The Impact of the Charter

AuthorSteve Coughlan/Glen Luther
ProfessionProfessor, Schulich School of Law, Dalhousie University/Associate Professor, College of Law, Saskatchewan
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
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.
We shall discuss sections 9 and 10 in that order.
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-
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].

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