Brief Investigatory Detentions: A Critique of R. v. Simpson

Abstract

In this article, the author examines the brief investigative detention power created by the Ontario Court of Appeal in R. v. Simpson and challenges both the Court's reasoning and the way in which the decision has been followed in other Canadian jurisdictions. The common law power to detain an individual, based upon prominent U.S. and British case law, is inconsistent with the previous Supreme Court jurisprudence on police powers. The author demonstrates this by analyzing several cases involving police powers and joins the list of commentators who have urged the country's highest court to re-examine the Simpson doctrine. The author also argues that there has been a tendency for U.S. courts to grant increased discretion to the police even when such powers are unwarranted. There is a real possibility of a similar accretion of police powers in Canada. Moreover, the American experience also indicates that members of minority groups are frequently subjected to the rigours of brief investigative detention, often only because of their ethnic identity. Recent studies show that the same trend exists in Canada, serving to challenge democratic and egalitarian values that the Charter is designed to protect. The solution, according to the author, lies not with the Courts, but with Parliament taking the opportunity to define the extent and limits of brief investigative detentions.