B. Section 9 — Arbitrary Detention

AuthorSteve Coughlan - Glen Luther
ProfessionProfessor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan
Pages242-259

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Section 9 jurisprudence has, on the whole, been very late developing. There were several cases in the early days of the Charter that began to develop an understanding of what "arbitrary detention" might mean. However, those cases did not create an overall framework for analyzing a section 9 claim, in the way that frameworks were laid down for other rights, such as those in sections 7 or 8. Some relevant questions seem never to have been explicitly asked, and a number of questions were left deliberately unanswered. Individual cases decided that a particular accused had or had not been arbitrarily detained, but without offering much guidance for future cases.1It is really only with the Supreme Court’s 2009 decision in Grant that a real structure, as opposed to a series of unrelated decisions, has emerged.2

Several factors contributed to the relative neglect of section 9. In part, the relatively limited utility of the section to an accused meant that it was not often argued. The first cases dealing with detention were a trio of vehicle-stop cases: Dedman,3Hufsky,4and Ladouceur.5Aspects of these cases will be dealt with in greater depth below, but the important point to note here is not so much the section 9 analysis as the section 1 analysis. The last of the three, Ladouceur, created a power for any police officer to, in the words of the dissent, "stop any vehicle at any time, in any place, without having any reason to do so."6The Supreme Court did find that any such stop would be an arbitrary detention and would violate section 9; the majority also held, however, that this violation was saved under section 1. Given this start to section 9 jurisprudence, it is not surprising that defence counsel would infrequently find it worthwhile to devote a great deal of time to developing an arbitrary-detention argument.

Further, defence counsel could resort to other Charter-based arguments that were more likely to be fruitful. If a detention was made in accordance with a statutory scheme (for example, dangerous-offender

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legislation),7then a challenge could likely be made based on life, liberty, and security of the person under section 7, or based on cruel and unusual punishment under section 12. If the detention was a more discretionary one, of a vehicle or a pedestrian, then sections 8 or 10 are likely to be relevant. Specifically, if the person was detained and searched, then an argument concerning unreasonable search would likely be made. If the person was detained and made an incriminating statement, then an argument based on the right to be informed of the reason for arrest or the right to counsel would likely be made. A "pure" section 9 claim would probably be necessary only if the person was detained but was not searched and made no statement; in that event, it would actually be unlikely that any useful remedy would flow to the accused even if a violation was made out. As a result, section 9 has tended to be secondary to most analyses - sometimes supporting a claim of a pattern of violations, but not very often significant all on its own.

Nonetheless with Grant, a framework for evaluating section 9 claims has now been created. Given that section 9 protects against arbitrary detention, it is not surprising that the two central issues are: 1) what is a detention; and 2) when is a detention arbitrary?

1) What Is a "Detention"?

A definition of detention was first offered among the very earliest Charter cases. In Therens, the Supreme Court was called upon to decide whether an accused stopped for a breathalyzer demand was entitled to the right to counsel: since section 10(b) says that an accused is entitled to be informed of the right to counsel "on arrest or detention," that amounted to the question whether a breathalyzer stop fell within the meaning of the word "detention." Although it might seem obvious that being required to stay in the company of police for an extended period of time is a detention, the pre-Charter decision Chromiak had concluded that a person who while stopped performed roadside sobriety tests and complied with a demand for a breath sample was not detained.8In Therens, the Court reversed that conclusion, and its reasoning is instructive in a number of regards.

One of the most significant aspects of Therens is its general approach to Charter rights, rather than the particular finding it made about the meaning of detention. It had been argued that in using the word "detention" the drafters of the Charter should be taken to have

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known of and to have relied on pre-Charter cases: in essence, that in using the word "detention" the legislators meant "detention as it was interpreted in Chromiak." The Court rejected this as an approach to interpreting the Charter. The Charter, it held, was "a new affirmation of rights and freedoms and of judicial power and responsibility in relation to their protection" and accordingly had to be interpreted afresh.9In particular, the Court was quite willing to allow the word "detention" to have a broad meaning, in part because any rights based on it were subject to a section 1 analysis.10

A second important point to note is an argument that was rejected as not relevant to interpreting the meaning of detention. Section 10(c) of the Charter guarantees the right "to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful." It had been argued that this demonstrated that the word "detention" was meant to be limited to infringements of liberty of a long enough duration that a challenge by way of habeas corpus was practical. In Therens, however, the Court held that the term "detention" covered a wide variety of situations of varying duration, and the fact that habeas corpus "may not be possible in some cases, because of the limited duration of the detention, is not, in my respectful opinion, a reason for limiting the meaning of the word ‘detention’ to detentions of a certain duration."11Finally, Therens offered an approach to understanding what detention means: not so much a definition as a purposive reading of the purpose of the right. The term appears both in section 9 and in section

  1. Therens was talking about the meaning of the word in the latter context, but the Court did soon thereafter hold that the same definition applied to both sections.12First, the Court noted:

    In its use of the word "detention," s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.13

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    Based on this, the Court distinguished three different situations, all of which would fall within the meaning of "detention." The first was where a person was subject to physical constraint. In those circumstances, similar to an arrest, the person should be seen as detained. Second, a person would also be detained when given an order if there are legal consequences for non-compliance. It is, for example, an of-fence to refuse when a police officer makes a breathalyzer demand, as in Therens. The Court held that it would be inaccurate to describe the person to whom the demand was made as free to refuse to comply. In that event, the person is detained.

    In fact that second category - detention by legal compulsion - was sufficient to settle the issue in Therens. The Court went on, however, to create a third category of detention: psychological detention. It held:

    [I]t is not realistic, as a general rule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizen feels that he or she has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction and therefore an absence of criminal liability for failure to comply with it. Most citizens are not aware of the precise legal limits of police authority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err on the side of caution, assume lawful authority and comply with the demand. The element of psychological compulsion, in the form of a reasonable perception of suspension of freedom of choice, is enough to make the restraint of liberty involuntary. Detention may be effected without the application or threat of application of physical restraint if the person concerned submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist.14The Court conveniently summarized its various conclusions from Therens in the subsequent case Thomsen:

  2. In its use of the word "detention," s. 10 of the Charter is directed to a restraint of liberty other than arrest in which a person may reasonably require the assistance of counsel but might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee.

  3. In addition to the case of deprivation of liberty by physical constraint, there is a detention within s. 10 of the Charter, when a police

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    officer or other agent of the state assumes control over the movement of a person by a demand or direction which may have significant legal consequence and which prevents or impedes access to counsel.

  4. The necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that one does not have a choice as to whether or not to comply.

  5. Section 10 of the Charter applies to a great variety of detentions of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible.15It has...

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