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What does it mean to be “detained” by the police?

July 17, 2009

Supreme Court of Canada sets out the test to be applied in determining whether a person has been detained by the police

In R. v. Grant, the Supreme Court of Canada considered what it means to be “detained” by the police within the meaning of the Canadian Charter of Rights and Freedoms.


Three police officers were monitoring an area with a history of student assaults, robberies and drug offences. Grant, a young black man walking in the area, was purportedly fidgeting in a way that aroused the officers’ suspicions. One of the officers approached Grant and asked for his name and address. He also instructed Grant to keep his hands in front of him. The two other officers approached and stood behind the first officer, blocking Grant’s way forward on the sidewalk. One of the officers then asked Grant whether he had anything he should not have, to which he answered “a small bag of weed” and a gun. The officers arrested and searched Grant, seizing the marijuana and a revolver.

At trial, Grant alleged that he had been subjected to unreasonable search and seizure and an arbitrary detention, and had been deprived of the right to counsel, contrary to the Charter. The trial judge found no Charter breaches and admitted the firearm into evidence. Grant was convicted of five firearms offences. The Court of Appeal upheld the conviction. It held that there had been an unlawful detention, but concluded that admitting the firearm into evidence would not bring the administration of justice into disrepute. Grant appealed to the Supreme Court of Canada.

The Supreme Court’s decision

In considering whether Grant had been detained by the police within the meaning of ss. 9 and 10 of the Charter, a majority of the Court determined that detention refers to a suspension of one’s liberty interest “by a significant physical or psychological constraint”. Psychological detention, the majority held, is established where one has a legal obligation to comply with a request or where a reasonable person would conclude that she has no choice but to comply. The majority stated that courts may consider: i) the circumstances giving rise to the encounter; ii) the nature of the police conduct; and iii) the particular characteristics or circumstances of the individual.

Applying these factors, the majority held that Grant had been detained within the meaning of ss. 9 and 10 of the Charter.

Despite finding that the firearm was obtained in a manner that breached Grant’s Charter rights, the majority held that the courts below did not err in admitting it into evidence under section 24(2) of the Charter. Like the Court of Appeal, the majority held that the admission of the firearm would not bring the administration of justice into disrepute.

In reaching this decision, the majority considered: i) the seriousness of the Charter infringing state conduct; ii) the impact on the breach of the breach on the Charter-protected interests of the accused; and iii) society’s interest in the adjudication of the case on its merits. The majority held that while the officers went too far in detaining Grant, they did not act in an egregious way and the gun was highly important to a determination of the case on its merits. The appeal was allowed on one of Grant’s convictions but dismissed on all other counts.

Read the decision.

The Criminal Lawyers’ Association intervened in the appeal and was represented by Marlys Edwardh and Jessica Orkin.


Jessica Orkin

Practice Areas

Appeals & Judicial Review, Constitutional Law, Criminal Law