‬‪ Detention – there is a better approach

You are approached on a busy street by a young person holding a clipboard who says to you "hello, I'd like a few minutes of your time".  Do you stop and chat?  Perhaps you do but just as likely you'll smile, shake your head and walk on.  

Now imagine the same scenario but rather than being approached by a young person holding a clipboard you are approached by a police officer who says "hello, I'd like a few minutes of your time".  You won't smile and walk on; the reasonable Canadian will always speak to the police officer.  The reasonable Canadian certainly will not feel free to ignore a police officer's request for information and walk away. 

Indeed, a staple of television crime shows is where a police officer asks someone for information and, rather than politely giving the information, that someone runs away leading to an exciting chase and take down with a triumphant police officer catching a criminal. 

It's a good thing that the reasonable Canadian feels obliged to answer basic police questions.  The police are here to protect society and it is appropriate to give them cooperation. 

That said, the fact – and fact it is – that reasonable people have a sense they cannot just "walk away" from the police has an important consequence because of three decisions of the Supreme Court of Canada released July 17, 2009. 

The Supreme Court, in a majority decision, found that a person is "detained" when they are actually 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 finding of detention is important.  As soon as someone is "detained" they are immediately to be told they are entitled to speak to a lawyer. 

If we take the reasonable Canadian test seriously, almost every time a police office speaks to someone they should begin by giving the right to counsel. As Justice Binnie said in one of the cases (Binnie J disagreed with the majority), "the Canadian reality is that … people will almost always regard a direction from a police officer as a demand that must be complied with." 

Practically speaking that will lead to no one ever telling the police a thing – as a reasonable Canadian, as soon as I am told by a police officer that I have the right to speak to a lawyer, I will stop saying anything at all. 

So the effect of the Supreme Court's test will either be the reasonable Canadian will be considered to know the right to silence (a legal fiction at best) or the police will be increasingly stymied in their investigations. 

Is there a better answer?  Perhaps, as mentioned not all the judges on the Supreme Court agreed.  Justice Binnie, in particular, 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 are the police 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 not detention. 

We have to protect the rights of Canadians without prejudicing law enforcement – Justice Binnie's compromise does both.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777