Is the Detention Lawful?

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 65-106

65

Is the Detention

Lawful?

3

I. Introduction ............................................. 

A. Authorized by Law ................................... 

B. Authorizing Law Not Arbitrary ......................... 

C. Reasonable Manner of Detention ...................... 

II. Statutory Powers of Detention ............................... 

A. Trac Stops ........................................ 

B. Alcohol and Drug Demands ........................... 

C. Border and Customs ................................. 

D. Alcohol and Cannabis Statutes ......................... 

E. Preventing Breach of the Peace (Criminal Code,

Section ) ........................................ 

III. Common Law Powers of Detention .......................... 

A. Investigative Detention ............................... 

B. Trac Stops ........................................ 

C. Public Safety and Investigative Integrity .................. 

IV. Manner of the Detention ................................... 

A. Duration of the Detention ............................ 

B. Nature of the Detention .............................. 

V. Ending a Detention ....................................... 

VI. Investigative Interviews .................................... 

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66Detention, Arrest, and the Right to Counsel

I. Introduction

The previous chapter considered the issue of when state actors will be held to have

“detained” a person as that term is defined in the context of section 9 of the Cana-

dian Charter of Rights and Freedoms.1 Accepting now that a person has indeed been

detained, this chapter turns to the issue of whether the detention was lawful. There

will be no breach of section 9 if the detention was lawful. To use the language of the

Charter, a person who is lawfully detained has not been “arbitrarily detained.”2

There are three requirements for a detention to be lawful: (1) the detention must

be authorized by law, (2) the authorizing law must not be arbitrary, and (3) the man-

nerin which the detention is carried out must be reasonable.3 These requirements

mirror the framework to assess searches under section 8 of the Charter. It is the first

and third requirements that are most likely to arise during litigation because they

turn on the specific facts of each case. The second requirement, on the other hand, is

seldom litigated and ordinarily involves a constitutional challenge.

A. Authorized by Law

The police can only infringe a person’s liberty to the extent that they are empowered

to do so by law. The need for the police to anchor a detention in a power authorized by

law upholds the fundamental principle that everyone can expect to go about their day

free from state inference. “The vibrancy of a democracy is apparent by how wisely

it navigates through those critical junctures where state action intersects with, and

threatens to impinge upon, individual liberties.”4 To source a detention power, the

police can point to either a statutory provision or the common law. Section II below

explores some of the statutory powers available to the police, and Section III explores

some of the common law powers.

The issue of whether a detention was authorized by law is a question of law. An

appellate court must defer to the factual findings that the trial judge made in the

Charter voir dire, but whether those findings meet the standard necessary to authorize

the detention is reviewable on a correctness standard.5

B. Authorizing Law Not Arbitrary

The second requirement for a detention to be lawful is that the authorizing law must

not be arbitrary. If the detention is authorized by legislation, then the defence would

need to bring a constitutional challenge to claim that the authorizing law is arbitrary.6

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[the Charter].

2 R v Grant, infra note 258 at para 53.

3 R v Le, 2019 SCC 34 at para 124; Grant, ibid at para 56.

4 R v Mann, infra note 126 at para 15.

5 R v Bejarano-Flores, 2020 ONCA 200 at para 50; R v Steadman, 2021 ABCA 332 at para 49.

6 See R v Latimer, 1997 CanLII 405 at para 26 (SCC).

© 2025 Emond Montgomery Publications. All Rights Reserved.

Chapter  Is the Detention Lawful? 67

Counsel can demonstrate that an authorizing law is arbitrary if it confers a discre-

tion without any criteria, express or implied, to govern its exercise.7 To be lawful, the

authorizing law must provide “standards that are rationally related to the purpose of

the power of detention.”8 To provide an example, the powers provided in road safety

legislation that permit the police to randomly stop vehicles authorize an arbitrary

detention. They allow the police to detain someone without reference to any criteria.

The decision to stop a vehicle lies in the ocer’s absolute discretion.9

This issue of a non-arbitrary authorizing law will not arise in every case. The

courts will have already determined in most instances that the law in question is not

arbitrary or is otherwise constitutional under section 1 of the Charter. For example,

when police rely on the common law power of investigative detention, the Supreme

Court of Canada has already determined that the law is not arbitrary.10 Likewise,

the Court has upheld under section 1 the arbitrary power to make road safety stops.

If the courts have already upheld a detention power as constitutional, then there is

little room to mount a challenge in a subsequent case. The defence would need to lay

thenecessary foundation that allows a court to depart from prior jurisprudence. If the

previous decision comes from a court of coordinate jurisdiction, then the decision is

binding unless the strict Spruce Mills test is met.11 The test is even stricter for a lower

court to depart from the binding precedent of a higher court.12

C. Reasonable Manner of Detention

The third requirement for a detention to be lawful is that the police must carry out the

detention in a reasonable manner. This analysis principally focuses on two issues: the

duration of the detention and the nature of the detention—that is, the extent to which

the police restricted the person’s liberty. These issues are explored below in Section IV.

BOX 3.1 PRACTICE POINTS

Counsel analyzing the lawfulness of a detention must always ask themselves three

questions. First, was the detention authorized by law? A detention can only be law-

ful if the power exists under statute or the common law. Second, is the authorizing

law arbitrary? Unless the detention power is novel, this question will already have

been resolved in the jurisprudence. Third, was the detention carried out in a rea-

sonable manner? Counsel should examine the duration of the detention and the

intrusiveness of the police action.

7 R v Hufsky, infra note 25 at 633.

8 Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at para 89. See also R v Swain,

[1991] 1 SCR 933 at 1008-13, 1991 CanLII 104.

9 Hufsky, infra note 25 at 632-33; R v Ladouceur, infra note 30 at 1276-77.

10Mann, infra note 126 at para 20. See also R v Clayton, infra note 122 at para 20.

11

R v Sullivan, 2022 SCC 19 at paras 73-75; Re Hansard Spruce Mills, 1954 CanLII 253 (BCSC).

12Canada (AG) v Bedford, 2013 SCC 72 at paras 42-45.

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