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General Principles

See also: Reasonable Suspicion

The police have a common law right to detain people for investigative purposes. The investigation must be based on a "reasonable suspicion that the particular individual is implicated in the criminal activity under investigation" for it to be considered lawful.[1]

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.[2]

The right against arbitrary detention does not extend to a free-standing right to flee.[3]

Requirements for Detention
The detention must be in relation to a suspected (1) "recent or on-going criminal offence" that is (2) connected to the detainee.[4] The crime must be known by the officer. It is not sufficient if the crime is merely suspected.[5]

Sufficiency of Belief[6]
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.[7]

Duration of Power
Investigative detention is permissible only so long as it is "reasonably necessary" in the "totality of the circumstances".[8] What is reasonably necessary will depend on the "nature of the situation" such as:[9]

  • 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.

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.[10]

  1. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59
  2. ↑ R v Yeh, 2009 SKCA 112 (CanLII) at para 75 per Richards JA ("It is, of course, well established that the police do not enjoy a general power to detain individuals for the purpose of ferreting out possible criminal activity. More particularly, they may not conduct an investigative detention to determine whether an individual is, in some broad way, “up to no good.” In order to justify an investigative detention, the police suspicion must be particularized, i.e. it must relate to specific criminal wrongdoing.")
  3. ↑ R v Jackson, 2011 ONSC 5516 (CanLII), at paras 62 to 64
  4. ↑ Mann, supra at para 34
    R v Bramley 2009 SKCA 49 (CanLII) at
  5. ↑ Bramley at para 29 to 34
  6. ↑ see also Reasonable Suspicion
  7. ↑ R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] O.J. No. 3754 (S.C.J.) - summary of rules of arrest and detention
    R v D.L.W., 2012 BCSC 1700 (CanLII) at para 31
  8. ↑ R v Clayton, [2007] 2 SCR 725, 2007 SCC 32 (CanLII)
  9. ↑ Clayton, ibid.
    R v Barclay, 2018 ONCA 114 at para 31
  10. ↑ R v Shepherd at para 20

Right Against Arbitrary Detention

See also: Warrantless Arrests#Right Against Unlawful Arrest

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"[1] Thus "a detention in the absence of at least reasonable suspicion is unlawful and therefore arbitrary within s. 9"[2]

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.[3]

"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.[4]

The term "arbitrary" should not be considered distinguishable from "unlawful".[5]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J, at para 20
  2. ↑ Grant, ibid. at para 55
  3. ↑ R v Bush, 2010 ONCA 554 (CanLII), (2010), 259 CCC (3d) 127 at para 74 (Ont. C.A.)
    R v B.(L.) 2007 ONCA 596 (CanLII), (2007), 227 CCC (3d) 70 at para 60 (Ont. C.A.)
  4. ↑ R v Whipple, 2016 ABCA 232 (CanLII) leave refused
    R v Vuozzo, 2013 ABCA 130 (CanLII) leave refused
  5. ↑ Grant, supra ("Earlier suggestions that an unlawful detention was not necessarily arbitrary... have been overtaken by Mann")
    c.f. Whipple, supra at para 47 ("...the framers of the Charter can be taken to have understood the distinction between “illegal” and “arbitrary”. ... it is hard to believe that the framers of the Charter thought “illegal” and “arbitrary” were identical notions.")

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'".[1]

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".[2]

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"[3]Factors to consider include the "circumstances of the encounter, the nature of the police conduct in the particular characteristics or circumstances of the individual."[4]

A person can be detained physically or psychologically.

Psychological Detention
Psychological detention is where "the individual has a legal obligation to comply wit hthe restrictive request or demand, or a reaonsalbe person who conclude ...that he ... had no choice but to comply".[5]

A person who is delayed or kept waiting by police is not necessarily psychologically detained.[6]

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[7]

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.[8]

The purpose for detention can have concurrent reasons, such as conducting traffic enquiries while making observations of drug related offences.[9]

An officer cannot detain a suspect on the basis of a hunch.[10]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), 2009 SCC 32 at para 25
  2. ↑ Grant at para 25
    R v Therens, at p. 644
  3. ↑ R v B.S., 2014 BCCA 257 (CanLII)
  4. ↑ BS, ibid.
  5. ↑ Grant, supra at para 44
  6. ↑ R v Mann, 2004 SCC 52 (CanLII) at p. 19
    R v B.S., supra at para 16, 31
  7. ↑ R v Grant, 2006 CanLII 18347, (2006), 209 CCC (3d) 250 at para 8 and 28 (ONCA)
    R v Nesbeth, 2008 ONCA 579 (CanLII) at para 15-17
    R v Harris, 2007 ONCA 574 (CanLII) at para 17
    R v Suberu, 2009 SCC 33 (CanLII), (2009), 245 CCC (3d) 112 at paras 23-35
  8. ↑ R v Earhart, 2011 BCCA 490 (CanLII)
  9. ↑ R v Harding 2010 ABCA 180 (CanLII) at para 18
    R v Yague, 2005 ABCA 140 (CanLII), 371 AR 286 at paras 7 - 9
    R v Nolet, 2010 SCC 24 (CanLII)
    R v Hugh, 2014 BCSC 1426 (CanLII) - Police may have dual purpose in performing a lawful stop
  10. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59 at paras 34-35
    R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494 at para 20

