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Charter - s.10(a) Detention - 'Informed Promptly of Reasons for'. R. v. McGowan-Morris
In R. v. McGowan-Morris (Ont CA, 2025) the Ontario Court of Appeal allowed a Crown criminal appeal, here from an acquittal where "the trial judge’s findings that the respondent’s rights were violated or, alternatively, his decision to exclude the evidence of under s. 24(2) of the Charter".
Here the court reviews the under-litigated Charter s.10(a) ['Right to be Informed of the Reasons for Detention']:[33] Section 10(a) of the Charter provides:10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor ... [34] Of all the legal rights in the Charter (ss. 7-14), the scope of s. 10(a) is among the least-developed in the jurisprudence. This is because, in most cases when 10(a) is triggered, s. 10(b) assumes greater prominence. There is an intimate link between these two rights: see R. v. Kelly (1985), 1985 CanLII 3483 (ON CA), 17 C.C.C. (3d) 419 (Ont. C.A.), at p. 424.
[35] The essential nature of s. 10(a) of the Charter, and its common law roots, was discussed in R. v. Nguyen, 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 16, where this court said:The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed. [Emphasis added.] [36] The Supreme Court of Canada has explained that the purpose of s. 10(a) is “to ensure that a person ‘understand generally the jeopardy’ in which he or she finds herself”: R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28, citing R. v. Smith, 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at p. 728. The Court has identified two rationales for the right guaranteed by s. 10(a). First, it protects individual liberty by guaranteeing that “one is not obliged to submit to an arrest [or detention] if one does not know the reasons for it”: R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at pp. 886-887. Second, it safeguards the right to counsel because “[an] individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy”: Evans, at pp. 886-887, citing R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-153.
[37] To comply with s. 10(a), the police must adequately communicate the reason(s) for the detention, and they must communicate those reasons promptly: R. v. Roberts, 2018 ONCA 411, 360 C.C.C. (3d) 44, at para. 63; R. v. Gonzales, 2017 ONCA 543, 136 O.R. (3d) 225, at paras. 122-123. These are referred to respectively as the informational and temporal components of s. 10(a).
[38] It is only the informational component of s. 10(a) that is in issue in this case – the adequacy of P.C. Osman’s explanation for why the occupants of the Jeep were stopped.
[39] The informational component demands, “at a minimum”, that the police advise the detainee “in clear and simple language the reasons for the detention”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. If the police have multiple reasons for detaining an individual, they must disclose each reason to the detainee: R. v. Borden, 1994 CanLII 63 (SCC), [1994] 3 S.C.R. 145, at pp. 165-166. Moreover, the reason for the detention, whether one or more, must be “legally valid”: R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, at para. 90. The ultimate question is “whether what the accused was told, viewed reasonably in all of the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline or submit to arrest [or detention], or alternatively, to undermine his right to counsel under s. 10(b)”: Evans, at p. 888; Latimer, at para. 30.
[40] Section 10(a) of the Charter requires that the police only explain what they are investigating, not how they intend to investigate the matter and the steps they might take: R. v. Kumarasamy, 2011 ONSC 1385, at paras. 56-57; Davin Michael Garg and Anil Kapoor, Detention, Arrest, and the Right to Counsel (Emond Montgomery Publications Limited, 2025), at p. 304. Simply put, the “reason” that the police detain an individual is that they suspect that the individual may have committed a particular offence.
[41] These basic principles accord with the purpose of s. 10(a) and ensure that the right sits harmoniously beside s. 10(b). It is the role of counsel, not the police, to explain to a detained person the investigative steps that may be taken during a detention, should they choose to exercise their rights under s. 10(b) of the Charter. In the words of Nguyen, at para. 16, a detainee need only be told in plain, non-technical language, “the reason why the restraint is being imposed”: see also R. v. Katerberg, 2019 ONCA 177, at para. 7. When the police inform an individual of this basic reason and give them their s. 10(b) right, that individual will have been afforded every opportunity to understand the extent of their jeopardy.
