Section 9 – Arbitrary detention

Provision

9. Everyone has the right not to be arbitrarily detained or imprisoned.

Similar provisions

A similar provision may be found in paragraph 2(a) of the Canadian Bill of Rights. The following international instruments, which are binding on Canada, include similar provisions: article 9(1) of the International Covenant on Civil and Political Rights; article 37(b) of the UN Convention on the Rights of the Child; and article XXV of the American Declaration of the Rights and Duties of Man (art. XXV).

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: article 9 of the Universal Declaration of Human Rights; articles 7(2) and 7(3) of the American Convention on Human Rights; article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and the 5th and 14th Amendments of the Constitution of the United States of America.

Purpose

The guarantee in section 9 against arbitrary detention or imprisonment “is a manifestation of the general principle, enunciated in section 7, that a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice… Section 9 serves to protect individual liberty against unlawful state interference” (R. v. Grant, [2009] 2 S.C.R. 353 at paragraph 54).

Analysis

Section 9 may be raised to challenge the reasons for detention, the procedures which result in detention being ordered and the character and nature of the detention.

While section 9 can be raised on its own, it is often raised in conjunction with other Charter rights such as those in section 7 (right to liberty / principles of fundamental justice), section 8 (search and seizure), section 10 (rights on arrest or detention) and section 12 (cruel and unusual treatment or punishment). Since the rights in sections 8-14 of the Charter are illustrative of the rights protected by section 7, the procedural safeguards surrounding detention have been considered under section 7 as an aspect of the principles of fundamental justice (R. v. Swain, [1991] 1 S.C.R. 933 at 1008-1013).

Like other Charter rights, section 9 must be applied using a contextual approach (R. v. Jacques, [1996] 3 S.C.R. 312 at paragraph 20).

The individual has the burden of proving that he or she was arbitrarily detained or imprisoned. The analytical framework for determining whether a provision limits section 9 involves two steps: 1) was the individual detained or imprisoned? and 2) was that detention or imprisonment arbitrary? See R. v. Hufsky, [1988] 1 S.C.R. 621 at paragraphs 12-13.

1. Was the individual “detained” or “imprisoned”?

The term “detained” in section 9 has the same meaning as in section 10 of the Charter. The Supreme Court has stated that there is “no reason in principle why the general approach to the meaning of detention reflected in those cases [R. v. Therens, [1985] 1 S.C.R. 613 and R. v. Thomsen, [1988] 1 S.C.R. 640] should not be applied to the meaning of ‘detained’ in section 9” (Hufsky, supra at paragraph 12).

Detention requires some form of physical or psychological restraint by the state. It has been defined as “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (Grant, supra at paragraph 44). See also the discussion of detention in Section 10 – General.

A psychological detention occurs where the subject is legally required to comply with a direction or demand or where, in the absence of such a direction, state conduct would lead a reasonable person to conclude that he or she had no choice but to comply (Grant, supra at paragraphs 30-31, 44). In cases where there is no physical restraint or legal obligation to comply, determining whether a person has been detained may be more challenging. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider factors including the following:

  1. the circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation;
  2. the nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter; and
  3. the particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication (Grant, supra at paragraph 44).

The above analysis involves an objective determination, made in light of the circumstances of the encounter as a whole.

Not every interaction between a police officer and a member of the public is a detention within the meaning of section 9:

[T]he police cannot be said to “detain”, within the meaning of sections 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be “detained” in the sense of “delayed”, or “kept waiting”. But the constitutional rights recognized by sections 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint (R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 19, cited in R. v. Suberu, [2009] 2 S.C.R. 460 at paragraph 23).

Therefore, an investigative detention does not necessarily arise the moment police engage an individual for investigative purposes or ask preliminary questions (Suberu, supra at paragraphs 23-24, 28). When applying the objective test set out in Grant to determine whether the individual has been psychologically detained, the perspective of the reasonable person must be informed by the fact that a bystander is under no legal obligation to comply with a police request for information or assistance. The onus is on the applicant to demonstrate deprivation of liberty in the circumstances (Suberu, supra at paragraphs 22, 28).

A driver is not detained for the purposes of the Charter when he or she is statutorily required to remain at the scene of an accident (R. v. Rowson, 2015 ABCA 354 at paragraph 52, aff’d 2016 SCC 40).

