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| Patrick J Ducharme |
Continued from part 2
Individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention. Investigative detentions carried out in accordance with the common law power recognized in this case will not infringe the detainee’s rights under section 9 of the Charter. They should be brief in duration.
Compliance with subsection 10(b) will not excuse prolonging, unduly and artificially, any such detention. Investigative detentions do not impose an obligation on the detained individual to answer questions posed by the police. Where a police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in a protective pat-down search of the detained individual. The investigative detention and protective search power must be distinguished from an arrest and the incidental power to search on arrest.
The seizure of the marijuana in Mann contravened section 8 of the Charter. The officers had reasonable grounds to detain M and to conduct a protective search, but no reasonable basis for reaching into M’s pocket. This more intrusive part of the search was an unreasonable violation of M’s reasonable expectation of privacy in respect of the contents of his pockets. Moreover, the Crown had not shown on the balance of probabilities that the search was carried out in a reasonable manner.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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