SECTION 9 - NOT EVERY INTERACTION BETWEEN THE POLICE AND MEMBERS OF THE PUBLIC CONSTITUTES A DETENTION

At Mr. Papilion's trial the main investigating officer testified that Warman, Saskatchewan was having problems with vandalism and break and enters into vehicles around the park. The officer decided to pursue a vehicle he saw close to the park, but he did not see it as he turned onto a side street. As he proceeded down the street he came across a parked Ford Explorer with the lights off. He believed it to be the same vehicle he had just seen. As he drove by, he noticed that the driver’s seat was reclined and saw a head “bob” up and down in the driver’s window. The trial judge held that the driver, Mr. Papilion, was arbitrarily detained in violation of his s. 9 Charter rights and all evidence of impairment and of blood alcohol concentration was excluded pursuant to s. 24(2) of the Charter and Mr. Papilion was acquitted. The summary conviction appeal by the Crown was successful and that appeal was upheld by the Saskatchewan Court of Appeal:

The officer did not pull over Mr. Papilion's vehicle, nor did he engage his police lights. In this case the officer pulled in behind a parked car - he did not block the vehicle's exit path. There is no evidence to suggest that a spotlight was placed on Mr. Papilion or that the officer otherwise indicated that Mr. Papilion was specifically under suspicion. Mr. Papilion was not detained at the point that the officer parked his vehicle behind Mr. Papilion's vehicle. The detention took place no earlier than at the point the officer presented himself at the window of the Explorer and began asking questions.  A reasonable person at that point would not have felt that they were free to leave. R v Papilion, 2014 SKCA 45