Arbitrary Detention or Imprisonment

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

Section 9 of the Charter protects your right to be free from arbitrary detention or imprisonment. You can only be detained or imprisoned where reasonable grounds exist.

What is Detention?

Detention is the suspension of a person's liberty through significant physical or psychological restraint (R v Grant , 2009 SCC 32 at 44). Ordinarily, when a person encounters a peace officer, they are free to walk away. When that choice is removed, they are "detained" (Grant at 21). There are three conceptions of "detention":

  • physical detention -- a person being physically restricted from exercising his liberty;
  • legal detention -- a person faces criminal liability for failing to comply with a peace officer's demand (for example, being told to follow a police officer rather than be arrested); and
  • psychological detention -- a person submits to a police officer's authority and/or is deprived of liberty, reasonably believing the choice to do otherwise does not exist.

The following factors may be used to determine if you were psychologically detained (Grant at 44):

  • the circumstances of the encounter, including whether the police were maintaining order and making general inquiries, or specifically targeting you for investigation,

  • the nature of the police conduct, including (but not limited to) the language used, the location, the duration, the presence of others, and whether or not there was any physical contact,

  • the particular characteristics of the person being detained, where relevant, including (but not limited to) age, physical stature, minority status, and level of sophistication

Was the Detention Arbitrary?

Detention that is not authorized by law is arbitrary (Grant at 54). Detention that is based on a reasonable (though ultimately false) suspicion is lawful (Grant at 55, quoting R v Mann, 2004 SCC 52).

A detention will be considered arbitrary if:

  • it is not objectively and reasonably necessary in the context of the investigation,

  • there are no criteria, express or implied, which govern its exercise, or

  • the conduct of the police officers was not authorized by statute and carried out for lawful purposes (Hufskey v R, [1988] 1 SCR 621).

If you think your rights under section 9 have been breached, click here to determine if the breach was unreasonable and unjustified.