Detained (POA)

R. v. Gray, 2010 ONCJ 629 (CanLII)

[23] The Supreme Court of Canada in R. v. Grant, 2009 SCC 32 (CanLII), (2009) S.C.J. No. 32, at paragraph 44, described the meaning of detention as follows:

1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.

(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.

(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.

[24] Whether a person is detained is an objective determination, made in light of all of the circumstances of the case. As pointed out in R. v. Suberu 2009 SCC 33 (CanLII), (2009) S.C.J. No. 33, not every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police. The Supreme Court has attempted to strike a balance between society’s interest in effective policing and the detainee’s rights under the Charter. As stated at paragraph 24 of Suberu,

To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.

[31] From the moment an individual is detained, the police have an obligation to inform the detainee of the reason for the detention and be instructed that he or she has the right to retain and instruct counsel without delay. The Supreme Court of Canada in R. v. Suberu, supra, held that the phrase without delay means immediately upon being detained.

[32] It is clear on all of the evidence that Howard did not advise Mr. Gray that he was being investigated for robbery and later for obstructing police. The officer first approached the accused and advised him he was investigating an incident, but did not elaborate further. Similarly, once Constable Howard began to suspect that the accused was obstructing police, he did not tell Mr. Gray that he was being detained until his true identity could be ascertained. Nor did the officer tell the accused that he had the right to retain and instruct counsel until after he arrested him for obstructing police. Accordingly, I find that the accused’s rights under section 10(a) and (b) were breached. There is no dispute that once the accused was arrested for obstructing police he was properly notified of the reasons for the arrest and given his right to counsel.