Investigative Detention: Difference between revisions

From Criminal Law Notebook
← Older editNewer edit →
VisualWikitext
Tag: wikieditor
No edit summary
Tag: wikieditor
Line 106: Line 106:
* the information known to the police about the suspect or the crime, and  
* 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.  
* the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope.  
{{reflist|2}}
==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.<Ref>
{{CanLIIRP|Suberu|24kx4|2009 SCC 33 (CanLII)|[2009] 2 SCR 460}}{{perSCC|McLachlin CJ and Charron J}}{{AtL|24kx4|22}}<br>
</ref>
The total duration will depend on how long it is "reasonably necessary". However, it should be "must be of brief duration".<ref>
{{supra1|Mann}}{{atL|1hmp1|22}}
</ref>
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.<ref>
{{CanLIIRP|Tran|2bbvp|2010 ABCA 211 (CanLII)|258 CCC (3d) 19}}{{TheCourtABCA}}{{atL|2bbvp|30}}</ref>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. <ref>Tran</ref>
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).<ref>
e.g. {{CanLIIRP|Holbrook|215c2|2008 SKPC 133 (CanLII)|76 MVR (5th) 256}}{{perSKPC|Harradence J}}
</ref>
; Duration in Holding Cells
Police have statutory authority to hold someone after arrest for up to 24 hours.<ref>
see [[Initial Post-Charge Detention]]
</ref>
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.<ref>
e.g. {{CanLIIRP|Poletz|g34r1|2014 SKCA 16 (CanLII)|307 CCC (3d) 254}}{{perSKCA|Caldwell JA}} - holding in cell for 12 hours due to "convenience" or "lack of resources" violated s. 9, but stay order was overturned</ref>
; De Facto Arrest
An investigative detention can be of such duration that it becomes a de facto arrest.<ref>
{{CanLIIRP|Greaves|1hv67|2004 BCCA 484 (CanLII)|189 CCC (3d) 305}}{{perBCCA|Lowry JA}}{{atL|1hv67|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)")<br>
{{CanLIIRP|Strilec|29d54|2010 BCCA 198 (CanLII)|[2010] BCJ No 699}}{{perBCCA|Ryan JA}}<br>
{{CanLIIRP|Orr|2f343|2010 BCCA 513 (CanLII)|[2010] BCJ No 2576}}{{perBCCA|Low JA}}<br>
{{CanLIIRP|Madore & Madeira|fqzrs|2012 BCCA 160 (CanLII)|320 BCAC 65}}{{perBCCA|Finch CJ}}<br>
{{CanLIIRP|Trieu|2dns1|2010 BCCA 540 (CanLII)|272 CCC (3d) 237}}{{perBCCA|Prowse JA}}<br>
</ref>


{{reflist|2}}
{{reflist|2}}
Line 423: Line 459:
* [[Search Incident to Investigative Detention|Search Incident to Detention]]
* [[Search Incident to Investigative Detention|Search Incident to Detention]]


