The Impact of the Charter

• Author: Steve Coughlan/Glen Luther
• Profession: Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, University of Saskatchewan
• Pages: 296-391

296

CHA PTER 5

THE IMPACT

OF THE

CHARTER

A. INTRODUC TION

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.

B. SECTION 9 — A RBITR ARY DETENTION

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,

2006 SCC 11.

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].

DETENTION AND AR REST298

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].