Henry Waldock
Last updated: 2019.01.01
Contents
Section 9
of the Charter
prohibits you from arbitrarily detaining a person.
Whenever you "detain" a person, s. 10
requires you to explain the reason for the detention, and to tell the
suspect of his/her rights to counsel.
In traffic stops, where you clearly detain a person, you ought to
explain the purpose of the stop (s.10(a)) even if you don't have to
explain the right to counsel (s.10(b)).
Section 9 of the Charter protects people from "arbitrary" detentions. You must have some lawful reason for stopping people. Either you require statutory authority (like motorist legislation), or reasons to suspect that a person is involved in crime.
Police speak with people all the time. When is a person
"detained"?
The Supreme Court of Canada attempted to answer this question in the
cases of Grant
2009 SCC 32 & Suberu
2009 SCC 33. In each case, if there was a detention, then the
investigating officer should have informed the suspect of his rights to
counsel. Consider whether police detained either suspect:
A detention is:
Delays that involve no significant physical or psychological restraint
are not detentions. Grant
para 26. Stopping people to control an emergency situation or
provide medical assistance is not a detention. Grant
para 36 Nor is interviewing potential witnesses. Grant
para 38.
The trigger for detention seems to be interaction which creates a "risk
that the person may reasonably feel compelled to incriminate himself or
herself." Grant
para 39. "The police must be mindful that, depending on how they
act and what they say, the point may be reached where a reasonable
person, in the position of that individual, would conclude he or she is
not free to choose to walk away or decline to answer questions." Grant
para 41.
In the borderline cases, the court suggested factors which would help
decide:
Barging into the private back yard without permission may trigger a detention, even of a person who doesn't live there. R. v. Le, 2019 SCC 34
If you don't know whether your conduct is having a "coercive effect" on
an individual, you can inform the subject that he or she is under no
obligation to answer questions and is free to go:
"You don't have to answer my
questions. You are free to go if you want. But I'd like to
know...."
The court found Mr Grant was detained because all together, what the officers did deprived Grant of the choice of how to respond. On the other hand, even though the officer told Suberu to "wait a minute", the court agreed that this remark did not suggest that Suberu was required to answer police questions. The officer was just exploring a dynamic situation.
Note: telling a suspect that he's free to go won't terminate a detention, if you do it in a way that sends an ambiguous message. In R. v. Jackman, 2011 CarswellNfld 305, 2011 NLTD(G) 116 (Nfld SCTD), an officer told a detained driver "You're free to go", but continued to lean on the driver's car, leaving the police car's lights flashing. The court found that the driver remained detained.
On the other hand, after a traffic stop, telling a person that he's free to go, and stepping away from him may remove that ambiguity. R. v. Todd, 2019 SKCA 36.
Some people think that detention begins when an officer has sufficient grounds to detain or arrest. That's what the trial judge thought in MacMillan, 2013 ONCA 109. He was wrong. "In the absence of a legal obligation to comply, detention arises where a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply." It's not what the police officer thinks that causes a detention, but what the police officer does.
Does running away from police establish or disprove detention? It depends. When police asked Mr Reddy 2010 BCCA 11 to get out of a car, he fled. The court found, none-the-less, that he was "detained" by the police direction. On the other hand, when police beckoned Mr Atkins, 2013 ONCA 586 to approach them and called out "hey buddy, come here", the court found that his flight established that the police had not detained him.Not every brief encounter with a police officer is a detention. Consider two examples. In Acosta-Medina 2002 BCCA 33, the police spoke for 3-4 minutes to a suspect on the pretext of an immigration inquiry; and they photographed him. In Nguyen 2004 BCCA 546, an officer encountered the accused just outside a grow-op. He asked for identification, and, on discovering an outstanding warrant, arrested him. Both of these cases turned on whether the brief inquiries caused a detention which triggered s.10 of the Charter, and the court found that they did not.
In Sandhu, 2014 ONCA 356, a highway traffic officer approached two vehicles stopped by the side of the road, and asked the drivers, "What's going on here?" This was not a detention.
