Detention is not clear cut and there is a continuum that needs to be considered.
At one end is actual arrest and imprisonment. In other cases a telephone conversation between and accused and an investigator has been considered a possible detention.
The Court held:
[20] Detention under ss. 9 and 10 of the Charter means that an individual's liberty interest has been suspended "by a significant physical or psychological restraint": see R. v. Grant, [2009] 2 S.C.R. 353 at para. 44. The appellant was not physically restrained, but argues that he was psychologically restrained. A psychological detention may arise when "a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply": see Grant at para. 44. This is an objective test and thus the appellant's failure to testify is not fatal to his claim that he was detained. In Grant itself, the accused did not testify, but both this court and the Supreme Court of Canada held that he had been detained contrary to s. 9 of the Charter.
[21] In Grant, at para. 44, the Supreme Court of Canada set out a list of factors that may assist courts in determining whether an individual has been psychologically detained:
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; and 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.
[22] This list is not intended to be exhaustive, but as a guide in cases where it is unclear whether there has been a psychological detention. In putting forward his argument, the appellant relies on this list, as he is entitled to do, even though Grant was decided in the Supreme Court of Canada after the trial judge's ruling in this case.
[23] Looking at the factors set out in Grant, I consider this to be a close case. Ordinarily a trial judge's finding on whether an accused has been psychologically detained deserves "appropriate deference": see Grant at para. 45. However, this deference is attenuated where, as in this case, the finding is conclusory and unsupported by any explanation.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
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