The arbitrariness of detention is determined by what police did and not what they could have done

R. v. Stevenson, 2014 ONCA 842

 

[56]       Whatever lawful police power, apart from the arrest power, the
police may have had to detain the appellant, they did not purport to
exercise any such power.  The police arrested the appellant.  The police
conduct at and after the gunpoint encounter with the appellant, is only
consistent with a full arrest.  The arbitrariness of the appellant’s
detention must be determined having regard to the police power actually
exercised and not by reference to some other police power which may have
been, but was not, exercised: *R. v. Whitaker*, 2008 BCCA 174, [2008]
B.C.J. No. 725 at para. 65, leave to appeal to S.C.C. refused, [2008]
S.C.C.A. No. 296; *R. v. Dhillon*, 2012 BCCA 254, 291 C.C.C. (3d) 93, at
para. 40.

…

[59]       Whether the police could have searched the appellant’s pockets
for weapons and bagged his hands, to preserve evidence, had they detained
the appellant for investigative purposes, does not arise on the facts of
this case.  As indicated above, the police arrested the appellant.  The
arrest cannot be converted to an investigative detention for the purposes
of determining the constitutionality of the police conduct