In Bradley, 2008 NSCA 57, police stopped a car for traffic safety concerns, and discovered that the passenger (Bradley) was in breach of probation. The court found that Bradley's detention did not trigger s.10(b). In Harris 2007 ONCA 574, the forceful manner in which the officers demanded that the passengers of a car show their hands and identify themselves was a "search" for the purposes of s.8, but the traffic stop did not trigger s.10(b).
Having grounds to detain does not create a detention. R. v. L.B., 2007 ONCA 596
Police suspected that Mr Marlo
2006 BCPC 330 committed a sexual assault. An officer invited him
over to the police detachment. The officer repeatedly told him
that he was free to leave at any time, but did not discuss rights to
counsel with him. When the questioning got pointed, Mr Marlo said
he wanted to leave, but the officer never got up to let him out.
Instead, he pressed closer with his questions. The trial judge
found that despite the officer's verbal assurances, his actions detained
Mr Marlo. While the legal merits of this judgment might cause
debate, the judge's message is clear: when it comes to determining
whether an officer "detains" a suspect, actions speak louder than
words.
At a bus station, a police officer smelled marijuana coming from two identical bags. He seized them. Then, in an undercover operation, police informed the passengers on the bus that there was a problem with the baggage, and asked them to re-tag their bags. Mr Makhmudov and Marinov, 2007 ABCA 248 identified the bags as their own. Police intended to arrest them, but did not until they tagged the bags in question. The court found that a police intention to arrest does not trigger s.10. Detention is about actions not thoughts.
Stopping someone briefly and asking him for identification is
not a detention which triggers s.10. Grafe
(1987 Ont C.A.); Hall
(1995 Ont. C.A.).
Mr Rajaratnam, 2006 ABCA 333 stopped at a Calgary bus terminal on a cross-Canada trip when a police officer asked him some questions. The officer told him he was not in any trouble, and he was free to go. Mr Rajaratnam answered some questions and showed his bus ticket and identification. These answers suggested drug transportation. A police officer sniffed his luggage. It smelled so strongly of Bounce fabric softener (often used to mask drug odours) that the officers arrested him for drugs. Was it a detention? Close, but no, it was only questions. See also R. v. Lewis 2007 NSCA 2
Three large police officers stopped a suspicious pedestrian named Grant
(2006 Ont C.A.). They told him to show his hands at all times, and asked
him if he had ever been arrested. They asked him if "Do you have
anything on you that you shouldn't?" Curiously enough, he did: a
handgun and drugs. The court found that the officers created a
situation in which Grant reasonably believed that he could not walk
away. This was a detention.
At a train station, Mr MacEachern, 2007 NSCA 69 walked in a broad arc around a clearly marked police dog. The dog followed him, and indicated drugs -- twice. When Mr MacEachern tried to arrange for travel on a shuttle bus, another officer touched him on the shoulder and said "you're not going anywhere". Was this a detention? The officer thought not, but the judges disagreed.
Therefore detention can occur quite quickly if you prevent a person from leaving.
Ms Wong, 2015 ONCA 657 invited police into her apartment to investigate her stolen car. Inside, the police noticed indications of drugs, and pressed her with questions about them. Even though he told her she did not have to answer her questions, the court found that his questioning reasonably caused her to feel compelled to cooperate, and therefore, the officer detained her.
Police officers arrived to investigate a sudden death under suspicious circumstances.. The victim lay nude, on Mr Anthony's 2007 ONCA 609 bed, with "a lot of blood" around her hips. The officers figured this was suspicious, but they didn't have enough to arrest anyone. An officer told Mr Anthony he "needed" to take a statement from him. Mr Anthony asked to sit in the front seat of the police car, but the officer chose the back seat. The officer decided not to give him the police warning. Mr Anthony told the officer of a night of sex with the victim, which the Crown used in the trial to convict him. Was Anthony "detained" such that the right to counsel was triggered? No. The accused spoke enthusiastically to the police, and they let him go smoke and get a glass of water when he wanted. This decision suggests that there is a downside to detaining possible suspects too early: you lose the comfort of the early stages of an investigation when everyone is just a witness.
