C. Arbitrary Detention and Imprisonment

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 297

Section 9 of the Charter guarantees:

Everyone has the right not to be arbitrarily detained or imprisoned.

The meaning of "detention," a term crucial to both sections 9 and 10, was first considered in the context of section 10. In R v Therens,95an impaired-driving case, the issue of the accused’s right to retain and instruct counsel depended upon whether he was "detained" within the meaning of section 10 when asked to go to the police station to give a breath sample. Rejecting the notion of detention as limited to instances of physical constraint, the Supreme Court instead defined the term as including any occasion when a police officer, by some form of compulsion or coercion, "assumes control over the movement of a person by a demand or direction which may have significant legal consequence."96

The Court found that, even where the individual was not subjected to physical force or to a legally enforceable demand, "psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice"97could result in detention within the meaning of the Charter. The Supreme Court has subsequently indicated that "the constitutional rights recognized by sections 9 and 10 of the Charter are not engaged by delays that involve no significant or psychological restraint."98The Court has thus avoided the extremes of detention being limited to physical constraint or expanded to include fleeting delays or interferences, and has held that there is detention under sections 9 and 10 whenever there is significant physical or psychological restraint.99By its very terms, the right that section 9 secures is relative. There are clearly situations where the authorities must have the power to detain or imprison individuals, and the Charter right is engaged only

Page 298

where denial of freedom is arbitrary. Yet the Supreme Court has interpreted "arbitrarily" in a manner that favours individual liberty. The Court has recognized the danger posed by giving the police unfettered discretion to detain. There must be some objective standard, defined by the law, governing the power. R v Hufsky,100and R v Ladouceur101dealt with provincial legislation authorizing random "spot checks" for impaired drivers. The Court found that stopping a motorist amounted to a detention under section 9 and that such a detention was arbitrary. The selection of which cars would be stopped was at the absolute discretion of the individual officer, and when establishing the program, the authorities had failed to provide any criteria for the exercise of this discretion, leaving it subject to the whim of each officer. The Court went on to consider whether a random stop of a driver could be justified under section 1. In view of the importance of highway safety and the deterrent function served by these stops, legislation authorizing random spot checks was found to be a reasonable limit on the right conferred by section 9. In a later decision,102the Court limited the powers of the police conducting random spot checks under this legislation. In the absence of reasonable and probable grounds for a more intrusive investigation, questioning by the police, when acting under...

To continue reading