Are passengers in cars that have been stopped by the police detained? Maybe

R. v. Johnson, 2013 ONCA 177 holds:

[34]       The interesting issue of whether passengers in cars that have been stopped by the police are detained has been considered in a number of cases.  In Harris, at paras. 18-19, Doherty J.A. left open the possibility that upon an HTA stop, the driver and the passengers are immediately and automatically detained. Some courts have been of the same view (see e.g. R. v. Pinto, [2003] O.T.C. 1095 (S.C.), at para. 45; R. v. J.R.M., [2005] O.J. No. 4708 (S.C.), at para. 17), while others have held that something more was necessary before it could be said that a passenger in such circumstances was detained (see e.g. R. v. Frank, 2012 ONSC 6274, at para. 46; R. v. Bradley, 2008 NSCA 57, 266 N.S.R. (2d) 126, at para. 16). In Harris, Doherty J.A. declined to decide this issue, instead resolving the case based on the general fact-specific approach to determining detention.

[35]       Here, the trial judge proceeded on the basis that passengers are not automatically detained upon an HTA stop.  In considering the issue of detention, the trial judge focussed on Dury’s direction to Johnson to keep his hands on the back of the seat in front of him.  As in Harris, given my conclusion on this issue, I find it unnecessary to decide the broader question of whether passengers are automatically detained upon an HTA stop.

[36]       At para. 23, the trial judge stated:

Constable Dury asked Mr. Johnson to keep his hands on the back of the driver's seat so that he could see them. This type of routine concern for police officer safety, objectively viewed, does not result in a finding of detention. A reasonable person informed of all the circumstances would understand that the officer is taking a routine safety precaution in an area of the city that, according to the evidence in this case, historically saw a spike in violence in the summer months.

[37]       It is clear that determining whether an individual is psychologically detained must be based on a broad consideration of many circumstances relevant to the interaction between the police and the individual who is asserting that he was detained. The difficulty I have with the trial judge’s analysis is that his consideration of the issue of detention was limited: he focussed almost exclusively on the police perspective of the consequences of Dury’s direction to Johnson.

[38]       According to Grant the perspective must be broader, taking into account factors including the circumstances giving rise to the encounter with the police, the conduct of the police and the circumstances and conduct of the individual claiming to be detained. 

[39]        According to Grant at para. 51, asking a person to keep his hands in front of him was, “in itself inconclusive”.  But, here, other factors were in play.  Significantly, Johnson was not merely asked to keep his hands visible; he was directed to put his hands on the seat in front him – in a fixed place.  It was clear that Johnson could not obey Dury’s command to keep his hands on the seat and at the same time, open the car door, get out and walk away.  Johnson was effectively instructed to stay put. 

[40]       The facts of this case are similar to those in Harris. In that case, Doherty J.A. held that a passenger in a car stopped for HTA reasons was under psychological constraint, at the very least from the point in time when the demand was made that he keep his hands in plain view, if not when the driver of the car was told to stop. 

[41]       I conclude therefore that, viewed objectively, Johnson would reasonably believe that he was not free to move his hands off the seat in front of him.  Johnson would reasonably believe he was not free to get out of the car and walk away.  Indeed, Johnson would almost undoubtedly have aroused the police officers’ suspicions had he tried to leave, since that would necessarily involve disobeying Dury’s direction to keep his hands on the seat.  It follows that Johnson was under psychological restraint at least from the point when Dury ordered him to keep his hands on the car seat in front of him.