Section 9 - Arbitrary Detention and Imprisonment
SECTION 9 -
EVERYONE HAS THE RIGHT NOT TO BE ARBITRARILY DETAINED OR IMPRISONED.
PURPOSE
The purpose of this provision is to protect individual liberty against unlawful state interference” and to limit the state’s ability to detain citizens without adequate justification because “a person’s liberty is not to be curtailed except in accordance with the principles of fundamental justice” (R v Grant, 2009 SCC 32 at para 54).
DETENTION IN CONTEXT
It is important to remember that detention occurs in a variety of circumstances.
One, individuals can be arrested or detained when the state has reasonable and probable grounds. A lawful arrest based on reasonable and probable grounds will never be arbitrary. In assessing whether this has occurred, there is a subjective and objective aspect. It must be objectively established that those grounds did in fact exist such that “a reasonable person, standing in the shoes of the police officer, would have believed” the grounds existed to make the arrest (Storrey at 250).
Two, individuals can be detained when the state has reasonable grounds to detain following an investigative detention. To do so requires reasonable suspicion; a lower standard than reasonable and probable grounds. Thus, the officers must have reasonable grounds, based on objectively discernable facts, “to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary” (Mann at para 45; R v MacKenzie, 2013 SCC 50 at paras 35, 38). The duration and nature of the investigative detention must be tailored to the investigative purpose and the circumstances (R v McGuffie, 2016 ONCA 365 at para 38). It does not suffice that the police have a hunch based entirely on intuition or a generalized suspicion (R v Chehil, 2013 SCC 49 at paras 30, 47).
Three, individuals can be arrested or detained when the state stops their vehicle. A random vehicle stop is arbitrary where the legislation authorizes absolute discretion on stopping drivers. However, it will be justifiable when it’s undertaken for public safety purposes. For example, stationary check point programs (Hufsky at para 21) and truly random stops (R v Ladouceur, [1990] 1 SCR 1257 at 1285-87).
The Role of Race Relations under section 9
The Supreme Court’s 2019 decision in R v Le provided some clarification on the difference between race and racial profiling; and how it fits within the section 9 analysis. They do so because “[t]he documented history of the relations between police and racialized communities” demonstrates a potential “impact on the perceptions of a reasonable person in the shoes of the accused” (Le, at para 97).
The Honourable Justices Brown and Martin writing for the majority indicated that at the detention stage of the analysis, the Court must ask:
One, in determining whether a detention has occurred race becomes relevant in looking at the circumstances of the accused. The Court should ask how a reasonable person of a similar racial background would perceive the police interactions (Le, at para 75). “Even without direct evidence, the race of the accused remains a relevant consideration under Grant” (Le, at para 106). However, racial profiling has little bearing here because it is focused on the police motivations (Le, at para 79).
Two, in determining arbitrariness, race and racial profiling become more relevant because a detention based on racial profiling is not one based on reasonable suspicion (Le, at para 78).
SECTION 9 ANALYSIS
Overview
The section 9 analysis proceeds in two stages.
First, it must be established that a detention occurred.
Second, if a detention is found, it must then be established that the detention was arbitrary.
The onus of proving an arbitrary detention or imprisonment rests on the individual (R v Hufsky, [1988] 1 SCR 621 at para 12-3).
Detention
STEP 1 - Was there a detention?
The term ‘detention’ has been defined to cover a broad range of circumstances in Canadian caselaw.
The police have not ‘detained’, within the meaning of s 9 “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”” (R v Mann, 2004 SCC 52 at para 19; R v Suberu, 2009 SCC 33 at para 23). Thus, the police are not necessarily detaining a suspect when questioning them in the course of an investigation in order to determine if the suspect is involved in criminal activity (Grant, at para 47; Mann, at para 20).
Rather, to engage the constitutional rights recognized by s 9, a detention requires “a suspension of the individual’s liberty interest” (Grant at para 44) via “significant physical or psychological restraint” by the state (Mann at para 19). This includes “explicit interference with the subject’s liberty by way of physical interreference or express command” along with “any form of “compulsory restraint”” (Grant at para 25).
Thus, detention is divided into two types.
1) A physical detention or losing the volition to move freely.
(2) A psychological detention which manifests either because:
(a) “the subject is legally required to comply with a direction or demand;” or
(b) “where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated.” (R v Therens, [1985] 1 SCR 613 at para 57).
This definition outlines two situations in which psychological constraint amounting to detention manifests.
One, where the subject is legally required to comply. For example, a breath sample.
Two, where there is no legal obligation, but a reasonable person in the subject’s position would feel obligated to comply (Grant at para 30).
The analysis in determining a psychological detention is both objective and subjective. Objective in the sense that it must be determined whether detention occurred objectively with regard to all circumstances with a focus on the state conduct in the context of the legal and factual situation. Subjective in the sense that the individual’s particular circumstances and perceptions at the time may be relevant to assessing both the reasonableness of any perceived power imbalance and the reasonableness of the perception that the subject had no choice but to comply (Grant at para 32).
Therefore, to determine the exact moment the detention crystallized, the Court may consider three factors (Grant at para 44; R v Le, 2019 SCC 34 at para 31).
1. The circumstances giving rise to the encounter as would reasonably be perceived by the individual.
2. The nature of the police conduct.
There are several considerations when assessing the nature of the conduct to determine the time at which an accused has been psychologically detained. This includes “the actions of the police and the language used; the use of physical contact; the place where the interaction occurred and the mode of entry; the presence of others; and the duration of the encounter” (Le at para 43).
3. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; and level of sophistication.
STEP 2 - If there was a detention, was the detention arbitrary?
Arbitrariness in the context of s 9 is a manifestation of the principle in s 7 that a person is not to be deprived their liberty except in accordance with the principles of fundamental justice. It involved conduct that is inconsistent with the law, whether statute or common law, that founds state action (R v Vuozza, 2013 ABCA 130 at para 29-30 citing PHS Community Services Society v Canada (Attorney General), 2011 SCC 44 at paras 129, 132).
The test to determine whether a detention is arbitrary states that a detention will not be arbitrary where it is:
(a) authorized by law,
(b) the authorizing law is not arbitrary, and
(c) the manner in which the detention occurred was reasonable.
(R v Collins, [1987] 1 SCR 265 at para 34)
Should a detention be found unlawful it will always be arbitrary and unjustifiably limit the subject’s s 9 rights (Grant at paras 54-5, 57). Examples of unlawful detention include a law authorizing automatic/indeterminate detention without any standards (Swain at 1012) or a detention undertaken for improper motives (R v Storrey, [1990] 1 SCR 241 at 251-52).
However, should a detention be found lawful, it will not be arbitrary within the meaning of s 9 unless the law that authorizes the detention is itself arbitrary (Grant at para 54; Mann at para 20). Thus, a detention will not be arbitrary where the “standards that are rationally related to the purpose of the power of detention” (Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9 at para 89).
It is important to note that while a detention may initially be arbitrary, that does not render any subsequent lawful detentions arbitrary. The arbitrary detention will end once the police have a reasonable suspicion an individual may have committed an offence and the arbitrary detention will become lawful (Le at paras 133, 280).
If a law authorizing detention is found to be arbitrary, the analysis shifts to section 1 of the Charter.
Note: This post was written by Meghan Chant. Meghan is currently in her third and final year of law school at the University of Windsor. This post was copy-edited by Sara Little.