On July 27, 2023, the Court of Appeal for Ontario in R. v. Corner, 2023 ONCA 509, handed down a comprehensive guidance to determine when an accused has been detained. Although physical detention is quite straightforward, psychological detention, on the other hand, can be difficult to decipher when it started or if the accused was actually detained at any point in their interaction with state agents. This 2023 decision provides a detailed guidance to detention law and sections 9 and 10 of the Canadian Charter of Rights and Freedoms that is helpful to individuals and legal practitioners as a whole.
Brief Summary of the Case
In R. v. Corner, 2023 ONCA 509, the Appellant is a drug dealer, who shot and killed his drug-dealing partner on February 19, 2014 in the garage of his house. The Appellant called 9-1-1 and told the operator that the victim had been shot during a drug rip off when three men tried to steal their marihuana (hereafter referred to as the “Robbery Story”). The Appellant repeated the Robbery Story to Constable Micallef and Constable MacKinnon at the scene; therefore, he was thought to be a key witness, not a suspect in the investigation. Subsequently, they took the Appellant to the police station at approximately 5:00 p.m. and released him 10 hours later at 3:00 a.m.
By the time of the trial, the Appellant had abandoned the Robbery Story, and had adopted the claim that he shot the victim in self-defence. The jury convicted him of second-degree murder. He appealed his conviction and sentence. The Ontario Court of Appeal granted the appeal, resulting in the ordering of a new trial.
A primary concern during the appeal revolved around the admissibility of the evidence provided by the Appellant to Detective Melnick at the start of the interview in the police station.
Contested Evidence
At about 5:00 pm, on February 19, 2014, the Appellant agreed to accompany Constable MacKinnon to the police station for a videotaped statement. At the station, the police took his cellphone and wallet. They took him to a room to question witnesses, removing him from the public area. Once there, the Appellant was not free to come and go as he pleased. In addition, the police had opted to test his hands for gunshot residue, and they did not inform the Appellant about this intention.
At 5:50 pm, Detective Melnick entered the interview room and questioned the Appellant about the events. The Appellant told the Robbery Story in great detail. The questions were not accusatory in any form. No one informed him about his right to stay silent, consult with a lawyer, halt the interview and depart from the station, or the police’s plan to test his hands for gunshot residue.Detective Melnick explained that, during that time, they didn’t view the Appellant as a suspect and hadn’t detained him. At about 7:40 p.m., the Appellant requested to walk around in order to refresh his mind, but Detective Melnick replied that he could not let him leave the room.
The Appellant also inquired about using the bathroom, and Detective Melnick explained that he couldn’t wash his hands since they were going to undergo a gunshot residue test. Detective Melnick brought the Appellant to the bathroom and observed him while he was there. Subsequently, they returned the Appellant to the interview room, where he awaited Detective Melnick’s return from a meeting with colleagues. During that waiting period, another officer entered the room and performed a gunshot residue test. No one asked the Appellant for permission, nor did they inform him of his right to decline the test. When Detective Melnick returned to the interview room, his attitude towards the Appellant was confronting and accusatory.
The appeal centered on evaluating whether a reasonable person in the Appellant’s position would have considered themselves detained during the interview from 5:50 p.m. to about 7:40 p.m.
Sections 9 and 10 of the Charter protect individuals’ liberty from state interference. Section 9 guarantees everyone the right to be free from arbitrary detention or imprisonment. Section 10 declares that upon arrest or detention, authorities must promptly inform individuals of the reasons, allow them to consult Counsel without delay, and make them aware of their right to legal representation.
Psychological Detention Inquiry
In the case of Corner, the issue turned into psychological detention. When a state’s actions create a situation where a reasonable person in that individual’s circumstances would sense a lack of freedom to move as they wish due to being under police authority, it establishes psychological detention. Subjective elements also come into play, including how the individual perceived their interaction with the police officer(s).
In order to address this issue, the Court applied the psychological detention inquiry established in R. v. Grant, 2009 SCC 32, which considers how the individual would reasonably perceive the circumstances leading up to the encounter, the nature of the police conduct during the encounter, and the particular circumstances or characteristics of the individual, including his age, minority status, and prior experiences with the police.
Analyzing the factors in Grant, the Ontario Court of Appeal concluded that the Appellant had experienced detention from 5:00 p.m. to 7:40 p.m. The findings indicated that the police took full control over the Appellant, including seizing his cellphone and wallet. While in the interview room, the authorities isolated the Appellant from the public.Furthermore, Detective Melnick did not tell the Appellant that he was free to go after he had finished his questioning at around 7:40 p.m., instead, he left the Appellant waiting in the room while he received an update from his colleagues. At no point did anyone advise the Appellant that he had the choice to leave the station or conclude the questioning if he desired.
As a result, the infringement occurred on the Appellant’s rights under sections 9 and 10 of the Charter. The issue before the court was whether provision 24(2) of the Charter called for the exclusion of the remarks made at the station prior to around 7:40 p.m.
Section 24(2) permits the exclusion of evidence obtained through infringement or denial of Charter rights to the accused.
The Court considered the three-stage approach delineated in Grant for admissibility under s.24(2), encompassing the extent of the violation, its impact on individual rights, and society’s stake in the matter’s just determination.
What weighed strongly was the failure to advise the Appellant of his right to counsel. The Court considered that if the Appellant had been informed of his rights and given the chance to consult a lawyer privately, he would have realized he wasn’t obligated to provide a statement or stay at the police station. Consequently, during that interview period, the Appellant’s interests remained unprotected.The Court of Appeal concluded that it would exclude the statements made between 5:50 p.m. and about 7:40 p.m., resulting in the ordering of a new trial.
Finding out if someone has been detained is not always simple. Police officers have powers of detention and they must comply with Charter obligations. A criminal defence lawyer is here to ensure that your detention and arrest were lawful.
