Is the Person Detained?

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 23-63

23

Is the Person

Detained?

2

I. Introduction ............................................. 24

II. Physical Detention ........................................ 25

III. Psychological Detention ................................... 26

A. Checklist of Factors to Consider ........................ 28

B. Legal Compulsion ................................... 29

C. Circumstances Giving Rise to the Encounter ............. 35

D. Nature of the Police Conduct .......................... 44

E. The Individual’s Particular Circumstances ................ 52

IV. Police Intent Is Not Determinative ........................... 58

V. Challenges Applying the Contextual Framework ................. 60

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24Detention, Arrest, and the Right to Counsel

I. Introduction

A fundamental principle of Canadian society is that people are ordinarily free to walk

away when approached by a member of law enforcement. While there are various stat-

utes and common law rules that govern when a person is not free to leave, the starting

proposition is that everyone enjoys the autonomy to make their own decisions. It is

section 9 of the Canadian Charter of Rights and Freedoms that protects this liberty of

choice.1 When analyzing whether the Charter applies to an individual’s encounter

with the police, the first question to ask is whether the state significantly restrained

the individual’s liberty of choice.2

Not every interaction between the police and a member of the public will attract

Charter protection. As Rosenberg JA of the Ontario Court of Appeal explained,

“even where a person is under investigation for criminal activity and is asked ques-

tions, the person is not necessarily detained.”3 To constitute a detention under sec-

tion 9, the state must suspend an individual’s liberty interest by virtue of a significant

physical or psychological restraint.4 The test is whether a reasonable person in the

individual’s position would conclude that they had been deprived of their liberty of

choice by reason of the state conduct.5

Whether the state conduct in question has eected a detention is a question of

law.6 On appeal, the standard of review is correctness. Deference is owed to the trial

judge’s findings of fact.

In a practical sense, the scope of deference owed to the trial judge has shrunk over

the years at the Supreme Court of Canada. While the ultimate question of whether

a person was detained has always been reviewable on the correctness standard, it

would appear that the Supreme Court of Canada has slid to reviewing every aspect

of the trial judge’s analysis on that standard.7 In R vSuberu,8 for example, the Court

deferred to the trial judge’s finding that the police had not crossed the line from gen-

eral questioning to a detention. But a decade later in R vLe,9 Moldaver J, who penned

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

[the Charter]; R v Grant, infra note 18 at para 21.

2 R v Suberu, infra note 8 at para 28. See also Grant, ibid at para 28; R v Seagull, 2015 BCCA 164

at para 59.

3 R v MacMillan, 2013 ONCA 109 at para 36. See also R v Le, infra note 9 at para 27; R v

Villeneuve, 2023 NLCA 14 at paras 76-78.

4 R v Lafrance, infra note 11 at para 21; Suberu, infra note 8 at para 21.

5 Grant, infra note 18 at para 44.

6 Lafrance, infra note 11 at para 23; Le, infra note 9 at para 23.

7 Lafrance, ibid.

8 2009 SCC 33 at paras 29-31.

9 2019 SCC 34 at paras 167-69.

© 2025 Emond Montgomery Publications. All Rights Reserved.

Chapter 2 Is the Person Detained? 25

the dissenting decision, held that the majority was recasting the trial record in a man-

ner that was inconsistent with the trial judge’s findings of fact. Brown and Martin JJ,

writing for the majority, responded that an appeal court is entitled to take a dierent

view from the trial judge on the impact of the police conduct on a reasonable person.10

The scope of appellate review remained a point of controversy a few years later in

RvLafrance,11 where the dissent, this time authored by Côté and Rowe JJ, criticized

the majority for paying “scant attention” to the trial judge’s findings on the interac-

tions between the police and the accused and for relying on evidence that the trial

judge had rejected. One conclusion to be drawn from this trend in the jurisprudence

is that while appellate counsel cannot ignore the trial judge’s factual findings, they

should not be shy in advancing a version of the evidence that will best support their

position. Unlike the deference that was shown in Suberu, it is unlikely that the current

Supreme Court of Canada would defer to a trial judge’s determination on whether

police questioning should be characterized as general or as focused.

II. Physical Detention

It is usually straightforward to determine whether the police have detained a per-

son using physical means. The imposition of significant restraint tends to be obvious

when the police take formal, physical control of someone. The quintessential example

of a physical detention is when the police make an arrest, which is often accompa-

nied by an ocer explicitly telling the person that they are under arrest and putting

the person in handcus. A person who is placed under arrest is legally required to

accompany the police and remain detained until they are released.12 In many cases, a

detention under section 9 will only commence upon arrest.13

Mere physical contact between the police and an individual will not necessarily con-

stitute a detention. The physical restraint must be “significant.”14 In RvRanhotra,15

for example, the police “grabbed” the accused by the arm to guide him out of a room.

The Ontario Court of Appeal held that the accused was not detained as the context

was important. The police were responding to an emergency. They could not help the

victim while the accused was hovering over her. The accused was quickly removed

from a cramped room with a minimal use of force.16

10Ibid at para 24.

112022 SCC 32 at para 120.

12R v Heppner, 2019 BCCA 108 at paras 65-67.

13See e.g. Suberu, supra note 8 at paras 35, 36; R v Guenter, 2016 ONCA 572 at paras 13, 44-47;

R v Strong, 2020 ONSC 7528 at paras 34, 35; R v Polak, 2017 ONCJ 596 at paras 2, 3, 21, 22.

14Grant, infra note 18 at para 44(1).

152022 ONCA 548 at paras 19-21.

16Ibid at paras 29, 35, 37.

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