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 |
101
CHA PTER 3
POWERS OF DETENTION
A. INTRODUCTION
As has been noted above, powers of arrest and detention in Canada are
created by statute and by t he common law. In this chapter we address
powers of detention. Initially, it i s worth noting th at 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 a s indefinite detentions under d angerous-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 t he enactment of the Charter of Rights and
Freedoms.2
Generally in Canada, powers of ar rest, as discussed in Chapter
4, arise where the police or the citizen either find the person com-
mitting an offence or, i n t he 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 thos e other powers t hat enable police to detain an individual on
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,7 and Cl ayton.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 discus s 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 aris e, particularly in
the context of search and seiz ure.
B. STATUTORY POWERS OF DETENTION
The most obvious statutory power to detain a rises in the impaired-
driving context, where, not atypically 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 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 ex panding powers given by statute.
Because provinci al 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 Gra nt10 and Su ber u,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
4 R. v. Hufsky, [1988] 1 S.C.R. 621 [Hufsky].
9 Charter, above note 2.
10 R. v. Grant, 2009 SCC 32 [Grant].
11 R. v. Suberu, 20 09 SCC 33 [Suber u].
Powers of Detention 103
to what rights a detained person has once they are, in f act, detained. A
detention power, on the other hand, needs to focus upon a situation in
which the state or an individual h as 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 t he distinction ca n result in a misunderstand-
ing of the principles at stake in any g iven situation.
A detention m ay be for vary ing 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
Code13 gives rise to a detention, which then g ives 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-d riving check stops, then, the Dedman power will be
relied upon, followed by a detention under section 254(2) where that
power so perm its.16 Of course, t hat second detention may then lead to
a further detention for a breathalyzer test or an arrest under applicable
police arrest powers based upon rea sonable belief in impaired driv-
ing. L ikewise, where the police do not employ a checkstop but rath-
er conduct a random stop, the police w ill 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 sha ll see, is
less clear, although the Court has certai nly discovered such a power in
most of the provinces.18 Understood properly, therefore, the power to
detain that i s present in sect ion 254 of the Criminal Code wil l in many
12 Thomse n, above note 1 at para. 12.
13 Criminal Code, R.S.C. 1985, c. C-46.
14 Thoms en, above note 1 at 12; Charter, above note 2.
15 Dedman, above note 3.
16 Criminal Code, above note 13.
17 Ibid.
18 Ladouce ur, above note 6.
To continue reading
Request your trial