==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.<Ref>
{{CanLIIRP|Suberu|24kx4|2009 SCC 33 (CanLII)|[2009] 2 SCR 460}}{{perSCC|McLachlin CJ and Charron J}}{{AtL|24kx4|22}}<br>
</ref>
The total duration will depend on how long it is "reasonably necessary". However, it should be "must be of brief duration".<ref>
{{supra1|Mann}}{{atL|1hmp1|22}}
</ref>
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.<ref>
{{CanLIIRP|Tran|2bbvp|2010 ABCA 211 (CanLII)|258 CCC (3d) 19}}{{TheCourtABCA}}{{atL|2bbvp|30}}</ref>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. <ref>Tran</ref>
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).<ref>
e.g. {{CanLIIRP|Holbrook|215c2|2008 SKPC 133 (CanLII)|76 MVR (5th) 256}}{{perSKPC|Harradence J}}
</ref>
; Duration in Holding Cells
Police have statutory authority to hold someone after arrest for up to 24 hours.<ref>
see [[Initial Post-Charge Detention]]
</ref>
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.<ref>
e.g. {{CanLIIRP|Poletz|g34r1|2014 SKCA 16 (CanLII)|307 CCC (3d) 254}}{{perSKCA|Caldwell JA}} - holding in cell for 12 hours due to "convenience" or "lack of resources" violated s. 9, but stay order was overturned</ref>
; De Facto Arrest
An investigative detention can be of such duration that it becomes a de facto arrest.<ref>
{{CanLIIRP|Greaves|1hv67|2004 BCCA 484 (CanLII)|189 CCC (3d) 305}}{{perBCCA|Lowry JA}}{{atL|1hv67|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)")<br>
{{CanLIIRP|Strilec|29d54|2010 BCCA 198 (CanLII)|[2010] BCJ No 699}}{{perBCCA|Ryan JA}}<br>
{{CanLIIRP|Orr|2f343|2010 BCCA 513 (CanLII)|[2010] BCJ No 2576}}{{perBCCA|Low JA}}<br>
{{CanLIIRP|Madore & Madeira|fqzrs|2012 BCCA 160 (CanLII)|320 BCAC 65}}{{perBCCA|Finch CJ}}<br>
{{CanLIIRP|Trieu|2dns1|2010 BCCA 540 (CanLII)|272 CCC (3d) 237}}{{perBCCA|Prowse JA}}<br>
</ref>
{{reflist|2}}


==See Also==
==See Also==

Revision as of 09:27, 2 March 2023

This page was last substantively updated or reviewed January 2021. (Rev. # 83025)

General Principles

See also: Reasonable Suspicion

The police have a common law right to detain people for investigative purposes. This generally means asking the person questions. Detention can include many forms of physical or psychological conduct that has the effect of restrain the detainee.

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.

"Preliminary investigative questioning" that cause "momentarily delay" will generally not be subject to the rules of investigative detention.[1]

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."[2]

The requirement that the detention be "reasonably necessary" is based on the "totality of the 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.[3]

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.[4]

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 ord direction which may have a significant legal consequence and which prevents or impedes access to counsel".[5]

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.[6]

Sufficiency of Belief [7]

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.[8]

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:[9]

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

The existence of reasonable suspicion is a question of law and reviewed on a correctness standard.[11]

History

In earlier cases, the term used was adopted from US law of "articulable cause", which later was changed to "reasonable grounds to detain."[12]

  1. ↑ R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin C.J. and Charron J
  2. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 45
  3. ↑ Mann, ibid., at para 34 ("The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances...most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test.")
    R v Dedman, 1985 CanLII 41 (SCC), [1985] 2 SCR 2, per Le Dain J, at p. 35 ("The interference with liberty must be necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference.")
    R v Clayton, 2007 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J, at paras 25 to 26
  4. ↑ R v Yeh, 2009 SKCA 112 (CanLII), 248 CCC (3d) 125, per Richards JA, at para 75 ("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.")
  5. ↑ R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613, at pp. 503 to 504
    R v Bazinet, 1986 CanLII 108 (ON CA), 25 CCC (3d) 273, per Tarnopolsky JA
  6. ↑ R v Jackson, 2011 ONSC 5516 (CanLII), OJ No 6394, per Code J, at paras 62 to 64
  7. ↑ see also Reasonable Suspicion
  8. ↑ R v Cunsolo, 2008 CanLII 48640 (ON SC), [2008] OJ No 3754 (SCJ), per Hill J - summary of rules of arrest and detention
    R v DLW, 2012 BCSC 1700 (CanLII), per Romilly J, at para 31
  9. ↑ see Warrantless Arrests
  10. ↑ Shepherd, supra, at para 20
  11. ↑ R v Chehil, 2013 SCC 49 (CanLII), [2013] 3 SCR 220, per Karakatsanis J, at para 60
  12. ↑ R v Buchanan, 2020 ONCA 245 (CanLII), per Fairburn JA, at para 30

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.[1] The crime must be known by the officer. It is not sufficient if the crime is merely suspected.[2]

The suspicion formed must include a "clear nexus" between the detainee and the criminal offence under investigation.[3]