Similarly, early in the investigation of a suspicious death, police learned that Mr Pomeroy, 2008 ONCA 521 drank with the deceased in the evening before her death. They also knew that his probation order prohibited him from drinking. They invited Mr Pomeroy down to the police station to give a witness statement. The interviewing officer planned to arrest him after the interview for the breach of probation. The officer didn't advise him of his rights. Mr Pomeroy voluntarily attended, and made remarks which helped get him convicted of murder. After the interview, the officer arrested him for breach of proabation. Defence complained that Pomeroy was detained from the beginning of the interview because the police planned to arrest him at the end of it.
The court found that the police did not detain Mr Pomeroy until the end of the interview. They were impressed by the fact that the police interviewed Mr Pomeroy only for information about the victim, not his offence of breaching probation.
Someone bashed James Cruickshank's head in. Some investigation led police to believe that Mr Peterson, 2013 MBCA 104 was the last person to see him alive. Police interviewed him as a witness. But part way through, he suddenly confessed to killing Cruickshank. He argued that the police had detained him and failed to give him access to counsel:
Looks like a detention, eh? On the other hand:
The trial judge found that the officers did not detain him, and that the confession could be admitted into evidence at trial. The appeal court agreed.
Treat suspicious witnesses like witnesses - seek their cooperation, don't demand it. Document their cooperation fully - recording conversations and making full notes. If they suddenly confess, expect scrutiny of every step you took with them.
Once triggered by a detention, s. 10 requires police to tell the
detainee about their rights immediately subject only to safety
concerns. Suberu,
2009 SCC 33.
"[T]he police cannot be said to 'detain' within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be 'detained' in the sense of 'delayed', or even 'kept waiting'. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint." (Mann 2004 SCC 52)
A simple pat-down on detention may not trigger the right to counsel under s.10(b), but a strip search does. (Simmons SCC 1988)
When police question a witness about a crime, this is not generally a detention, even if the police have reason to suspect that the witness committed a different but related crime. For example, robbers violently attacked Mr Tomlinson 2009 BCCA 196 in his home. Police caught the attackers. One of them confessed, explaining that they went to steal the drugs that Mr Tomlinson dealt from his house. Police interviewed Mr Tomlinson about the home invasion before detaining him and explaining his rights. The court found that their treatment of him as a witness did not trigger any detention.
After Mr Acosta-Medina 2002 BCCA 33 sold drugs to an undercover police officer, other uniformed members stopped him, pretending to conduct an immigration enquiry. Once an officer photographed him, they let him go. The court said this 3-4 minute was not a "detention" which triggered s.10 because he wasn't made to incriminate himself, and because he expected to let go so soon.
Police officers driving by a school saw young Mr L.B. 2007 ONCA 596 and another youth behaving oddly, just outside a school during school hours. They came back to check it out. One of the officers held up a badge and announced "Toronto Police". L.B. approached the officer, who asked "How's it goin'". Because of the boys' strange behaviour, the officers spoke to them individually, thus preventing them from speaking to each other. The officers asked for their names, and ran those names on CPIC. L.B. looked fidgety, and appeared nervous. That's not surprising when you learn that the officers found a backpack he had abandoned, and in it was a loaded hand gun. Did the officers detain the youths? The court found they did "detain" the youths in the sense of a brief delay, but the officers did not "detain" in the sense of a significant physical or psychological restraint. Only that latter kind of detention triggers the rights to counsel.
A traffic stop is a detention of the driver. Where you stop a
driver for a traffic infraction, you don't necessarily "detain" the
passengers. Mooiman
2016 SKCA 43. However, the way you treat the passengers may trigger a
detention. Harris,
2007 ONCA 574
There is no obligation to give rights to counsel during a brief traffic
safety stop. R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont.
If a brief traffic stop extends past a simple ticket or sobriety screening (ASD or physical coordination tests), then you need to tell the suspect about lawyers. Strilec 2010 BCCA 198. An officer stopped Mr Strilec 2010 BCCA 198 for driving an unlicenced vehicle. The officer handcuffed him and placed him in the back of a police car. The court found this triggered the right to counsel. See also Mhlongo, 2017 ONCA 562
A demand to provide an RSD sample or sobriety tests at roadside is a detention. The reason that s.10 is not triggered in those circumstances is that the legislation would be unworkable if access to counsel were required during these brief detentions. However, this may result in the exclusion of any incriminatory evidence elicited from the suspect during the detention, such as staggering or admissions about drinking. Orbanski & Elias 2005 SCC 37.
