When police interact with an individual, the interaction effectively places the person into one of three legal categories:
Investigative detainment: under common law, state officials and law enforcement are granted the power to hold an individual while investigative checks are performed.
Arrest: the Criminal Code authorizes law enforcement the statutory power to hold an individual for a longer amount of time than investigative detention.
Neither detainment nor arrest: depending on the circumstances, not every interaction with police will amount to the individual being detained or arrested. Police have the right to ask questions, and in some instances, a polite conversation with the police can end the discussion more quickly. However, police tactics can be tricky and you may be unaware whether the police are asking innocent questions, or because you are under investigation. A bystander or pedestrian cannot be approached by police if the police do not have a legitimate reason to do so, other than true friendly conversation. If the police implicitly cause an individual to feel they cannot leave, then it might be considered a detainment.
When bringing a section 9 challenge against law enforcement for unlawful arrest, the accused has the burden of proving they were arbitrarily detained or imprisoned. The Supreme Court of Canada set out a two-step analytical framework to determine whether an unlawful arrest occurred:
Was the individual detained or imprisoned?
Was that detention or imprisonment arbitrary?
Being Detained or Imprisoned
When investigating a crime, law enforcement can only detain an individual if there are “reasonable grounds” the individual committed a crime or is connected to a crime, and that detaining the individual is necessary under the circumstances.
The Supreme Court in R v Grant defined detention under section 9 occurs when law enforcement or the state inflicts a significant amount of physical or psychological restraint that suspends the individual’s liberty interest. Psychological detention occurs when an individual is required by law to comply with the police’s restrictive request or demand, or if a reasonable person would conclude that they had no choice but to comply based on the conduct of the state or law enforcement.
Oftentimes, it can be difficult to decipher whether the individual was physically or psychologically detained. To determine whether a reasonable person in the individual’s situation would conclude that they had been deprived of their liberty, the Court in Grant listed the following factors a court may consider:
(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 focused 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. (Grant para 2).
The Supreme Court in R v Mann stated that not every encounter with the police will constitute a detention within the guidelines of section 9. Consider an individual is stopped on the street by law enforcement for the purpose of identification or for an interview. The Court states “[t]he person who is stopped will in all cases be ‘detained’ in the sense of ‘delayed’, or ‘kept waiting’. However, a delay does not engage the individual's constitutional right to not be arbitrarily detained. In order for section 9 to be engaged by the delay, there has to be “significant physical or psychological restraint.” For the purposes of detainment, however, the individual does not have to answer the police officer’s questions. On the other hand, if someone is arrested, they must give the officer their name and address when requested.
If a court determines an individual was detained or imprisoned without reasonable grounds, the analysis proceeds to step two of the two-step test.
Arbitrary Detainment or Imprisonment
In the second step of determining whether an individual's section 9 Charter right was infringed, the court will consider whether the detainment or imprisonment was arbitrary. This step is an objective test, and considers whether the arrest or detainment:
Is authorized by law;
The authorizing law is not arbitrary in and of itself; or
Carried out by law enforcement in a reasonable manner.
If a court determines that any of the above occurrences were present in the detainment or arrest, the arrest or detainment is considered arbitrary and an infringement on the individual's section 9 Charter right. When this unlawful arrest occurs, the individual is entitled to a remedy under section 24(1) of the Charter such as a stay of charges or exclusion of evidence.
To lawfully detain or lawfully arrest an individual, law enforcement must have reasonable grounds.
What are Reasonable Grounds to Detain?
The term “reasonable grounds” is often exercised as the threshold that law enforcement must meet before certain authorities can be enacted. The Supreme Court in R v Mann stated when police officers may detain an individual for investigative purposes:
[I]f 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. In addition, where a police officer has reasonable grounds to believe that his or her safety or that of others is at risk, the officer may engage in a protective pat-down search of the detained individual. Both the detention and the pat-down search must be conducted in a reasonable manner. In this connection, I note that the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police. The investigative detention and protective search power are to be distinguished from an arrest and the incidental power to search on arrest. (Mann, para 45).
What are Reasonable Grounds to Arrest?
Law enforcement must have a reason for arresting an individual. Police can only arrest someone if:
The police officer sees an individual committing a criminal offence;
The police officer has reasonable grounds to believe an individual has committed a crime or is about to commit a crime;
An individual has broken any law, which includes provincial and city bylaws, and refuses to disclose their name and address to the police;
There is a warrant for the arrest of the individual (ask to see the arrest warrant - if the situation is under control and law enforcement has the arrest warrant, they must show it);
Reasonable grounds are established to believe an individual has a mental disorder and are dangerous;
The individual has breached the peace or about to breach the peace;
The individual is intoxicated in public (this includes being drunk or high); or
The police officer has reasonable grounds to think an individual is a terrorist or is about to commit a terrorist attack.
The Supreme Court in R v Storrey stated the reasonable and probable grounds to arrest an individual must be justifiable from an objective point of view, and an arresting officer(s) must also subjectively form reasonable and probable grounds to arrest. If the police cannot subjectively and objectively show they met the threshold to arrest an individual, the court will likely determine the individual was unlawfully arrested.
The Criminal Code no longer requires “probable grounds” or probable cause to be present to arrest an individual. Despite the change in wording, R v Storrey remains the authoritative test to determine whether law enforcement had reasonable grounds to detain or arrest an individual.