[42] Respectfully, the trial judge erred in his conclusion that P.C. Osman violated s. 10(a) of the Charter because he failed to advise the respondent of the investigative steps that might be undertaken in the circumstances. Specifically, P.C. Osman was not required to inform the respondent that the police would search him, the Jeep, or any of the other occupants. It sufficed to simply tell them that they were stopped because they could not have cannabis in the vehicle. . R. v. Pike
In R. v. Pike (Ont CA, 2024) the Ontario Court of Appeal considers Charter s.10 'arrest or detention' rights, particularly the s.10(a) 'explanation of arrest or detention' right - here in a border crossing context:(a) Detention Law at The Border
[113] The Charter protects people’s liberty from unjustified state interference by granting each person who is detained certain specified rights. Detentions trigger both the s. 9 Charter right not to be arbitrarily detained and s. 10 Charter rights, including the s. 10(a) right to be informed promptly of the reasons for the detention and the s. 10(b) right to counsel. These rights remedy the power imbalance between the state and detained people by requiring the state to inform detained people of the jeopardy they face and their right to speak to a lawyer, and to permit them to exercise that right. They ensure that detained people can seek legal advice concerning how to regain their liberty and make an informed choice whether or not to speak to authorities: Le, at para. 29; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 21-22; R. v. Latimer, 1997 CanLII 405 (SCC), [1997] 1 S.C.R. 217, at para. 28.
[114] Outside the context of border detentions, the state detains people when it removes their choice to walk away from state authorities by physical or psychological compulsion. Psychological compulsion means a demand or direction by a state agent to an individual, which a reasonable person in the individual’s position would feel obligated to comply with and conclude that they are not free to leave: Grant, at para. 21; Le, at paras. 25‑26.
[115] Canada’s interest in controlling and regulating its border, coupled with the reduced stigma of border searches, increase the threshold for detention at the border relative to non-border contexts. Under this higher threshold, routine border questions and search demands do not trigger a detention. This is so even though these questions and demands would likely trigger a psychological detention outside the border context, as travellers are legally required to comply and are not free to leave and enter Canada until they do so: Customs Act, ss. 11(1), 13, 99.1. More is required at the border: Simmons, at pp. 517, 521; Dehghani v. Canada (Minister of Employment and Immigration), 1993 CanLII 128 (SCC), [1993] 1 S.C.R. 1053, at pp. 1068, 1071-1074; R. v. Barac, 2023 ONCA 216, 425 C.C.C. (3d) 40, at paras. 18-19.
[116] This court has adopted a two-branch test to define the higher threshold for detention at the border. The first branch, which I refer to as the intrusive search branch, provides that non-routine, more intrusive questioning and searches trigger a detention. This branch is met by: (1) Simmons categories two and three searches, meaning strip searches, body cavity searches, and now, digital device searches; and (2) questions that contain improper inducements, exert unfair pressure, or involve coercive or adversarial interrogation. The second branch, which I refer to as the reasonable expectation branch, considers three detention factors, namely whether officers: (1) have subjective particularized suspicion that a traveller has violated border laws, (2) subjectively decide to go beyond routine questioning and engage in a more intrusive inquiry, and (3) take actions that cause a reasonable person in the traveller’s position to expect that they would be subjected to a non-routine, more intrusive inquiry: Barac, at paras. 20-21; R. v. Ceballo, 2021 ONCA 791, 408 C.C.C. (3d) 70, at paras. 20-30.[12]
[117] I wish to clarify two points concerning this two-branch test.
[118] First, branch two, the reasonable expectation branch, is an objective test. Its final, objective factor is both necessary and sufficient to establish a detention. Thus, a traveller is detained if an officer’s conduct causes a reasonable person in the traveller’s position to expect that they are the subject of a non-routine and more intrusive inquiry that would trigger branch one, the intrusive search branch. This is so even if the first two subjective factors, the officer’s particularized suspicion and decision to conduct a non-routine, more intrusive search, are absent. This objective test furthers the rule of law by subjecting all claims to the same standard, regardless of officers’ or travellers’ subjective perceptions: Le, at para. 115. The first two subjective factors, while not necessary, make it more likely that the final factor’s objective test is met by supporting an inference that officers followed through on their subjective suspicion and decision to search by their actions: Grant, at paras. 41, 49.
[119] I reach this conclusion because the Supreme Court and this court have long held that the test for psychological detention at the border is objective: Dehghani, at pp. 1066-1068, citing R. v. Kwok (1986), 1986 CanLII 4726 (ON CA), 31 C.C.C. (3d) 196 (Ont. C.A.), at p. 207. This means that an officer’s subjective suspicions and intentions are neither necessary nor sufficient to establish a detention: R. v. Lafrance, 2022 SCC 32, 472 D.L.R. (4th) 1, at para. 27; Le, at para. 37; Grant, at para. 32. For example, an officer’s “[f]ocussed suspicion [of the accused], in and of itself, does not turn the encounter into a detention” absent action that would cause a reasonable person in the accused’s position to believe that the accused is detained: Grant, at para. 41. Neither does an officer’s intent to detain and search that is unaccompanied by action: R. v. MacMillan, 2013 ONCA 109, 114 O.R. (3d) 506, at para. 37. Conversely, officers can unintentionally detain a person they do not suspect if their actions cause a reasonable person in that person’s position to conclude that the person is detained: R. v. Johns (1998), 1998 CanLII 2667 (ON CA), 123 C.C.C. (3d) 190 (Ont. C.A.), at para. 27; R. v. Tutu, 2021 ONCA 805, 407 C.C.C. (3d) 137, at paras. 15, 19-21; Lafrance, at paras. 35-40.