Section 9 of the Charter guarantees freedom from "arbitrary" detention. Police can't stop people for no reason, or for malicious reasons.
Targeting people for detention by reason of their race may disqualify otherwise justifiable detentions. (Simpson) R. v. R.D.S. [1997] 3 S.C.R. 484
You may lawfully detain a person if you have reasonable grounds to suspect that the person is involved in an offence. Mann 2004 SCC 52; Dedman (1985 SCC) Wilson (1990 SCC) Ladouceur (1990 SCC) Hufsky (1988 SCC) Cooper (2005 NSCA).
Reasonable suspicion may be obtained from "objectively discernible facts, which can then be subjected to independent judicial scrutiny". Chehil, 2013 SCC 49 Did you make observations which, when you explain them to a judge, will cause the judge to suspect criminal activity? (Remember that judges are skeptical.)
A collection of indicators, such as great nervousness, odd driving, and a route consistent with a particular criminal offence, may create reasonable suspicion. MacKenzie, 2013 SCC 50.
"A tip from an informant of unknown reliability will create a
reasonable suspicion when some "objective" or "extrinsic" piece of
information in the tip is confirmed." Olazo,
2012 BCCA 59.
The more serious the offence, or the greater the risk to the public, the less "individualized suspicion" you need to justify a detention. Conducting a roadblock for a shoplifter won't be lawful, but stopping all people leaving the area of a shooting or a robbery will, so long as the roadblock is limited in size and duration. Detaining a possible witness differs from detaining a suspect. Clayton & Farmer, 2007 SCC 32.
A person just being in a high-crime area doesn't justify a detention, but being near a crime does. Mann 2004 SCC 52.
Running away from a police officer may not, by itself, justify
suspicion, but combined with other factors, it may. Atkins,
2013 ONCA 586.
Profiling drug couriers can pose some problems. Calderon
(2004) 188 C.C.C. (3d) 481 (Ont. C.A.) The courts have been
willing to accept some sets of indicia, but not others. Abraham
[2004] M.J. No. 387 (Q.B.); R. v. Nguyen [2004] S.J. No. 682
(Q.B.). However, knowing and recognizing indicia common to drug
couriers can establish reasonable grounds to suspect. Savage,
2011 SKCA 65.
In most of these cases, the police knew of an offence, and stopped someone they suspected
might be involved. What if you only suspect an offence? A highly unusual 7-judge
bench of the Saskatchewan Court of Appeal decided that you can detain
suspects in either situation. Yeh,
2009 SKCA 112.
People that you find in, or see emerge from a location where a crime is
ongoing (like a marijuana grow operation) are usually suspicious enough
to detain. Trieu,
2010 BCCA 540.
At the invitation of the manager of a notorious apartment complex, uniformed police attended one evening to try to prevent the incessant drugs and violence. When they encountered Mr Nesbeth, 2008 ONCA 579, he swore and fled. The officers told him to stop. Instead, he blocked their pursuit with a shopping cart, and discarded the backpack he was carrying. The trial judge said that the police didn't at first have any reason to stop him, and so the detention and search of the backpack were unconstitutional. The court of appeal disagreed. They noted that the detention didn't occur until the police caught him - by which time they had ample reason to suspect his involvement in criminal activity. The fact that Mr Nesbeth abandoned his backpack eliminated his expectation of privacy in it. A detention occurs after:
Police received a 911 call about 10 "black guys" outside the Million Dollar Saloon. The caller said that four of them took out handguns, and then "put them back in together". He identified four cars in the parking lot whose headlights were on. One car left the lot during the call. Within minutes, police attended and established a perimeter. They stopped the first car leaving the lot, which did not match any of the cars described.
Was it lawful for the officers to stop this vehicle? The occupants, Clayton & Farmer, 2007 SCC 32, complained that it wasn't. (They didn't like being discovered carrying handguns.) The trial judge said the roadblock was legal. The Ontario Court of Appeal said that the officers could only stop cars that matched the cars described in the 911 call. The Supreme Court of Canada unanimously agreed with the trial judge, but they disagreed among themselves as to why the trial judge was right.
