R. v. Wainwright [1999] O.J. No. 3539 (Ont.C.A.)
91
R. v. Bullock [2000] O.J. No. 796 (Ont.Crt.J.) per Mossip J. at para. 27.
92
See R. v. Dupuis (1994) 162 A.R. 97 (Alta.C.A.)
93
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.)
94
R. v. Elshaw (1989) 70 C.R. (3d) 197 (B.C.C.A.) reversed 67 C.C.C. (3d) 97 (S.C.C.)
95
R. v. Dupuis (1994) 162 A.R. 97 (Alta.C.A.)
87

6

encounters an uncooperative individual, the detention
involves a violent crime, the individual raises a
reasonable suspicion of flight or danger, or the officer
is possessed with information the person may be
armed. However, grossly excessive force, such as the
unwarranted use of the lateral neck restraint to
prevent a non violent or non threatening person from
leaving an impaired driving investigation, will render the
detention unlawful96.

In R. v. Ferris (1998) B.C.J. No. 1415 (B.C.C.A.)
application for appeal to the S.C.C. dismissed [1998]
S.C.C.A. No. 424 (S.C.C.) Ryan J.A. at para. 54-55
stated:
If the police have the duty to determine whether a person is
engaged in crime or is about to be engaged in crime they should
not be obliged to risk bodily harm to do so. It is my view that the
police are entitled, if they are justified in believing that the
person stopped is carrying a weapon, to search for weapons as an
incident to detention. The question for the court must be
whether the search was reasonably related in scope to the
circumstances which justified the interference in the first place.

Searching: The Frisk
Following an arrest, a police officer is entitled to
search the arrested person for legitimate safety
concerns (ie. weapons) and evidence. Are the police
entitled to search a person who is subject to an
investigative detention based on articulable cause? The
courts have recognized that "in proper circumstances,
a warrantless and non-consensual search may be lawful
for the purpose of completing an on-site
investigation97". Similar to the power of search
incidental to arrest, “a search incident to detention is a
valid exercise of police powers at common law only if
the detention itself is lawful98”. A search incidental to
investigative detention is only justified if related to
officer safety. If not, such as searching for evidence,
there can be no search99. The nature of the
investigation (seriousness of the suspected offence) or
the
nature
of
the
interaction
(developing
circumstances during the detention between the
individual and the police100) will influence the decision
to search and its intensity or scope.
Similar to having an articulable cause to warrant the
detention, the police must also have an articulable
cause to search the suspect. The purpose of the
protective search is to allow the officer, for security
reasons, to search when concerned about the
possibility that a detainee may have a weapon101 or may
pose a danger or possess items that may aid in
escape102. However, the officer must act out of a
justifiable fear for personal safety and the search
cannot be made vexatiously, arbitrarily or in
furtherance of a collateral, ulterior, or oblique
motive103.

I have concluded that in proper circumstance the police are
entitled to search for weapons as an incident to an investigative
stop. The seriousness of the circumstances which led to the stop
will govern the decision whether to search at all, and if so, the
scope of the search that is undertaken. …Questioning an elderly
shopper about a suspected shoplifting would not ordinarily require
a search for weapons; questioning someone after a bank robbery
might require a search of the detainee and his or her immediate
surroundings. In other words, such a search can meet the
reasonable necessity test depending on the circumstances.

In R. v. Lee [1993] B.C.J. No.1220 (B.C.S.C.), Hood J.
held:
If police officers are to effectively discharge their duties, then
it is absolutely necessary that in the performance of them they
feel and be as safe as the circumstances will permit. The duty to
investigate, and to prevent, offenses, must of necessity have
associated with it a legitimate self protection power to search.
The safety and lives of officers on the street must be
paramount.

The concern for safety must be examined from the
point of view of the officer at the time of search104
and must be subjectively held and objectively
appropriate “in all the circumstances”105. A “pat down
search
is
ordinarily
resorted
to
in
such
106
circumstances” to detect, by touch, the presence of
a weapon. However, the wearing of a fanny pack107 or
bulky jacket108 may provide justification for a more
intrusive pocket search. In R. v. Wainiandy, [1995] A.J.
No.131 (Alta.C.A.), the Court stated at para.6-7:
What is a reasonable search for weapons turns on the precise
circumstances of each case. Almost always, it will not be
necessary to require the detainee to strip; sometimes it may not
even be necessary to turn out pockets; sometimes, in less frantic
circumstances than those here, the officers may be able to
secure themselves from attack merely by means of a preliminary
query of the detainee to account for his or her presence.

96

R. v. Drda [1990] 26 M.V.R. (2d) 66 (B.C.S.C.)
R. v. Osselaer (1999) Docket: X049086 (B.C.S.C.) per MaCaulay J. at para. 3.
R. v. Murray (1999) 136 C.C.C. (3d) 197 (Que.C.A.) at p.212.
99
R. v. Johnson (2000) Docket:CA025623 (B.C.C.A.)
100
R. v. Cheng [1995] B.C.HJ. No.2838 (B.C.P.C.) In this case police initially stopped the accused for
a traffic violation. During the course of the stop circumstances arose justifying a search for
safety.
101
R. v. Osselaer (1999) Docket: X049086 (B.C.S.C.) per MaCaulay J. at para. 3.
102
R. v. Dalshaug [1991] B.C.J. No.3506 (B.C.S.C.)
103
R. v. Murray (1999) 136 C.C.C. (3d) 197 (Que.C.A.) at p.209.
97
98

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104

R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.) at p.315.
105
R. v. Cheng [1995] B.C.HJ. No.2838 (B.C.P.C.),
106
R. v. Dalshaug [1991] B.C.J. No.3506 (B.C.S.C.)
107
R. v. Ferris (1998126 C.C.C. (3d) 298 (B.C.C.A.) application for appeal to the S.C.C. dismissed
[1998] S.C.C.A. No. 424 (S.C.C.)
108
R. v. Wainiandy, [1995] A.J. No.131 (Alta.C.A.)

