Investigative Detention

This page was last substantively updated or reviewed November 2023. (Rev. # 95395)

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General Principles

The police have a common law right to detain people for investigative purposes. The need for such a power will be for purposes generally related to asking questions concerning time-sensitive issues.

Certain legislation also grants additional powers to police to detain for investigative purposes. Most significantly, there are powers to detain for investigating Conveyance Offences or provincial motor vehicle Act violations.

Questioning

"Preliminary investigative questioning" that cause "momentarily delay" will generally not be subject to the rules of investigative detention.

Reasonable Grounds Test

Police may detain a person for investigative purposes where "there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary."

The requirement that the detention be "reasonably necessary" is based on the "totality of the circumstances." The nature and extent of the interference with liberty must be one that is "necessary" in light of the duties being executed.

Prohibited Purposes

Police are not permitted to detain anyone for the purpose of "ferreting out criminal activity" or to determine if someone is "up to no good." There must be "particularized" suspicion relating to "specific" criminal activity.

Types of Detention

Detention Defined

A person is detained where their liberty is deprived through "physical constraint" or where "the state assumes control over the movement of a person by demand or direction which may have a significant legal consequence and which prevents or impedes access to counsel."

Sufficiency of Belief

An officer's "grounds to believe" an offence has been committed will fall short of being "objectively reasonable and probable" allowing for an arrest, if the officer instead has a "reasonable suspicion" that the suspect was involved in a criminal offence, it may be enough to justify investigative detention.

Detention vs Warrantless Arrest

The power of investigative detention is an authority to prohibit a person from departing the location in which they are found. Arrest however is a more invasive restriction on liberty where the peace officer is permitted to take custody of the person and transport them as needed.

Section 495(2) requires that an officer not arrest a suspect unless there is reason to do so. Reasons include:

• to establish identity
• reasonable belief that the offence may continue or be repeated if not arrested
• reasonable belief that evidence may be lost if not arrested

No Right to Flee Police

The right against arbitrary detention under s. 9 of the Charter does not extend to a free-standing right to flee.

Appellate Review

Whether someone was unlawfully detained under s. 9 of the Charter is a question of law and is reviewable on a standard of correctness.

The existence of reasonable suspicion is a question of law and reviewed on a correctness standard.

History

In earlier cases, the term used was adopted from US law of "articulable cause", which later was changed to "reasonable grounds to detain."

Suspected Connection to Crime

Lawful detention must be in relation to a (1) "recent or on-going criminal offence" that is (2) connected to the detainee.

It is not necessary that there be a "known offence" (i.e. a reported offence or one where they know specifics). It is only necessary that there be a "suspected offence" (i.e. where they infer a criminal activity to a degree that it is a suspicion short of grounds of arrest).

The crime must be particularized. But not to the extent that there needs to be evidence of a "specific known criminal act." It requires only "particularized conduct" or "particularized evidence" of criminal activity.

The suspicion formed must include a "clear nexus" between the detainee and the criminal offence under investigation. The connection prevents police from detaining a person out of "a general sense he or she might be doing something unlawful."

The investigation must be based on a "reasonable suspicion" that the individual is "implicated" or "connected" to a "particular" criminal activity under investigation for the detention to be considered lawful.

"Reasonably Necessary"

Investigative detention is permissible only so long as it is "reasonably necessary" in the "totality of the circumstances." What is reasonably necessary will depend on the "nature of the situation" such as:

• intrusiveness of the detention
• Nature or seriousness of the offence,
• complexity of the investigation,
• any immediate public or individual safety concerns,
• the ability of the police to continue the investigation without continuing the detention of the suspect,
• the lack of diligence of the police,
• the lack of immediate availability of investigative tools,
• the information known to the police about the suspect or the crime, and
• the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope.

Duration of Detention

The detention starts at the moment that the officer's conduct causes the detainee to reasonably believe they no longer have the options to leave.

The total duration will depend on how long it is "reasonably necessary". However, it should be "must be of brief duration."

An officer who is not detaining or no longer wishes to detain the suspect must clearly communicate to the suspect that they are free to go.There must be both an objective and subjective belief on the part of the suspect that they are still detained for there to be an unlawful detention.

Detention that last beyond what is necessary may violate s. 9 for arbitrary detention.

The decision to detain a person overnight when arrested for impaired driving can result in a violation of section 9 of the charter with the remedy of a stay of proceedings under section 24 (1).

