The Impact of the Charter

AuthorSteve Coughlan/Glen Luther
ProfessionProfessor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, University of Saskatchewan
It is trite to observe that the Canadian Charter of Rights and Freedoms1 has
had a dramatic impact on criminal law and procedure. Of course, that
has been true in the areas of detention and arrest as much as in other
areas. In particular, the most relevant rights have been those specif‌ied
in section 9 and section 10. Section 9 provides that “[e]veryone has the
right not to be arbitrarily detained or imprisoned.” Section 10 provides
that several rights arise when a person is either arrested or detained, the
most important of which are “to be informed promptly of the reasons
therefor” and “to retain and instruct counsel without delay and to be
informed of that right.”
It is interesting to note that the impact of the Charter has been dif-
ferent in kind depending on whether one is speaking of detention or
arrest. In the case of section 9, Charter caselaw has tended to focus on
whether or not a power to detain exists. Indeed, rather paradoxically,
Supreme Court decisions dealing with section 9 have more often than
not resulted in an expansion of police powers rather than imposing lim-
its on them. Section 10 of the Charter, on the other hand, has had no
signif‌icant impact on the circumstances in which police (or anyone else)
can or cannot arrest. Rather, the eect of section 10 has been to impose
1 Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, c 11 [Charter].
The Impact of the Charter 297
additional obligations on the police when they make an arrest. Those
obligations include rights the police must extend to the accused at the
time of the arrest as well as information the accused is entitled to be told.
We will discuss sections 9 and 10 in that order.
Section 9 jurisprudence was, on the whole, very late developing. There
were several cases in the early days of the Charter that began to develop
an understanding of what “arbitrary detention” might mean. However,
those cases did not create an overall framework for analyzing a section 9
claim, in the way that frameworks were laid down for other rights, such
as those in section 7 or 8. Some relevant questions seem not to have
been explicitly asked, and a number of questions were left deliberately
unanswered. Individual cases decided that a particular accused had or
had not been arbitrarily detained, but without oering much guidance
for future cases.2 It was only with the Supreme Court’s 2009 decision in
R v Grant that a real structure, as opposed to a series of unrelated deci-
sions, began to emerge, and only with the 2019 decision in R v Le that
it was fully articulated.3
The approach that has been adopted parallels that of section 8 of the
Charter, which deals with unreasonable searches. In section 8, the initial
question is whether there was a search at all and, if so, whether that
search was unreasonable. The issue of whether a search is “unreasonable”
is determined by three questions: was the search authorized by law, was
the law itself reasonable, and was the manner of search reasonable?4
This three-part test was created at a very early stage and is referred to as
the Collins test.5 After several decades of individual arbitrary detention
cases, in Le, the Court fully established a parallel approach for section 9:
Where a detention is established, a court must consider whether the
detention is arbitrary. This Court’s decision in Grant provides guidance
(at paras. 54-56), drawing from the three-part test stated in R. v. Collins,
[1987] 1 S.C.R. 265, for assessing unreasonable searches and seizures
under s. 8. Specif‌ically, the detention must be authorized by law; the
2 See, for example, R v Hawkins, [1993] 2 SCR 157 [Hawkins], and R v Chaisson,
3 R v Grant, 2009SCC32 [Grant], and R v Le, 2019 SCC 34 [Le].
4 See, for example, R v MacDonald, 2014 SCC 3 at para 29, quoting R v Mann, 2004
SCC 52 [Mann].
5 R v Collins, [1987] 1 SCR 265 [Collins].
authorizing law itself must not be arbitrary; and, the manner in which
the detention is carried out must be reasonable.6
Although both rights are now governed by similar approaches, it is
noteworthy that the search-related right was consciously developed by
the Court, while the detention-related right developed more by happen-
stance than by design. Several factors might explain this relative neglect
of section 9. In part, the relatively limited utility of the section to an
accused meant that it was not often argued. The f‌irst cases dealing with
detention were a trio of vehicle-stop cases: R v Dedman,7 R v Hufsky,8 and
R v Ladouceur.9 Aspects of these cases will be dealt with in greater depth
below, but the important point to note here is not so much the section9
analysis as the section 1 analysis. The last of the three, Ladouceur, cre-
ated a power for any police ocer to, in the words of the dissent, “stop
any vehicle at any time, in any place, without having any reason to do
so.” 10 The Supreme Court found that any such stop would be an arbitrary
detention and would violate section 9; the majority also held, however,
that this violation was saved under section 1. Given this start to section
9 jurisprudence, it is not surprising that defence counsel would infre-
quently f‌ind it worthwhile to devote a great deal of time to developing
an arbitrary detention argument. In essence, if that power could be saved
under section 1, it seemed unlikely that a successful section 9 argument
would ever lead to a remedy.
Furthermore, defence counsel could resort to other Charter-based
arguments that were more likely to be fruitful. If a detention was made
in accordance with a statutory scheme (for example, dangerous-oender
legislation),11 then a challenge could likely be made based on life, liberty,
and security of the person under section 7 or based on cruel and unusual
punishment under section 12. If the detention was a more discretion-
ary one, of a vehicle or a pedestrian, then section 8 or 10 is likely to
be relevant. Specif‌ically, if the person was detained and searched, then
an argument concerning unreasonable search would likely be made. If
the person was detained and made an incriminating statement, then an
argument based on the right to be informed of the reason for arrest or the
right to counsel would likely be made. A “pure” section 9 claim would
only be necessary if the person was detained but was not searched and
made no statement; in such a case, it would be unlikely that the police
6 Le, above note 3 at para 124.
7 [1985] 2 SCR 2 [Dedman].
8 [1988] 1 SCR 621 [Hufsky].
9 [1990] 1 SCR 1257 [Ladouceur].
10 Ibid at 1264.
11 R v Lyons, [1987] 2 SCR 309 [Lyons].

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