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

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CHAPTER 5

THE IMPACT OF THE

CHARTER

A. InTRoduCTIon

It is trite to observe that the Charter 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 arbi-[e]veryone has the right not to be arbi-

trarily 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 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 had no sig-

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

can or cannot arrest. Rather, the effect of section 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

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We shall discuss sections 9 and 10 in that order.

B. SECTIon 9 — ARBITRARy dETEnTIon

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

There were several cases in the early days of the Charterthat 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 sections 7 or 8. Some relevant questions seem

never 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 offering

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

Court’s 2009 decision in Grant that a real structure, as opposed 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 section to an accused meant

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

a trio of vehicle-stop cases: Dedman,3Hufsky,4 and Ladouceur.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, 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 having any reason to do so.”6 The Supreme

Court did f‌ind that 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 time to developing an arbitrar y-

detention argument.

Further, defence counsel could resort to other Charter-based argu-

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 ter243

er legislation),7then 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

discretionary 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 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 probably be necessary only if the person was

detained but was not searched and made no statement; in that 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 signif‌icant all on its own.

Nonetheless with Grant, a framework for evaluating section 9 claims

has now been created. Given that 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 breathalyzer demand was 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 the company of police for an extended period

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

ed that a person who while stopped performed roadside sobriety tests

and complied with a demand for a breath sample was notdetained.8 In

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

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 particular f‌inding it made

about the meaning of detention. It had been argued that 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].