Duhaime's Law Dictionary


Detention Definition:

The exercise of an element of physical constraint of an individual.

Used in the Canadian Charter of Rights and Freedoms, §10(c) as follows:

"Everyone has the right on arrest or detention ... to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful."

In R v Thomsen, Canada's Supreme Court issued this definition:

jail cell"In its use of the word detention, §10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

"In addition to the case of deprivation of liberty by physical constraint, there is a detention within §10 of the Charter, when a police officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

"The necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.

"§10 of the Charter applies to a great variety of detentions of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible."

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