[120] My conclusion is consistent with this court’s 2006 decision in Jones, because it implicitly affirmed the objective test that I expressly adopt. Jones did so by following R. v. Jacoy, 1988 CanLII 13 (SCC), [1988] 2 S.C.R. 548, which held that “the trigger for detention was not … the [officer’s] subjective intention …, but rather the steps … taken to commence the intrusive investigation,” which caused a reasonable person in the traveller’s position to conclude that he was detained: Ceballo, at para. 29; see Jones (2006), at para. 42. Further, the implied requirement that officers must act for a good faith purpose that I previously described addresses Jones’ concern about using border search powers to investigate crime by preventing officers from using those powers as a ruse or pretext to do so: Mayor, at paras. 7-9; Appleton, at para. 12. For those reasons, and because Jones used conditional language to describe the reasonable expectation branch, I do not take its reference to the first two subjective factors to mean that they are necessary elements: Jones (2006), at para. 42.
[121] Second, the trial judge erred by suggesting that demands with significant legal consequences are a third detention branch. Rather, such demands are a means of satisfying the final, objective factor of branch two, the reasonable expectation branch: Ceballo, at para. 29. This makes sense because both the current Customs Act and its predecessor that Simmons considered make it an offence to resist or refuse to comply with any lawful border search, whether routine or non-routine: Customs Act, ss. 153(c), 153.1, 160-160.1; Simmons, at p. 521. The Supreme Court held that, for routine searches, these legal consequences do not trigger a detention because, without more, they do not cause a reasonable person in the traveller’s position to expect to undergo a non-routine, intrusive search. In contrast, if border officers demand that travellers submit to a non-routine, intrusive search, then these legal consequences confirm that there is a reasonable expectation branch detention. By preventing travellers from leaving or resisting the demands without committing an offence, these legal consequences cause travellers to reasonably expect that they must comply with the demands and will undergo a non-routine, intrusive search: Simmons, at pp. 517, 521; Jacoy, at pp. 557-558; Dehghani, at pp. 1071-1074. . R. v. Cameron
In R. v. Cameron (Ont CA, 2024) the Ontario Court of Appeal considers Charter s.10(a) ['Arrest or detention - 'Informed promptly of the reasons therefor']:Issue 2: The sufficiency of information given to the appellant at the time of his detention
[30] As reviewed above, at the time of the investigative detention, Officer Cotnam told the appellant that the police were “investigating a serious incident that happened in the area”. He did not provide any further information during the one to two minutes before Officer Chartrand returned to the scene and arrested the appellant.
[31] The appellant argues that this constituted a breach of his s. 10(a) Charter right to be informed promptly of the reasons for his detention. I disagree.
[32] The trial judge did not explicitly consider the issue of whether the appellant was sufficiently informed of the reason for his detention in the one to two minute period between the time when his vehicle was stopped and the time when Officer Chartrand arrested him. However, the trial judge recounted Officer Cotnam’s reasons for restricting the explanation for the detention, which included not wanting to “trigger a confrontation”, without the other officers being present. The trial judge then concluded that considering the context of the detention, “in particular the safety considerations and the very brief period of time”, the “suggestion of a s. 9 or 10 Charter violation evaporates”.
[33] Section 10(a) of the Charter requires that a person detained by the police be promptly advised of the reason for the detention. However, valid safety concerns can justify a delay in advising a person of the reason for a detention: R. v. Gonzales, 2017 ONCA 543, 385 C.R.R. (2d) 115, at para. 128.
[34] In Gonzales, at para. 128, the delay was seven minutes. In this case, the delay between the investigative detention and the arrest was one or two minutes. In his evidence, Officer Cotnam gave a clear explanation for not fully informing the appellant of the reason for the detention. In particular, he stated that given the information that there were four intruders with guns and knives, and that he was in a dark and isolated location, he was concerned that providing more information may escalate the situation. He stated that, based on his experience, if the appellant felt that he was cornered or caught, he might try to escape or flee.
[35] In the circumstances, I see no reason to interfere with the trial judge’s conclusion that the appellant’s s. 10(a) Charter rights were not violated. The delay between the detention and the arrest was very brief and Officer Cotnam had legitimate concerns for his safety during that intervening period.
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