Arrest & detention

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ARREST & DETENTION Charter, s. 9: right not to be arbitrarily detained or imprisoned

Charter, s. 10: rights upon arrest or detention

Defined (Therens, as articulated in (R v Grant): “Detention for Charter purposes occurs when a state agent, by way of physical or psychological restraint, takes away an individual’s choice simply to walk away”; “A person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist”. (Where choice to proceed on his way is removed by physical or psychological compulsion, there is a detention).

Defined (R v Whitfield): “Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer.”

Purpose of s. 9, Charter (R v Grant):

  • To protect individual liberty from unjustified state interference (*autonomy)

  • Charter rights are not engaged by delays that involve no significant physical or psychological restraint.

Policy: concerned with power between the state and the person under its control. Person who is detained should retain an informed and effective choice whether to speak to authorities, consistent w/ overarching principle against self-incrimination.

Objective determination of whether free to go or had to cooperate (R v Grant)

Psychological constraints recognized by court as amounting to detention (R v Grant)

  • Where subject is legally required to comply w/ a direction or demand (ie. roadside breath sample)

  • Where no legal obligation to comply w/ restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated

Therens Test: Factors to consider in whether individual has been “deprived of choice” in a case where there is no physical restraint and no legal obligation: (R v Grant)

  • Circumstances giving rise to the encounter as 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 focused investigation

  • Nature of the police conduct (language, use of physical contact, place where interaction occurred, presence of others and duration of encounter)

  • Particular characteristics or circumstances of the individual where relevant (age, physical statute, minority status, level of sophistication)

Detention (and arrest) triggers subsidiary rights (R v Grant):

  • Charter, s. 10(a) – right to be informed of the reasons therefor

  • Charter, s. 10(b) – right to retain and instruct counsel without delay and to be advised of that right

  • Charter, s. 10(c) – guarantees right to test the lawfulness of arrest or detention by way of habeas corpus

Can lawfully resist arrest when arrest itself is unlawful; risky! (R v Biron)
Articulable Cause: Detention requires “articulable cause”: “objectively discernable facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigations.” (R v Simpson, p. 368)

>> articulable cause is a lower threshold than reasonable and probable grounds req’d for arrest (R v Mann)

>> “articulable cause” AKA reasonable grounds to detain (R v Mann)
Was detention reasonable? Look at totality of circumstances underlying police officer’s reasons for detention of individual (R v Mann) Factors from R v Clayton:

  • Nature of the situation, how serious the offence is, what info is known to PO about suspect or crime? Extent to which detention was reasonably responsive/tailored to circumstances, include geographic and temporal scope

Law / Arbitrariness: a lawful detention is not arbitrary within the meaning of s.9 unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s.9 (R v Mann)

Ie. For detention to be non-arbitrary, it must be authorized by a law which is itself non-arbitrary (R v Grant)

Arbitrariness... look for criteria that govern its exercise or has it been authorized?

Modified Grant test for detention:

  1. Does the search have legislative authority (framework)?

  2. Was the law reasonable (charter violation?)?

  3. Was the search/detention conducted in a reasonable manner?

Note: onus on accused to show violation of one of the 2 elements (balance of probabilities)

>> Once potential problem established, onus shifts to gov’t to establish that it was reasonable

Investigative Detention: A brief investigative detention based on reasonable suspicion is lawful, implying that a detention in the absence of at least a reasonable suspicion is unlawful (therefore arbitrary per s.9) (R v Mann) [Common law]

>> Reasonable suspicion based on objective view of totality of circumstances *connection w/ ongoing crime (Mann)

  • Investigative detention triggers s. 10 Charter rights (R v Suberu) ie. obligation to inform detainee of rights “without delay”

  • Search incidental to power of investigative detention is necessarily a warrantless search where Crown has burden of proof to show reasonableness (R v Mann)

  • Where police believe crime has recently been committed, the police may engage in preliminary questioning of bystanders w/o giving rise to a detention under s.9 / 10 of Charter (R v Suberu)

  • Protective pat-down when police believe safety at risk (R v Mann)

Waterfield test (as articulated in R v Mann) recognizes power of search incidental to investigative detention at common law

  1. Police powers are recognized as deriving from the nature and scope of police duties? At common law, the preservation of the peace, prevention of crime, and protection of life & property *public good

  2. Balance between competing interests of the police duty and the liberty interest at stake: was the conduct involved an unjustified use of power associated w/ the duty? *extent that interference w/ rights is necessary to carry out police duty?

