Powers of Detention
| Author | Steve Coughlan/Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, University of Saskatchewan |
| Pages | 131-182 |
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CHA PTER 3
POWERS OF DETENTION
A. INTRODUC TION
As has been noted above, powers of arrest and detention in Canada are
created by statute and by the common law. In this chapter, we address
powers of detention. Initially, it is worth noting that detention can be seen
as a broad concept that might include arrest and subsequent detentions,
surrounding issues of pretrial detention and incarceration, as well as
indefinite detentions under dangerous oender legislation. Here, though,
we will focus on “on-the-street” encounters where police powers short
of arrest remain controversial.1 This area of the law developed largely
through caselaw owing, it seems, to the need in our law for greater speci-
ficity in police powers since the enactment of the Canadian Charter of
Rights and Freedoms.2
Generally in Canada, powers of arrest arise where the police or the
citizen finds the person committing an oence or, in the case of the police,
have reasonable grounds to believe the person has committed certain
criminal oences. These powers to arrest are discussed in Chapter 4; for
now we wish to address those other powers that enable police to detain an
individual on less than a reasonable belief of criminal oending. Since the
1 In R v Thomsen, [1988] 1 SCR 640 [Thomsen], and in R v Therens, [1985] 1 SCR
613 [Therens], LeDain J speaks of detention as a “restraint of liberty other than
arrest” (Thomsen, above in this note at para 8).
2 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11 [Charter].
DETENTION AND AR REST132
enactment of the Charter, the Supreme Court has been active in address-
ing this area of the law, particularly in its recognition of powers of deten-
tion in Dedman v The Queen,3 R v Hufsky,4 R v Mellenthin,5 R v Ladouceur,6
R v Mann,7 R v Clayton,8 and R v Aucoin.9 The scope and requirements of
such powers are of central concern to this discussion. Initially, however,
we will discuss statutory powers of detention before moving to discuss the
common law. As we do so, we emphasize that our discussion is intended
to focus on the detention aspect of the issues and not on related issues
that arise, particularly in the context of search and seizure.
One final point must be made by way of preface to this discussion.
It is worth noting that the question of whether there has been a “deten-
tion” is distinct from the question of whether there is a detention power.
As we will note, the definition of the word “detention,” which appears
in sections 9 and 10 of the Charter and plays an important role in the
right to silence under section 7 of the Charter, has received considerable
attention from the Court.10 In R v Grant11 and R v Suberu,12 for example,
the Court provided a great deal of guidance about the definition of those
terms, but those cases were not about detention powers; rather, they
addressed questions as to what rights a person has once they are, in fact,
detained. A detention power, on the other hand, needs to focus upon
whether the state or an individual had the authority, at law, to assume
“control over the movement of a person by a demand or direction,” not
just whether the police did in fact detain a person in a given circum-
stance.13 The failure to keep in mind the distinction can result in a mis-
understanding of the principles at stake in any given situation.
B. STATU TORY POWERS OF DETENTION
The most obvious statutory power to detain arises in the impaired-driving
context, where, not atypically as a feature of powers of detention, it is
based on something less than reasonable belief.
3 [1985] 2 SCR 2 [Dedman].
4 [1988] 1 SCR 621 [Hufsky].
5 [1992] 3 SCR 615 [Mellenthin].
6 [1990] 1 SCR 1257 [Ladouceur].
7 2004 SCC 52 [Mann].
8 2007 SCC 32 [Clayton].
9 2012 SCC 66 [Aucoin].
10 See the discussion in Chapter 5, Section B(1).
13 Thomsen, above note 1 at 649.
Powers of Detention 133
As we have noted above, this area is plagued by inconsistency and
by varying opinions on many issues; statutory context, both federal and
provincial, has been important, and the Supreme Court has allowed the
common law a large role in expanding powers given by statute. Because
provincial statutes are significant and because provinces have not acted in
unison, each statute will need, at times, to be consulted to determine the
particular powers available to enforcement ocers in a given jurisdiction.
A detention may be for varying amounts of time, but generally we
are here speaking of brief detentions that give rise to rights concerns.
Dierent detention powers will sometimes be used in succession in that
the exercise of one detention power might lead to the use of another or
others. For example, the power to demand a roadside screening sample
from a driver of a motor vehicle, which was formerly in section 254
of the Criminal Code,14 gave rise to a detention, which then gave rise
to rights under sections 9 and 10 of the Charter.15 But that statutory
power to demand a breath sample did not give rise to the power to stop
a motor vehicle. Accordingly, the actual stopping of the vehicle by the
police ocer must have been justified under some other power. That
might be a checkstop power from the common law as set out in the
decision in Dedman16 or, alternatively, might be set out in some prov-
incial statute allowing police to stop vehicles.17 Of course, that second
detention might then lead to a further detention for a Breathalyzer test or
an arrest under applicable police arrest powers based upon a reasonable
belief in impaired driving. Likewise, where the police do not employ
a checkstop but rather conduct a random stop, they will need to look
elsewhere for their power to stop the vehicle even though both kinds of
stops might, in the right circumstance, lead to a roadside detention and
demand. The power to conduct a random stop, as we will see, is arguably
less clear, although the Court has certainly discovered such a power in
most of the provinces.18 The more general point to understand is that it
can be an oversimplification to speak of “a detention”: for the purposes
14 RSC 1985, c C-46 [Code]. All of the provisions around breath testing, and indeed
around driving oences generally, were amended in 2018: see An Act to amend
the Criminal Code (oences relating to conveyances) and to make consequential
amendments to other Acts, SC 2018, c 21. Although the specific powers have now
changed, that does not aect the general point in this paragraph.
15 Thomsen, above note 1 at 12; Charter, above note 2.
16 Dedman, above note 3.
17 See, for example, the Ontario Highway Trac Act, RSO 1990, c H.8, s 216. Some
provincial legislation specifically envisions checking for impairment as one of the
allowed purposes of such a stop: see, for example, the Newfoundland and Labrador
Highway Trac Act, RSNL 1990, c H-3, s 201.1.
18 Ladouceur, above note 6.
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