Section 10 – General

Provision

10. Everyone has the right on arrest or detention

  1. to be informed promptly of the reasons therefor;
  2. to retain and instruct counsel without delay and to be informed of that right; and
  3. to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Purpose

Section 10 provides for certain rights that are triggered as soon as an individual is "detained" or "arrested" within the meaning of the section. Section 10 “ensures that people have a chance to challenge the lawfulness of an arrest or detention”, by requiring that individuals be informed promptly of the reasons for their arrest or detention, and then have a meaningful opportunity to retain and instruct counsel without delay (R. v. Bielli, 2021 ONCA 222 at paragraph 85). Although arrest and detention “are obviously not the only [situations] in which a person may reasonably require the assistance of counsel … they are situations in which the restraint of liberty might otherwise effectively prevent access to counsel or induce a person to assume that he or she is unable to retain and instruct counsel” (R. v. Therens, [1985] 1 S.C.R. 613 at paragraph 52).

Analysis

1. Detention – Generally

“Detention” in section 10 has the same meaning as in section 9 of the Charter (R. v. Hufsky, [1988] 1 S.C.R. 621 at paragraph 12).

“Detention” under section 10 is directed towards a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel. Detention requires some form of significant physical or psychological restraint, compulsion or coercion (R. v. Grant, [2009] 2 S.C.R. 353 at paragraph 44). Section 10 is directed at a multiplicity of restraints of liberty of varying duration (Therens, supra at paragraph 50).

A psychological detention occurs where the subject is legally required to comply with a direction or where, in the absence of such a direction, state conduct would lead a reasonable person to conclude that they had no choice but to comply (Therens, supra at paragraph 57; Grant, supra at aragraphs 30, 44; R. v. Le, 2019 SCC 34 at aragraphs 25-26; R. v. Lafrance, 2022 SCC 32 at paragraph 21).

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 they had been deprived by the state of the liberty of choice, the court may consider:

  1. the circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether police were providing general assistance, maintaining general order, making general inquiries or singling out the individual for focused investigation;
  2. 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; and
  3. the characteristics or circumstances of the individual where relevant, including age, physical stature, minority status, and/or level of sophistication. (Grant, supra at paragraph 44; Le, supra at paragraph 31; Lafrance, supra at paragraph 22).

The above analysis involves an objective determination as to whether, in light of the circumstances of the encounter as a whole, the police conduct would cause a reasonable person in the same situation to conclude that they were not free to go and that they had to comply with a police request (R. v. Suberu, [2009] 2 S.C.R. 460 at paragraph 26). The analysis “requires an assessment of the encounter as a whole and not a frame-by-frame dissection as the encounter unfolds” (Le, supra at paragraphs 26-27). The perspective of the reasonable person in this regard must be informed by the fact that a bystander is under no legal obligation to comply with a police request for information or assistance (Suberu, ibid., at paragraphs 26, 28). The onus is on the applicant to show that they were deprived of their liberty of choice (Suberu, ibid., at paragraph 28).

The constitutional rights in section 10 (and section 9) are not engaged by delays that invoke no significant physical or psychological restraint:

[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 “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 (Suberu, supra at paragraph 23, citing R. v. Mann, [2004] 3 S.C.R. 59, at paragraph 19; Le, supra at paragraph 27).

Therefore, an investigative detention does not necessarily arise the moment police engage an individual for investigative purposes or ask preliminary questions (Suberu, supra at paragraphs 23, 28).

When police are “acting in a non-adversarial role and assisting members of the public”, this will usually not amount to a detention. One common example is a police officer attending to a medical emergency after a 911 call (Grant, supra at paragraph 36; R. v. Ranhotra, 2022 ONCA 548).

Changes in one’s conditions of imprisonment may be sufficiently severe so as to be considered a second “detention,” the legality of which is reviewable by habeas corpus (see Cardinal et al. v. Director of Kent Institution, [1985] 2 S.C.R. 643 at paragraph 13; see also May v. Ferndale Institution, [2005] 3 S.C.R. 809; Mission Institution v. Khela, [2014] 1 S.C.R. 502).

2. Detention – Criminal context

In many cases, it will be undisputed that a detention has occurred. Generally, there is a detention when a police officer or other state agent assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel (R. v. Thomsen, [1988] 1 S.C.R. 640 at paragraphs 12-13).

Refer to the Charterpedia entry on “Section 9 – Arbitrary detention” for a full discussion on the meaning of “detention” in the criminal context.

