Detention and Arrest

Understanding Detention and Arrest: Your Rights in Ontario

Have you ever wondered about your rights when dealing with police detention or arrest in Ontario? This article aims to shed light on the differences between these two scenarios, their implications, and what the law allows or doesn't allow during each. We'll break down the legal jargon into plain language so you can better understand your rights and what to expect when interacting with law enforcement in Ontario.

Detention: What Is It?

When the police stop you and prevent you from leaving, either physically or psychologically, you are being detained. Physical detention is straightforward; however, psychological detention can be less obvious. According to a Supreme Court of Canada decision (R v Grant, 2009 SCC 32), psychological detention occurs when:

• The police explicitly tell you not to leave. For example, if they say, "don't leave" during a traffic stop.

• You reasonably believe that you can't leave or walk away from the officer. For instance, if an officer blocks your only exit while asking questions.

Several factors contribute to whether a reasonable person would feel detained, including the context, the reason for the interaction, the tone used by the police, the words spoken, and your personal circumstances.

Determining if you're detained is essential because specific rights and rules apply when you're detained. Two Charter of Rights and Freedoms sections, section 9 and section 10(b), are automatically triggered by detention:

• Section 9: This section ensures you aren't detained arbitrarily, meaning the police must have a valid reason to detain you for investigation. They must state why they're detaining you and have a reasonable suspicion or purpose for the detention.

The police can stop you for one reason but continue the detention if other suspicions arise. For example, during a traffic stop, if they initially pulled you over for dangerous driving but then suspect you're involved in another illegal activity, they can continue the detention as long as they inform you of the new reasons.

However, any detention must be based on more than a hunch. If the detention extends beyond what's necessary for the investigation, it can be considered a de facto arrest.

• Section 10(b): This section grants you the right to speak to a lawyer immediately upon detention. You have this right even before any charges are laid.

Breaching these Charter rights can lead to acquittal or staying of proceedings, although outcomes depend on the specifics of each case.

Search and Seizure During Detention

During detention, the police are allowed to search your person but only for the safety of the officers, not for collecting evidence. Usually, a pat-down to check for potentially harmful items is permissible, but reaching into pockets is not. For example, in the case of R v Mann, 2004 SCC 52, the police conducted a pat-down and found a bag of cannabis inside a coat pocket. This was ruled a violation of the individual's Charter rights.

Contrary to popular belief, the police do not have a general power to search bags or vehicles during detention. They can only examine what is clearly visible from outside the vehicle and cannot ask you to move items or open doors.

Ultimately, once the police finish their investigation during detention, they must clearly state that you are allowed to leave if they do not arrest you.

Arrest: The Process and Your Rights

When an officer arrests you, they must have reasonable and probable grounds, meaning a reasonable person with similar training would agree that the arrest should occur. The arrest must be based on evidence and knowledge known to the officer before the arrest; they can't arrest first and decide the grounds afterward.

Once arrested, the police must inform you of the reason and read or recite your rights and warnings, including the right to call a lawyer, even if you were given that chance during detention, and the right to remain silent.

Arrest allows the police more extensive search powers, provided the search is valid and incidental to the arrest, focusing on:

• Ensuring police or public safety.

• Protecting evidence.

• Discovering evidence.

In most cases, an accused who has been arrested has no reasonable expectation of privacy regarding personal belongings. This means that searches of items like pockets and bags are allowed.

In conclusion, detention and arrest are crucial aspects of any criminal case, and understanding your rights during these phases is essential. Invalid detention or arrest can lead to remedies such as excluding evidence or even staying the case. The same applies to unlawful searches. Each case is unique, requiring a case-by-case analysis often decided by a judge.

If you need legal representation or have questions about your situation, our team at Gur Legal is here to help. Call us at  (647) 562 3873 to discuss your case.

Disclaimer: This article provides general information and should not be considered legal advice. Laws and regulations may change over time, and individual situations may vary. For legal advice tailored to your circumstances, please consult a qualified legal professional.