After an offence, it is good police work to place officers in a perimeter in order to discover and contain people leaving the scene of the crime. But section 9 of the Charter limits who you can stop.
Why are police roadblocks such a problem? In the minority decision, Binnie J. put it very clearly:
"It is not only bad people who were leaving the Million Dollar Saloon on September 24, 1999. Individuals going about their ordinary business, even in the small hours of the morning, should not have their way physically blocked by the police and be required to account for themselves unless there exists a Charter-proof legal authority for the detention."
Difference of Opinion
The majority found that the police detention was not "arbitrary" because the 911 call sufficiently justified stopping vehicles even if they did not perfectly match the information they received.
The minority found that the police detention was arbitrary because the officers had no specific reason to believe the occupants of this vehicle was involved in the crime; but the minority went on to find that police have a very limited power of "arbitrary detention" to investigate a significant public risk.
While their analyses differ, the judges agreed on the points that you police officers must consider.
Of course you can stop cars or people who appear to match what you've been told about the offence. (See R. v. Mann, 2004 SCC 52)
But you can also stop people and cars that don't match the information you have about the offence if:
Of course, when you detain a car or a person under these circumstances, you can not search beyond plain view for evidence of the offence. But if you have reason to fear that a person is carrying a weapon that poses you a danger, then you can search for weapons.
Timeliness
In Clayton, the police officers responded within a few minutes. The majority relied upon this quick response to find their blockade was justified.
However, many police officers have told me that felons often stick around in the area of their offence for quite long periods of time. I know I've seen plenty of convenience store robberies in which the robber was located in the area 30 and 40 minutes after the crime. Arsonists usually like to watch their fires. Murderers frequently return to the scene.
Therefore, junior officers should defer to senior officers how long they expect a perimeter may be successful, and why. In the event of a Charter application, senior officers should be ready to explain in court why they thought a late perimeter may be successful. I suggest that you be proactive about this. Many prosecutors don't know how successful perimeters can be even long after an offence. Put the senior officer's name on the RCC as the person who decided how long the perimeter should persist.
Precision
The Ontario Court of Appeal found that the only vehicles the police could stop were those described in the 911 call. The majority of the Supreme Court of Canada found this unduly limiting. The caller described a group of around 10 people, but only 4 vehicles. Therefore, the majority reasoned, the officers had reason to suspect that more vehicles could be involved.
For you officers, this highlights the importance of expressing in court what information you have and what possibilities this information suggests. For example, some people can't distinguish well between other racial groups. If your 911 caller describes "a Chinese guy", he might actually have seen an aboriginal person.
Witnesses
What about potential witnesses leaving the area? in this case, the investigating officers didn't say much about the prospect of learning more about the offence from people in the area. Therefore, the Supreme Court of Canada didn't say much about it either. When establishing a roadblock, one of your objectives should be finding people who saw what you're investigating who can give you more information. (para 93) This is a valid reason for a roadblock. Say so when you are asked about it in court.
R. v. Murray - roadblock to check all vehicles after an armed robbery OK.
Academic analysis of the powers to detain seems to boil down to this: "Is the situation serious enough to warrant this interference with individual liberties?" (Fuerst, "Roadbloacks, Dragnets and Police Powers: An Update" 2005) The Supreme Court of Canada agrees. Clayton & Farmer, 2007 SCC 32.
You can stop driver for possible motor vehicle offences without having any specific reason to believe in their guilt. But the stop must truly be for road safety issues. Nolet 2010 SCC 24 at para 22; Doell, 2007 SKCA 61 at para 19. "Road safety", at least in Alberta, includes determining if the vehicle is properly licenced and registered. Dhuna, 2009 ABCA 103.
Motor Vehicle safety statutes do not authorize you to stop every driver
for every purpose. For example, an officer patrolling the area of
a park cursed by vandalism saw a vehicle driving toward the park.
