Shades of Detention
Author | Steve Coughlan/Alex Gorlewski |
Pages | 116-118 |
116 Police Powers / Investigative Detention
1.2(b) Shades of Detention
Interaction that is not
detention (exploratory
questioning)
Psychological
detention
Legal
detention
Physical
detention
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 denition. 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 dierent forms of detention have
been recognized, which reect ever-decreasing levels of control over the in-
dividual. This chart is meant to reect 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?)
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