Unlawful Detentions & Arrests: What they are & What You Can Do

PUBLISHED ON November 15, 2021

Unfortunately, it is not rare for police officers to arbitrarily detain or arrest individuals without reasonable grounds. When this happens, we characterize the detention or arrest as “unlawful”. Several important rights related to this concept appear in theCanadian Charter of Rights and Freedoms:

Section 7: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 8:Everyone has the right to be secure against unreasonable search or seizure.

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

Section 10: Everyone has the right on arrest or detention

• (a) to be informed promptly of the reasons therefor;
• (b) to retain and instruct counsel without delay and to be informed of that right; and
• (c) to have the validity of the detention determined by way of habeas corpusand to be released if the detention is not lawful.

To be clear, not all detention and arrests are arbitrary or unlawful.  A police officer is entitled tobriefly detain a person if the officer has reasonable grounds to suspect that the individual is connected to a particular criminal offence and the detention is reasonably necessary for all the circumstances.  Reasonable suspicion must be made on “objectively discernable facts”, which can then be subjected to independent judicial scrutiny.  A police officer is entitled to arrest a person where there are reasonable grounds to believe the person has committed an indictable offence, is about to commit an indictable offence, is committing an offence; or has a warrant out for his/her arrest.

It is not possible here to discuss what you should do in a particular situation.  Every situation is unique and this is for general information only.  Should you have a situation where you believe you have been unlawfully detained, you should contact a criminal lawyer for legal advice.  Should you be charged with a criminal offence, your lawyer may argue that your rights under the Charter were violated.  Should the judge agree, that does not end the matter.  Your lawyer must then apply under s. 24 of the Charter for a remedy – often to exclude any evidence that was seized as a result of the unlawful detention/arrest.

• Section 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.
• Section 24(2): 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.

Factors that the court will consider in deciding whether to exclude the evidence under section 24(2), include:

• the seriousness of the Charter-infringing state conduct
• the extent to which the breach actually undermined the interests protected by the right infringed
• whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion

Again, you should always contact a lawyer should you feel that your rights have been violated.