Shades of Detention

AuthorSteve Coughlan/Alex Gorlewski
116 Police Powers / Investigative Detention
1.2(b) Shades of Detention
Interaction that is not
detention (exploratory
Pre-Charter, the understood meaning of “detention” was narrow: essentially,
nothing but physically preventing a person’s movement (by physically hold-
ing them or locking them in a location) would meet the denition. However,
once a guarantee of the right to counsel on detention was enacted in section
10 of the Charter, the Court concluded that detention had to be interpreted in
that light. That is, since the primary purpose of the right to counsel is to pro-
tect against self-incrimination, “detention” had to be interpreted in order to
give that protection in the circumstances where it was likely to be needed (R
v Bartle, [1994] 3 SCR 173). Therefore, three dierent forms of detention have
been recognized, which reect ever-decreasing levels of control over the in-
dividual. This chart is meant to reect that shading of control, by making the
most intrusive control (physical detention) the darkest, and then becoming
lighter through legal detention and psychological detention, nally reaching
the point of mere exploratory questioning, which is not detention at all. (See
also the discussion in Chart 1.2(a), Is There a Section 9 Violation?)

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT