A Failed Experiment - Investigative Detention: Ten Years Later

Ten years ago, the Ontario Court of Appeal introduced the investigative detention power to Canada with its decision in R. v. Simpson. After providing some necessary background about the realities of police detention practices, the author offers a critical evaluation of Simpson and the ancillary powers doctrine that it relied upon to create this new police power. The author then proceeds to consider how well the investigative detention experiment has fared over the last decade, examining whether it has lived up to the goal that provided its inspiration, namely, the regulation of police detention practices. The author advances two major claims. First, the investigative detention cases have done little to regulate but much to legitimize police detention practices, mostly serving to blur the line between the detentions they endorse and conventional arrests. Second, the investigative detention experiment holds larger lessons about the dangers inherent when courts, as opposed to legislatures, create police powers. Given these dangers, the paper contends that the ancillary powers doctrine should be rejected as a device for creating complex police powers, like investigative detention. Instead, the author draws upon the dialogue model, already embraced by the Supreme Court of Canada, to offer an alternative approach. He concludes by outlining steps the Court could take to encourage Parliament to finally enact the sort of clear, comprehensive, and prospective rules and procedures that are essential if police detention practices are to be effectively regulated in the future.