Section 9 of the Charter may have some application to detentions within correctional institutions. Changes in one’s conditions of imprisonment may be sufficiently severe as to be considered a second “detention,” the legality of which is reviewable by habeas corpus. See Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643.

2. Was the detention or imprisonment arbitrary?

Arbitrariness can arise either from the law itself or from the conduct of officials.

An unlawful detention (i.e., detention or imprisonment that is not authorized by statute or common law) is always arbitrary and unjustifiably limits section 9 of the Charter (Grant, supra at paragraphs 54-55, 57). A lawful detention is not arbitrary within the meaning of section 9 (Mann, supra at paragraph 20), “unless the law authorizing the detention is itself arbitrary” (Grant, supra at paragraph 54). Both statute law and common law are subject to Charter scrutiny (R. v. Clayton, [2007] 2 S.C.R. 725 at paragraph 21).

In general, detention is not arbitrary where there are “‘standards that are rationally related to the purpose of the power of detention’” (Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at paragraph 89). The Supreme Court has also stated that the imprisonment of an individual cannot be said to be "arbitrary" where “it is readily apparent that not only is the incarceration statutorily authorized, but that the legislation narrowly defines a class of offenders with respect to whom it may properly be invoked, and prescribes quite specifically the conditions [under which incarceration may take place]” (R. v. Lyons, [1987] 2 S.C.R. 309 at paragraph 62).

Conversely, a law authorizing automatic and indeterminate detention without any standards is arbitrary. A law compelling the automatic detention of individuals on the basis of the danger they present to society will be arbitrary if there are no criteria or standards in place to determine if they are in fact dangerous (Swain, supra at 1012). A law authorizing the random stopping of motor vehicles was found to be arbitrary because it gave police officers an “absolute discretion” in the selection of which drivers to stop: “A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise” (Hufsky, supra at paragraph 13. See also R. v. Ladouceur, [1990] 1 S.C.R. 1257 which cites Hufsky at 1276-1277).

Detention undertaken for improper motives may be held to be arbitrary. Anything in the circumstances of the detention or arrest which would make it suspect on any other ground, such as an arrest made because a police officer was biased towards a person of a different race or nationality, or where there was a personal enmity between a police officer directed towards the person arrested, if established, might have the effect of rendering invalid an otherwise lawful arrest (R. v. Storrey, [1990] 1 S.C.R. 241 at 251-252). “Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest” (Mann, supra at paragraph 35).

The length of the detention following arrest but prior to charge or appearance before a justice, if unreasonable on the facts, will render a detention arbitrary (Storrey, supra; see also Charkaoui, supra at paragraph 91).

The existence or exercise of prosecutorial discretion (in the context of applications for a dangerous offender designation) does not render arbitrary the application of a law authorizing incarceration (Lyons, supra at paragraphs 63-66).

Criminal Code provisions governing bail also cannot be said to be arbitrary where they set out a process with fixed standards that is subject to exacting procedural guarantees and review by a superior court (R. v. Pearson, [1992] 3 S.C.R. 665 at 700; R. v. Morales, [1992] 3 S.C.R. 711 at 741).

An initial arbitrary detention does not render subsequent lawful detentions arbitrary. An arbitrary detention (i.e., detention that is not authorized by law or not Charter-compliant) will end once the police have a reasonable suspicion that an individual may have committed an offence (Rowson (ABCA), supra at paragraph 22).

An otherwise lawful detention conducted by First Nations Constables off-reserve is not arbitrary, where the Constables are conferred by legislation with the powers of police officers in satisfaction of the definition of “peace officers” in paragraph 2(c) of the Criminal Code (R. v. Decorte, [2005] 1 S.C.R. 133).

In relation to the common law, the Supreme Court has stated that “[t]he common law regarding police powers of detention, developed building on R. v. Waterfield, [1963] 3 All E.R. 659 (C.A.), and Dedman v. The Queen, [1985] 2 S.C.R. 2, is consistent with Charter values because it requires the state to justify the interference with liberty based on criteria which focus on whether the interference with liberty is necessary given the extent of the risk and the liberty at stake, and no more intrusive to liberty than reasonably necessary to address the risk” (Clayton, supra at paragraph 21).

3. Detention in specific contexts

(i) Arrest – “Reasonable and probable grounds”

The Criminal Code contains provisions governing arrests with and without a warrant. These provisions require, in order to safeguard the liberty of individuals, that the police have met the required threshold before making an arrest (Storrey, supra at 249).

