Following a week-long in-service course with the Cape Breton Regional Police Service (police members of Kentville, Truro, and Stellarton also in attendance), several questions arose concerning the legal implications of conducting street checks. As a reminder to this years police cadet graduates, street checks are where people are asked to identify themselves and, to the extent the police officers receive information, they would do a brief report which is called a “street check”, which would end up on the record management system for the information of other officers; street checks can be of pedestrians or occupants of a vehicle.
Street checks can also occur whereby the officer recognizes the person they interact with or observe on the street and simply records the name of the person(s), location seen, and date and time of the observation. This discussion will not focus on those because there will be no legal implications since there was no officer-pedestrian/vehicle occupant interaction.
For years, R. v. Grafe, (1987) 36 C.C.C. (3d) 267 (Ont. C.A.) remained the leading case on police questioning of pedestrians on the street. Grafe affirmed the right of the police to ask questions of pedestrians, so long as the person was not detained nor compelled to reply. This jurisprudence indicated that, absent physical constraint, or some evidence of a sense of compulsion from the accused, a mere stopping or a mere questioning will not amount to a “detention” sufficient to invoke Charter protections.
With regards to vehicle stop cases, it is now well-established that random stops of vehicles are an arbitrary detention under s. 9 of the Charter, but justified under s. 1 of the Charter because of their utility in promoting road safety under certain provincial Highway Traffic Acts (R. v. Ladouceur,  1 S.C.R. 1257; R. v. Hufsky, (1988) 40 C.C.C. (3d) 398)). The definition of “detention” applied in those cases is that the police have assumed control over the movement of the accused by a demand or direction that might have legal consequences, and there are penal consequences for the refusal to comply with the demand or direction.
As noted in Ladouceur, the “ordinary right of movement of the individual,” the right to move about in the community on foot without interference, is a fundamental right. It is more significant than “the liberty” or “the qualified right” to drive a motor vehicle which is “a licensed activity that is subject to regulation and control for the protection of life and property.”
R. v. Esposito (1985) 24 C.C.C. (3d) 88 (Ont.CA):
A police officer, when he is endeavouring to discover whether or by whom an offence has been committed, is entitled to question any person, whether suspected or not, from whom he thinks useful information may be obtained. Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning, and if the person questioned declines to answer, the police must allow him to proceed on his way…
The Supreme Court in R. v. Mellenthin,  3 S.C.R. 615 found that, rather than the applicant being required to show that he felt oppressed, the burden shifted to the crown to provide evidence that he was aware of his rights to refuse to answer the questions or to consent to the search. This marked a dramatic shift in the approach.
In R. v. Mann,  3 S.C.R. 59,the SCC ruled that:
The police cannot be said to “detain”, within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
Fast forward to 2009 and we now have a new benchmark in these situations. In R. v. Grant,  S.C.J. No. 32, the SCC addressed the sometimes difficult task of determining when a detention commences:
As discussed earlier, general inquiries by a patrolling officer present no threat to freedom of choice. On the other hand, such inquiries can escalate into situations where the focus shifts from general community-oriented concern to suspicion of a particular individual. Focused suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject. The language of the Charter does not confine detention to situations where a person is in potential jeopardy of arrest. However, this is a factor that may help to determine whether, in a particular circumstance, a reasonable person would conclude he or she had no choice but to comply with a police officer’s request. The police must be mindful that, depending on how they act and what they say, the point may be reached where a reasonable person, in the position of that individual, would conclude he or she is not free to choose to walk away or decline to answer questions.
In summary, Grant concluded that:
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.
So, what does all this mean for the officer? Street checks provide an often overlooked, underutilized tool in the investigative process and they can be very valuable if they are undertaken correctly. It is not improper for police, provided that they are in the exercise of their general police duties, to make general inquiries of individuals or seek to identify individuals, but whether a detention occurs and whether it is justified depends on the circumstances of the case. Street checks could inquire identification of a person, but whatever answer is provided to such a question, if any, is not going to provide a nexus to anything other than a possible street check report. Such a nexus cannot support an investigative detention. Whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focused investigation will be considered by the courts. In addition, the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter all become important in deciding whether a street check will amount to a detention.