Duration in Holding Cells

Police have statutory authority to hold someone after arrest for up to 24 hours. However, holding accused cells after arrest, beyond what would be legitimately necessary has resulted in a violation of s. 9 and may permit a stay of proceedings.

De Facto Arrest

An investigative detention can be of such duration that it becomes a de facto arrest.

Right Against Arbitrary Detention

Section 9 of the Charter prohibits arbitrary detention. Under the header "Detention or imprisonment" the Charter states:

9. Everyone has the right not to be arbitrarily detained or imprisoned.

– CCRF

Purpose of Charter Right

The "purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference" Thus, "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"

Burden of Proof

The burden is upon the applicant to prove that the accused was "detained" within the meaning of s. 9 which must be proven on a balance of probabilities.

"Arbitrary"

Detention is "arbitrary" where it "bears no relation to, or is inconsistent with the law which founds the state action" under common law or statute.

The term "arbitrary" should not be considered distinguishable from "unlawful."

Consequences of Detention

Police Obligations Upon Detention

Once detailed the officer is obligated to inform the individual in "clear and simple language" of the reasons for detention.

Right to Counsel

See also Right to Silence and Right to Counsel

They are also obligated to their right to retain and instruct counsel.

The obligation is engaged immediately upon detention, subject to any exceptions such as exigent circumstances or officer safety.

So long as there is no detention, the police are entitled to question a person without advising of any right to counsel, even if they intend to arrest that person.

Search Incident to Detention

• Search Incident to Detention

Types of Detention

A detention is where a "state agent, by way of physical or psychological restraint, takes away an individual's choice simply to walk away." This can include "any form of 'compulsory restraint'."

A person becomes detained where he "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist."

Detention is determined on an objective test: "having regard to the entire interaction, with the actions of the police cause a reasonable person in the position of the suspect to conclude that he or she is not free to go, and must comply with the directions of the police"Factors to consider include the "circumstances of the encounter, the nature of the police conduct in the particular characteristics or circumstances of the individual."

A person can be detained physically or psychologically.

Psychological Detention

Psychological detention is where "the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person who conclude ...that he ... had no choice but to comply."

A person who is delayed or kept waiting by police is not necessarily psychologically detained.

Elements of Psychological Detention

Psychological detention has three elements:

1. a police direction or demand;
2. the individual’s voluntary compliance with the direction or demand resulting in a deprivation of liberty or other serious legal consequences; and
3. the individual’s reasonable belief that there is no choice but to comply

Detention by police does not continue subsequent to release on terms of bail, and so entitlements such as the right to silence do not apply.

Reasonableness

A personable person is not expected to understand the law of police powers and may be reasonably mistaken as to the police's authority.

Concurrent Reasons Permitted

The purpose for detention can have concurrent reasons, such as conducting traffic enquiries while making observations of drug related offences.

Vague "hunches" are Insufficient

An officer cannot detain a suspect on the basis of a hunch.

Public Encounters

Stopping a person will not always amount to detention. Not "every stop for purposes of identification, or even interview" will be a detention. It is only where there is either physical restraint or police direction.

An officer may only stop a person for "legal reasons". There must be a lawful reason for stopping a person such as in a motor vehicle situation to check their license and insurance, sobriety and fitness of the vehicle.

A "preliminary encounter" between an officer and the public where identification is requested does not amount to a detention. The officer needs no grounds at all to ask such questions.

There is generally a presumption that "preliminary non-coercive questions", such as requests for identification, are not a form of detention. The line will often be crossed once more "coercive" steps are taken.

Detention will arise where there is a "significant deprivation of liberty" that is "focused", as opposed to simply a "delay” arising from “exploratory” questioning.

A simple pat-down will not necessarily amount to a detention.

Questioning

An officer may only ask questions that are justifiable in the situation. This would depend on the context of the questioning. In a motor vehicle stop, an officer may only ask questions regarding the legality of the operation of the motor vehicle. Anything beyond that requires reasonable grounds before engaging in the questions. Any evidence obtained by questions that do law relate to the situation and do not have reasonable grounds will violate s. 8 and 9 of the Charter.

Police questioning a young accused for the purpose of forming grounds to administer the roadside screening test need not comply with s. 146 of the YCJA requiring police to wait for counsel or adult to attend.

Answering Questions

There is no legal duty upon a person to identify himself to a police officer in every situation.

It is well understood that merely asking for ID alone does not amount to detention.