The investigation must be based on a "reasonable suspicion" that the individual is "implicated" or "connected" to particular criminal activity under investigation for it to be considered lawful.[4]

  1. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 34
    R v Bramley, 2009 SKCA 49 (CanLII), 67 CR (6th) 293, per Richards JA
  2. ↑ Bramley, ibid., at paras 29 to 34
  3. ↑ Mann, supra, at para 34 ("The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer's suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence.")
  4. ↑ Mann, supra, at para 34

"Reasonably Necessary"

Investigative detention is permissible only so long as it is "reasonably necessary" in the "totality of the circumstances."[1] What is reasonably necessary will depend on the "nature of the situation" such as:[2]

  • 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.
  1. ↑ Clayton, supra, at paras 25 to 26, 30 to 31
  2. ↑ Clayton, ibid.
    R v Barclay, 2018 ONCA 114 (CanLII), 44 CR (7th) 134, per Hoy ACJ, at para 31
    R v Godoy, 1999 CanLII 709 (SCC), [1999] 1 SCR 311, per Lamer CJ, at para 18 ("[T]he justifiability of an officer's conduct depends on a number of factors including the duty being performed, the extent to which some interference with individual liberty is necessitated in order to perform that duty, the importance of the performance of that duty to the public good, the liberty interfered with, and the nature and extent of the interference.")
    Clayton, supra{, at paras 25 to 26, 30 to 31

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.[1]

The total duration will depend on how long it is "reasonably necessary". However, it should be "must be of brief duration".[2]

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.[3]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. [4]

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).[5]

Duration in Holding Cells

Police have statutory authority to hold someone after arrest for up to 24 hours.[6] 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.[7]

De Facto Arrest

An investigative detention can be of such duration that it becomes a de facto arrest.[8]

  1. ↑ R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin CJ and Charron J, at para 22
  2. ↑ Mann, supra, at para 22
  3. ↑ R v Tran, 2010 ABCA 211 (CanLII), 258 CCC (3d) 19, per curiam, at para 30
  4. ↑ Tran
  5. ↑ e.g. R v Holbrook, 2008 SKPC 133 (CanLII), 76 MVR (5th) 256, per Harradence J
  6. ↑ see Initial Post-Charge Detention
  7. ↑ e.g. R v Poletz, 2014 SKCA 16 (CanLII), 307 CCC (3d) 254, per Caldwell JA - holding in cell for 12 hours due to "convenience" or "lack of resources" violated s. 9, but stay order was overturned
  8. ↑ R v Greaves, 2004 BCCA 484 (CanLII), 189 CCC (3d) 305, per Lowry JA, 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, per Ryan JA
    R v Orr, 2010 BCCA 513 (CanLII), [2010] BCJ No 2576, per Low JA
    R v Madore & Madeira, 2012 BCCA 160 (CanLII), 320 BCAC 65, per Finch CJ
    R v Trieu, 2010 BCCA 540 (CanLII), 272 CCC (3d) 237, per Prowse JA

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), [2009] 2 SCR 353, per McLachlin CJ and Charron J, at para 20
  2. ↑ Grant, ibid., at para 55
  3. ↑ R v Bush, 2010 ONCA 554 (CanLII), 259 CCC (3d) 127, per Durno J, at para 74
    R v LB, 2007 ONCA 596 (CanLII), 227 CCC (3d) 70, per Moldaver JA, at para 60
  4. ↑ R v Whipple, 2016 ABCA 232 (CanLII), 39 Alta LR (6th) 1, per curiam leave refused
    R v Vuozzo, 2013 ABCA 130 (CanLII), 544 AR 271, per curiam leave refused
  5. ↑ Grant, supra ("Earlier suggestions that an unlawful detention was not necessarily arbitrary... have been overtaken by Mann")
    cf. 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 with the restrictive request or demand, or a reasonable 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]

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[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]

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.[9]

Concurrent Reasons Permitted

The purpose for detention can have concurrent reasons, such as conducting traffic enquiries while making observations of drug related offences.[10]

