Is There a Section 9 Violation?

AuthorSteve Coughlan/Alex Gorlewski
110 Police Powers / Investigative Detention
1.2(a) Is There a Section 9 Violation?
Was the subject
No Yes
Is the detention
by law?2
Is the law itself
Is the manner of
detention reasonable?4
No section 9 violation Section 9 violation
From the very early Charter days, the Court has relied on the three-part Col-
lins test to determine whether a police investigative technique constituted an
unreasonable search under section 8. Although it took roughly twenty years,
eventually the Court adopted essentially the same structure in addressing ar-
bitrary detentions under section 9; as a result, this chart is consciously equiva-
lent to Chart 1.1(b)(i), Is There a Section 8 Violation? dealing with section 8.
As a practical matter, however, the dierent history of the two sections has
had an impact. The Court was, for a long time, reluctant to create common
law powers in the search context, instead nding that particular searches were
not authorized by statute and therefore nding a section 8 violation. In deal-
ing with section 9, however, they have tended to take the opposite approach,
readily creating common law powers of detention when faced with police ac-
tion that was not authorized by statute. To reect this point, the boxes around
“is the detention authorized by law,” “is the law itself non-arbitrary,” and “is
the manner of detention reasonable” have been linked. As a practical matter,

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