7

Succinctly, the search, although connected to the
detention, requires an articulable cause to suspect the
detainee is armed or poses a threat to officer safety.
Furthermore, the search must be proportional to its
purpose, that of the discovery of weapons, and the
intensity of the search, or degree of invasion, must
also respect the dignity of the person. However, the
degree of a search cannot be gauged to a nicety
against the urgent circumstances facing the police
officer109.

Questioning
Where the police have an articulable cause to suspect
persons of unlawful behaviour, the police have the
common law authority to question those persons110 even
though a person is not obligated to answer the officer’s
questions. The questioning carried out during the
investigative detention must be pointed and direct,
such as for the purpose of identification111 or
explanation of presence in the area112. A reasonable
explanation at this point may dispel the officer’s
articulable cause and the individual will be free to
proceed. An investigative detention, unlike a custodial
arrest, does not permit a wide-ranging barrage of
exploratory
questions
such
as
an
extensive
interrogation113. In R. v. Dimitriadis (1998) Docket:
C21201 (Ont.C.A.) the Court found the brief
questioning that followed detention concerning items in
plain view was not an unjustifiable use of police powers.

The Right to Counsel
It is trite law that a person be informed of their
s.10(b) rights upon arrest or detention114. Many of the
appellate level Courts have not yet addressed a s.10
argument stemming from an investigative detention.
Most of the Charter debate involves s.9 (arbitrary
detention) and s.8 (search and seizure) questions. It is
unclear at what point the right to counsel must be
provided during the course of an investigative
detention. Although the s.10(b) right to counsel
imports temporal immediacy115 and is not engaged by
the length of the detention116, some courts suggest
that the right to counsel need not be provided during
the early stages of an investigative detention. For

example, in R. v. Clough and Watts 2000 BCPC 0160,
Gordon J. stated, at para 24:
[I]t seems ridiculous to suggest that a citizen who is detained
briefly at the roadside such that a speeding ticket can be issued
has a right to counsel. Neither does a citizen who is to be briefly
detained for articulable cause such that the police can
investigate an offence that is being or has been recently
committed entitled to counsel. To hold otherwise would totally
frustrate the day-to-day work of police officers. (emphasis
added)

In R. v. Reid [2000] O.J. No. 2969 (Ont.Crt.Jus.),
Sparrow J. suggests the immediacy of s.10(b) rights
does not "necessitate unreasonable conduct on the part
of the police" and the police "must be permitted to
react sensibly on the spur of the moment", perhaps to
ask a question or two. In R. v. Dupuis (1995) 162 A.R.
197 (Alta.C.A.), police entered a residence in pursuit of
a suspect and at gunpoint required the occupants to lie
down. The Court "concluded the police could detain
while they pursued their enquiries without violating
s.10(b) of the Charter"117. In light of a safety issue,
the police are not required to advise the detainee of
the right to counsel before they are searched. The
police are entitled to pursue their investigation to a
point where any risk of violence is removed before
providing s.10(b) rights118.
In the U.S., the Miranda119 warning required for
custodial interrogation does not apply to investigative
detention. Since the purpose of the stop is to enable
the police to ask a moderate number of questions to
resolve (confirm or dispel) suspicion, the Courts do not
want to prevent unreasonable information gathering.
The detainee is not obliged to answer the questions and
if probable cause does not develop, the person must be
released120.
Perhaps s.1 of the Charter provides the answer, similar
to the reasonable limit imposed when an officer detains
an impaired driver on reasonable suspicion and is not
obligated to provide the right to counsel prior to
administering the roadside screening device or sobriety
tests121. A conclusive answer to this question is eagerly
awaited.
For comments or topics you would like to see published in this
newsletter contact Sgt. Mike Novakowski
at the JIBC Police Academy at (604) 528-5733
or e-mail at mnovakowski@jibc.bc.ca

109

R. v. Wainiandy, [1995] A.J. No.131 (Alta.C.A.) at para.6.
R. v. Arkinstall [1994] B.C.J. No.612 (B.C.S.C.) at para.90.
R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p.503.
112
R. v. Bullock [2000] O.J. No. 796 (Ont.Crt.J.) per Mossip J. at para. 27, R. v. Wainiandy, [1995]
A.J. No.131 (Alta.C.A.) ta para.7.
113
R. v. Simpson (1993) 79 C.C.C. (3d) 482 (Ont.C.A.) at p.503.
114
R. v. Feeney[1997] 2 S.C.R. 13 at para.56.
115
R. v. Feeney[1997] 2 S.C.R. 13, R. v. Poloshek ( ) 134 C.C.C. (3d) 187 (Ont.C.A.)
116
R. v Elshaw (1991) 67 C.C.C. (3d) 97 (S.C.C.) at p.125
110
111

Volume 1 Issue 7
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117

See comments of William J. in Swansburg v. Smith (1996) Docket:CA019235 (B.C.C.A.)
R. v. Lal (1996) Docket:CC940845 (B.C.S.C.) affirmed [1998] B.C.J. No. 2446 (B.C.C.A.) leave to
appeal to dismissed [1999] S.C.C.A. No. 28 (S.C.C.),
119
384 U.S. 436 (1966)
120
Berkemen v. McCarty 468 U.S. 420 (1984)
121
See for example R. v. Sundquist 2000 SKCA 50.
118

8