Public Encounters

Stopping a person will not always amount to detention. [1] Not "every stop for purposes of identification, or even interview" will be a detention.[2] It is only where there is either physical restraint or police direction. [3]

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.[4]

A "preliminary encounter" between an officer and the public where identification is requested does not amount to a detention.[5] The officer needs no grounds at all to ask such questions.[6]

There is generally a presumption that "preliminary non-coercive questions", such as requests for identification, are not a form of detention.[7] The line will often be crossed once more "coercive" steps are taken.[8]

Detention will arise where there is a "significant deprivation of liberty" that is "focused", as opposed to simply a "delay” arising from “exploratory” questioning.[9]

A simple pat-down will not necessarily amount to a detention.[10]

  1. ↑ R v Grafe, 1987 CanLII 170 (ON CA)
    R v Hall, 1995 CanLII 647 (ON CA), (1995), 22 O.R. (3d) 289
  2. ↑ R v Mann, [2004] 3 SCR 59, 2004 SCC 52 (CanLII)
  3. ↑ R v Grant 2009 SCC 32 (CanLII) at para 30
  4. ↑ R v Ladouceur (2002), 154 CCC (3d) 321
  5. ↑ R v Jackson, 2011 ONSC 5516 (CanLII), at para 49
    R v Grafe
    R v Hall at 295 (cited to OR)
    R v Grant, 2006 CanLII 18347 (ON CA), (2006), 209 CCC (3d) 250 at paras 13 and 29 (Ont. C.A.)
    R v Harris 2007 ONCA 574 (CanLII), (2007), 225 CCC (3d) 193 at para 42 (Ont. C.A.) per Doherty JA.
  6. ↑ R v Grafe at pp. 271 and 274
  7. ↑ Jackson at para 51
    Suberu at paras 23 to 35
  8. ↑ Jackson at para 51
  9. ↑ Jackson at para 52
    Suberu at paras 23 to 35
  10. ↑ R v Simmons, [1988] 2 SCR 495, 1988 CanLII 12 (SCC)

Questioning

An officer may only ask questions that are justifiable in the situation.[1] 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.[2] 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.[3]

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.[4]

  1. ↑ R v Ladouceur, 2002 SKCA 73 (CanLII), (2002), 154 CCC (3d) 321
  2. ↑ Ladouceur
  3. ↑ R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615 - an investigation that went beyond issues of highway safety violated Charter
  4. ↑ R v P.D. 2009 CanLII 18220 (ON SC) at para 28

Answering Questions

There is no legal duty upon a person to identify himself to a police officer in every situation.[1]

It is well understood that merely asking for ID alone does not amount to detention.[2]

There should be a questioning of suspected criminal activity that results in a "focused interrogation amounting to detention".[3]

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.[4]

  1. ↑ R v Moore, 1978 CanLII 160 (SCC), [1979] 1 SCR 195, (1978) 24 NR 181 (SCC)
    see also Rice v Connelly, [1966] 2 ALL E.R. 649 (House of Lords)
  2. ↑ R v Frank, 2012 ONSC 6274 (CanLII) at para 47
  3. ↑ R v Suberu 2009 SCC 33 (CanLII)
  4. ↑ R v M. (M.R.), 1998 CanLII 770 (SCC), [1998] 3 SCR 393

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".[1]

Consideration will be upon what was stage of the investigation and what was the objective of questioning.[2]

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".[3]

Questions of a "general nature" will lean in favor of there being no detention.[4]

  1. ↑ R v Moran, 1987 CanLII 124 (ON CA)
  2. ↑ Moran at page 259
  3. ↑ Moran
  4. ↑ Moran

Motor Vehicle Stops

A vehicle stop is a form of detention.[1] This includes waiting for a breathalyzer test pursuant to the breathalyzer demand or the taking of blood samples pursuant to a blood sample demand.[2]

All provincial Highway safety Acts authorize police to perform some from of detention.[3] 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.[4]

Dual purposes in random traffic stops are permissible in some circumstances.[5]

