Powers of Detention
| Author | Steve Coughlan; Glen Luther |
| Pages | 117-171 |
117
CHA PTER 3
POWERS OF DETENTION
A. INTRODUC TION
As has been noted above, powers of arre st and detention in Canada are
created by statute and by the common law. In this chapter we addre ss
powers of detention. Initially, it is worth noting that detention can be
seen as a broad concept that might include arrest and subsequent de-
tentions surrounding is sues of pre-trial detention and incarceration
as well as indefinite detentions under dangerous-offender legislation.
Here, though, we will focus on “on-the-street” encounters where police
powers short of arrest remain controversi al.1 In this are a, the law is fast
developing owing, it seems, to the need in our law for greater specifi-
city in police powers since the enactment of the Charter of Rights and
Freedoms.2
Generally in Canad a, powers of arrest, as discussed in Chapter 4,
arise where the police or the citi zen either find the person committi ng
an offence or, in the case of the police, they have reasonable grounds
to believe the person has comm itted certain crim inal offences. These
powers to arrest are di scussed below; for now we wish to address those
1 In R v Thomsen, [1988] 1 SCR 640 [Thomsen] and in R v Therens, [1985] 1 SCR 613
[Therens], LeDain J speak s of detention as a “restraint of l iberty other than a rrest”
(Thomsen, above in this note at par a 8).
2 Canadian Char ter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, be-
ing Schedule B to th e Canada Act 1982 (UK), 1982, c 11 [Charter].
DETENTION AND AR REST118
other powers that enable police to detain an i ndividual on less than
a reasonable belief of crim inal offending. Since the enactment of the
Charter, the Supreme Court has been active in addressing this area
of the law, particularly in its recognition of powers of detention in
Dedman,3 Hufsky,4 Mellenthin,5 Ladouce ur,6 Mann,7 Clayton,8 and Aucoin.9
The scope and requirements of such powers are of central concern to
this disc ussion. Initially, however, we will discuss statutory powers of
detention before moving to discuss t he common law. As we do so, we
emphasize that our discussion is intended to focus on the detention
aspect of the issues a nd not on related issues that ari se, particularly in
the context of search and seiz ure.
One final point must be made by way of preface to th is discussion.
It is worth noting that the quest ion of whether there has been a “deten-
tion” is distinct from the question of whether there is a detent ion 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 consider-
able attention from the Court.10 In Gra nt11 and Sub eru,12 the Cour t pro-
vided a great deal of guid ance 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 he is, in fact, detained. A
detention power, on the other hand, needs to focus upon whether the
state or an individual had t he power, 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 g iven circumstance.13 The failure
to recognize the di stinction can result in a mi sunderstanding of the
principles at stake in any given situation.
3 Dedman v The Quee n, [1985] 2 SCR 2 [Dedman].
6 R v Ladou ceur, [1990] 1 SCR 1257 [Ladouceur].
8 R v Clayton, 2 007 SCC 32 [Clayton].
10 S ee the discussion in Ch apter 5, Section B(1).
11 R v Grant, 2009 SCC 32 [Grant].
12 R v Suberu, 20 09 SCC 33 [Suber u].
13 Thomsen, above note 1 at 649.
Powers of Detention 119
B. STATUTORY POWERS OF DETENTION
The most obvious statutory power to detain arises in the impaired-
driving context, where, not aty pically as a feature of powers of deten-
tion, it is based on something les s than reasonable belief.
As we have noted above, this area is plagued by inconsistency and
by varying opin ions on many issues; statutory context, both federal
and provincial, ha s been important and the Supreme Court has allowed
the common law a large role in expanding powers given by statute. Be-
cause provincial st atutes are significant and bec ause provinces have
not acted in unison, each statute wi ll need, at times, to be consulted to
determine the part icular powers available to enforcement officers 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 right s concerns.
Different detention powers will sometimes be used in succession in
that the exercise of one detention power might lead to the use of an-
other or others. For example, the power to demand a roadside screen-
ing sample from a driver of a motor vehicle pursuant to section 254
of the Criminal Code14 gives rise to a detention, which then gives ri se
to rights under sections 9 and 10 of the Charte r.15 But that statutory
power to demand a breath sample does not give rise to the power to
stop a motor vehicle. Accordingly, the actual stopping of the vehicle
by the police officer must have been justified under some other power.
That power might come from the common law as set out in the deci-
sion in Dedman,16 or alternatively, might be set out in some provincial
statute allowing police to stop vehicles.17 Of course, that second de-
tention might then lead to a further detention for a breathalyzer test
or an arrest under applicable police arrest powers based upon a rea-
sonable belief in impaired dr iving. Likewise, where the police do not
employ a checkstop but rather conduct a random stop, the police will
need to look elsewhere for their power to stop the vehicle, even though
both kinds of stops may, in the right circum stance, lead to a section
254(2) roadside detention and demand. The power to conduct a ran-
dom stop, as we shall see, is less clear, although the Court ha s certainly
14 Criminal Code, RSC 1985, c C-46 [Criminal Code].
15 Thomsen, above note 1 at 12; Charter, above note 2.
16 Dedman, above note 3.
17 See, for example, the Highway Traffic Act, RSO 1990, c H.8, s 216 [Ontario H ighway
Traffic Act]. Some provincial leg islation speci fically envision s checking for impair-
ment as one of the allowed pu rposes of such a stop: see, for ex ample, the Highway
Traffic Act, RSNL 1990, c H-3, s 201.1 [Newfoundland Highway Traffic Act].
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