Un questionnement policier préliminaire et non-coercitif n'entraîne pas une détention

R. v. Jackson, 2011 ONSC 5516 

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[50]           The root case in this line of authority is R. v. Grafe, supra at pp. 271 and 274, where Krever J.A. (Martin and Tarnopolsky JJA. concurring) stated, in reference to a police request for identification:

The law has long recognized that although there is no legal duty there is a moral or social duty on the part of every citizen to answer questions put to him or her by the police and, in that way to assist the police:  see, for example, Rice v. Connolly, [1966] 2 All E.R. 649 at p. 652, per Lord Parker C.J.  Implicit in that moral or social duty is the right of a police officer to ask questions even, in my opinion, when he or she has no belief that an offence has been committed.

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The Charter does not seek to insulate all members of society from all contact with constituted authority, no matter how trivial the contact may be.

[51]           The more recent s. 9 authorities, Grant and Suberu, have not changed this approach to preliminary questioning short of “detention”.  If anything, the police now have even more flexibility when asking preliminary non-coercive questions, such as requests for identification, without causing a “detention” and thereby triggering s. 9 and s. 10 rights.  In Grant, supra at paras. 6-7 and 37-52, McLachlin C.J.C. and Charron J., speaking for the majority, adopted the above passage from Grafe, and held that the preliminary questioning of the accused Grant, in which he was asked for his identification, did not amount to a “detention” for s. 9 and s. 10 purposes:

Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime.  Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.

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The encounter began with Cst. Gomes approaching Mr. Grant (stepping in his path) and making general inquiries.  Such preliminary questioning is a legitimate exercise of police powers.  At this stage, a reasonable person would not have concluded he or she was being deprived of the right to choose how to act, and for that reason there was no detention.

It was only later in the encounter, when the police took further more coercive steps, that the Court found a “detention” on the facts of Grant, supra.

[52]           In Suberu, supra at paras. 23-35, McLachlin C.J.C. and Charron J. maintained the distinction between “preliminary investigative questioning falling short of detention” and “focused interrogation amounting to detention”.  In drawing this line, the majority asked whether there was a “significant deprivation of liberty”, as opposed to mere “delay” caused by “exploratory” questioning, for example, “for purposes of identification”:

However, this latter understanding of detention does not mean that every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police.  This Court’s conclusion in Mann that there was an “investigative detention” does not mean that a detention is necessarily grounded the moment the police engage an individual for investigative purposes.  Indeed, Iacobucci J., writing for the majority explained as follows:

“Detention” has been held to cover, in Canada, a broad range of encounters between police officers and members of the public.  Even so, the police cannot be said to “detain”, within the meaning of ss.9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview.  The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”.  But the constitutional rights recognized by ss.9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.  In this case, the trial judge concluded that the appellant was detained by the police when they searched him.  We have not been urged to revisit that conclusion and, in the circumstances, I would decline to do so.  [Emphasis of McLachlin C.J.C. and Charron J.]

As explained in Grant, the meaning of “detention” can only be determined by adopting a purposive approach that neither over-shoots nor impoverishes the protection intended by the Charter rights in question.  It necessitates striking a balance between society’s interest in effective policing and the detainee’s interest in robust Charter rights.  To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.