Everyone has the right on arrest or detention...to retain and instruct counsel without delay and to be informed of that right.
Canadian Charter of Rights and Freedoms, section 10(b)
The Canadian constitution provides an individual with an opportunity to obtain immediate legal advice if a state official exercises a power of arrest or detention.
While the act of arresting an individual is an unmistakable trigger for the right to counsel, the circumstances under which an individual is detained within the meaning of the Charter may be less clear.
The Supreme Court of Canada provides guidance with respect to the constitutional meaning of ‘detention’ in R. v. Grant, 2009 SCC 32 and R. v. Subaru, 2009 SCC 33.
The analytical approach for assessing when an interaction between a state official and an individual crystallizes into a detention in the context of the Charter is nicely summarized in Subaru, supra, beginning at para. 21:
In Grant, we adopted a purposive approach to the definition of "detention" and held that a "detention" for the purposes of the Charter refers to a suspension of an individual's liberty interest by virtue of a significant physical or psychological restraint at the hands of the state. The recognition that detention can manifest in both physical and psychological form is consistent with our acceptance that police actions short of holding an individual behind bars or in handcuffs can be coercive enough to engage the rights protected by ss. 9 and 10 of the Charter.
While a detention is clearly indicated by the existence of physical restraint or a legal obligation to comply with a police demand, a detention can also be grounded when police conduct would cause a reasonable person to conclude that he or she no longer had the freedom to choose whether or not to cooperate with the police. As discussed more fully in Grant, this is an objective determination, made in light of the circumstances of an encounter as a whole.
However, this latter understanding of detention does not mean that 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. This Court's conclusion in Mann that there was an "investigative detention" does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes. Indeed, Iacobucci J., writing for the majority, explained as follows:
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the 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….
As explained in Grant, the meaning of "detention" can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. 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.
For convenience, we repeat the summary set out in Grant at para. 44:
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 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; 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.
An individual's Charter rights are subject to reasonable limitations and may be suspended in narrowly defined circumstances.