Having just stated a test for detention (R v Grant, last note today's date), the Supreme Court of Canada has disagreed on its application: R v Suberu  SCC 33 (17 July 2009).
The 5 – 2 split decision suggests the test will be misapplied nearly 29% of the time. And the facts couldn't have been simpler. They are summarised in the headnote as follows:
"Constable R responded to a call about a person attempting to use a stolen credit card at a store. He was advised that there were two male suspects. R entered the store and saw a police officer talking to an employee and a male customer. S[uberu] walked past R and said "He did this, not me, so I guess I can go." R followed S outside and said "Wait a minute. I need to talk to you before you go anywhere", while S was getting into the driver's seat of a minivan. After a brief exchange, R received further information by radio, including the description and licence plate number of the van driven by the men who had used a stolen credit card at another store earlier that day. The description and the licence plate number both matched that of the van in which S was sitting. R also saw shopping bags between and behind the front seats. At this point, R decided that he had reasonable and probable grounds to arrest S for fraud. He advised S of the reason for his arrest and cautioned him as to his right to counsel."
Was the accused detained when R said "Wait a minute. I need to talk to you before you go anywhere"?
The definition of detention in R v Grant is purposive; it is summarised in Grant at 44, and is quoted at para 25 of the majority judgment in Suberu (delivered by McLachlin CJ and Charron J, with LeBel, Deschamps and Abella JJ):
"1. 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.
"2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
a) The circumstances giving rise to the encounter as 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; 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 this, the majority held that Mr Suberu had not been detained (32 – 35). On factor (a):
"32 ... As a whole, the circumstances of the encounter support a reasonable perception that Constable Roughley was orienting himself to the situation rather than intending to deprive Mr. Suberu of his liberty. Further, as noted, Mr. Suberu did not testify or call evidence on that matter. In summary, the circumstances, as revealed by the evidence, do not suggest detention."
And factor (b):
"33 ... it is relevant to note that Constable Roughley made no move to obstruct Mr. Suberu's movement. He simply spoke to him as he sat in his van... Taken as a whole, the conduct of the officer viewed objectively supports the trial judge's view that what was happening at this point was preliminary questioning to find out whether to proceed further."
And factor (c):
"34 ... Mr. Suberu did not testify on the application, and there was no evidence as to whether he subjectively believed that he could not leave. Nor was there evidence of his personal circumstances, feelings or knowledge. ... The Officer testified that Mr. Suberu never told him that he did not wish to speak with him, and that the conversation was not 'strained'."
The dissenters, Binnie J and Fish J, did not agree with that assessment. Binnie J delivered the substantive dissent. He accepted that the test laid down by the majority (of which he was not a part) in Grant applied. The trial judge had found there was a "momentary investigative detention", and the majority should apply the deference that they had indicated was appropriate to the fact-finding court in Grant (Suberu at 57).
"56 The verbal exchange between Constable Roughley and Mr. Suberu clearly established an unambiguous police order. When Mr. Suberu walked past Constable Roughley, saying, 'He did this, not me, so I guess I can go', and Constable Roughley replied, 'Wait a minute. I need to talk to you before you go anywhere', it was a command to stay put. Constable Roughley's words were only ambiguous if one ignores the preceding remark from Mr. Suberu. Constable Roughley was replying to Mr. Suberu, who had essentially said, 'Can I leave?', by essentially saying, 'No'. It was clear to Mr. Suberu that he was not free to go "anywhere" and any reasonable person in that position would have come to the same conclusion. At that point there was, within the meaning of the test in Grant, a detention, in my view, which was unsupported at that stage by any grounds of reasonable suspicion as required by R v Mann, 2004 SCC 52 (CanLII), 2004 SCC 52, 2004 SCC 52 (CanLII),  3 S.C.R. 59. My colleagues point out correctly that Constable Roughley did not try physically to obstruct Mr. Suberu's movement but that is why this is a case of psychological, not physical, detention." [Binnie J's emphasis on the word psychological]
There is no suggestion of smugness in Binnie J's observation (61) that on his dissenting approach in Grant, which attached more importance to the police perspective, detention might not have been established here.
"61 ... It is the perspective and information of the police, not the claimant, that will often determine whether the liberty interest of the person stopped was truly engaged."
Obviously both perspectives should be considered. A person can be under detention without knowing it, or he can reasonably think he is under detention when he isn't. The former requires compliance with the person's rights because of the police purpose of collecting incriminating information, and the latter requires compliance because of the coercive nature of reasonably apprehended detention.