Crown must prove that admission of evidence would not bring admin of justice into disrepute, in order to rely on evidence found in a search or seizure grounded in the common law power of search incidental to investigative detention… Buhay Test…

Buhay Test as articulated in (R v Mann): whether admission of evidence would bring admin of justice into disrepute:

  1. Fairness of the trail (nature of evidence, nature of right violated)

  2. Seriousness of the breach (good or bad faith, obtrusiveness of the search, expectation of privacy, existence of reasonable grounds)

  3. Whether exclusion of evidence would adversely affect the admin of justice (*social impacts of precedent? Policy considerations?)

S. 9 might be limited under s.1 as measures prescribed by law as can be demonstrably justified in a free and democratic society (R v Hufsky, p. 364).

Example: narrow majority in Ladouceur upheld constitutionality of traffic stops w/o justification pursuant to s.1 as the sweeping powers were req’d to respond to risks of unsafe driving.

R v Grant

18-yr old; stopped by police near school; had a gun + marijuana

Met objective test of detention; Court found that it was an arbitrary detention. Officers acknowledged no legal grounds / reasonable suspicion to detain the accused prior to his incriminating statements. “Hunch” insufficient

No info that Grant involved in criminal activity

Moment of detention was when he was told to keep hands in front of him

R v Mann

Man searched who matched description of a break-and-enter

Detention – reasonable grounds (matched description; close to crime). Note: high crime nature of a neighborhood is not by itself a basis for detaining individuals

Search – reasonable grounds (possibility of possession of break-and-enter weapons) for protective pat-down search. NOT reasonable to proceed beyond a pat down, invading privacy by searching soft pocket contents

>> seizure of marijuana was unlawful; evidence must accordingly be considered under s. 24(2) of the Charter

R v Peck

Black 20-something male walking down alley known for drugs

No reasonable grounds to suspect he was implicated in criminal activity; arbitrarily detained/searched by police who found cocaine/cash >> evidence inadmissible (would disrepute admin of justice). S. 8, 9, 10 breaches

R v Clayton

Gun complaint outside club

Reasonable detention acting in course of duty to investigate and prevent crime (given 911 complaint); reasonable search (safety concerns due to nature of “gun complaint”); no Charter breaches

CC, s. 25 – Protection of Persons Administering and Enforcing the Law

  • To be used as a shield, not a sword (Laskin dissent, R v Biron)

CC, s. 494 – Citizens’ arrest powers; R v Chen – Limits on s. 494:

    • Any statutorily sanctioned conduct permitting force/restraint must use least invasive force necessary

    • S. 25 confirms: “as much force as is necessary”, not to be misconstrued as a license for excessive force

- Amendment to CC in response to Chen: Citizen’s arrest section: within a “reasonable time after the offence is committed” and only if person making arrest believes it is not feasible in the circumstances for a peace officer to make the arrest.
CC, s. 495 – Police arrest powers
Power to arrest without a warrant, as construed from s. 450(1)(b) is given where the peace officer himself finds a situation in which a person is apparently committing an offence. Ie. Subsequent acquittal of the accused for the charge which caused arrest does not deem the arrest to have been unlawful (R v Biron)


SEARCH & SEIZURE Charter, s. 8: right to be secure against unreasonable search and seizure

Policy: balancing reasonable expectation of privacy (dignity, integrity, autonomy) vs. gov’t interest in effective law enforcement.

General principle that a person’s liberty is not to be interfered w/ unless in accordance with principles of fundamental justice (Grant)

Collins Test: Crown bears burden of demonstrating on a balance of probabilities that warrantless search was reasonable (ie. warrantless search is presumptively unreasonable). As articulated in R v Golden: A search will be reasonable within the meaning of s. 8, Charter where:

  1. It is authorized by law,

  2. The law itself is reasonable, and

Balance individual`s rights (privacy) with gov’t interests (protecting public safety and enforcing the law) R v Hunter

  1. When should balance of interests be assessed?

  2. Who must grant the authorization (Hunter: Judge or other neutral and impartial party capable of acting judicially)

  3. On what criteria should balance of interests be assessed?

  1. The search was conducted in a reasonable manner

If any of these criteria is answered in the negative, there has been a violation of s. 8, Charter, and it will be necessary to consider whether the evidence obtained as a result of the search should be excluded pursuant to s. 24(2), Charter.

