Section Ten of The Canadian Charter of Rights and Freedoms - Detention

Detention

Section 10 is only triggered if a person is arrested or detained. The Supreme Court of Canada has stated that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude from the state conduct that there was no choice but to comply.

In cases without physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether a reasonable person in the individual’s circumstances would conclude they had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

• 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.

• 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.

• The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.