“Detention” under the Charter after R. v. Grant and R. v. Suberu

The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference Volume 51 (2010) Article 16 “Detention” under the Charter after R. v. Grant and R. v. Suberu Steven Penney James Stribopoulos Osgoode Hall Law School of York University Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/sclr This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Citation Information Penney, Steven and Stribopoulos, James. "“Detention” under the Charter after R. v. Grant and R. v. Suberu." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 51. (2010). http://digitalcommons.osgoode.yorku.ca/sclr/vol51/iss1/16 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference by an authorized editor of Osgoode Digital Commons. “Detention” under the Charter after R. v. Grant and R. v. Suberu Steven Penney* and James Stribopoulos** I. INTRODUCTION In R. v. Grant1 and R. v. Suberu,2 the Supreme Court of Canada revisited the relationship between police detention powers and the Charter.3 In Grant it updated the test for deciding whether a “detention” has arisen for Charter purposes. This question is critical for two reasons: first, “detention” is the trigger for the constitutional guarantee forbidding arbitrary detention (section 94); and second, it is one of the two triggers (the other being “arrest”) of the right to be informed of the reasons for detention (section 10(a)) and the right to counsel (section 10(b)).5 In Suberu the Court held (in contrast to some lower courts) that absent exigent safety concerns, the section 10(b) caution must be given immediately to persons subject to the common law power of investigative detention. Grant and Suberu have their doctrinal virtues. Grant’s multi-factor approach for assessing whether or not there has been a psychological detention is flexible and nuanced. It fails, however, to give police sufficient guidance on the scope of their authority. In our view, this uncertainty is likely to have three unfortunate effects. First, it will cause too many errors, that is, cases where police incorrectly decide (in relation to what the courts will or would have found) that a detention has or has not arisen. Second, in the face of this uncertainty, police will more often than not assume that a detention has not occurred and (and when they are * Faculty of Law, University of Alberta. Osgoode Hall Law School York University. [2009] S.C.J. No. 32, [2009] 2 S.C.R. 353 (S.C.C.) [hereinafter “Grant”]. 2 [2009] S.C.J. No. 33, [2009] 2 S.C.R. 460 (S.C.C.) [hereinafter “Suberu”]. 3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter “Charter”]. 4 Section 9 of the Charter states: “Everyone has the right not to be arbitrarily detained or imprisoned.” 5 Section 10(a) and (b) of the Charter states: “Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; [and] (b) to retain and instruct counsel without delay and to be informed of that right ...”. ** 1 440 SUPREME COURT LAW REVIEW (2010), 51 S.C.L.R. (2d) wrong) thereby deprive those detained of their rights under sections 9 and 10 of the Charter. Finally, in applying Grant, lower courts will too often take an overly deferential approach toward police decision-making. Suberu’s virtue, in contrast, is its simplicity: police now know that they must issue the section 10(b) caution immediately upon any type of detention, including investigative detention. Of course, if it is often uncertain whether a detention has arisen, the benefit of this simplicity will be muted. More troubling, the Court’s failure to carve out an exception to the section 10(b) caution requirement for investigative detention will likely have three perverse effects: increasing the length and intrusiveness of detentions, diminishing law enforcement safety and effectiveness, and causing courts to avoid finding that a detention has arisen despite substantial intrusions on individual liberty. In what follows we first review the jurisprudential history leading to Grant’s holding on detention. Next we consider this holding and its application to the facts in Grant and Suberu. We then outline our thesis regarding Grant’s flaws and suggest how the approach to deciding whether there has been a psychological “detention” should be further reformed. Last, we trace the history of the relationship between the common law power to detain for investigative purposes and section 10 of the Charter, and flesh out the case for justifying an override of section 10(b) during such detentions. II. THE MEANING OF DETENTION UNDER THE CHARTER 1. History and Context Absent detention, police enjoy considerable freedom in questioning suspects.6 Questioning may produce evidence of wrongdoing, because the answers are either incriminating or reveal the location of physical evidence. If the detention threshold is crossed, however, the constitutional implications are significant. First, if police lack the requisite legal grounds to detain,7 section 9 of the Charter is violated.8 Second, as 6 Other than the Charter, the only significant restraint on police questioning of adult suspects stems from the common law voluntary confessions rule. See generally R. v. Oickle, [2000] S.C.J. No. 38, [2000] 2 S.C.R. 3 (S.C.C.). 7 In order to lawfully detain, a police officer must have reasonable grounds to suspect a clear nexus between the individual to be detained and a recently committing or still unfolding criminal offence. See R. v. Mann, [2004] S.C.J. No. 49, [2004] 3 S.C.R. 59, at paras. 34, 45 (S.C.C.) [hereinafter “Mann”]. (2010), 51 S.C.L.R. (2d) DETENTION UNDER THE CHARTER 441 mentioned, detention also triggers informational duties under section 10 of the Charter. This information may alert suspects to the potential jeopardy faced and cause them to stop talking. As a result, until they are ready to effect an arrest, the police will often want to avoid a detention.9 It is the courts, however, not the police, who ultimately decide whether and when the detention threshold was crossed in a given case. It was a case involving section 10(b), the right to counsel, which first raised the meaning of detention before the Supreme Court. In R. v. Therens,10 police subjected a motorist to a breath demand under the Criminal Code.11 He was taken back to the police station, took and failed a breathalyzer test, and was arrested. At the time of the demand, police did not apprise him of his right to counsel, which section 10(b) requires on “detention”. The issue before the Court in Therens was whether the motorist was “detained” following the breath demand but before his arrest. The Court 8 The Cou (...truncated)