There must be a reasonable expectation of privacy in order for a “search” to have occurred per s.8 of the Charter (R v MRM)

Edwards Test (as articulated in R v Patrick): The totality of circumstances must be considered in assessing the reasonableness of a claimed privacy interest:

  1. Did the appellant have a reasonable expectation of privacy?

>> Nature of subject matter gathered, direct interest? Subjective expectation of privacy? Objectively reasonable expectation of privacy? Where did search occur? Was the info content in public view? Was the info content abandoned? Was such info already in hands of 3rd parties? Was it subject to an obligation of confidentiality? Was police technique intrusive? Was use of evidence technique objectively unreasonable? Did info expose any intimate details of appellant?

  1. If there was a reasonable expectation of privacy, was it violated by police conduct?

  2. Was the appellant’s expectation of privacy objectively reasonable?

Protection of Reasonable Expectation of Privacy (Hunter)

  • Prior authorization

  • Reasonable probable grounds for search

  • Search conducted reasonably and within scope of warrant.

No requirements if there is no reasonable expectation of privacy (R v Patrick)

Edwards on People/Places (as cited in R v Hornick):

1. Relief under s. 24(2) only available to a person whose Charter rights infringed

2. All Charter rights (including s.8) protect people not places

3. Accused must establish that personal right to privacy was violated

4. 2 distinct inquiries: reasonable expectation of privacy and whether the search conducted was unreasonable

5. Reasonable expectation of privacy in totality of the circumstances…

a. Presence at time of search

b. Possession or control of the property or place searched

c. Ownership of the property or lace

d. Historical use of the property or item

e. The ability to regulate access

f. Existence of a subjective expectation of privacy

g. Objective reasonableness of the expectation

ALSO: Seriousness of crime (in Hornick, not a CC violation; was a Liquor Act offence)

Warrant provisions, s.487 CC – versus s.8 Charter >> Searches by police may be undertaken w/ authority of a warrant, issued by a judge under s.487 CC or through some other legislation providing a warrant or warrant-like process

Warrantless searches >> may be authorized by legislation or common law rule

  • Search incident to a valid arrest (common law)

>> must relate to rasons for the arrest; arrest and detention must both be valid (R v Golden)

  • Search powers incident to investigative detention (R v Mann)

  • where person has reliably consented (Crown must prove consent on balance of probabilities) (common law) (R v Young, p. 413)

  • Plain view doctrine” recognized by common law: permits warrantless seizure where officer is lawfully on premises and article is immediately obvious (R v Mellenthin, p. 413)

  • Common law power to enter premises and stop vehicles w/o warrants in response to 911 calls and to uphold public safety on roads (R v Hufsky, p. 413)

  • By school officials of a student (not presumed unreasonable) where: reasonable grounds to believe school rule has/is being violated and that evidence will be found in location or on student (R v MRM)

Strip Searches = “removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely genitals, buttocks, breasts (in the case of a female) or undergarments.” (R v Golden)

Pat-down is less intrusive; body cavity search is more intrusive (R v Golden)

“The more intrusive the search, the greater the degree of justification and constitutional protection that is appropriate” (R v Golden)

In order to justify a strip search incident to arrest (R v Golden):

  1. Necessary that arrest itself be lawful (reasonable and probable grounds)

  2. Search must be incident to arrest (related to reasons for arrest itself)

  • To search for evidence (reasonably assessing risk of disposal)

  • To search for weapons (safety concerns); generally a pat-down will suffice

  • “Routine strip search” violates s.8 Charter w/o compelling reasons

  • Crown bears burden to prove reasonable and probably grounds on a balance of probabilities (considered prima facie unreasonable)

Framework of how best to conduct a strip search incident to arrest  s.8 Charter:

