The Impact of the Charter

• Author: Steve Coughlan; Glen Luther
• Pages: 277-355

277

CHA PTER 5

THE IMPACT OF

THE

CHARTER

A. INTRODUC TION

It is trite to observe that the Charter has h ad a dramatic impact on crim-

inal law and procedure. Of course, that has been true in t he areas of

detention and arrest as much as in other areas. In particular, the most

relevant rights have been thos e 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 t herefor” and “to re-

tain and inst ruct counsel without delay and to be informed of that right.”

It is interesting to note that the impact of the Charter has been d iffer-

ent in kind depending on whether one is spea king of detention or arrest.

In the case of section 9, Charter ca selaw has tended to focus on whether

a power to detain exists or not. Indeed, rather paradoxically, Supreme

Court decisions deali ng with section 9 have more often than not resulted

in an expansion of police powers, rather than imposing limits on them.

Section 10 of the Charter, on the other hand, has had no signif‌icant im-

pact on the circumstance s in which police (or anyone else) can or can-

not arrest. Rather, the effect of section 10 has been to impose 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 which the accused is entitled to be told.

We shall discuss sections 9 and 10 in that order.

DETENTION AND AR REST278

B. SECTION 9 — ARBITR A RY DETENTION

Section 9 jurisprudence was, on the whole, very late developing. There

were several cases i n the early days of the Charter that bega n to develop

an understanding of what “arbitrary detention” might mean. However,

those cases d id not create an overall framework for analyzing a sec-

tion 9 claim, in the way that frameworks were laid down for other

rights, such as those i n sections 7 or 8. Some relevant questions seem

not to have been explicitly asked, and a number of quest ions were left

deliberately unanswered. Individual cases decided t hat a particular ac-

cused had or had not been arbitra rily detained, but without offering

much guidance for future cases.1 It was only with the Supreme Court’s

2009 decision in Gran t that a real structure, as opposed to a series of

unrelated decisions, emerged.2

The approach that has been adopted parallel s that of section 8 of

the Charter, which deals with un reasonable searches. In sect ion 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 “un-

reasonable” is determined by three questions: was the search author-

ized by law; was t he law itself reasonable; and was the man ner of search

reasonable.3 This three-part test wa s created at a very early stage and is

referred to as the Collins te st.4 Similarly, the overarching questions for

section 9 are whether there is a detention, and if so, whether the deten-

tion is arbitrary ; the latter question is governed by a three-part test th at

consciously p arallels the Collins test: (1) was the detention authorized

by law; (2) was that law non-arbitrary; and (3) did the manner in which

the detention was carr ied out violate section 9. However, there remains

some ambiguity, specif‌ically regarding e xactly how the third step in

that test should be framed.5

Several factors contributed to the relative neglect of section 9. In

part, the relatively limited utility of the section to an accused me ant

that it was not often argued. The f‌irst cas es dealing with detention were

1 See, for example, R v Hawkins, [1993] 2 SCR 157 [Hawkins], a nd R v Chaisson,

2006 SCC 11.

2 R v Grant, 2009 SCC 32 [Grant].

3 See, for example, R v MacDo nald, 2014 SCC 3 at para 29, quoting R v Mann, 20 04

SCC 52.

4 R v Collins, [1987] 1 SCR 265.

5 See the discu ssion in Section B(2), below in this chapter.

The Impact of the Charter 279

a trio of vehicle-stop cases: Dedman,6 Hufsky,7 and Ladou ceur.8 Aspects

of these cases will be dealt with in greater depth below, but the import-

ant point to note here is not so much the section 9 analysis as the sec-

tion 1 analysis. The last of the t hree, Ladouceur, created a power for any

police off‌icer to, in the words of the dissent, “stop any vehicle at any

time, in any place, without havi ng any reason to do so.”9 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 v iola-

tion was saved under section 1. Given this start to section 9 jurispru-

dence, it is not surprising th at defence counsel would infrequently f‌ind

it worthwhile to devote a great deal of time to developing an arbitrar y

detention argument. In essence, if that power could be saved under sec-

tion 1, it seemed unlikely that a successful section 9 argument would

ever lead to a remedy.

Further, defence counsel could resort to other Charter-based a rgu-

ments that were more likely to be fruitful. If a detention was made in

accordance with a statutory scheme (for example, dangerous-offender

legislat ion),10 then a challenge could likely be made based on life, lib-

erty, and security of the person under sect ion 7, or based on cruel and

unusual punishment under section 12. If the detention was a more

discretionar y one, of a vehicle or a pedestrian, then sections 8 or 10

are likely to be relevant. Specif‌ically, if the person was detained and

searched, then an arg ument concerning unreasonable sea rch would

likely be made. If the person wa s detained and made an incri minating

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 necessa ry if the person was detained, but

was not searched and made no statement; in such a c ase it would be

unlikely that the police obta ined any evidence as a result of the section

9 breach, and therefore it would be equally unlikely t hat any useful

remedy would f‌low to the accused if a violation was made out. As a

result, section 9 has tended to be secondary to most analyse s — some-

times supporting a cl aim of a pattern of violations, but not very often

signif‌icant all on its own.

Nonetheless with Grant, a framework for evaluating section 9

claims has now been created. As noted above, the two central is sues

are: (1) what is a detention and (2) when is a detention arbitrary?

6 R v Dedman, [1985] 2 SCR 2 [Dedman].

7 R v Hufsky, [198 8] 1 SCR 621 [Hufsky].

8 R v Ladouce ur, [1990] 1 SCR 1257 [Ladouceur].

9 Ibid at 126 4.

10 R v Lyons, [1987] 2 SCR 309 [Lyon s].