There should be a questioning of suspected criminal activity that results in a "focused interrogation amounting to detention."

Where the obligation to answer questions, such as those related to identity, then the failure to do so may result in a charge of Obstruction of a Peace Officer under s. 129 of the Criminal Code.

The compelled attendance to the principal's office is not a detention.

Interview

Whether a request to attend for a formal interview is a detention within the meaning of section 9 of the charter will depend upon the "constellation of circumstances."

Consideration will be upon what was stage of the investigation and what was the objective of questioning.

Detention will be found where the police have decided that "the accused was the perpetrator or involved in its commission" or where "the questioning was conducted for the purpose of obtaining incriminating statements from the accused."

Questions of a "general nature" will lean in favor of there being no detention.

International Borders

Routine questioning of a person during secondary screening at an international border is not a detention within the meaning of s. 10(b) of the Charter.

Anyone entering the country should not be expected to be left alone by the state. Routine inspections should be the norm. And there should be an expectation that there will be a "greater interference with the personal autonomy and privacy."

Routine questions should be expected, such as those relating to immigration issues, marital or employment status, income, and purpose of the trip.

Motor Vehicle Stops

A vehicle stop is a form of detention. This includes waiting for a breathalyzer test pursuant to the breathalyzer demand or the taking of blood samples pursuant to a blood sample demand.

There are generally five reasons for which police may be engaged in random stops of vehicles:

• check for fitness to drive
• check ownership of vehicle
• check for valid licence
• check for valid insurance or
• check for impaired driving

All provincial Highway safety Acts authorize police to perform some from of detention. Investigating a Motor Vehicle Act violation does not permit the officer to take the detained person into the police vehicle even where safety may be a concern.

Dual purposes in random traffic stops are permissible in some circumstances.

Taking of ID Card

The taking of a government ID card in order to conduct a query of police databases may be a form of psychological detention.

Safety/Random Traffic Stops

Random traffic check stops are prima facie violations of right to be free from arbitrary detention, however, have often been declared justifiable pursuant to s. 1 of the Charter.

Random stops of persons for "reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle"

Random stop programs that are used to investigate for any number of offences, providing for a "comprehensive check for criminal activity", are flawed and cannot permit detention for any purpose at all.

These programs must "not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search." The checks should not extend beyond their primary purpose "to check for sobriety, licenses, ownership, insurance and the mechanical fitness of cars."

Random stops for the purpose of enforcing provincial legislation are suggested as being unconstitutional.

A passenger of a vehicle detained at a traffic stop is not detained within the meaning of s. 9 of the Charter. They are merely a bystander and do not have to comply with the officer's request unless required under the provincial motor vehicle Act.

Perimeters and Checkpoints

It is possible to stop persons at a roadblock set-up after a serious reported crime, even where the person does not match the description.

Statutory Powers

See various provincial Motor Vehicle legislation:

• s. 73 of the Motor Vehicle Act (BC)
• s. 75 and 123 Traffic Safety Act, RSA 2000 c. T-6
• s. 15 and 105 and 247 of the Motor Vehicle Act , RSNB 1973 c. M-17
• s. 209.1 and 243 of the Traffic Safety Act, SS 2004 c. T-18
• s. 76.1 of the Highway Traffic Act, CCSM, c. H60 (Manitoba)
• s. 48 of the Highway Traffic Act, RSO 1990 c. H.8
• s. 636 of the Highway Safety Code, RSQ c. C-24.2
• s. 125.1 of the Act Respecting Offences Relating to Alcoholic Beverages, RSQ c. 1-8.1
• s. 135 and 253 of the Highway Taffic Act, RSPEI 1988 c. H-5
• s. 83, 182A of the Motor Vehicle Act RSNS 1989 c. 293 (NS)
• s. 9, 162, 202.1, 202.2, and 202.3 of the Highway Safety Act, RSNL, 1990, c. H-3
• S. 116.1 116.2, 285 of the Motor Vehicles Act, RSNWT, 1988 c. M-16
• s. 116 and 285 of the Motor Vehicles Act, RSNWT 1998 c. M-16 (Nunavut)
• s. 106 of the Motor Vehicles Act, RSY 2002 c. 153

International

• Police and Criminal Evidence Act 1984 [1]

See Also

• Warrantless Searches
• Right to Counsel
• Warrantless Searches (Cases)
• Arrests
  • Warrantless Arrests
  • Warrant Arrests