Prepared by Elizabeth France1 for the National Criminal Justice Conference, April 2012

In R. v. Grant2 and R. v. Suberu3 the Supreme Court of Canada expanded on the concept of detention and established a framework to assist courts in determining when detention arises.4 Since these decisions were released in 2009, much has been written about the revised legal framework.5 Given the existing academic commentary on the issue, this paper will only briefly touch on the current law governing detention. This paper will focus on recent case law and assess how courts have understood and applied Grant and Suberu in making findings of detention.

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Part I: The law on detention: Grant and Suberu

(a) Defining detention

Co-writing the majority judgment, Chief Justice McLachlin and Justice Charron grounded their analysis of detention in the concept of "choice": they emphasized that the "general principle of choice" underlies the determination of whether or not detention has arisen.6
Accordingly, "[w]here this choice [whether or not to walk away from the police] has been removed – whether by physical or psychological compulsion – the individual is detained."7

The removal of the "choice to do otherwise" but comply with a police command is what makes the right to counsel under s. 10(b) of the Charter so indispensable.8
This logic, in addition to concerns about compelled self-incrimination and liberty, is likely what drove the majority to conclude that an individual's s. 10(b) right to counsel arises at the outset of any detention, investigative or otherwise.

Read more at: http://www.cba.org/cba/cle/PDF/CRIM12_Paper_France.pdf