C. Powers of Detention

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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1) Definition of Detention

Detention can have more than one meaning, and so could deal, for example, with long term interferences with liberty such as those involved in being placed in a psychiatric facility following a not criminally responsible by reason of mental disorder finding41or being declared a dangerous offender.42In this context, however, it is detention at the investigative stage that is relevant (those detentions most similar to arrests in their purpose and duration). Essentially, that amounts to considering detentions where rights may arise under section 10 of the Charter. Section 10 gives various rights on arrest or detention, including the right to counsel. Much of the discussion of those issues is contained in Chapter 7 and will also be relevant here, although there can be an issue over precisely when the section 10(b) right "kicks in" where a detention, rather than an arrest, is at issue.

The Court has delineated the types of detentions in which those rights arise with reasonable clarity. In R. v. Thomsen, the Court held:

  1. In its use of the word "detention", s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

  2. In addition to the case of deprivation of liberty by physical constraint, there is a detention within s. 10 of the Charter, when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

  3. The necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.

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  4. Section 10 of the Charter applies to a great variety of detentions of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible.43In other words, "detention" can include not only those situations where the police have an actual legal power to compel a person to remain, but also some situations of "psychological detention" in which no such power exists, yet the person complies with the police demand nonetheless.44Detentions include not only breathalyzer demands at the side of the road, but also demands for breath samples for a roadside screening device45or a breathalyzer demand made at an accused’s home after the accused has been initially questioned by consent without being detained.46

    An accused can be detained despite an absence of a physical restraint and despite the fact that he was not physically prevented from making a telephone call to counsel.47Similarly, the fact that a person has complied with a police request to stop is not sufficient to make the stop voluntary and therefore not a detention.48The primary purpose of granting Charter rights on detention, and in particular the right to contact counsel, is to protect the detainee from possible self-incrimination.49It is designed to deal with interactions between the individual and the state, normally, though not exclusively, in the context of the investigation of a criminal offence. A demand by a school’s vice-principal that a student comes to the office is not a detention in the relevant sense.50Similarly, routine questioning of everyone entering the country by customs officials is not a detention, though singling out a particular person for a strip search is.51Although there is a particular focus on the right to obtain legal advice, the Court has been resistant to arguments that the right should be reduced in situations where legal advice would have been of limited value to the accused. That counsel would likely have informed a detain-

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    ee of the obligation to comply with a breathalyzer demand, for example, does not affect the content of the section 10(b) right or the likelihood of the evidence being excluded under section 24(2).52Similarly, the fact that there was a statutory power to conduct a search, whether the detainee consented or not, does not mean that the detainee would not have benefited from the advice of counsel.53Although the Court acknowledged the concept of psychological detention very early in Charter jurisprudence, it took quite some time before they articulated a definition of "detention" which was useful in that context. Whether a person has been detained by physical constraint is usually easy to determine, as is whether the person has been detained by the exercise of legal authority. Psychological detention, however, is both harder to define and harder to judge. This is especially so in the case of encounters between police and individuals on the street, though it can also be true of more formal questioning which takes place at a police station.54A wide range of potential "on the street" interactions can arise. Police might simply be at the scene of an accident questioning everyone, witnesses and those involved, alike. In other cases, police simply question persons they meet on the street or whom they drive by, asking the person her name, or purpose, or asking to see identification. Sometimes the questioning may not be entirely random, and police might, for example, question a person who partly meets the description of a person wanted for an offence. In other cases factors such as the time, location, or race of the person questioned may have factored into an officer’s decision to ask questions. Clearly some of these persons should be considered detained and others should not.

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    The difficulty in this area arises from the fact that there are competing legitimate interests. Not every conversation between a police officer and an individual should automatically be considered a detention: police interviewing the witnesses to a traffic accident should not be obliged to warn each of them of the right to counsel. However, the Court has recognized the concept of psychological detention precisely because most people do not know whether they are in fact compelled to comply with police requests or not, and so cooperation cannot always be seen as truly voluntary.55

    Further, the primary justification for the section 10(b) right is that people interacting with the police are entitled to be protected from potential self-incrimination. In situations where an actual offence is being investigated and the extent of a person’s involvement is unclear, there is a benefit for police, and a corresponding detriment to the individual, to be able to characterize the individual as merely a witness, not a suspect, and therefore not advise that person of their right to counsel. The less likely it is that a situation will be classified as a detention the greater the risk that rights will not be adequately protected. Equally, where the police are nominally "randomly" asking questions on the street, the potential that the detention would be seen as arbitrary is that much greater. If it is not a detention at all, however, there is no potential for courts to engage in the balancing involved in deciding whether it was arbitrary or not. Among other issues, it becomes more difficult to determine whether the detention was actually random, or whether it was in reality based, in part, on improper motives, such as the race of the person.56The net effect would be a potential expansion of police power; not by design, but in result. This expansion would, based on the caselaw, often arise in exactly those situations where the person questioned would have benefited from legal advice. An accused who gives his name, which the police then run through Canadian Police Information Centre (CPIC) while continuing to engage in conversation, may well have wanted to know that there was no obligation to remain or to answer questions, particularly when he is then arrested for violating curfew or on an outstanding warrant.57

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    It was those issues which the Court tried to resolve with the decision in Grant. They concluded that the question of whether there was a detention should be settled by an objective detainee-centred approach. That is, the important question is not whether the person felt detained, nor whether the police intended to detain the person. Rather, psychological detention was to be determined by "whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice" as to whether to stay or go.58The Court also listed various factors that can be taken into account in determining this question. Those are:

    (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

    (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

    (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.59In Grant itself the Court concluded that the accused had been detained. He had been approached on the street by a police officer who stepped in his path and asked him general questions: at that stage he was not detained. However, he was then told to keep his hands in front of him, two other officers arrived and showed their badges, and pointed...

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