Many years have passed since psychological detention was addressed in R. v. Therens,  1 S.C.R. 613 and R. v. Thomsen,  1 S.C.R. 640, with further assistance and clarification in more recent years, R. v. Suberu, 2009 SCC 33,  2 S.C.R. 460 and R. v. Grant, 2009 SCC 32,  2 S.C.R. 353. While most of us seem quite comfortable with understanding physical detention, some of us still seem to struggle with the notion of psychological detention.
In R. v. Wong 2015 ONCA 657, the appellant, a 26-year-old university graduate, reported the theft of her car to York Regional Police. A police officer was dispatched to her apartment to obtain the information. The officer knocked on the apartment door, was invited in, and entered; the apartment was small, about 600 to 700 square feet. On entering the apartment, the officer noticed a faint smell of marihuana smoke. He asked whether there was a place they could talk, and the appellant led him to an island in the kitchen. The officer saw some “Zigzag” cigarette papers and a digital scale on the counter. He knew these might be drug-related. He thought it odd that the appellant would invite him into her home when there was obvious evidence of marihuana use. As the discussion progressed, the officer asked for her insurance documents. When she said they had been in her car, he asked if she had any old invoices. She went to the den, a few feet away. The officer followed to help her look. He saw on the top of the desk, in plain view, two tin boxes with drug markings, rolling papers and metal screen filters that he knew were commonly used to smoke marihuana. The appellant retrieved some papers from a drawer in a filing cabinet under the desk.
The officer testified that at this point he decided to “call” the appellant on the drug paraphernalia. He said to her:
I need to talk to you about something. I’m starting to see a lot of stuff around your apartment pertaining to marihuana and drug use. So, what’s going on here?
He testified that he told her she was not required to speak to him:
I also cautioned her that she didn’t have to tell me anything, but I know that there is drugs and drug paraphernalia in the apartment. She was, in essence, in possession of these items and the paraphernalia, and that I could arrest her, but right now I just need to know what’s going on here. So, I left it at that.
The officer testified he told her this to inform her that he was now investigating it as a drug call. When he told her this, she became fearful. The appellant told him that the items belonged to her boyfriend and that she was not involved with drugs. The officer testified he was prepared to believe this explanation, particularly because she had invited him into the apartment with evidence of drug use in plain view. He asked the appellant about the “Zigzag” papers on the kitchen table, to which she replied, “… what is that?” He then asked her about the scale, which she said was for baking. He pressed her, asking, “If that’s for baking, can you show me where your chocolate chips, your flour, your slivered almonds, your raisins, where’s all your baking stuff, your baking soda, baking powder, etc.?” He found it “curious” when she replied, “I’m out. I used it all.” He then asked about the paraphernalia on the desk. He picked up one of the boxes, sniffed it, and said, “I smell marihuana… What’s up with this?” She repeated that it was her boyfriend’s and that she did not know what it was. He testified he then said:
Well, okay, I can go with that. What else is here that’s not yours, that’s your boyfriend’s?
In response to this, the appellant pointed to a drawer under the desk and said, “He keeps stuff in there, it’s his stuff.” She opened the drawer, saying, “This is all his, I don’t know about this stuff.” The officer saw three bags of what he assumed was marihuana. He also saw some identity cards and passports. He reached in, seized the bags, and put them on the kitchen counter. The officer testified that he again “cautioned” the appellant that she didn’t need to speak to him, but it was turning into a drug investigation. She could possibly be charged, he said, but he was proceeding in good faith that she was not involved and her cooperation was appreciated. He testified that at this point he had grounds to arrest the appellant, but chose to continue to investigate. After calling for back-up, the officer asked the appellant, “What else is here that is not yours?” She led him to the bedroom and pointed to a black duffle bag on the floor beside the bed. In response to his question about what it was, she said, “I have no idea, but I’m really scared. I just want to tell you that’s his too and it’s not mine.” She told him that her boyfriend had left it in the apartment six months earlier. The officer opened the bag and saw about fifteen packages containing a powder that he assumed was a narcotic.
The officer acknowledged that he did not give the appellant a formal caution at any time. He said something to the effect of, “I believe you’re not a bad person, so if you cooperate with me I’m sure you’ll be fine, but if you lie to me and I find out, you’ll be in trouble.” Two detectives arrived on the scene shortly thereafter and the appellant was placed under arrest (this was approximately 2 hours after the initial arrival of the officer). An application for a search warrant was made on the information provided by the officer. As a result of the warrant, police seized additional drugs, drug paraphernalia, a firearm, ammunition, and various pieces of identification.
