Was I detained?

[legalfalcon]

So you are saying that you are detained everytime you get pulled over by a cop or anytime they stop you for alcohol check?

Yes, you are detained every time when your liberty is curtailed, either physical, or psychological. When a police office stops you for a suspicion of driving under the influence of alcohol, you are detained for the duration of the stop. This is because after you are pulled over you are not allowed to go at will. However, see it this way, when a person is stopped for suspicion of shoplifting, and officer does not arrest him, but asks for his identity and then searches him. It is a different legal question whether the officer can search only the detained person, or can he go and search his bag pack without a warrant.

So to answer simply, every police encounter is a form of detaining, which may lead to arrest or not. Some courts in Canada have held that the detention can only be for a reasonable period and one of the judgment goes as far as saying that anything beyond 20 minutes would be considered unreasonable. Along with this reasonableness approach the officer detaining should have a cause, a mere hunch will not suffice.

I hope this answers your question. But, in order to answer the the question CIC asks, read my post above.

 

[legalfalcon]

I do not agree. The OP was not detained.

You have all rights to disagree. I am only giving my opinion here based upon the existing law.

Read paras 15-17 of R. v. Nesbeth, 2008 ONCA 579, available at http://www.canlii.org/en/on/onca/doc/2008/2008onca579/2008onca579.html

As I have clarified above, not all public encounters with the police can be termed as detention, it is only where there is either physical restraint or police direction. If you need elaborate details, read the following:

R. v. Grafe, 1987 CanLII 170 (ON CA), available at http://www.canlii.org/en/on/onca/doc/1987/1987canlii170/1987canlii170.html
R. v. Hall, 1995 CanLII 647 (ON CA), available at http://www.canlii.org/en/on/onca/doc/1995/1995canlii647/1995canlii647.html
R. v. Grant 2009 SCC 32 at ¶ 30, available at http://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html

Hope this helps.

 

[cuteebony]

Thanks for the enlightenment @legalfalcon. I had already replied the thread before I saw your long writeup.

 

[andy108]

Usually, detained person would be issued a custody records - telling him why he was detained, and when to appear (if) next time if a person is released on bail or simply released after police decide to do so.

Your friend was detained.

Hi,

My friend was detained by police when buying the stolen bicycle as they though the bicycle was stolen by him. They handcuffed him and took him to the police station and investigated for 4 hours. He cooperated and was able to shown the proof of purchase. Finally, he was released with no charge or criminal record. So, he should answer yes or no to the question" Have you been detained or arrested?"

Thanks,

 

[hongtam2629]

Hi Andy,

Should detained record will influence CRA decision? Should he write a LOE or anything?

Thanks,

 

[hooba]

I've got a quick question about something that happened to me in Canada 5 years ago.

I was in the passenger seat and my friend was driving the car. I was drinking in the car.

We stopped at McDonald drive thru and the employee called cops as he saw alcohol.

Cops came and searched our vehicle, I said the truth that I was drinking and didn't knew about the law as I was new in Canada. They asked for my license (g1) at that time.

They searched me and after that explained me about the law that I wasn't suppose to do that. I wasn't arrested not was put in the back of the cop car. Then they let us go.

In my express entry I put 'no' to the question on whether I was detained or arrested.

Was I detained ??

hi i came across this post and i am in the same situation, what did you answer ? were you detained or not ? i guess now you have a better experience

 

[hooba]

Yes, you are detained every time when your liberty is curtailed, either physical, or psychological. When a police office stops you for a suspicion of driving under the influence of alcohol, you are detained for the duration of the stop. This is because after you are pulled over you are not allowed to go at will. However, see it this way, when a person is stopped for suspicion of shoplifting, and officer does not arrest him, but asks for his identity and then searches him. It is a different legal question whether the officer can search only the detained person, or can he go and search his bag pack without a warrant.

So to answer simply, every police encounter is a form of detaining, which may lead to arrest or not. Some courts in Canada have held that the detention can only be for a reasonable period and one of the judgment goes as far as saying that anything beyond 20 minutes would be considered unreasonable. Along with this reasonableness approach the officer detaining should have a cause, a mere hunch will not suffice.

I hope this answers your question. But, in order to answer the the question CIC asks, read my post above.

@legalfalcon i am about to fill up my pr application and i am not sure whether i understand the question well!
I am a regular traveller and i have been sent to second screening manytimes. I have never been accused or charged of anything, however one of my additional screening at US borders, found a pipe in my bag and took it from me before they let me in, no documents or fine or anything!
What should i do ?

 

[hooba]

Usually, detained person would be issued a custody records - telling him why he was detained, and when to appear (if) next time if a person is released on bail or simply released after police decide to do so.

Your friend was detained.

So how about additional screening at port of entry? Is that considered detention ? I have been stopped many times at airports and ground check points, where a pipe has been taken from me without any charges!

 

[legalfalcon]

@legalfalcon i am about to fill up my pr application and i am not sure whether i understand the question well!
I am a regular traveller and i have been sent to second screening manytimes. I have never been accused or charged of anything, however one of my additional screening at US borders, found a pipe in my bag and took it from me before they let me in, no documents or fine or anything!
What should i do ?

The answer is no. You were never detained or arrested. Going to the secondary does not mean that you were detained or arrested.

 

[canadalover2020]

Technically, yes you were detained. However, since there was no formal charging and neither was the offense recorded, you need not report it. You were detained for the duration when the police officer asked you for your license and spoke to you. But, since no action took place and he let you go, there is no need to report anything.

See this as an encounter with the police without it resulting in any infraction of an offense being committed on your end.

So you are all good and even if there is a criminal history check done on you in Canada, nothing will be reported since there was no reporting.

Hope this helps.

I was detained in Dubai few years ago and released without any charges. When i decided to mention it in the application, i had to check the incident details, where i contacted police stations and offices of ministry of interior, but i could not find any official records for it or even a statement! actually NOTHING.

Now my question is: should i expect a delay for my application ? is this a red flag to mention a detention without records?