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

Supreme Court Law Review, Vol. 51, p. 339, 2010

40 Pages Posted: 24 Sep 2010 Last revised: 15 Dec 2010

See all articles by Steven Penney

Steven Penney

University of Alberta - Faculty of Law

James Stribopoulos

Superior Court of Justice (Ontario) / Formerly Osgoode Hall Law School, York University

Date Written: September 23, 2010

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

Suggested Citation

Penney, Steven and Stribopoulos, James, 'Detention' Under the Charter after R. v . Grant and R. v. Suberu (September 23, 2010). Supreme Court Law Review, Vol. 51, p. 339, 2010 . Available at SSRN: https://ssrn.com/abstract=1681532

Steven Penney

University of Alberta - Faculty of Law ( email )

Law Centre
University of Alberta
Edmonton, Alberta T6G 2H5
Canada

HOME PAGE: http://www.ualberta.ca/law/faculty-and-research/profiles/steven-penney

James Stribopoulos (Contact Author)

Superior Court of Justice (Ontario) / Formerly Osgoode Hall Law School, York University

No Address Available

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