The standard of “reasonable and probable grounds” has both a subjective and an objective aspect: “It is not sufficient for the police officer to personally believe that he or she has reasonable and probable grounds to make an arrest. Rather, it must be objectively established that those reasonable and probable grounds did in fact exist. That is to say a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest” (Storrey, supra at 250).

A lawful arrest based on reasonable and probable grounds will never be arbitrary (R. v. Latimer, [1997] 1 S.C.R. 217 at paragraphs 22, 26).

The police can continue to investigate a crime subsequent to an arrest (Storrey, supra at 254).

Courts of appeal have held under section 9 that police are to be judged on what they did, not what they could have done: an unlawful arrest cannot be defended on the basis that the person could have been detained under the common law power of investigative detention (R. v. Moore, 2012 BCCA 400; R. v. Whitaker, 2008 BCCA 174 at paragraph 65, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 296; R. v. Charley (1993), 62 O.A.C. 399). 

Note that an arrest which is unlawful makes the search incident to that arrest unlawful and contrary to section 8 of the Charter. See section 8.

(ii) Investigative detention – “Reasonable grounds to detain”

Under the common law, police in Canada have a limited power to detain for investigative purposes. In order to exercise this power, the police must possess “reasonable grounds to detain.” The Supreme Court has stated a preference for the phrase “reasonable grounds to detain” instead of the phrase “articulable cause” that is used in American jurisprudence and can be found in some lower court decisions in Canada (Mann, supra at paragraph 33).

The standard for investigative detention (“reasonable grounds to detain”) is not as high as that required for an arrest (“reasonable and probable grounds to believe” an offence has been committed) (Mann, supra). The standard “reasonable grounds to detain” requires reasonable suspicion:

[P]olice officers may detain an individual for investigative purposes if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary…. [T]the investigative detention should be brief in duration and does not impose an obligation on the detained individual to answer questions posed by the police (Mann, supra at paragraph 45. See also R. v. MacKenzie, [2013] 3 SCR 250 at paragraphs 35, 38).

Reasonable suspicion must be grounded in “objectively discernible facts, which can then be subjected to independent judicial scrutiny” (R. v. Chehil, [2013] 3 SCR 220 at paragraphs 26, 45; MacKenzie, supra at paragraph 41 (stated in relation to sniffer-dog searches and section 8 in both cases)). The assessment of whether the standard has been met should be conducted through the lens of a reasonable person “‘standing in the shoes of the police officer”’ (MacKenzie, supra at paragraph 63). A hunch based entirely on intuition gained by experience cannot suffice for detention (Mann, supra at paragraph 35; R. v. Harrison, [2009] 2 S.C.R. 494 at paragraph 20; Chehil, supra at paragraph 47). In addition, a constellation of factors will not be sufficient to ground reasonable suspicion where it amounts to only a generalized suspicion (Chehil, supra at paragraph 30).

The duration and nature of an investigative detention must be tailored to the investigative purpose of the detention and the circumstances in which the detention occurs (R. v. McGuffie, 2016 ONCA 365 at paragraph 38).

The paragraph 10(b) right to retain and instruct counsel is triggered at the outset of an investigative detention, and the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The Supreme Court has stated that “[t]he immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under section 1 of the Charter” (Suberu, supra at paragraph 2. See also Rowson (ABCA), supra at paragraph 27).

Although they both involve the reasonable suspicion standard, a detention for investigative purposes and a sniffer-dog search must be independently justified. However, where the basis for the detention and the basis for the search are the same, a conclusion that the police had reasonable suspicion sufficient to justify a sniffer-dog search can lead to a conclusion that the police had reasonable grounds to detain for investigative purposes (MacKenzie, supra at paragraphs 36-37).

(iii) Stopping of motor vehicles

The Supreme Court has discussed the random stopping of motor vehicles by the police on several occasions. See Dedman, supra for a pre-Charter discussion of the Ontario R.I.D.E. programme, as it is a case that is referenced in a number of Charter cases. As noted above, random vehicle stops constitute arbitrary detention where the legislation authorizing the practice allows the police an absolute discretion on the selection of which drivers to stop (Hufsky, supra; Ladouceur, supra; R. v. Wilson, [1990] 1 S.C.R. 1291; R. v. Mellenthin, [1992] 3 S.C.R. 615).

