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In this episode, Mike discusses a question he was asked recently and uses the Saskatchewan Court of Appeal decision R. v. Ratt, 2020 SKCA 19 to inform his response. Police officers, and judges, must be careful not to confuse or conflate what justifies an investigative detention or arrest with what constitutes detention or arrest in the first place. An officer’s intention to detain or arrest is not determinative of whether a detention or arrest in law has occurred. The relevant time to determine whether the requisite subjective and objective grounds exist for a detention or arrest is not at the time the officer makes the decision to do so, but at the time of the actual detention or arrest. So even though an officer might not have the objective grounds necessary when they make their decision, they may acquire the necessary objective grounds by the time the detention or arrest was actually effectuated. Listen and learn how this all plays out.
Notable Quote:
"Intention alone does not attract a finding of unconstitutionality. It is not until that subjective intent is accompanied by actual conduct that it becomes relevant. We would otherwise have the Orwellian result that Charter breaches are determined on the basis of what police officers intend to do, or think they can do, not on what they actually do. The Charter protects us from conduct, not imagination, and even a benign motive may not justify objectively unreasonable police conduct." - Supreme Court of Canada (R. v. Clayton, 2007 SCC 32 at para. 48)
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