Powers of Detention

• Author: Steve Coughlan/Glen Luther
• Profession: Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, Saskatchewan
• Pages: 101-144

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CHAPTER 3

POWERS OF DETENTION

A. INTRODUCTION

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 de-

tentions surrounding issues 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 controversial.1 In this area, 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 Canada, powers of arrest, as discussed in Chapter

4, arise where the police or the citizen either f‌ind the person com-

mitting an offence or, in the case of the police, they have reasonable

grounds to believe the person has committed certain criminal offences.

These powers to arrest are discussed below; for now we wish to ad-

dress those other powers that enable police to detain an individual on

1 In R. v. Thomsen, [1988] 1 S.C.R. 640 [Thomsen] and in R. v. Therens, [1985]

1 S.C.R. 613 [Therens], LeDain J. spe aks of detention as a “restra int of liberty

other than a rrest” (Thomsen, ibid. at p ara. 8).

2 Canadian Char ter of Rights and Freedoms,Part 1 of the Const itution Act, 1982,

being Schedule B t o the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

DETENTION AND AR REST

102

less than a reasonable belief of criminal 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 Mellinthin,5 L adouceur,6 Mann,7and Clayton.8 The

scope and requirements of such powers are of central concern to this

discussion. Initially, however, we will discuss statutory powers of de-

tention 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.

B. STATUTORY 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 deten-

tion, it is based on something less than reasonable belief.

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 off‌icers in a

given jurisdiction.

It is also worth noting that a “detention” is not necessarily a deten-

tion power. As we will note, the def‌inition of the word “detention,”

which appears in sections 9 and 10 of the Charter and which plays an

important role in the right to silence under section 7 of the Charter, has

received considerable attention from the Court.9 Particularly in the July

2009 decisions in Grant10 and Suberu,11 the Court provides much guid-

ance on the term’s def‌inition. Yet what is not so clear is that these cases

are not about detention powers. Rather, they address the question as

3 Dedman v. The Queen, [1985] 2 S.C.R. 2 [Dedman].

4 R. v. Hufsky, [1988] 1 S.C.R. 621 [Hufsky].

5 R. v. Mellenthin, [1992] 3 S.C.R. 615 [Mellenthin].

6 R. v. Ladouceur, [1990] 1 S.C.R. 1257 [Ladouceur].

7 R. v. Mann, 2004 SCC 52 [Mann].

8 R. v. Clayton, 2007 SCC 32 [Clayton].

9 Charter, above note 2.

10R. v. Grant, 2009 SCC 32 [Grant].

11R. v. Suberu, 20 09 SCC 33 [Suberu].

Powers of Detention103

to what rights a detained person has once they are, in fact, detained. A

detention power, on the other hand, needs to focus upon a situation in

which the state or an individual has the power, at law, to assume “con- assume “con-

trol 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 circumstance.12

The failure to recognize the distinction can result in a misunderstand-

ing of the principles at stake in any given situation.

A detention may be for varying amounts of time but generally we

are here speaking of brief detentions that give rise to rights concerns.

Different 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 pursuant to section 254 of the Criminal

Code13gives rise to a detention, which then gives rise to rights under

sections 9 and 10 of the Charter.14 But such a power does not give rise to

the power to stop a motor vehicle. That is, a driver of a stopped motor

vehicle might be detained for a roadside test; but the actual stopping

of the vehicle by the police off‌icer will need to be justif‌ied under some

other power, such as the power to conduct a checkstop. That power

arises under the common law as set out in the decision in Dedman.15

In most impaired-driving checkstops, then, the Dedman power will be

relied upon, followed by a detention under section 254(2) where that

power so permits.16 Of course, that second detention may then lead to

a further detention for a breathalyzer test or an arrest under applicable

police arrest powers based upon reasonable belief in impaired driv-

ing. Likewise, where the police do not employ a checkstop but rath-

er 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 circumstance, lead to a section 254(2) roadside detention

and demand.17 The power to conduct a random stop, as we shall see, is

less clear, although the Court has certainly discovered such a power in

most of the provinces.18 Understood properly, therefore, the power to

detain that is present in section 254 of the Criminal Code will in many

12Thomsen, above note 1 at para. 12.

13 Criminal Code, R.S.C. 1985, c. C-46.

14Thomsen, above note 1 at 12; Charter, above note 2.

15Dedman, above note 3.

16Criminal Code, above note 13.

17Ibid.

18Ladouceur, above note 6.