Ce ne sont pas toutes les interactions entre un policier et un citoyen qui amène une détention psychologique

R v Loewen, 2018 SKCA 69

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[25]           Section 9 provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned”. However, not every interaction between an individual and the police is a detention. Section 9 does not oblige the police to “abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime”. See: R v Suberu, 2009 SCC 33 at para 3, [2009] 2 SCR 460 [Suberu]. Further, the police may engage in the preliminary questioning of bystanders without creating a detention within the meaning of s. 9. See: R v Mooiman, 2016 SKCA 43 at para 21, 476 Sask R 216 [Mooiman].

[26]           Section 9 is engaged only by “significant physical or psychological restraint”. See: R v Mann, 2004 SCC 52 at para 19, [2004] 3 SCR 59; Suberu at para 24. Psychological detention arises where an individual has a legal obligation to comply with a restrictive police directive or where “a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply” (Grant at para 44).

[27]           In Grant, the Supreme Court provided the following guidance with respect to determining whether there has been a psychological detention:

[44]      …

2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:

(a) The circumstances giving rise to the encounter as they 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.

[28]           The onus of establishing the existence of psychological detention is, of course, on the individual alleging the detention. The test involves an objective determination made in light of the circumstances as a whole and the court must be satisfied by the evidence that the conduct of the police or state officials effected a significant deprivation of liberty. See: Suberu at paras 22 and 28.