Restrictions on Personal Liberty in Canada Compared to the United States

In both Canada and the United States, when the police seek to control the movements of individuals in the course of carrying out their job duties, they may not violate the rights granted to individuals by the Constitution (Section 7 of the Charter of Rights and Freedoms and the Fourth Amendment, respectively). In both countries, the rules that govern these situations vary depending on the set of circumstances presented to the police. The rules seek to give police sufficient latitude to protect themselves and to effectively perform their job duties while minimally interfering with personal liberties. At the same time, the rules are developed under the background assumption that police work is inherently unpredictable and dangerous, and that the police often seek to push the boundaries of their authority without effective supervision.

The most important element of the circumstances under which the police may exercise their powers to control the movement of individuals is the degree to which they hold a suspicion that such an individual has (or is about to) commit a crime. This suspicion cannot merely be a subjective state of mind but must be supported by objective circumstances – by the police officer’s observations in the course of routine patrolling or targeted investigation activities, in combination with their understanding or interpretation of such observations stemming from their police training. In both Canada and the United States, courts acknowledge that categorizing the degree of suspicion is difficult because it depends on the specific facts at hand. However, they have defined “reasonable suspicion” as being more than a “mere hunch” and have defined “reasonable suspicion” as being a lesser degree of suspicion than “probable cause” (also known in Canada as “reasonable grounds to believe” that the suspect has committed or is about to commit a particular crime).

In both Canada and the United States, a police officer with a reasonable suspicion that a suspect individual has (or is about to) commit a crime may control the movements of the suspect, including taking all necessary steps to ensure the police officer’s safety. In Canada, this is called an “investigative detention” while in the United States, it is called a “Terry Stop” (named after the case Terry v. Ohio – also called a “stop and frisk”). In both Canada and the United States, the suspect is required to identify himself or herself at this stage. Failure to do so means the police officer has grounds to be even more suspicious. It may also be grounds for the crime of obstruction of justice.

Let us compare the above with the circumstance where the police do not have a reasonable suspicion. Rather, the police may have a mere hunch. In that situation, the police may only ask for the voluntary cooperation of the suspect. If the suspect refuses to cooperate, the police cannot force the suspect to cooperate. Specifically, the police may ask the suspect for identification, but the suspect may refuse.

As mentioned above “probable cause” is a higher degree of suspicion than “reasonable suspicion”. When a police officer has probable cause, he or she may arrest the suspect, which involves transporting the suspect to the police station for further actions, or the police officer may issue paperwork to the suspect that requires the suspect to attend court proceedings as a defendant. Of course, all the powers that attach to an investigative detention / Terry stop automatically apply to an arrest.

In Canada, a suspect who has been detained or arrest must be informed of certain rights provided in the Charter of Rights and Freedoms, such as the right to remain silent and the right to counsel. This makes sense, since this is the stage of the police investigation at which these rights start to become relevant to the suspect. In the United States, a suspect also has the right, created by the Fifth Amendment, to remain silent during a Terry stop but the police need not inform the suspect of his or her rights at the time of detention. Rather, a Miranda warning (from Miranda v. Arizona) must be read to the suspect only upon arrest. Of course, this means that the suspect may be uninformed about his or her rights while being questioned during a Terry stop, which is a loophole.

Controversy over whether or not there is reasonable suspicion can arise when the police receive an anonymous tip. If the anonymous tip is assumed to be reliable, then the claims would constitute reasonable suspicion. The problem is that it is difficult to determine whether an anonymous tip is reliable prior to engaging with the suspect on the basis of the tip. Courts in both Canada and the United States have tried to provide some guidance in these matters. The case Alabama v. White supports the idea that an anonymous tip supports a detention only when it is sufficiently detailed and predictive to provide the indicia of reliability necessary to support reasonable suspicion. The same idea in Canada was held by the court in the case R v. Wise.

There are different rules in Canada for traffic stops compared to the United States. A traffic stop involves the driver identifying himself or herself and providing a license and vehicle registration. In the United States, police may not randomly stop drivers – for example, to check whether the driver has an outstanding warrant for arrest. There must be a reason for a traffic stop, such as the police having witnessed a traffic violation. In contrast, the police in Canada are entitled to stop a vehicle for no reason whatsoever. Drivers are considered to have acquiesced to the possibility of random police stops by the act of driving a vehicle. If somebody feels strongly about being randomly stopped by the police, they must use other means of transportation. The idea is that this limitation on personal liberty is justified by giving police more leeway to ensure road safety.

However, controversy arises when a police officer asks the passenger for identification without any independent reason pertaining to the passenger (i.e., a traffic violation by the driver cannot be the reason). In Canada, the police cannot demand that a passenger identify himself/herself in a routine traffic stop. In some American jurisdictions, however, including the Sixth Circuit of the Federal Court of Appeals, the police may do so. The reasoning is that the passenger might pose a danger during the stop, and the police should be allowed to protect himself/herself by asking questions.

Both Canada and the United States protect the right of the public to film police carrying out their job duties. In the United States, when a person is lawfully present in any public space, they have the right to photograph anything in plain view, including federal buildings and the police. In Canada, while there are situations where police will be able to dictate where a person may stand while filming, there are very few circumstances when they can legitimately order somebody to stop photographing or filming on-duty police officers.

A person in a striped shirt

Description automatically generated

Welcome to the most influential Canadian law portal website on the Chinese language internet. The above journal article addresses one of the commonly encountered topics in legal practice. It is intended to serve as a reference for the general public and for scholars while living in Canada or engaging in business or research in Canada.

Whether you live in China, Toronto, Vancouver or another city, if you have a need for answers to a Canadian law related question or a need for legal representation or formal legal opinion, please contact Mr. Hsieh Tung-Wen, Barrister and Solicitor, Ontario Canada (WeChat: jianadalvshi).

微信: jianadalvshi

WeChat: jianadalvshi