| Canadian Charter of Rights and Freedoms |
|---|
| Part of the Constitution Act, 1982. |
| Preamble |
| Guarantee of Rights and Freedoms |
| 1 |
| Fundamental Freedoms |
| 2 |
| Democratic Rights |
| 3, 4, 5 |
| Mobility Rights |
| 6 |
| Legal Rights |
| 7, 8, 9, 10, 11, 12, 13, 14 |
| Equality Rights |
| 15 |
| Official Languages of Canada |
| 16, 16.1, 17, 18, 19, 20, 21, 22 |
| Minority Language Education Rights |
| 23 |
| Enforcement |
| 24 |
| General |
| 25, 26, 27, 28, 29, 30, 31 |
| Application of Charter |
| 32, 33 |
| Citation |
| 34 |
Section 9 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:
| “ | 9. Everyone has the right not to be arbitrarily detained or imprisoned. | ” |
Detainment within the meaning of both section nine and section ten is not invoked unless there is significant physical or psychological restraint. [1] Detainment can be found to be arbitrary where there is "no express or implied criteria which govern its exercise."[2]
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:[3]
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[4] 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.