Section Nine of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Nine of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter
, guarantees the right against arbitrary detainment and imprisonment
. The provision is invoked in the criminal law context generally where a police officer
who stops, detains, arrests or otherwise restrains a suspect without reasonable grounds.
Section nine states:
is not invoked unless there is significant physical or psychological restraint. Detainment can be found to be arbitrary where there is "no express or implied criteria which govern its exercise."
The Supreme Court of Canada has stated that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. 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, inter alia, the following factors:
Where section nine has been invoked the crown must show that the police were acting under a lawful duty. This duty can either be from the common law
or statute. Following this, the crown must show that the conduct itself was a justifiable use of their authority granted under the duty.
In R. v. Wilson (1990), it was found that random stops by police, authorized by statute, were in violation of section 9 but were justified as a reasonable limitation under section 1
of the Charter. Likewise, in R. v. Ladouceur
(1990) highway stops were found to be arbitrary where absolute discretion was given to the police. Again, the violation was justified under section 1.
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, guarantees the right against arbitrary detainment and imprisonment
Imprisonment
Imprisonment is a legal term.The book Termes de la Ley contains the following definition:This passage was approved by Atkin and Duke LJJ in Meering v Grahame White Aviation Co....
. The provision is invoked in the criminal law context generally where a police officer
Police officer
A police officer is a warranted employee of a police force...
who stops, detains, arrests or otherwise restrains a suspect without reasonable grounds.
Section nine states:
Interpretation
Detainment within the meaning of both section nine and section tenSection Ten of the Canadian Charter of Rights and Freedoms
Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test...
is not invoked unless there is significant physical or psychological restraint. Detainment can be found to be arbitrary where there is "no express or implied criteria which govern its exercise."
The Supreme Court of Canada has stated that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. 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, inter alia, the following factors:
- The 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.
- 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.
- The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
Where section nine has been invoked the crown must show that the police were acting under a lawful duty. This duty can either be from the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
or statute. Following this, the crown must show that the conduct itself was a justifiable use of their authority granted under the duty.
In R. v. Wilson (1990), it was found that random stops by police, authorized by statute, were in violation of section 9 but were justified as a reasonable limitation under section 1
Section One of the Canadian Charter of Rights and Freedoms
Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...
of the Charter. Likewise, in R. v. Ladouceur
R. v. Ladouceur
R. v. Ladouceur, [1990] 1 S.C.R. 1257 is a leading decision of the Supreme Court of Canada on the constitutionality of random police traffic checks. The Court found that the random checks violated the right not to be arbitrarily detained or imprisoned under section 9 of the Canadian Charter of...
(1990) highway stops were found to be arbitrary where absolute discretion was given to the police. Again, the violation was justified under section 1.
External links
- Section 9 Charter Digest at canlii.org
- Fundamental Freedoms: The Charter of Rights and Freedoms - Charter of Rights website with video, audio and the Charter in over 20 languages