Ontario Court of Appeal Upholds Decision on Investigative Detention

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On April 1, 2014, after a tip from a confidential informant, the Ontario Provincial Police detained an individual in Parry Sound for what they believed to be possession of a large amount of marijuana. The informant had advised the OPP that a passenger travelling from Vancouver to Washago, Ontario was in possession of two large suitcases containing marijuana and the informant provided a detailed physical description of the suspect.

The suspect was detained in Parry Sound, but the police officers could not smell marijuana from the luggage and believed they did not have the grounds to arrest the appellant. The OPP called for a drug-sniffer dog and held the suspect in a police detachment until the dog arrived an hour and forty-five minutes after the call. The dog made a “positive hit” and the police arrested the suspect after finding 33 pounds of marijuana in his luggage.

The trial judge ruled that the detention time was reasonable on the basis of the practical implications of accessing a drug-sniffer dog, particularly in smaller municipalities. The individual was convicted of possession of marijuana for the purpose of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act and breach of probation. The appellant then appealed to the Ontario Court of Appeal under the grounds that the detention was not reasonable, thereby infringing his s. 9 Charter rights, and appealing for an exclusion of the marijuana under s. 24(2).

 Everyone has the right not to be arbitrarily detained or imprisoned.

24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

The Ontario Court of Appeal ruled that the detention was an infringement of the appellant’s s. 9 rights, but the evidence could not be excluded. The Court dismissed the appellant’s appeal of his conviction, granted leave to appeal sentence but dismissed the appeal from sentence. The appellant concedes that the OPP were entitled to detain him following the informant’s tip, but the detention time then infringed his s. 9 rights. The Court agreed that the investigative detention of him and his luggage fell outside the scope of common law police power. As set out in common law, investigative detention must be “brief in duration”. The Court, however, denied Crown’s assertions that there is no constitutionally defined time limit to an investigative detention. The Court found that “brief” connotes a certain time limit, and the police are not able to extend this limit as they see fit.

However, the Court decided that the evidence could not be excluded paying mind to society’s interest in including the evidence.

The 12 month sentence was also found to be ultimately appropriate due to the sheer volume of marijuana the appellant had in his possession; the street value was estimated to be between $174,000 to $350,000.

The Court’s decision reinforces the need for the police to operate within boundaries that respect individual rights and freedoms. The importance of distinctions such as “brief” are important particularly in cases where such investigative detentions may not result in a conviction. It remains instrumental to uphold the rights of individuals, particularly in relation to state institutions such as the police.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.

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