Defining 'detention' is about more than semantics

James Morton: Defining 'detention' is about more than semantics

Posted: July 21, 2009, 10:00 AM by NP Editor

You are approached on a busy street by a young person holding a clipboard. He says to you, "Hello, I'd like a few minutes of your time." Do you stop and chat? Maybe you do, but perhaps you just smile, shake your head and walk on.

Now imagine the same scenario, except that rather than being approached by a young person holding a clipboard, you are approached by a police officer. In this case, you wouldn't dream of just smiling and continuing on your way -- the reasonable Canadian will always stop.

But a staple of television crime shows provides a contrasting scenario. A police officer asks someone for information about a crime. Rather than politely doing as he has been asked, the subject bolts, leading to an exciting chase and, usually, a triumphant police officer catching a criminal. It's a good thing that most Canadians don't choose this option. The police, after all, are there to protect society, and so it is appropriate to co-operate with them.

That said, the fact that reasonable people feel they cannot just "walk away" from the police has important consequences -- thanks to a trio of related decisions released last Friday by the Supreme Court of Canada. In a majority decision, the court found that a person is considered "detained" when he is arrested or "where the individual has a legal obligation to comply with a 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."

The legal definition of detention, which is what the Supreme Court sets down here, is important. As soon as someone is "detained," he immediately must be told that he is entitled to speak to a lawyer. Thus, if we take the above-described "reasonable Canadian" test seriously, almost every time a police office speaks to someone, he henceforth should begin by explaining the right to counsel. Practically speaking, stymied in their investigations.

Is there a better answer? Perhaps. In his dissent in one of the three related cases, Supreme Court Justice Ian Binnie suggested that "police words and conduct should be interpreted in light of the purpose of the encounter from the police perspective."

In other words, rather than ask what would the reasonable Canadian think when questioned by police, we might ask why the police are conducting the questioning. If the police are seeking an inculpatory statement from a suspect, then there is a detention and a need for the right to counsel. If, however, the police are seeking general information and have no special focus on the individual then there is no detention.

Like most Canadians, I believe that we must protect the rights of Canadians. But at the same time, we must do so without prejudicing law enforcement. Justice Binnie's compromise fulfills both of these imperatives.

National Post

James Morton is a Toronto lawyer and past president of the Ontario Bar Association. He teaches evidence at Osgoode Hall Law School.