Arbitrary Detention/Imprisonment: s. 9 Canadian Charter of Rights and Freedoms

Section 9 of the Canadian Charter of Rights and Freedoms (“Charter”) provides that “everyone has the right not to be arbitrarily detained or imprisoned. An inquiry under s.9 involves two questions. First, was the claimant detained? Second, was any detention arbitrary? As with other Charter rights, the Supreme Court of Canada has adopted a generous and purposive interpretation of s. 9, one that seeks to balance society’s interest in effective policing with robust protection for constitutional rights.

The purpose of s. 9, broadly stated, is to protect individual liberty against unjustified state interference. This liberty includes an individual’s right to make an informed choice about whether to interact with the police or to simply walk away. If the police have removed an individual’s choice to leave, the individual is detained.

A detention occurs where the individual has been taken in the effective control of the state authorities. At this point, the individual has a genuine need of the additional rights accorded by the Charter to people in that situation. These rights include the right to be informed of the reasons for the detention (s. 10(a) Charter); the right to retain and instruct counsel without delay and to be informed of that right (s. 10(b) Charter); and the right to have the validity of the detention to be determined and to be released if the detention is not lawful (S. 10(c) Charter).

However, not every trivial or insignificant interference with individual liberty attracts Charter scrutiny under s.9. Such a broad interpretation would trivialize the applicable Charter rights and overshoot their purpose.

A detention arises only where the police have suspended an individual’s liberty interest through significant physical or psychological restraint. A psychological detention can arise either if: (1) an individual is legally required to comply with a police direction or demand; or (2) absent actual legal compulsion, the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. This involves an objective determination made in light of the circumstances of an encounter as a whole.

William Poulos, Barrister

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