R v Golden

  1. Can search be conducted at police station? Why / why not? Conducted in manner to ensure health/safety of involved (strip searches in the field are a greater privacy invasion; must prove urgency/necessity)

  2. Will it be authorized by a PO acting in a supervisor capacity?

  3. PO’s same gender as individual being searched?

  4. # of PO’s involved in search are no more than necessary

  5. Minimum force necessary to conduct the strip search

  6. Carried out in a private area

  7. Conducted as quickly as possible; ensure that person is not completely undressed at any one time

  8. Only visual inspection of arrestee’s genital/anal areas w/o contact?

  9. If visual inspection reveals presence in body cavity (not including mouth), give option of removing object himself or having object removed by a trained medical professional

  10. Keep record of reasons for manner search was conducted

Charter, s. 24(1): “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”. Ie. Stay of proceedings (R v SF)

Charter, s. 24(2): exclusion of evidence obtained where Charter rights violated.

“Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” (R v Gogol)

“Crown cannot rely on ex post facto justifications” (R v Gogol)

  • Maintaining integrity of and public confidence in the justice system (R v Grant)

  • Long-term effects (rather than immediate reaction to individual case) of admitting evidence ** systemic concerns

  • Objective inquiry (what would reasonable person conclude re: admission of evidence)

  • To ensure evidence obtained through breach does no further damage

R v Grants 24(2) Exclusion of Evidence Analysis (see also Buhay test above)

  1. Seriousness of Charter-infringing state conduct

  2. Impact of the breach on the Charter-protected interests of the accused

  3. Society’s interest in the adjudication of the case on its merits

Social impacts of precedent? Policy considerations


R v Patrick

police inspection of garbage

Act of abandonment (threw garbage away) occurred prior to police intervention; no reasonable expectation of privacy; did not constitute a S&S within the scope of s. 8; evidence was properly admissible


Hunter v Southam

S&S investigation for Combines Investigation Act violation

ex parte application” = “from one party”; decided w/o presence of all parties to the controversy

Authorization for search: must be reasonable and probable grounds to believe that an offence has been committed and there is evidence to be found (not that there may be evidence)

Relevant section of Combines Investigation Act overtly inconsistent w/ s.8 Charter and of no force and effect (b/c authorization only required “belief that there may be evidence”

R v Grant

Narcotic Control Act: warrantless search of places except dwelling houses where reasonable grounds to believe a narcotic would be found

Violated s.8 for failure to require “prior authorization”. Rather than strike down s.10 of Act, Court “read it down” so that the power was only available in “exigent circumstances” where seeking a warrant is impractical (imminent danger of the loss, destruction, or removal of evidence)

R v Simmons

Customs Act provisions authorized customs agents, on a “reasonable suspicion” to search travellers

Survived a s. 8 scrutiny, b/c border searches engage a lesser expectation of privacy and relate to a heightened state interest of protecting borders.

R v Fieldhouse

BC statute requiring prisoners to urinate under surveillance and face disciplinary sanctions for refusal

Court found did NOT violate s.8 b/c prisoners have a lesser expectation of privacy and the state interest in maintaining order is compelling.



school search of student w/ marijuana

Higher expectation of privacy with respect to a “body” than with a “locker”

Lower expectation of privacy at school than in normal circumstances

Difference btwn search by principal vs. PO (*relationship between principal-student)

TEST: If reasonable grounds to believe that a school rule has been or is being violated, and that evidence will be found in location or on person of student – search by school officials of a student maybe undertaken.

“Neither feasible nor desirable that prior authorization be required in the case of a principal searching a student”; absence of warrant will NOT create presumption of unreasonable search

Regarding reasonableness of search itself: distinction between “gun” and “gum”

>> Search was not unreasonable, no violation of s.8 rights

Detention? School authority ≠ detention; normal compulsion to obey school rules

>> Appellant was properly informed of s.10 rights upon arrest

R v AM

High School principal invited police to bring sniffer dogs to search school; no prior knowledge of drug presence

Dog sniffing did constitute a search WITHOUT proper grounds set out in MRM

Court assessed according to Collins test: 1. Not authorized by law (lacked grounds for reasonable suspicion);

2. Reasonably well-educated guess by principal does not constitute reasonable grounds >> s.8 Charter breach >> evidence inadmissible under s. 24(2) Charter (many searches = systemic failure to respect rights of students)

Binnie (majority): lowered standard to reasonable suspicion to meet balance of opposing interests (*for warrantless sniffer-dog searches): no physical contact required, dog does not disclose any other private info, etc

Deschamps (dissent): agrees w/ reasonable suspicion standard; in this case: low reasonable expectation of privacy in backpack + students know of zero-tolerance drug policy >> no breach of s.8 Charter

R v Kang Brown

Common law authorization for police to conduct sniffer-dog searches for general duty to investigate crime?

