Do I have the Same Rights in Terms of Answering Police Questions When I’m Detained and Not Under Arrest?

PUBLISHED ON September 10, 2024

What follows is a brief explanation of the law surrounding the duties and obligations of police officers when it comes to questioning ‘detained’ individuals. This is not legal advice and should not be relied upon as such. For legal advice about your situation, contact an experienced criminal defence lawyer in Toronto like Brian Ross today. 

The simple answer is “yes”. A detained person (who is not under arrest) has the same rights when it comes to speaking to the police as a person who has been formally placed under arrest.  This is because section 10 of the Canadian Charter of Rights and Freedoms guarantees:

10. Everyone has the right to arrest or detention:
11. a) to be informed promptly of the reasons therefore;
12. b) to retain and instruct counsel without delay and to be informed of that right

What does it mean to be detained?

While this seems straightforward, whether an individual was ‘detained’ by the police is often a hotly contested issue because when an individual was not detained, no such s. 10 rights exist. So, how do courts determine whether an individual was detained? The Supreme Court of Canada has held that “detention” refers to “a suspension of an individual’s liberty interest by virtue of a significant physical or psychological restraint at the hands of the state.” To be clear, the Court has recognized that “even absent physical restraint by the state, a detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply…and that they are not free to leave.”  

What factors does the Court consider in determining whether there was a psychological detention?

In determining whether there was psychological detention (where the accused was not physically restrained), the Court will examine the following:

1. The circumstances give rise to the encounter as the individual would reasonably perceive them.Here, the Court considers whether the police were providing general assistance, maintaining general order, making general inquiries regarding a particular occurrence, or singling out the detained individual for a focused investigation.
2. The nature of the police conduct. Here, the Court looks at, among other things, the language used by the police, their use of physical contact, the place where the encounter occurred, the presence of others, and the duration of the encounter.
3. The particular characteristics or circumstances of the individual. Here, the Court will examine, among other things, the individual’s age, physical stature, minority status, and level of sophistication. The Court will consider how these various characteristics might impact the reasonable view of the matter as held by someone in similar circumstances.

So I’m detained – what now?

Under section 10(b) of the Charter, a person who has been detained has the right to be informed of their rights to counsel and exercise that right without delay.  Accordingly, police who detain an individual have the following duties:

1. To inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel in an understandable way;
2. if a detainee indicates a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) in a meaningful way;
3. to refrain from eliciting evidence from the detainee until they have had the reasonable opportunity to exercise their rights.

Evidence does not have to be in the form of a formal statement but can rather be answers to short questions asked by the police, such as “Where are you coming from?” or “Where are you going?” 

There are, of course, exceptions to this blanket idea that the police should cease with questioning once someone requests to speak with a lawyer. To receive more information about the responsibilities of the police when an individual is detained, please feel free to contact Brian Ross at (416)-685-5855 today.