Is a Person Psychologically Detained?

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 119-119

1.2(c) Is a Person Psychologically Detained?

As indicated in the annotations to Chart 1.2(b), Shades of Detention, the Supreme

Court in R v Grant, 2009 SCC 32, articulated numerous factors that should be

considered in asking whether a reasonable person in the circumstances would

conclude that they had been deprived of the choice as to whether to stay or go,

and had therefore been psychologically detained. Subsequently, lower courts

have considered how those factors should inuence the decision. No single

factor is determinative, and most are not binary choices: whether language is

coercive or not, for example, is something of a judgment call, and there is no

clear dividing line between a “longer” and “shorter” period of time. These fac-

tors create a spectrum of sorts — the more that the considerations tend to fall

on one side or the other, the more likely it is that will be the conclusion reached.

Not detained Detained

Police providing general assistance Police singling out individual

Police making general inquiries Person subject to focused

investigation

Non-coercive language used Coercive language used

No physical contact Physical contact

No physical barriers to leaving Physical barriers to leaving

Period of time shorter Period of time longer

Person sophisticated Person unsophisticated

Adult Young person

Others present No others present

Told free to go Not told free to go

Minority status1

1. MINORITY STATUS

This factor is placed in the middle because although the Court in Grant listed

this as a relevant consideration, lower courts have found it dicult to know

precisely what to do with it.

1191.2(c) Is a Person Psychologically Detained?