Less Detention is More

R  v  Aucoin 2012 SCC 66

A case from the Supreme Court of Canada about being detained by the police.

Should you be lawfully stopped by the police when driving (perhaps, for example, your plates do not match your make and model) you will almost certainly be detained for a short while  the officer speaks with you, decides whether to issue a ticket, and, perhaps, completes the paperwork.  In R v Aucoin it was decided that the police have to be particular about choosing how to detain you.  The detention must be the least detaining …ish possible.

Over-detaining is bad  because it breaches the Charter.

Under-detaining is good, as then you have received your rights to the full.

As the strained expressions above evidence, this case creates a difficult distinction in the notion of “detention”.  In deciding this case, the court decided that there are different levels of freedom possible within the singular idea of a detention.

In this case, the police lawfully detained Aucoin.  He was pulled over because his plates did not match his car.  The officer also found he had been drinking.   The officer chose  to complete his paperwork in the front of the cruiser because it was dark outside and the cruiser had an overhead light by which he could write.   A crowd had gathered nearby so the officer, thinking that Aucoin may leave the scene and walk into the crowd while he completed the paperwork  decided to place him in the rear seat whilst completing the paperwork.  First, however, he patted him down to ensure both he and Aucoin would be safe.  The pat-down, however,  resulted in the fortuitous discovery of cocaine.   At trial, later,  Mr. Aucoin argued that the search of his pockets (which lead to the discovery of the drugs) was illegal.  The reasoning was simple: Had the officer decided to not put him the cruiser he would not have patted him down.   If he had not patted him down then the cocaine would still be safe in Mr. Aucoin’s pocket as he drove away.  That, speaking from the perspective of the constitution,  is the preferable outcome in this case.  If the officer had chosen a lesser means of detention then Mr. Aucoin could have driven away with his drugs, and all would sleep well that evening  in Canada knowing the Charter was on twenty-four hour patrol, keeping our rights safe.

The police officer did, the court said, offend the Charter.  He detained Aucoin too much, so to say,  because there was an easier way to detain him than the way the officer chose.   The officer could have waited, for example, for a back-up officer to arrive and guard Aucoin (the example given by Moldaver J.)  but when the officer decided to put him in the car  there was an “adverse impact” on his “liberty and privacy interests”.   There was a “shift in the nature of the detention” as the court would put it.   Now whether there was “adverse impact” in fact on Mr. Aucoin, or whether in fact it was more pleasant to rest in the back of the car than to stand on the side of the road, is not asked.  One does not need to experience a lack of rights in order to have them.   And the right at stake here (and these are not big stakes) is the right to the least possible form of detention that still results in no freedom whatsoever.

The awkward outcome is perhaps because there is a forced distinction in the language that is not as thoroughgoing as it might at first appear.  Lawyers are prone to call this `defining the scope of the right`.   The decision necessarily means that I have more freedom if I am held at the side of the road than I would have while sitting in the back of the cruiser.   It is not true, of course, for  I am equally un-free in both situations.  Yet, the former is is reasonable and the latter is unreasonable.

Perhaps it is because the court uses the abstract principle for a non-abstract questions.  The law is about things that happen,  how the police treated you for example, but the law is created in the abstract.  The courts are on Mars Hill, as it were, while the crimes occur on the streets of Athens.   I am supposing most people want to be free and they are so interested.  But whether there was on these facts any greater interest in standing roadside rather than being placed in the rear of the cruiser is not the driving force of the decision.

Well, creating distinctions is the work of judges and academics alike.   The law develops by distinctions, as does a good deal of learning.    It is not self evident that this particular distinction is helpful.  Had the police officer cuffed Mr. Aucoin to a post box the court would be forced to reason as follows:  Since there was a lesser way to interfere with Mr. Aucoin’s liberty interest, such as placing him in the back of the cruiser, the cuffing to the post box is a breach of his Charter rights.  In such a case, placing Aucoin in the cruiser becomes the reasonable action for the officer to have taken.  When this case is applied to new facts, such oddities are certain to appear.

Thus, less detention is the new detention.  Police officers must consider all the possible ways to take away your freedom, and then choose the actions that takes away all your freedom in the least way possible.

The court is careful to point out that officers make these kind of decisions quickly in the ordinary course of business.  And in this case, the intentions of the officer was always to do the right thing.  Yet he did wrong.  I am left to wonder whether  we think about rights generously enough or whether we subject them to the microscope forgetting that the subject matter is rather large and obvious.   Did Mr. Aucoin attend at his lawyer’s office to tell him that he was fine with being detained at road side, but when he was placed in the car, he could feel his rights slipping away?   Would the distinction made by the court be something true to the senses in every day life.  It is hard to imagine it would be.  The decision in this sense bears less resemblance to fact than one hopes.  A lot like the majority in Palsgraff.

Law is ever-interesting in that way.  There is no end to its novel creation or considerations.   Words exist to be modified,  and no one case is like another.  Truly interesting.