Any police interaction or stop can only be one of two options:
Police stops, detention (being detained) vs. The right to walk away
If police ask me questions or demand ID, do I have to stay or can I walk away? How do I know?
Detention can be physical (like being put in handcuffs) or psychological (being ordered not to go anywhere). If police block your exit, tell you that you must stay with them, or make you feel that you cannot leave, these might all be situations of detention. Sometimes, it is not clear whether a police stop or interaction is a detention.
THERE ARE ONLY THESE TWO OPTIONS.
If police tell you that they want to “just have a conversation” with you, you are still either free to go or detained.
Police who stop you or ask you questions will not always come right out and tell you whether they are, or are not, detaining you.
The simplest way to find out if a police stop or interaction is a detention is to ask them politely – if you think it is safe for you to do so in the moment. You could say: “Am I being detained?” or “Am I free to go?”
If you did not ask, or did not get an answer, but believe that this is not a detention or that police have no legal right to detain you, you could try to walk away if you think it is safe to do so – but if the police believe that they have detained you and have a reasonable and probable cause to detain you, they could charge you with obstruction. Unfortunately, even if it turns out there was no detention and you did nothing wrong, charges can sometimes stay on a person’s police record for some time. Use your best judgment in each situation.
If police say you are free to go, but you do not feel safe to leave because of what police are doing or other factors in the circumstances (for example, if police tell you that you can leave while holding your ID or blocking your path), there is a possibility that the law might later agree with you that you were in fact being detained.
Police sometimes believe that they can come up to you, talk to you in public, and ask you questions without good reason. If they do not have a legitimate reason to detain you, they might believe that they are “just having a conversation with you” and that this stop or conversation was “voluntary” on your part, and did not count as a detention.
One important court decision seemed to accept the idea that police could talk to people as a form of “neighbourhood policing” and that these conversations might not be recognized as detention. But courts have also recognized the history between police and racialized communities, and recognized that this history may affect whether a racialized person feels detained. In addition to race, courts have also recognized that age (e.g., a young person), physical size (e.g., a person smaller than the police officers), and other factors may be relevant in understanding whether a situation should be recognized as a detention.
And just because police try to speak with you does not mean that you are required to have a conversation with them. Remember: The question of whether you are being detained is different from the question of whether you have to answer questions, give your name or show your ID.
Some courts have also asked whether, when police stop and question someone, the officers should be required to inform the person that they do not have to remain or answer questions.
CCLA and other rights advocates believe that police stops or questioning should count as detention in many situations, especially if the people that police stop or question are young, Black, Indigenous, otherwise racialized, street-involved, or have been stopped other times by police. This matters because if asking for ID, or asking questions, or approaching you counts as a detention, then: police are not allowed to do it without a legitimate reason, and you have more rights.