Detention

Detention occurs when someone is held in a location and is not free to leave. This may result from physical restraint or, in some cases, psychological pressure from a peace officer.

Furthermore, detention must be limited in time. If it becomes prolonged, it must be formalized as an arrest.

Also, even if a police officer tells the person they are free to go and not required to answer, that may not be sufficient. Other objective factors may still demonstrate that detention has in fact occurred.

Investigative detention

Courts have ruled that police officers cannot detain someone solely for questioning or simply to conduct an investigation without a clear motive. However, Canadian law allows for brief investigative detention under certain circumstances. This exception is based on police powers under common law. Such detention is only legal and acceptable if it meets the following criteria:

• The officer must have objectively discernible facts
• These facts must give rise to a reasonable suspicion that the person is involved in criminal activity

In this context, police powers of arrest may include a protective search. However, such a search is only permitted if officers have reasonable grounds to fear for their own safety or that of others.

Arrest

An arrest involves physically seizing or touching a person for the purpose of detaining them. However, an arrest can also be established through words or police behavior that lead the individual to understand they are under arrest and not free to leave.

Unlike detention, arrest:

• May result in the person being held in custody to appear before a judge
• Comes with a summary search power aimed at:
  • Protecting police and public safety, or;
  • Preventing the person’s escape, or;
  • Preserving or securing evidence.

Vehicle Interception

In Quebec, article 636 of the Highway Safety Code grants peace officers the power to stop a vehicle without real cause. They are not required to believe or suspect that a traffic rule has been broken. This power was upheld by the Supreme Court of Canada in 1990 in an Ontario case.


However, in 2022, the Quebec Superior Court declared this provision unconstitutional and invalid, stating that it encouraged racial profiling. This decision was later upheld by the Quebec Court of Appeal. The Supreme Court of Canada is now reviewing the legality of this power.

• For alcohol or drug screening (Criminal Code, s. 320.27)
• As part of commercial or passenger transport enforcement

Your Rights When Detained or Arrested

The use of police arrest powers triggers the immediate application of certain fundamental rights provided by the Canadian Charter of Rights and Freedoms:

• Section 10(a): the right to be informed promptly of the reason for your arrest or detention
• Section 10(b): the right to retain and instruct counsel without delay, and to be informed of that right

The purpose of this provision is to ensure that the detained person can make a free and informed choice about cooperating with the authorities. They must be able to speak to a lawyer in order to understand their right to remain silent and how to exercise it.

Conclusion

Whether it involves detention, arrest, or interception, each police intervention is governed by clear legal rules. Police arrest powers have legal limits because they directly restrict your fundamental freedoms. Knowing your rights can make all the difference when faced with such a situation. It helps maintain the balance between state power and individual liberty.
If you have questions about your rights or police powers of arrest, contact a member of our team.