Arbitrary detention: what is the point?

• Author: Hatch, Deborah R.
• Position: Criminal Law

The Canadian Charter of Rights and Freedoms provides that "everyone has the right not to be arbitrarily detained or imprisoned." This seems quite straightforward. Why should any person be kept in the custody of the state if there is not a good reason for it? If we delve further into what this right means, however, and how it has been interpreted, we can see that the right protects us not only from being kept in custody without good reason, but also against detention for overly lengthy periods of time without proper cause.

Consider the following scenario: a man was charged with operating a motor vehicle while his ability to do so was impaired by alcohol, refusing to provide a breath sample as required by law, and dangerous driving. He was detained in custody for nine hours after the termination of the investigation. The police officer testified at trial that he would have released the accused person if he or his wife had asked, but since no such request was made, he felt justified in keeping the man overnight. Further, as the accused did not ask for a blanket or mat, the officer did not offer him one, and he was left overnight in a concrete cell without a bunk and wearing little in the way of clothing. The officer did not check on the man's condition before ending his shift six and a half hours later. No reason was documented for keeping the accused in custody.

Consider this as well: the investigating officer contacted the accused's wife because he was concerned that the accused's small dog might become cold if he was left in the vehicle overnight. At trial, the officer testified that if the accused or his wife had asked if the appellant could be released, he might have released him. He did not, however, ask the accused's wife if she wanted to take her husband home or present that as an option. He felt that she would have asked if she had wanted him to be released. In fact, he made it clear to her that the accused would be kept in custody until 8 a.m. having been charged at 11:30 the night prior. The trial judge concluded that the post-investigative detention of the accused was not arbitrary and dismissed the accused's request for Charter relief.

At issue here is whether there is any justification for detaining a person in such circumstances. Parliament has not explicitly stated whether an officer should tell detained persons anything about their rights to release. Parliament has also not explicitly stated whether an officer is obliged to...