|
Criminal - Detention. R v Tutu
In R v Tutu (Ont CA, 2021) the Court of Appeal set out the current law regarding arbitrary detention by the state:[9] Detention engages s. 9 of the Charter, which provides: “Everyone has the right not to be arbitrarily detained or imprisoned.” The principles governing s. 9 have recently been laid out in a sequence of decisions from the Supreme Court and this court.
[10] Arbitrary detention is prohibited in order to “protect individual liberty against unjustified state interference”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 25. It protects “an individual’s right to make an informed choice about whether to interact with the police or to simply walk away”: R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at para. 30. Upon detention, an individual must be informed of the additional rights afforded by the Charter, such as the right to be informed of the reasons for the detention (s. 10(a)), and the right to retain and instruct counsel without delay and to be informed of that right (s. 10(b)): Thompson, at para. 31.
[11] The court must make two inquiries in assessing whether s. 9 applies: (1) Was the claimant detained? (2) If so, was the detention arbitrary?: Le, at para. 29.
[12] A detention arises only where the police suspend an individual’s liberty through “a significant physical or psychological restraint”: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. Not every interference with an individual’s liberty attracts Charter scrutiny.
[13] Physical detention is usually obvious. More difficult is psychological detention, which the court in Grant noted “is established either where the individual has a legal obligation to comply with the 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”: at para. 44. The Grant court set out three factors to be assessed, at para. 44: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 focussed 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. [Emphasis added.] [14] This court explained in Thompson that psychological detention or restraint can arise in two ways, when: (1) “an individual is legally required to comply with a police direction or demand”; or (2) absent legal compulsion, when “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: see Thompson, at para. 36; Grant, at paras. 30-31; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 22, and Le, at paras. 25-26.
[15] The s. 9 inquiry engages all the circumstances of the encounter. It requires an objective assessment of what a reasonable person in the shoes of the accused would perceive about his or her freedom to leave: Le, at para. 106. The focus is on how the police behaved and, considering the totality of the circumstances, how their behaviour would reasonably be perceived: Le, at para. 116. The focus is not on what was actually in the accused’s mind at the particular moment. Nor is it on the police officer’s intention. . R. v. G.T.D.
In R. v. G.T.D. (SCC, 2018) the Supreme Court of Canada set out a basic rule of police detention:[2] The right to counsel under s. 10(b) of the Charter obliges police to “‘hold off’ from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel” (R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269). The first issue in this appeal is whether the question “Do you wish to say anything?”, asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to “hold off”. We are all of the view that it did, because it elicited a statement from G.T.D.
|