Court split!

5 “reasonable suspicion” standard – 4 “reasonable and probably grounds” standard

6 standard chosen not met (unreasonable search) – 3 standard chosen met (reasonable search)

R v Golden

Strip search; drug bust in Subway

Circumstances likely would have warranted a strip search @ police station; not on the field

Mmanner the search was conducted was unreasonable; breach of s.8 Charter; evidence excluded s. 24(2)


R v Gogol

Marijuana found during violent search of house (w/ warrant)

Search: Despite warrant, search conducted in an unreasonable manner >> Property was needlessly and intentionally damaged; unnecessary force = s.8 violation

Detention: Court found restraint and confinement of accused (handcuffed) clearly constituted a detention. No grounds to justify detention = arbitrary detention (s.9 violation). No explanation of s. 10 rights (until much later) = s. 10 violation >> exclusion of evidence through s.24(2) remedy

R v Hornick

liquor license investigation/bust at a women’s bathhouse sexual fundraiser

Male police officers entered party to investigate liquor license incompliance (entry to look for evidence was a search). It amounted to a strip search because most women were undressed; reasonable expectation of privacy from men entering; did not attempt to call/use female officers; no urgency; no arrests

>> Search was carried out in an unreasonable manner = s. 8 Charter violation

Temporal link between evidence found by undercover female PO’s and male entering to conduct investigation; sufficient link to exclude all evidence acquired per s.24(2) AND stay of proceedings s.24(1)

R v SF

Two girls strip searched after arrest for robbery (occurred in past)

No reason to subject girls to strip search; manner was unreasonable (naked; camera; unnecessary)

s. 8 violation >> remedy under s. 24(1) Charter for a stay of proceedings

R v Bond

Arrested (unlawfully) for public intoxication; strip searched

Serious breach of her rights (s.8 violation)

>> granted a stay of proceedings under s. 24(1) Charter

R v Buhay

security guards who opened & searched a locker at a bus terminal

S. 8 Charter did not apply; no reasonable expectation of privacy?


Charter, s. 1: guarantees rights & freedoms set out in the Charter subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society (as described in Hunter v Southam) >> Onus on person seeking to limit right or freedom to prove “demonstrably justified” (also see above)

Some rights can be limited if legislated, ie. taking a roadside sample if reason to suspect drinking & driving; can pull you over for a roadblock; etc.

Charter, s. 7 – right to silence (R v Grant, p. 358) **principle against self-incrimination


Purposes of Sentencing – s. 718 (general deterrence, specific deterrence, punishment, rehab)

CC sets legislative framework for sentencing powers: agg/mit factors (s. 718.2); admissible evidence; burden of proof (*judicial discretion plays an important role)

S. 743: max term of 5 yrs imprison. if indictable offence fails to specify maximum

s. 787(1): max for summary conviction where unspecified is $ 2,000 fine or 6 mths

Sentencing options: alternative measures (s. 717); absolute discharge (s. 730); conditional discharge (s. 730); suspended sentences (s. 731.1.a); fines (s. 734(1)); restitution (s. 738(1) + s. 739); victim fine surcharge (s 737(1)); probation (s. 731(1),(2)); conditional sentence of imprisonment (s. 742.1); imprisonment (s. 743.1); indeterminate sentence (s. 753(1); long term offender designation (s. 753(1)); additional orders / other


Test for Reasonable Apprehension of Bias – McLachlin (R v RDS): What would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude? Would he think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly? Grounds for this apprehension must be substantial.

Crim Cheat Sheets – Johnson – Fall 2013 – Kaitlyn Kastelic

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