Is There a Section 9 Violation?

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 110-115

110 Police Powers / Investigative Detention

1.2(a) Is There a Section 9 Violation?

Was the subject

detained?1

No Yes

Is the detention

authorized

by law?2

Is the law itself

non-arbitrary?3

Is the manner of

detention reasonable?4

No section 9 violationSection 9 violation

Yes

Yes

No

No

No

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,