Vague "hunches" are Insufficient

An officer cannot detain a suspect on the basis of a hunch.[11]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J, at para 25
  2. ↑ Grant, ibid., at para 25
    Therens, supra, at p. 644
    R v Voss, 1989 CanLII 7167 (ON CA), 71 CR (3d) 178, per Tarnopolsky JA
  3. ↑ R v BS, 2014 BCCA 257 (CanLII), per Neilson JA
  4. ↑ BS, ibid.
  5. ↑ Grant, supra, at para 44
  6. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at p. 19
    BS, supra, at paras 16, 31
  7. ↑ R v Grant, 2006 CanLII 18347 (ON CA), 209 CCC (3d) 250, per Laskin JA, at paras 8 and 28
    R v Nesbeth, 2008 ONCA 579 (CanLII), 238 CCC (3d) 567, per Rosenberg JA, at paras 15 to 17
    R v Harris, 2007 ONCA 574 (CanLII), 225 CCC (3d) 193, per Doherty JA, at para 17
    R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin CJ and Charron J, at paras 23 to 35
  8. ↑ R v Earhart, 2011 BCCA 490 (CanLII), 313 BCAC 226, per Bennett JA
  9. ↑ R v Le, 2019 SCC 34 (CanLII), 375 CCC (3d) 431, per Brown and Martin JJ
    R v Therens, 1985 CanLII 29 (SCC), [1985] 1 SCR 613, per Le Dain J (dissenting) ("most citizens are not aware of the precise limits of police authority" and could reasonably "assume lawful authority and comply with the demand")
  10. ↑ R v Harding, 2010 ABCA 180 (CanLII), 256 CCC (3d) 284, per curiam, at para 18
    R v Yague, 2005 ABCA 140 (CanLII), 371 AR 286, per curiam, at paras 7 to 9
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J
    R v Hugh, 2014 BCSC 1426 (CanLII), per Schultes J - Police may have dual purpose in performing a lawful stop
  11. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at paras 34 to 35
    R v Harrison, 2009 SCC 34 (CanLII), [2009] 2 SCR 494, per McLachlin CJ, 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), 36 CCC (3d) 267, per Krever JA
    R v Hall, 1995 CanLII 647 (ON CA), 22 OR (3d) 289, per Osborne JA
  2. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J
  3. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353, per McLachlin CJ and Charron J, at para 30
  4. ↑ R v Ladouceur, 2002 SKCA 73 (CanLII), 165 CCC (3d) 321, per Jackson JA
  5. ↑ R v Jackson, 2011 ONSC 5516 (CanLII), OJ No 6394, per Code J, at para 49
    Grafe, supra
    Hall, supra at 295 (cited to OR)
    R v Grant, 2006 CanLII 18347 (ON CA), 209 CCC (3d) 250, per Laskin JA, at paras 13 and 29
    R v Harris, 2007 ONCA 574 (CanLII), 225 CCC (3d) 193, per Doherty JA, at para 42
  6. ↑ Grafe, supra, at pp. 271 and 274
  7. ↑ Jackson, supra, at para 51
    R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin CJ and Charron J, at paras 23 to 35
  8. ↑ Jackson, supra, at para 51
  9. ↑ Jackson, supra, at para 52
    Suberu, supra, at paras 23 to 35
  10. ↑ R v Simmons, 1988 CanLII 12 (SCC), [1988] 2 SCR 495, per Dickson CJ

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), 165 CCC (3d) 321, per Jackson JA
  2. ↑ Ladouceur
  3. ↑ R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, per Cory J - an investigation that went beyond issues of highway safety violated Charter
  4. ↑ R v PD, 2009 CanLII 18220 (ONSC), per Fuerst J, 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, per Spence J
    see also Rice v Connelly, [1966] 2 ALL E.R. 649 (House of Lords)
  2. ↑ R v Frank, 2012 ONSC 6274 (CanLII), OJ No 5242, per Code J, at para 47
  3. ↑ R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin CJ and Charron J
  4. ↑ R v MRM, 1998 CanLII 770 (SCC), [1998] 3 SCR 393, per Cory J (8:1)

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), 36 CCC (3d) 225, per Martin JA
  2. ↑ Moran, ibid., at p. 259
  3. ↑ Moran, ibid.
  4. ↑ Moran, ibid.

