Section 10(a) of the Charter of Rights and Freedoms stipulates that everyone has the right to be promptly informed of the reason for their arrest. This includes the specifics of the allegations, who the complainant is and when the offence is alleged to have occurred. Section 10(a) ensures the accused is able to appreciate the seriousness of the allegations and the true jeopardy they face as a result.
Whether an individual is suspected of a crime may affect whether they wish to speak with police and provide information. Further, accused persons are unable to have meaningful conversations with counsel if they are not fully aware of the nature of the allegations against them.
When is the Right Triggered?
The rights outlined under section 10 of the Charter, including section 10(a) are immediately triggered when a person is detained or arrested by a government actor.
The Supreme Court of Canada has indicated that arrest involves the seizure of a person and requires that law enforcement physically touch the individual to detain them.
Person A gets into a fight at a bar, causing significant injuries to the other party involved. Police are called to the scene where both parties are still present. Upon speaking with witnesses’ police officers develop reasonable suspicion that person A has committed a serious assault. They approach person A, state “you are under arrest for assault” and place person A in handcuffs, physically escorting him to their cruiser.
Detention of an individual has an added psychological component. An individual can be considered detained without being placed under arrest. An individual is said to be detained when they reasonably believe that they are not free to exit the situation. Detention can be both physical and psychological. Detention occurs when an officer assumes control over an individual’s movements, even though the control is not physical.
Not every individual stopped by police can be considered detained. Whether or not an individual is considered detained in the circumstances will be determined on a case-by-case basis based on how a reasonable person would interpret the circumstances. When an individual voluntarily agrees to speak with the police, they are not considered detained.
Person B is pulled over for suspicion of impaired driving. The officer does not have a roadside breath test in his vehicle so they must wait a short time for another officer to bring one to the scene. While not yet under arrest, person B does not reasonably feel as though he can drive away from the scene. Person B is being detained.
Person C is contacted by police and asked to come to the station to answer questions about an alleged sexual assault. Person C goes to the station voluntarily and is told by police he is free to leave at any time. Person C is not being detained.
What Happens if the Right is Violated?
In situations where an accused’s right to be promptly informed of the reason for arrest or detention is violated and the accused is charged with a criminal offence, they may bring a pre-trial motion to address the issue.
If the pre-trial motion is successful and the court agrees that the accused’s section 10(a) Charter right has been violated, they may exclude any evidence gathered as a result of the violation pursuant to section 24(2) of the Charter. The court may also order some other remedy pursuant to section 24(1) of the Charter.
Person A is arrested and charged with trafficking narcotics after selling a small amount of cocaine to a friend. Police are also investigating person A for human trafficking and arrest him because they wish to interrogate him on that matter. Nothing about the human trafficking investigation is mentioned to person A during his arrest for trafficking narcotics. During the interrogation person A makes incriminating comments regarding human trafficking. Person A’s section 10(a) right has been violated because he was not informed of the true reason for his arrest.
R. v. Mian, 2014 SCC 54 (CanLII),  2 SCR 689
In the case of R. v. Mian, the supreme Court of Canada ruled that the individual’s section 10(a) right had been violated after he was pulled over on the side of the road while driving and arrested. The individual was not informed of the reason for 22 minutes. The court held that absent exceptional circumstances, such a delay was unreasonable.
R. v. Bielli, 2021 ONCA 222 (CanLII)
In the case of R. v. Bielli, the Ontario Court of Appeal ruled that the accused’s section 10(a) Charter right had been violated after he was stopped by police and arrested. Police searched his vehicle indicating he was being arrested for another offence when in fact they were searching for evidence of the illegal gambling ring. Police planned the stop and intentionally failed to mention the gambling ring in order to search for evidence without exposing their ongoing investigation.
The Court argued that not only had the accused’s section 10(a) right been violated, but the violation was intentional on the part of law enforcement and had been planned in advanced, making it particularly egregious. The violation was not made in good faith. As a result, the evidence gathered through the unreasonable search was excluded under section 24(2) of the Charter. A new trial was ordered, with the Crown proceeding without the impugned evidence.