Nonetheless, random stops may be capable of being justified under section 1 if undertaken for the purpose of public safety on the highway (where police are checking for driver sobriety, licences, ownership, insurance and mechanical fitness). Both stationary check-point programmes (Hufsky, supra) and truly random stops (Ladouceur, supra) have been upheld under section 1, where conducted to further highway safety.

In serious circumstances, such as those involving threats to public safety from the presence of handguns, police need not confine their actions to a roadside stop of only those vehicles which match information given by informants (Clayton, supra at paragraph 37). An officer’s suspicion that a particular detention is reasonably necessary must, however, be justified based on the “totality of the circumstances” (Clayton, supra at paragraph 30). “The determination will focus on the nature of the situation, including the seriousness of the offence, as well as on the information known to the police about the suspect or the crime, and the extent to which the detention was reasonably responsive or tailored to these circumstances, including its geographic and temporal scope. This means balancing the seriousness of the risk to public or individual safety with the liberty interests of members of the public to determine whether, given the extent of the risk, the nature of the stop is no more intrusive of liberty interests than is reasonably necessary to address the risk” (Clayton, supra at paragraph 31).

Even where an individual is lawfully stopped for a motor vehicle infraction, detention may be unlawful where the manner in which the individual was detained was not reasonably necessary in the circumstances (R. v. Aucoin, [2012] 3 S.C.R. 408 at paragraphs 31-43). The question to be asked is “whether there were other reasonable means” to meet the law enforcement objective (Aucoin, supra at paragraph 39).

(iv) Detention of individuals not criminally responsible on account of mental disorder

A Criminal Code provision requiring the automatic detention of a person found not guilty by reason of insanity was held to unjustifiably limit the liberty interest of the individual under section 7 and section 9. The absence of any standard for determining which individuals should be detained and which should be released was held to unjustifiably limit section 9 (Swain, supra).

Similarly, a provision automatically staying the absolute discharge of a person found not criminally responsible on account of mental disorder pending a Crown appeal of the discharge has been found to unjustifiably limit section 9 (R. v. Kobzar, 2012 ONCA 326, appeal to S.C.C discontinued).

(v) Detention in the administrative context

Routine questioning by customs officials at the border or routine luggage searches conducted on a random basis do not constitute detention (R. v. Simmons, [1988] 2 S.C.R. 495).

However, if an individual is taken out of the normal course and forced to submit to a strip search, that person is detained (Simmons, supra at 521 (stated in relation to section 10 of the Charter)). At the time of the search, the appellant was clearly subject to external restraint. The customs officer had assumed control over her movements by making a demand which had significant legal consequences. The appellant could not refuse to be searched and leave and it was an offence to obstruct or to offer resistance to any personal search authorized by the Customs Act (Simmons, supra).

Detention in the customs context does not require "reasonable and probable grounds". Given the unique nature of border crossings, it is sufficient if an officer has reasonable grounds to suspect a violation of the Customs Act in order to avoid a claim of arbitrariness (Jacques, supra).

A Court of Appeal decision has found that section 9 principles relevant to the border context pertain also to passengers leaving Canada. As such, a person questioned for compliance with Proceeds of Crime (Money Laundering) and Terrorist Financing Act currency reporting requirements was found to be subject to no more than routine screening and was not detained (R. v. Nagle, 2012 BCCA 373, leave to appeal to S.C.C. refused, 2013 CanLII 13627).

The detention of foreign nationals without a warrant on security grounds is not arbitrary. The triggering event for the detention of a foreign national is the signing of a certificate stating that the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. This provides a rational foundation for the detention (Charkaoui, supra at paragraphs 88-89).

However, section 9 encompasses the right to prompt review of detention. The detention of foreign nationals without review until 120 days after judicial determination of the reasonableness of the security certificate was held to limit section 9 and not to be minimally impairing, given that detention review for permanent residents occurred within 48 hours of being detained (Charkaoui, supra at paragraphs 91, 93, 94).

In the context of immigration detention, the Ontario Court of Appeal has stated that if an applicant for habeas corpus can show that his or her immigration detention has been exceptionally lengthy and is of uncertain continued duration, and where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will unjustifiably limit the detainee’s sections 7 and 9 Charter rights and will no longer be legal (Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 at paragraph 81).

Special considerations related to section 1 of the Charter

If a law authorizing detention is found to be arbitrary, the analysis shifts to section 1 of the Charter. There are Supreme Court precedents upholding section 9 violations under section 1: see Hufsky, supra; Ladouceur, supra.

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