  1. ↑ R v Brookwell, 2008 ABQB 545 (CanLII) at para 29, citing R v Orbanski & Elias 2005 SCC 37 (CanLII), at para 31
  2. ↑ R v Harder, 1989 CanLII 2857, 49 CCC (3d) 565 (BCCA)
    R v Greene, 1991 CanLII 6874 (NL CA), [1991] N.J. No. 12 , 62 CCC (3d) 344 (Nfld. C.A.)
  3. ↑ ON: Highway Traffic Act, RSO 1990, c H.8
    QC: Highway Safety Code, CQLR c C-24.2
    SK: The Traffic Safety Act, SS 2004, c T-18.1
    NB: Highway Act, RSNB 1973, c H-5
    NL: Highway Traffic Act, RSNL 1990, c H-3
    PEI: Highway Traffic Act, RSPEI 1988, c H-5
    NS: Motor Vehicle Act, RSNS 1989, c 293
    AB: Traffic Safety Act, RSA 2000, c T-6
    BC: Motor Vehicle Act, RSBC 1996, c 318
    MB: The Highway Traffic Act, CCSM c H60
  4. ↑ R v Timmer, 2011 ABQB 629 (CanLII)
  5. ↑ R v Pham, 2016 ONCA 258 (CanLII), at para 7
    R v Jensen, [2015] O.J. No. 3761 (C.A.), at para 8 leave refused [2015] SCCA No 390
    R v Shipley, 2015 ONCA 914 (CanLII), at paras 3-7
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, at paras 37-40

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. [1]

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"[2]

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.[3]

These programs must "not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search".[4] The checks should not extend beyond their primary purpose "to check for sobriety, licenses, ownership, insurance and the mechanical fitness of cars."[5]

Random stops for the purpose of enforcing provincial legislation are suggested as being unconstitutional.[6]

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.[7]

  1. ↑ R v Hufsky, 1988 CanLII 72, [1988] 1 SCR 621
    R v Ladouceur, 1990 CanLII 108, [1990] 1 SCR 1257
    R v Mellenthin, 1992 CanLII 50 (S.C.C.), [1992] 3 SCR 615
    R v Simpson (1993), 79 CCC (3d) 482 (Ont. C.A.), 1993 CanLII 3379 (ON CA) R v Nolet, 2010 SCC 24 (CanLII) (a "random vehicle stop on the highway is, by definition, an arbitrary detention")
  2. ↑ R v Nolet, at para 25
  3. ↑ R v Nolet referencing R v Ladouceur, 2002 SKCA 73 (CanLII)
  4. ↑ R v Mellenthin, at para 20
  5. ↑ Mellenthin at para 20
  6. ↑ R v Stengler, 2003 SKPC 119 (CanLII), - detention under the Fisheries Act (Sask)
  7. ↑ R v Mooiman and Zahar, 2016 SKCA 43 (CanLII) at paras 21 to 22
    R v Hebrada-Walters, 2013 SKCA 24 (CanLII) at paras 19-26
    R v Ramos, 2011 SKCA 63 (CanLII) at para 24

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.[1]

  1. ↑ R v Clayton, [2007] 2 SCR 725, 2007 SCC 32 (CanLII)

Rights Upon Detention

Right to be Informed of Reasons

Right to Counsel

See also Right to Silence and Right to Counsel

Upon being detained an officer must tell the detainee of their right to counsel.[1]

The obligation is engaged immediately upon detention, subject to any exceptions such as exigent circumstances or officer safety.[2]

  1. ↑ R v Manninen, [1987] 1 SCR 1233, 1987 CanLII 67 (SCC)
  2. ↑ R v Suberu, [2009] 2 SCR 460, 2009 SCC 33 (CanLII)

Search Incident to Detention

Duration of Detention

An office who is not detaining or no longer wishes to detain the suspect must clearly communicate to the suspect that they are free to go.[1]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. [2]

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).[3]

Duration in Holding Cells
Police have statutory authority to hold someone after arrest for up to 24 hours.[4] However, holding an 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.[5]

  1. ↑ R v Tran, 2010 ABCA 211 (CanLII) at para 30
  2. ↑ Tran
  3. ↑ e.g. Holbrook, 2008 SKPC 133 (CanLII)
  4. ↑ see Post-Charge Detention
  5. ↑ e.g. R v Poletz, 2014 SKCA 16 (CanLII) - holding in cell for 12 hours due to "convenience" or "lack of resources" violated s. 9, but stay order was overturned

De Facto Arrest

An investigative detention can be of such duration that it becomes a de facto arrest.[1]

  1. ↑ R v Greaves, 2004 BCCA 484, 189 CCC (3d) 305 at para 37 ("The detention must also be reasonably necessary in all the circumstances. Iacobucci J. indicated that, generally, this means an investigative detention will be “of brief duration” (¶ 22) and cannot become a “de facto” arrest (¶ 35)")
    R v Strilec, 2010 BCCA 198 (CanLII), [2010] BCJ No. 699
    R v Orr, 2010 BCCA 513 (CanLII), [2010] BCJ No. 2576
    R v Madore & Madeira, 2012 BCCA 160 (CanLII)
    R v Trieu, 2010 BCCA 540 (CanLII)

See Also

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