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.[1]

  1. ↑ Dehghani v Canada, (M.E.I.), 1993 CanLII 128 (SCC), 1 SCR 1053, per Iacobucci J, at p. 1074

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]

There are generally five reasons for which police may be engaged in random stops of vehicles:[3]

  • 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.[4] 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.[5]

Dual purposes in random traffic stops are permissible in some circumstances.[6]

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.[7]

  1. ↑ R v Brookwell, 2008 ABQB 545 (CanLII), 456 AR 343, per Romaine J, at para 29, citing R v Orbanski & Elias, 2005 SCC 37 (CanLII), per Charron J, at para 31
  2. ↑ R v Harder, 1989 CanLII 2857 (BC CA), 49 CCC (3d) 565, per Anderson JA
    R v Greene, 1991 CanLII 6874 (NL CA), 62 CCC (3d) 344, per Goodridge CJ
  3. ↑ This will depend on the powers granted by the provincial motor vehicle legislation
  4. ↑ 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
  5. ↑ R v Timmer, 2011 ABQB 629 (CanLII), 527 AR 315, per Acton JA
  6. ↑ R v Pham, 2016 ONCA 258 (CanLII), per curiam, at para 7
    R v Jensen[2015] OJ No 3761 (CA)(*no CanLII links) , at para 8 leave refused [2015] SCCA No 390
    R v Shipley, 2015 ONCA 914 (CanLII), per curiam, at paras 3 to 7
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J, at paras 37 to 40
  7. ↑ R v Loewen, 2018 SKCA 69 (CanLII), 365 CCC (3d) 91, per Richards CJ

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 (SCC), [1988] 1 SCR 621, per Le Dain J
    R v Ladouceur, 1990 CanLII 108 (SCC), [1990] 1 SCR 1257, per Sopinka J
    R v Mellenthin, 1992 CanLII 50 (SCC), [1992] 3 SCR 615, per Cory J
    R v Simpson, 1993 CanLII 3379, 79 CCC (3d) 482, per Doherty JA
    R v Nolet, 2010 SCC 24 (CanLII), [2010] 1 SCR 851, per Binnie J (a "random vehicle stop on the highway is, by definition, an arbitrary detention")
  2. ↑ Nolet, ibid., at para 25
  3. ↑ Nolet, supra referencing R v Ladouceur, 2002 SKCA 73 (CanLII), 165 CCC (3d) 321, per Jackson JA
  4. ↑ Mellenthin, supra , at para 20
  5. ↑ Mellenthin, supra, at para 20
  6. ↑ R v Stengler, 2003 SKPC 119 (CanLII), 111 CRR (2d) 189, per Tucker J - detention under the Fisheries Act (Sask)
  7. ↑ R v Mooiman and Zahar, 2016 SKCA 43 (CanLII), 476 Sask R 216, per Caldwell JA, at paras 21 to 22
    R v Hebrada-Walters, 2013 SKCA 24 (CanLII), 409 Sask R 229, per Ottenbreit JA, at paras 19 to 26
    R v Ramos, 2011 SKCA 63 (CanLII), 371 Sask R 308, per Ottenbreit JA, 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 SCC 32 (CanLII), [2007] 2 SCR 725, per Abella J

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.[1]

  1. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59
    See Right to be Informed of Reasons for Arrest or 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.[1]

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

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. [3]

  1. ↑ R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460
    R v Manninen, 1987 CanLII 67 (SCC), [1987] 1 SCR 1233, per Lamer J
  2. ↑ R v Suberu, 2009 SCC 33 (CanLII), [2009] 2 SCR 460, per McLachlin CJ and Charron J
  3. ↑ R v Esposito, 1985 CanLII 118 (ON CA), 49 CR (3d) 193, per Martin JA leave refused [1986] 1 SCR viii (SCC)

Search Incident to Detention


See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Investigative_Detention&oldid=83025"