The applicable test for determining whether a detention has occurred in the criminal context is always the objective assessment set out in Grant, supra at paragraph 44, as explained above. The Supreme Court has directed that courts are to no longer apply the factors identified by the Ontario Court of Appeal in R. v. Moran, 1987 CanLII 124. Those factors had often been applied, by trial courts and appellate courts, where a person had been questioned at a police station. See Lafrance, supra at paragraphs 24-28.

A detention may occur simply by the police officer touching an individual and ordering him to move (R. v. Feeney, [1997] 2 S.C.R. 13 at paragraph 56).

As noted above, not every interaction between police and individuals will amount to a detention, even where police are engaged in a criminal investigation. The Supreme Court has held that “no detention is effected, and therefore s. 10(b) rights are not breached, where an individual voluntarily assists the police by, for example, freely agreeing to provide a statement” (Lafrance, supra at paragraph 21). That said, the assessment of voluntariness must be informed by a practical understanding of the power imbalance between police and individuals, especially in the context of criminal investigations. The mere fact that police told the individual that they were “not detained”, under no obligation to co-operate and free to leave, is not determinative in objectively assessing whether the person was subject to psychological detention (Lafrance, supra at paragraphs 37-40).

Similarly, where the police drive someone to the police station who is not under arrest, this will not necessarily amount to a detention: “the question is whether a reasonable person in the passenger’s shoes would believe that he or she could cease cooperating by asking the police to stop the vehicle and leave; the answer will depend on all the circumstances of the case, including what has already transpired” (Lafrance, supra at paragraph 49).

The venue of the police questioning can also play a contextual role. A police intrusion into a private space, such as a home or backyard, “is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public” (Le, supra at paragraph 51). Where questioning occurs in a secure environment controlled by the state, such as a locked interview room in a police station, this is a factor militating in favour of a psychological detention (Lafrance, supra at paragraphs 50-51). That said, it is not a determinative factor. In another recent case of questioning in a police station during a criminal investigation, the Supreme Court held that there had been no psychological detention due to a range of contextual factors, including that the person had brought themselves to the station on police request (not demand), and was permitted to leave as they wished (R. v. Tessier, 2022 SCC 35 at paragraphs 105-111).

A student summoned by the principal who feels compelled to be there is not detained for the purposes of section 10(b), although this might be the case where the principal is acting as an agent of the police (R. v. M.(M.R.), [1998] 3 S.C.R. 393 at paragraphs 65-68).

When police investigations are expanded and directed at other offences during a questioning session, the police have a duty to inform the person of rights under section 10 again. As such, an individual is, in effect, "re-detained" (R. v. Borden, [1994] 3 S.C.R. 145 at paragraphs 43-45; R. v. Black, [1989] 2 S.C.R. 138 at 152-153).

The demand for a roadside breath test under section 234.1(1) (now section 254(2) of the Criminal Code) falls within the criteria for detention. The difference in duration of the restraint of liberty resulting from a section 234.1(1) demand (screening) and that resulting from a section 235(1) (now section 254(3) of the Criminal Code) demand (breathalyzer) is not such as to prevent the former from constituting a detention within the meaning of section 10 (Thomsen, supra at paragraph 13; Schmautz, supra at paragraphs 16-17).

3. Detention – Border context

Since there is no constitutional right for non-citizens to enter or remain in Canada, and considering that all persons seeking entry to Canada must pass through immigration screening, a routine secondary examination is equivalent to the first level customs inspection found to be constitutional in R. v. Simmons, [1988] 2 S.C.R. 495. The restriction on the person's freedom has not gone beyond what is required for the processing of the application for entry and is not, therefore, a detention within the meaning of section 10(b) (Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053 at paragraphs 34-42).

Normal routine questioning, even where there is a suspicion that the individual is committing an illegal act, does not amount to a detention in the customs context (R. v. Hardy, [1994] B.C.W.L.D. 1872 (S.C.) at paragraphs 64-73; R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.); R. v. Sekhon, 2009 BCCA 187; R. v. Sinclair, 2017 ONCA 287, leave to appeal to S.C.C. dismissed, 2017 CanLII 78692; R. v. Canfield, 2020 ABCA 383 at paragraphs 117-131, leave to appeal to S.C.C. dismissed, 2021 CanLII 18037).

However, when a person is taken out of the normal course of routine questioning by officials, and required to submit to a strip search, that person is detained within the meaning of section 10 (Simmons, supra at paragraphs 35-36; R. v. Jacoy, [1988] 2 S.C.R. 548 at paragraph 14).

The content is current up until 2022-07-31.