Not to be Arbitrarily Detained or Imprisoned

Not to be Arbitrarily Detained or Imprisoned

Section 9 of the Charter of Rights and Freedoms guarantees everyone the right not to be arbitrarily detained or imprisoned. This ensures that law enforcement officials are unable to curtail an individual’s liberty except in accordance with the principles of natural justice.

When is someone Arbitrarily Detained?

To determine whether an individual’s detention or imprisonment is arbitrary, the court will consider a three-part test:

  • Whether the detention or imprisonment is authorized by law.
  • Whether the law authorizing the detention or imprisonment is arbitrary.
  • Whether the manner in which the detention or imprisonment is/was carried out is reasonable.

Detention or imprisonment can be considered authorized by law where there is statutory authorization or a common law authorizing it. Statutory laws are created by the legislature while common laws are judge created case law. This means that an officer cannot detain or imprison someone simply because they want to, they must have a valid authorization for doing so rooted in an applicable law.


Person A gets into a violent fight with another person at a bar. Police are called to the scene, and they witness person A violently attacking the other person, causing injury. Observing this gives police reasonable and probable grounds to believe person A has committed an offence and they place him under arrest. The detention of person A is authorized by law because police officers are permitted to arrest someone whom they have witnessed committing an offence.

Even where a detention is authorized by law, it may nonetheless be considered arbitrary where the law authorizing the detention is arbitrary. This allows accused persons to challenge the constitutionality of a law. If the court agrees that the law is arbitrary, they may strike it down and it will no longer be in effect. This will mean that the detention was not authorized by law and was therefore arbitrary.

Finally, where detention is authorized by law and the law is not arbitrary, detention of a person can still be arbitrary where the manner in which the detention is carried out is unreasonable. The court will make this determination on a case-by-case basis based on the facts of the case.

When is the Right Triggered?

The rights conferred in section 9 of the Charter exist at all times for individuals inside Canada. Everyone has the right not to be arbitrarily detained or imprisoned by the government of Canada. An individual can only be detained or imprisoned when doing so is authorized by law.

What is Detention?

Detention refers to the physical or psychological restraint placed on an individual by law enforcement. An individual who is being detained has not been formally arrested, though they either do not physically have the ability to leave the situation or a reasonable person in their circumstances would believe they cannot leave the situation.

What is Imprisonment?

Imprisonment occurs when an individual is physically taken into custody by some government agency and prevented from leaving. An individual in jail or prison is considered imprisoned. A person in police custody following their arrest is also considered imprisoned.


Person A is walking down the street when he is approached by an officer. The officer asks person A to stop and talk with him. Person A is in a hurry and indicates that he does not wish to speak. The officer begins following him telling him to stop. Person A asks if he has done something wrong and why he is being stopped. The officer does not provide an answer and grabs person A and physically stops him from walking away. After a brief encounter, the officer is unable to articulate a reason for stopping person A. Person A has been arbitrarily detained as the officer did not have reasonable or probable grounds to believe person A has committed a crime when he detained him.

What happens if the Right is Violated?

When an individual has been detained or imprisoned and believes their section 9 Charter right has been violated, they will be required to file a pre-trial motion arguing such. The burden lies with the accused to satisfy the court that their detention or imprisonment is arbitrary.

Section 9 of the Charter may be used to challenge the initial reason for detaining an individual, the processes and procedures that ultimately led to the accused being detained, or the nature of the detention itself. In the motion, defence counsel will outline the appropriate remedy which will vary depending on what exactly is being challenged.

Section 24(1) of the Charter provides a variety of remedies appropriate for various rights violations. These remedies can include ordering a stay of proceedings, which means the case against the accused will not go forward. In some cases, the court can also order costs, which means the Crown will be required to pay money to the accused for legal fees incurred as a result of the charges.


R v. Lyons, (1987) 2 SCR 309

In the case of R v. Lyons, the Supreme Court of Canada affirmed that where detention is statutorily authorized and the legislation specifically defines the class of individuals it applies to, as well as the conditions under which an individual may be detained, the detention cannot be considered arbitrary. Where there are a specific set of rules for when an individual can be detained under a specific statute, detention under that statute will not be considered arbitrary.

R. v. Mann, (2004) 3 SCR 59

In the case of R. v. Mann, the Supreme Court reiterated that it has been well recognized in Canadian jurisprudence that detention for an investigative purpose is not considered arbitrary when it is carried out in accordance with the common law powers. The court further stated that the police cannot be thought to have detained every individual they stop or interact with. An individual cannot be said to be detained simply because they have been asked to stop or to wait by police. There must be additional physical or psychological restraint present.

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