When he tried to follow the vehicle, he found it parked. He spoke
to the driver - not for the purposes of vehicle safety - but to discover
whether he posed any risk to the park. This officer could not rely
on the Traffic Safety Act for authority to compel the driver to identify
himself or answer questions. But the officer could talk to him
without detaining him. Papilion,
2014 SKCA 45
If your purpose in stopping a vehicle is road safety, then you do not
require grounds to believe that there is a problem. If your
purpose is to investigate a criminal offence, you need reasonable
grounds to suspect that something criminal is afoot.
A traffic stop may justify detaining a person you suspect of more
serious crimes; but be sure to have actual traffic concerns in mind
during the stop. Brown
v. Durham (1988 Ont C.A.).
Knowing that they have drawn this distinction, courts will be wary of police officers who claim that every stop was for traffic enforcement. That applies particularly to you officers in the drug units out there!
Mr Schell 2006 SKCA 128 drove away from a bar around closing time. For that reason only, a police officer stopped him. Was it an "arbitrary" detention? The trial judge and the summary conviction appeal court thought so, but the Court of Appeal disagreed. When you're on the stand defending your decision to stop such a driver, you should articulate the (obvious) logic: People who go to bars drink. People who leave bars often have too much alcohol in their bodies to be safe to drive. Therefore, for the protection of the public using the roads, you want to check the drivers of vehicles leaving bars. The Supreme Court of Canada figured it out in R. v. Wilson [1990] 1 S.C.R. 1291, but this case is a useful review.
On the other hand, a police officer saw Mr Houben 2006 SKCA 129, drive back and forth late at night in a residential neighborhood. Nothing about him or his driving caused the police officer to suspect criminal activity except the lateness of the hour. The officer decided to stop him to find out what was going on. This led to breath samples at .210 and .200. These were excluded because it was an arbitrary detention.
Unfortunately for Mr Ingle,
2007 BCCA 445, he chose to drive a van full of drugs through a rural
area just after someone had reported a theft: 2 teenage males
reportedly took a toolbox from a pickup truck, dropped it, and
fled. In response to the report, police established a containment
area, from which, almost an hour later, Mr Ingle emerged.
Neither he nor his passenger looked like the kids the officers
sought. But the officer didn't know this until after he stopped
the van, and smelled the dope. Was it an arbitrary detention?
From the decision in Clayton
& Farmer 2007 SCC 32, one might think this little attempted
theft was not important enough, nor the detention sufficiently close in
time to justify a detention. However, our court was satisfied that
the circumstances justified a brief investigative delay.
If you detain a person for too long, the court may call it an
arrest. Defence will then say that you lacked the probable grounds
necessary to justify an arrest, and therefore you violated the suspect's
rights.
Holding a detainee for 25 minutes while someone obtains a warrant to
search the suspicious residence from which he emerged is okay. Trieu,
2010 BCCA 540. Detaining at gunpoint and hancuffing isn't necessarily an
arrest. Madore
& Madeira, 2012 BCCA 160.
You may search a detained person for officer safety, but you need to
explain in each case why this particular person, in these particular
circumstances posed you a risk. This does not give the officer power to
search for evidence of an offence. Mann
2004 SCC 52. Such searches may be done when "necessary" for
officer safety, but not for mere convenience. When you have
practical alternatives to a frisk search, searching a suspect "for
officer safety" breaches his s.8 rights. Aucoin,
2012 SCC 66
A debate rages whether, when you search, you need reasonable grounds to "suspect" or "believe" that the person you stopped poses a risk to your safety or the safety of others. Plenty of authority suggests "suspicion" is the standard: Mann 2004 SCC 52 Greaves 2004 BCCA 484 Ferris (1998) 126 CCC (3d) 298 (B.C.C.A.) Coates (2003 Ont C.A.)
However, in a case where a police officer forced an apartment door
open, and searched a resident even without detaining him, a bare
majority of the court held that the safety search required reasonable
grounds to "believe" that your "safety is at stake". MacDonald,
2014 SCC 3. Appeal courts have noticed that the minority in that
case makes more sense than the majority, and seem to have applied it
only in safety searches of residences where there has been no detention.
Peterkin,
2015 ONCA 8; Sheck,
2015 BCCA 471
This topic is covered in greater detail in the page on Warrantless
Search
of
the Person.
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