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 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?)