Foreword

• Author: Mahmud Jamal
• Profession: Justice Supreme Court of Canada
• Pages: 21-22

xxi

Foreword

The constitutional protections against arbitrary detention or imprisonment under

section 9 of the Canadian Charter of Rights and Freedoms1 and the right to counsel

undersection 10 are among the most important legal rights of individuals in the crim-

inal justice system. As the Honourable Justice Davin Michael Garg and Mr Anil Kapoor

observe in their important new work, Detention, Arrest, and the Right to Counsel, “[i]t

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 enforce-

ment, lawyers, and the judiciary will be called upon to consider and address these

Charter rights in the course of administering justice.”2

The courts have recognized that sections 9 and 10 of the Charter establish essential

ground rules for the interactions between individuals and the police. The purpose of

the right to be free from arbitrary detention or imprisonment is, broadly speaking, “to

protect individual liberty from unjustified state interference,”3 based on the principle

that it is “inherent to a free society founded upon the rule of law ‘ … [that] government

cannot interfere with individual liberty absent lawful authority to the contrary.’”4 This

right seeks to balance society’s interest in eective policing with the strong protection

of constitutional rights.5 Similarly, the right to counsel has been called “a lifeline for

detained persons” through which they can obtain “not only legal advice and guidance

about the procedures to which they will be subjected, but also the sense that they are

not entirely at the mercy of the police while detained.”6

Detention, Arrest, and the Right to Counsel is a most welcome addition to the literature

on these foundational constitutional rights. Written in plain language and containing

1

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

[the Charter].

2 See Chapter 1.

3 RvGrant, 2009 SCC 32 at para 20, McLachlin CJ and Charron J; see also RvLe, 2019 SCC

34 at para 152.

4 Le, ibid, Brown and Martin JJ, citing J Stribopoulos, “The Forgotten Right: Section 9 of the

Charter, Its Purpose and Meaning”(2008) 40SCLR(2d) 211 at 231.

5 R v Suberu, 2009 SCC 33 at para 24; Grant, supra note 3 at paras 15-18, 23.

6 R v Rover, 2018 ONCA 745 at para 45, Doherty JA.

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