Obligation to Inform a Person of the Reasons for the Detention or Arrest

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 301-317

301

Obligation to

Inform a Person

of the Reasons

forthe Detention

or Arrest

9

I. Introduction ............................................. 302

II. The Obligations on the Police Under Section 10(a)

of the Charter ............................................ 303

A. Informational Requirement ........................... 304

B. Temporal Requirement ............................... 311

C. Change in Jeopardy .................................. 312

D. Ruses ............................................. 314

© 2025 Emond Montgomery Publications. All Rights Reserved.

302Detention, Arrest, and the Right to Counsel

I. Introduction

When a person’s liberty is restrained by a detention or an arrest, the rights enshrined

in section 10 of the Canadian Charter of Rights and Freedoms1 take eect to level the

playing field between the superior power of the state and the inherent vulnerability

of the detained individual. Section 10 imposes two informational obligations that the

police must immediately fulfill upon a person’s detention or arrest. Pursuant to sec-

tion 10(a), the police must inform the person of the reasons for their detention or

arrest. And pursuant to section 10(b), the police must inform the person of their right

to consult with counsel.

The primary purpose of section 10(a) is to ensure that a person is aorded a general

understanding of their jeopardy.2 This purpose is important for two reasons. First,

society cannot expect its citizens to submit to a detention or arrest without knowing

the reasons for the restraint. To hold otherwise would constitute a “gross interfer-

ence” with individual liberty.3 Indeed, it is the immediacy component of section 10(a)

that enables a person to consider the stated reasons for the restraint and decide at

the outset whether to submit to the deprivation of liberty.4 This vital interest oper-

ates independently from the link between sections 10(a) and 10(b). As a result, even

when a person’s right to consult with counsel is suspended in the circumstances—for

example, during road safety stops—the person’s right under section10(a) contin-

ues unabated.5 While it is not operationally feasible to implement rights to counsel

for every driver stopped by the police, drivers can nevertheless expect an ocer to

promptly inform them of the reasons for the stop.6

Second, while section 10(a) does oer independent value to a detainee, it unques-

tionably serves an important purpose of supporting a consultation with counsel under

section 10(b). Compliance with section 10(a) supports section 10(b) because a person

must understand their jeopardy to enjoy a meaningful consultation with counsel.7 The

consulting lawyer must know the reasons for the detention or arrest to tailor their

advice to the needs of the situation. Section 10(a) plays a particularly important role

when the police seek to interrogate a person following their arrest. In addition to

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

[the Charter].

2 R v Smith, [1991] 1 SCR 714 at 728, 1991 CanLII 91.

3 R v Latimer, infra note 34 at para 28.

4 R v Kelly, 17 CCC (3d) 419 at 424, 1985 CanLII 3483 (ONCA).

5 R v Kumarasamy, infra note 42 at paras 41, 42.

6 R v Orbanski; R v Elias, 2005 SCC 37 at para 31.

7 R v Evans, infra note 36 at 888; R v Gonzales, infra note 77 at para 124.

© 2025 Emond Montgomery Publications. All Rights Reserved.