Section 9 of the Canadian Charter of Rights and Freedoms provides that:
Everyone has the right not to be arbitrarily detained or imprisoned.
In order for this constitutional protection to be implemented, there must be a real loss of freedom. Detention involves significant physical or psychological coercion. Simply delaying a person is not the same as detaining, for example, a police officer approaching a person on the street to ask about an event that had just occurred.
Investigative detention
The police have limited authority to detain a person for the purpose of conducting an investigation. The basis of this power is the general duty of police officers to protect life and property, to keep the peace and to prevent crime.
Can this power be exercised in any circumstance?
The answer is no. Indeed, case law defines the power of the police to detain an individual for the purpose of an investigation. The police must acquire, from all the circumstances, reasonable grounds to suspect that there is a clear connection between the person and a crime that has just been committed or is in progress.
The policeman approaches me and asks me questions. Am I free to leave?
As part of their mission to protect people and property and to maintain the peace, a police officer may approach an individual and ask questions in order to clarify a situation without arresting or detaining him.
In such circumstances, the individual will have no obligation to answer to the police and will be free to leave. Thus, a distinction must be made between preliminary and exploratory questions and questions that prevent the accused from cooperating or not.
In order to distinguish between the case of a detainee, who is therefore not free to leave, and a person who is merely being questioned in a preliminary manner, who is therefore free to leave and not to cooperate with the police officer, it is necessary to take into account all the circumstances. Given the context, a reasonable person would not have thought that they had to cooperate and answer the officer’s questions. In this case, the conclusion will be that the person was not detained, because he was free to leave and not answer the policeman’s questions.
The distinction between these two situations is of great importance in light of the individual’s rights under the Charter. Thus, an individual who is not detained and is simply answering questions from a police officer cannot subsequently claim that their Charter rights have been violated.
It must be remembered that the application of the Charter arises only if the person is under physical or psychological constraint. This is a question of fact and each case must be analyzed in light of the facts in the case.
In addition, investigative detention must be brief and not prolonged in time. While there is no standard beyond which detention becomes unlawful, it is true that the circumstances surrounding detention will always have to be considered in determining whether detention violates Charter rights.
Detention for driving offences
The issue arises when a motorist is stopped by a police officer under the powers conferred on them by an automobile driving statute. Following the interception, it is quite obvious to say that the motorist must cooperate and is not free to leave. They are therefore in the custody of the police officer.
We are talking here about the case where the police officer has no reason to stop the vehicle other than the power derived from the section of the law giving him the power to stop the individual without cause. These are the cases of random interception.
The first decision of the Supreme Court to justify this power of the police was based on the general duty of the police to preserve peace and public order. Under this power, the police officer can stop the driver of a vehicle as part of a program put in place to combat impaired driving. The Court determined that such a power is justified in light of the objective pursued, the reasonable hardship to which the driver is subjected and the means put in place.
In another decision, the Supreme Court considered the interception power under the Ontario Highway Traffic Act. In that decision, the Court found the detention to be arbitrary but justified under the Charter.
The case of the Quebec Highway Safety Code
Section 636 of the Highway Safety Code provides that:
Every peace officer recognizable as such at first sight may, in the performance of his duties under this Code, agreements entered into under section 519.65 and the Act respecting owners, operators and drivers of heavy vehicles, require the driver of a road vehicle to stop his vehicle. The driver must comply with this requirement without delay.
Following the Supreme Court’s reasoning with respect to the provisions of the Ontario Highway Traffic Act, it is not surprising that the Quebec Court of Appeal determined that section 636 of the Highway Safety Code complies with constitutional principles.
Since the power conferred by this provision is very broad and exorbitant, it is quite clear that an interception based on the application of this section must be carefully scrutinized to determine whether there are other hidden motives that would render the interception and detention, de facto, contrary to Charter rights. Indeed, any interception objective that is not that pursued by section 636 cannot justify an interception under the authority conferred by that section. The power of interception under the Highway Safety Code cannot be used by police officers to pursue objectives other than those set out in the code.
Each interception must be scrutinized to try to detect misguided motives that are not those prosecuted by the Highway Safety Code. In such cases, it is not uncommon for Charter rights to be recognized as a result of the illegality of the interception and subsequent detention.
In this sense, in a recent decision of the Superior Court, the Court invalidated section 636 of the Highway Safety Code:
the Tribunal came to the conclusion that the common law rule and article 636 S.C.R., which lawfully permit the interception of the driver of a road vehicle without real cause or suspicion for the sole purpose of carrying out verifications, cannot be justified in the context of a free and democratic society in view of the impact they have on Black people.
If you are facing a criminal charge, it is important to have a qualified criminal lawyer represent you. They will ensure that your Charter rights have not been violated. Contact us to be represented by Lambert Avocats.