The Impact of the Charter

• Author: Steve Coughlan/Glen Luther
• Profession: Professor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, Saskatchewan
• Pages: 241-305

241

CHA PTER 5

THE IMPACT OF THE

CHA RTER

A. InTRoduCTIon

It is trite to observe that the Charter has had a d ramatic impact on

crimina l law and procedure. Of course, t hat has been t rue in the are as

of detention and arrest as much as i n other areas. In particular, the

most relevant rights have been those specif‌ied in section 9 and section

10. Section 9 provide s that “[e]veryone has the r ight not to be arbi-[e]veryone has the right not to be arbi-

trarily deta ined or imprisoned.” Section 10 provides that several right s

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 i nstruct counsel without del ay and to be informed of th at

right.”

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

ferent in kind depending on whether one is spe aking of detention or

arrest. In t he case of section 9, Charter caselaw has tended to focus on

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

court decisions dealing with section 9 have more often than not re-

sulted in an expansion of police powers, rather than imposing limits

on them. Section 10 of the Charter, on the other hand, has h ad no sig-

nif‌icant impact on the circumstances in which police (or anyone else)

can or can not ar rest. Rather, the effect of sect ion 10 has been to add

additional obligations on the police when they make an arrest. Those

obligations include both 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.

DETENTION AND AR REST

242

We shall discuss sections 9 and 10 in that order.

B. SECTIon 9 — ARBITR AR y dETEnTIon

Section 9 jurisprudence has, on the whole, been ver y late developing.

There were several cases in the early days of the Charter that began to

develop an understanding of what “arbitrary detention” m ight 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 sect ions 7 or 8. Some relevant questions seem

never to have been explicitly asked, and a number of que stions were

left deliberately unanswered. Individual ca ses decided that a particular

accused had or h ad not been arbitra rily detained, but without offering

much guidance for future cases.1 It is really only w ith the Supreme

Court’s 200 9 deci sion in Grant that a real structure, a s oppos ed to a

series of unrelated decisions, has emerged.2

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

part, the relatively limited utility of the s ection to an accused meant

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

a trio of vehicle-stop cases: Dedman,3 Hufsky,4 and Lado uceur.5 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 three, Ladouce ur, created a power for any

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

time, in any place, without having any reason to do so.”6 The Supreme

Court did f‌ind t hat any such stop would be an arbitrar y detention and

would violate section 9; the majority also held, however, that this viola-

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

dence, it is not surprising that defence counsel would infrequently f‌ind

it worthwhile to devote a great deal of t ime to developing an arbitrar y-

detention argument.

Further, defence counsel could resort to other Charter-based arg u-

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

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

1 See, for example, R. v. Hawkins, [1993] 2 S.C.R. 157 [Hawkins], and R. v. Chais-

son, 2006 SCC 11.

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

3 R. v. Dedman, [1985] 2 S.C.R. 2 [Dedman].

4 R. v. Hufsky, [198 8] 1 S.C.R. 621 [Hufsky].

5 R. v. Ladouceur, [1990] 1 S.C.R. 1257 [Ladouceur].

6 Ibid. at 1264.

The Impact of the Char ter 243

er legislation),7 then a challenge could likely be made based on life,

liberty, and security of the person under section 7, or based on cr uel

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 search would

likely be made. If the person was detained and m ade 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 probably be necessary only if the person was

detained but was not searched and made no statement; in t hat event, it

would actually be unlikely that any useful remedy would f‌low to the ac-

cused even if a violation was made out. As a result, section 9 has tended

to be secondary to most analyses — sometimes supporting a claim of a

pattern of violations, but not very often signif‌ic ant all on its own.

Nonetheless with Grant, a framework for evaluating section 9 cla ims

has now been created. Given th at section 9 protects against arbitrary

detention, it is not surprising that the two central issues are: 1) what is

a detention; and 2) when is a detention arbitrary?

1) What Is a “Detention”?

A def‌inition of detention was f‌irst offered among the very earliest Char-

ter cases. In Therens, the Supreme Court was called upon to decide

whether an accused stopped for a breath alyzer demand wa s entitled to

the right to counsel: since section 10(b) says that an accused is entitled

to be informed of the right to counsel “on arrest or detention,” that

amounted to the question whether a breathalyzer stop fell within the

meaning of the word “detention.” Although it might seem obvious that

being required to stay in t he company of police for an extended period

of time is a detention, the pre-Char ter decision Chromiak had conclud-

ed that a person who while stopped performed roadside sobriety te sts

and complied with a dema nd for a breath sample was not detaine d.8 In

Therens, the Court reversed that conclusion, and its reasoning is i n-

structive in a number of regards.

One of the most signif‌icant aspects of Therens is its general ap-

proach to Charter rights, rather than the particula r f‌inding it made

about the meaning of detention. It had been argued t hat in using the

word “detention” the drafters of the Charter should be taken to have

7 R. v. Lyons, [1987] 2 S.C.R. 309 [Lyons].

8 R. v. Chromiak, [1980] 1 S.C.R. 471 [Chromiak].