Another case examining handcuffing the detainee incident to an investigative detention has prompted my latest post. R. v. Latzkowski 2018 SKPC 56 involved an all-too-familiar situation whereby the driver was detained for an impaired driving investigation and the officer read the ASD demand, had the driver step out of the vehicle, “placed the handcuffs to the rear for officer safety, for my safety”, and escorted him to the passenger side rear door of the police vehicle. The officer was with another officer, no other individuals were present in the vehicle with the accused and there was no suggestion whatsoever in the behaviour of the accused to suggest that he was a risk to flee, or that he was a risk to officer safety.
In his testimony, the officer stated that he handcuffed the driver because he had concerns, not knowing the accused, that the latter may have weapons, and he also had concerns about the potential for unpredictable behaviour by an individual. However, in cross-examination, the officer agreed that the accused did not pose any trouble, referring to him as a “polite, cooperative gentleman”. When asked whether a pat-down search was conducted on Latzkowski, the officer testified that:
“I believe it’s entirely possible that I gave him a brief pat-down. I don’t remember specifically a pat-down, but if I would have detained him, and placed him in handcuffs, I would say — it — it’s a common practice for me to give a very brief pat-down just along the sides and the waistband for any potential weapons, knives, guns, anything sharp. So it’s entirely possible that I did. I don’t remember specifically doing it.”
The judge canvassed other decisions of the court that were similar to the case at hand, which I will briefly summarize: R. v. Vulic, 2012 SKQB 221, 397 Sask R 235 – an investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interest of officer or public safety; R. v. Wong, 2009 BCPC 89 – handcuffing constituted a de facto arrest noting that “even if the detention had been lawful as an investigative detention, then police do not have carte blanche to use handcuffs on an investigative detention”; R. v. Strilec, 2010 BCCA 198, 256 CCC (3d) 403 – an individual was handcuffed who had been stopped for some traffic violations. Again, the Court found that a de facto arrest had occurred with the handcuffing, although the detention exceeded what was necessary and reasonable on the facts of that case; R. v. DiMaria, 2012 ONCJ 358 – the individual was handcuffed prior to the administration of a roadside screening test. The Court concluded that the detention was arbitrary and contrary to s. 9 of the Charter, noting that the individual was in handcuffs “for no good reason”; R. v. Romaniuk, 2017 ONCJ 235, the accused was handcuffed and put in the back of the police cruiser after being informed that he was under investigation for drinking and driving offences. The arresting officer cited officer safety as a reason for handcuffing, as a general practice. The Court noted that handcuffing an individual prior to arrest should not be done as a policy reason, or as a matter of regular practice; the test is whether or not the officer’s subjective belief about safety concerns is objectively reasonable.
In the case at hand, the judge found that…”there was no particular assessment by this officer as to whether this individual was a safety threat. He simply handcuffed Mr. Latzkowski as part of his standard practice and I find his proffered reasons for doing so were standard answers that failed to assess this situation. Objectively, he cuffed the defendant in the absence of ascertaining any facts that would justify such action and this is objectively unreasonable. … [A]llowing this type of conduct to go without remedy would, in my view, have a negative impact on the administration of justice. … “
The take home? As a general rule, the cases would indicate that someone who is under investigative detention is not ordinarily handcuffed, and it is a significant deprivation of his or her liberty. An investigative detention does not justify interference with liberty by handcuffing the person behind his or her back in the absence of some facts justifying the handcuffing in the interests of officer or public safety.