Rights on Arrest or Detainment
If an individual is arrested or detained, section 10 of the Charter is initiated. Canadians have the following rights when they have been arrested or detained:
To be promptly informed of the reasons why they are being detained or arrested;
To retain counsel and be informed of their right to retain counsel without delay; and
The ability to have the validity of the detention determined by a court by way of habeas corpus and to be released immediately if the detention is not lawful.
Rights on Detainment
If an individual is detained but not under arrest, has not broken any laws, and is not driving, the individual does not have to reveal their name to the police. However, if someone feels a polite conversation will allow them to be on the way sooner, it might be in their best interest to do so. Use common sense and remember that if you are not being arrested, you legally do not have to give the police any information.
When an individual is detained, law enforcement has the right to search for weapons by doing a pat-down search or looking in the individual’s bag. If a court later determines the police did not have reasonable grounds to detain the individual, then the pat-down and bag search is illegal and anything they find cannot be used against the individual. It is important to remember all the details during your detainment or arrest to relay to a lawyer or make a complaint.
If you are being detained but have not been arrested, remember the following:
Ask if you are being detained
Ask why you are being detained
Exercise your right to remain silent - you do not have to answer police questions
On the other hand, if an individual has been arrested and asked by the police for a name and address, the individual must provide this information. If you are under arrest, it is in your best interest to physically co-operate. Any physical resistance to avoid arrest, including pushing, spitting, kicking, or running, could result in more charges.
When an individual is arrested, the police have the right to do a full search of the person and property. If a court later determines the police unlawfully arrested an accused, any evidence the police found during the search of the accused and their property is likely to be excluded from evidence.
When an individual is arrested for a hybrid or summary offence, the police must provide an appearance notice and release the person immediately. An appearance notice tells the individual when they must appear in court at a specific time and place to respond to criminal charges. Summary offences are less serious offences and typically have less punishments than indictable offences. Indictable offences are the most serious offences and carry higher punishments. Police do not have to release an individual if the police:
Cannot identify the accused;
Preserve evidence of the alleged offence;
Is required to stop the person from committing or attempting to repeat the alleged offence; or
Establishes reasonable grounds to believe the person won’t come to court compliant with the undertaking to appear or notice to appear.
Right to Remain Silent
Staying silent and not talking to law enforcement is a right. When an individual informs the police their desire to remain silent, the police may continue to ask questions. The individual is not required to respond to the queries. If you have been arrested or detained, meet with a criminal defence lawyer before you talk to the police. Remember, however, that if you are arrested, you are legally required to give the police your name and address, but not required to when you are only being detained.
When to Challenge a Detention or Arrest?
Consider an individual is arrested and held in custody, and the police have not released him or her within a reasonable amount of time. The individual should immediately challenge the arrest through a bail hearing. By this point, the police officers should have informed the individual the right to retain counsel. As early as possible, speak to a defence attorney to determine the appropriate steps to take. The criminal lawyers at Pyzer Criminal Lawyers have the experience you need for the best possible outcome at your bail hearing and trial.
Now, consider an individual is in custody but has not been arrested. If the individual is not released after a reasonable amount of time and no charges have been laid, the person is entitled to apply for a Habeas Corpus application. This is statutorily available by section 10(c) of the Charter which states:
Everyone has the right on arrest or detention… c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Law Enforcement Need a Search Warrant to Arrest in a Residence
Most of the time, law enforcement must have a search warrant to arrest an individual inside the residence.
False Arrest and False Imprisonment
Independent from criminal law, if an abuse of legal procedure or process has occurred, such as a wrongful arrest, the defendant can sue law enforcement through a civil action in tort law. In a civil case, the defendant becomes a plaintiff and sues the police or state for “damages”. Damages refers to monetary compensation the plaintiff seeks against the other side because of the wrongful conduct (i.e.: unlawful or wrongful arrest).
False arrest and false imprisonment are two different actions under tort law, and a plaintiff can sue the other side for both. In Collins v Toronto Police Services Board, the Divisional Court stated that false arrest is a “tort resulting from the intentional and total confinement of a person against his or her will and without lawful justification.” False imprisonment, the court stated, “is a tort that similarly flows from the unlawful total deprivation of a person’s liberty.”
When an accused files a lawsuit against law enforcement for either false arrest, wrongful arrest, or false imprisonment, they have the onus to prove they were arrested or detained, and that law enforcement, the defendant, caused the arrest or detainment. Once established, the onus shifts to the defendant to justify the actions taken by them.
The police are only confined to the powers granted to them via statutes or the common law. When police officers overstep their boundaries and unlawfully arrest an individual, that person is legally entitled to a remedy from the court. Remedies often include a stay of charges, which means the accused is not guilty and free to go, or evidence is excluded if it was located in the context of the unlawful arrest. If you think your arrest or detainment was unlawful, contact a criminal defence lawyer at Pyzer Criminal Lawyers for legal advice and to ensure your rights are protected, and that law enforcement is held accountable.
Summer Student and JD Candidate
Jenessa is completing her Juris Doctor degree at the University of Ottawa where she will graduate in 2022. Originally from Kelowna, she completed her undergraduate degree at the University of British Columbia Okanagan with a major in psychology and a minor in sociology.