D. Rights on Detention and Arrest

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

Page 300

Section 10 of the Charter confers certain specific rights that apply upon arrest or detention. As noted above, "detention" has been given a broad interpretation so that the rights conferred under this section may be invoked in circumstances well short of incarceration. Section 10 provides as follows:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Page 301

1) Right to Be Informed of the Reasons for Arrest or Detention

Under our system of criminal justice, police powers are limited by law, and before the police interfere with the liberty of an individual, they must be able to justify their actions. Arrest and detention represent a serious interference with personal liberty, and it is a basic right of the individual arrested or detained to know the reason. Requiring the authorities to state promptly the reasons for an arrest or detention permits the person arrested or detained to assess the situation and to decide upon an appropriate response, including submitting to the arrest, seeking counsel, and responding to police questions.

The right to be advised of the reasons arises upon arrest, but it may arise again if the reason for the arrest changes. For example, in R v Borden,112the accused was told that he had been arrested for one sexual assault that did not involve intercourse; on this occasion, he agreed to provide a blood sample. He was not told that the police wanted the sample in relation to another sexual assault of which he was also suspected. The Supreme Court held that the accused’s section 10(a) right to be informed of the reason for his detention had been violated. Similarly, in R v Black,113the accused was arrested for attempted murder. The victim died while she was in custody. The accused was told that she was now charged with murder, but she was not told again of her right to counsel under section 10(b). The Court held that sections 10(a) and (b) required that the police fully advise her of rights again when the reason for the arrest changed. On the other hand, in R v Evans,114the Court held that, although the police did not specifically inform an individual arrested on a drug charge that he was also suspected of two murders, it was clear to the accused from the nature of the questions being asked that he was being held for the murders as well. In R v Mann,115the Supreme Court indicated that a person subject to investigative detention should be "advised, in clear and simple language, of the reasons for the detention." At the same time, however, the Court expressed concerns that reading a person subject to brief investigative detention his or her rights to retain and instruct counsel under section 10(b) "cannot be

Page 302

transformed into an excuse for prolonging, unduly and artificially" investigative detentions that should be brief.116

2) Right to Retain and Instruct Counsel and to Be Informed of That Right

The courts have been vigilant in upholding the right to counsel. The rationale for this right is the need to ensure that everyone who is detained has the opportunity to learn immediately of his or her rights and obligations under the law. An individual in police custody is in a vulnerable situation and is entitled to the assistance of someone knowledgeable in the law and independent of the state:

[W]hen an individual is detained by state authorities, he or she is put in a position of disadvantage...

To continue reading