'Detention' Under the Charter after R. v . Grant and R. v. Suberu

Abstract

In R. v. Grant and R. v. Suberu the Supreme Court of Canada revisited the relationship between police detention powers and the Charter. This paper critically analyzes these decisions. The authors argue that the multi-factor approach for deciding whether or not there has been a psychological “detention” under ss. 9 and 10 of the Charter that emerges from these cases fails to give police sufficient guidance on the scope of their authority. After canvassing the implications of that uncertainty, the authors put forward a proposal that would bring greater clarity to the meaning of “detention” under the Charter. In addition, the authors also examine Suberu’s conclusion that the right to counsel must be respected incidental to brief lawful investigative detentions. After detailing the potential drawbacks of that holding, the paper fleshes out the case for justifying an override of s.10(b) during such encounters.

Keywords: R. v. Grant, R. v. Suberu, Canada, Constitution, Detention, Psychological Detention, s. 9, s. 10, Canadian Charter, Right to Counsel

JEL Classification: K 14