An Overview of the Rights Under Sections 9 and 10 of the Charter

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 1-21



An Overview of

the Rights Under

Sections 9 and 10

of the Charter

1

I. Introduction ............................................. 2

II. Purposive Interpretation ................................... 5

A. Purpose of Section 9 ................................. 5

B. Purpose of Section 10(a) ............................. 6

C. Purpose of Section 10(b) ............................. 7

D. Purpose of Section 10(c) ............................. 9

III. Meaning of Detention ..................................... 10

IV. Arbitrary Detention Is Unlawful Detention ..................... 12

V. Bringing a Charter Application .............................. 13

A. The Accused Must Establish a Breach by the State ......... 13

B. Considerations When Bringing an Application ............ 16

C. Procedural Requirements for the Application ............. 18

© 2025 Emond Montgomery Publications. All Rights Reserved.

Detention, Arrest, and the Right to Counsel

TABLE .

CHARTER SECTION Everyone has the right not to be arbitrarily detained or

imprisoned.

CHARTER SECTION Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be

informed of that right; and

(c) to have the validity of the detention determined by way

of habeas corpus and to be released if the detention is

not lawful.

I. Introduction

The title of this textbook refers to three topics: detention, arrest, and the right to

counsel. These topics go hand in hand with the rights guaranteed under sections 9

and 10 of the Canadian Charter of Rights and Freedoms.1 Section 9 protects everyone

against arbitrary detention or imprisonment, and section 10 outlines the rights that

arise upon a person’s detention or arrest, including the right to consult with counsel.

This introductory chapter will lay a foundation for the chapters that follow on deten-

tion (Chapters 2-4), arrest (Chapters 5-7), the grounds needed to detain or arrest a

person (Chapter 8), and the rights that are triggered upon detention or arrest (Chap-

ters 9-11).

It is essential that everyone engaged with the criminal justice system understands

the scope and mechanics of the rights under sections 9 and 10 of the Charter. Law

enforcement, lawyers, and the judiciary are all called upon to consider and address

these Charter rights in the course of administering justice. With respect to section 9,

the sovereignty of the individual lies in the balance. Section 9 protects the liberty to

make decisions without unjustified police interference, which is the backbone of a free

society under the rule of law. Relatedly, the societal expectation of eective policing

demands that the police be capable of determining the bounds of their authority in

real time. Stated plainly, the stakes are “undeniably high.”2 And when a person’s

liberty is indeed curtailed by virtue of a detention or arrest, the rights enshrined in

section 10 serve to level the playing field between the superior power of the state

and the inherent vulnerability of a detainee. In particular, the police must inform the

detainee of the reasons for their detention and of their right to consult with counsel.

If the detainee invokes their right to counsel, then the police must facilitate their

1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[the Charter].

2 R v Le, infra note 56 at para 153.

© 2025 Emond Montgomery Publications. All Rights Reserved.