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.

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 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 (R. v. Therens, [1985] 1 S.C.R. 613 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 he or she had no choice but to comply (Therens, supra at paragraph 57; Grant, supra at paragraphs 30, 44).

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:

  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)

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 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 he or she was deprived of his or her 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 R.C.S. 59, at paragraph 19).

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).

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 pargraph 13; see also May v. Ferndale Institution, [2005] 3 S.C.R. 809; Mission Institution v. Khela, [2014] 1 S.C.R. 502). The concept of an additional detention engaging section 10 rights may also apply in other circumstances (see e.g., R. v. Bourdon, 2010 ONSC 2089, concerning the apprehension of an offender after suspension of a long-term supervision order).

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).

Where it is unclear whether a police request amounts to a detention, a number of factors must be assessed:

  1. the precise language used by the police officer in requesting the person to come to the police station, and whether the person was given a choice or expressed a preference that the interview be conducted at the police station;  
  2. whether the person was escorted to the police station by a police officer or went himself or herself in response to a police request;
  3. whether the person left at the conclusion of the interview or was arrested;
  4. the stage of the investigation;
  5. whether the police had reasonable and probable grounds to believe that the person had committed a crime;  
  6. the nature of the questions; whether the questions were of a general nature; and
  7. the subjective belief by the person that he or she was detained; personal circumstances relating to the person. (R. v. Moran (1987), 36 C.C.C. (3d) 225 (Ont. C.A.), leave to appeal to S.C.C. refused, [1988] 1 S.C.R. xi (note)).

These factors from the Moran decision continue to be cited in appellate and lower court cases decided after the Supreme Court’s decision in Grant, supra (see, e.g., R. v. Seagull, 2015 BCCA 164 and R. v. Lafrance, 2017 ABQB 446). The Moran factors have yet to be explicitly adopted in Supreme Court jurisprudence, but were referred to with apparent approval in the partially concurring minority reasons in Grant, at paragraph 168, per Binnie J. Any current invocation of the factors should be considered as subject to the general considerations outlined by the majority in Grant (see R. v. Nicholas, 2017 ONCA 646).

Where it is clear that criminal liability may result from a person's refusal to accompany the police, the necessary element of compulsion or coercion required for a finding of detention is present. The detention is not and cannot be dependent upon "compliance" by the recipient of the demand (R. v. Schmautz, [1990] 1 S.C.R. 398 at paragraphs 17-19).

A person is not detained when voluntarily submitting to the questioning of police officers if that questioning is not hostile or coercive in nature and the person does not believe their freedom to be restrained, or the circumstances would not lead them reasonably to believe their freedom to be restrained (R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont. C.A.), leave to appeal to S.C.C. refused, [1986] 1 S.C.R. viii). The fact that an individual is advised that they are free to leave at any time is relevant but not determinative. If the surrounding circumstances give rise to a reasonable belief that there was no choice but to submit to the police demand, a detention has occurred (R. v. Johns, [1998] O.J. No. 445, (1998), 123 C.C.C. (3d) 190 (Ont. C.A.) at paragraph 28). The principle in this context, from earlier jurisprudence, must be considered in light of the further elaboration of general principles on detention in cases such as Mann and Grant, supra.

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).

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). The same appears to be true where the person detaining the individual is a private store detective (R. v. Shafie (1989), 47 C.C.C. (3d) 27 (Ont. C.A.) at 33-34).

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 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).

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).

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