The trial judge concluded that, on a balance of probabilities, the appellant had not been detained at any point before she revealed the contents of the drawer and identified the duffle bag. Therefore, her right to counsel was not violated. The trial judge also found that in addition, no search of the dwelling had occurred at that point, as the appellant voluntarily showed the officer property belonging to another person, in which she disclaimed any privacy interest. As a result, she was not subjected to an unreasonable search in fact or in law.
The ONCA agreed that the appellant was not physically detained. She had no legal obligation to speak to the officer or to comply with his directions. The issue, however, was whether there was a significant psychological restraint at the hands of the state. That depended on whether a reasonable person in her situation would have concluded that she no longer had the freedom to choose whether or not to cooperate with the police (Suberu at para. 22). In Grant, the court stated that “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 court in Grant identified a non-exhaustive list of circumstances to determine whether a reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, at para. 44:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) 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.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
Applying those factors in this case, the ONCA ruled as follows:
The circumstances giving rise to the encounter: The encounter began as a consensual one, initiated by the appellant. It soon shifted, however, into a drug-related investigation centred on her apartment. This would cause a reasonable person to believe that the officer was no longer addressing her as the victim of a car theft, but rather as a potential suspect in his drug investigation.
The nature of the police conduct: The officer’s conduct became increasingly authoritative. He demanded an explanation for the presence of the drug paraphernalia: “So what’s going on here?” He challenged her explanation: if the scale was for baking, where were her supplies? He told her that she was in possession of the drug paraphernalia and that he could arrest her. As in Grant, the officer took control of the appellant and sought to obtain information from her.
The characteristics and circumstances of the appellant: The appellant was an apparently naïve young woman. She was alone, in her small apartment, with a uniformed police officer who was undertaking a drug investigation. She told the officer she was frightened, as she undoubtedly was. As in Grant, the encounter, as it developed, was inherently intimidating.
The ONCA ruled that the appellant was detained when, in furtherance of his drug investigation, the officer told her that he could arrest her based on the possession of drug paraphernalia and asked her for an explanation. A reasonable person in the appellant’s position, on being told that she could be arrested, would conclude that she was not free to go. As a result, her s. 10(b) right to counsel was breached as the Charter requires a police officer to inform a detained person of their right to counsel “without delay”. Although the officer did inform her of her right to silence, a right closely related to the right to counsel, he encouraged the appellant to incriminate herself by demonstrating knowledge of the presence and location of the contraband, without advising her of her right to speak to a lawyer. This went to the very heart of the principle underlying s. 10(b) in that the appellant had a right to remain silent unless and until she made an informed decision to waive that right and to provide the requested information to the police.
Did this warrant exclusion of the evidence? The ONCA felt the officer’s evidence displayed a misunderstanding of the concept of detention and of his s. 10(b) obligations. While he did not deliberately set out to violate the appellant’s Charter rights, his failure to appreciate his duties led to that result. The officer knew or should have known that the appellant was in jeopardy and that if he found drugs as a result of his investigation she could have been found guilty of possession. Had the appellant been able to consult with counsel, she could have been informed of the consequences of speaking to the officer and of permitting the search to continue. In addition, while the officer appreciated that he had grounds to arrest the appellant based on the evidence of marihuana use, notwithstanding her disclaimer of any association with it, he continued to enlist her cooperation through promises that if she did so, she would be “fine”. He knew, or ought to have known, that these promises were meaningless. The officer said he could not recall having been trained on the appropriate caution to be given in cases of detention. He agreed that if he encountered a situation of detention that very afternoon he would “pretty much have to wing it.” “The officer failed to respect the appellant’s rights because he did not understand them.”
In determining the impact of the breach on the appellant’s rights, it was appropriate to consider the “discoverability” of the evidence — that is, whether the evidence was discoverable independent of the breach? The officer acknowledged that before the drugs were discovered, he believed that there may have been recreational use of marihuana in the apartment. He acknowledged that recreational use of marihuana was commonplace in his experience and considered that he had discretion about the appropriate response. Depending on the circumstances, a warning might be given or charges might be laid. He did not, apparently, give any consideration to obtaining a warrant until after the three bags of marihuana were discovered in the desk.
The evidence seized included a semi-automatic handgun with ammunition, 11 kilograms of MDMA, significant quantities of marihuana and cocaine and documents evidencing credit card fraud. The evidence was plainly reliable and essential to the Crown’s case. The police conduct in this case, while not deliberate, was unacceptable said the ONCA. The officer did not know what the law was. He did not understand the circumstances giving rise to detention and he did not appreciate either his responsibilities or the appellant’s rights. The appellant’s rights were trammelled in his search for evidence. The administration of justice would be brought into disrepute by the admission of the evidence, and, was excluded. As there was no possibility of conviction without the evidence obtained as a result of the Charter breaches, the court ordered direct acquittals on all counts.