Sunday, July 19, 2009

Four Supreme Court cases of note last week concerning search and seizure. Application of R. v. Grant as the new standard of detention by police.

This is the key to the four cases of July 17th, 2009.

From R. v. Suberu. 2009 SCC 33 at 5.

Not every interaction with the police, however, 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. Section 9 of the Charter does not dictate 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. Likewise, not every police encounter, even with a suspect, will trigger an individual’s right to counsel under s. 10(b). According to the purposive approach adopted in R. v. Grant, 2009 SCC 32, detention under ss. 9 and 10 of the Charter refers to a suspension of the 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 by reason of the state conduct that he or she had no choice but to comply. The onus is on the applicant to show that, in the circumstances, he or she was effectively deprived of his or her liberty of choice. The test is an objective one and the failure of the applicant to testify as to his or her perceptions of the encounter is not fatal to the application. However, the applicant’s contention that the police by their conduct effected a significant deprivation of his or her liberty must find support in the evidence. The line between general questioning and focussed interrogation amounting to detention may be difficult to draw in particular cases. It is the task of the trial judge on a Charter application to assess the circumstances and determine whether the line between general questioning and detention has been crossed. [3] [23] [25] [28‑29] see case at

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