CHARTER OF RIGHTS AND FREEDOMS

SECTION (10) ARREST OR DETENTION

CHARTER OF RIGHTS AND FREEDOMS

R.v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353

R.v. Therens , [1985] 1 S.C.R. 613

• Police officers were on patrol in school areas. 2 of the officers were dressed in plain clothes. 1 in uniform in a different vehicle ("R. v. Grant", n.d.)

• 2 officers felt Grant looked suspicious, and asked the other office to go talk to him ("R. v. Grant", n.d.)

• He went to talk to him, Mr. Grant was nervous. Grant was told to keep his hands in front of him. The other two officers were watching and saw Mr. Grant behaving in a strange way so they went to go stand with the other officer talking to Mr. Grant ("R. v. Grant", n.d.)

• Mr. Grant was asked a series of questions, when he told them he had a firearm they immediately arrested him ("R. v. Grant", n.d.)

Issues:

• Was Grant arbitrarily detained by the police in violation of his section 9 Charter rights

• Did the police violate Grant's right to speak to a lawyer under section 10(b) of the Charter

• If Grant's rights were violated, should the evidence acquired as a result of that violation be excluded from trial as per section 24(2) of the Charter

Decision: The Supreme Court ruled that police in violation of s 9 of the Charter had arbitrarily detained Grant; furthermore, it ruled that his right to speak to a lawyer had also been breached in violation of s 10(b). Despite these two violations of his Charter rights, the Supreme Court allowed the gun to be admitted as evidence and dismissed Grant’s appeal ("R. v. Grant", n.d.)

• Paul Mathew Therens loses control of his motor vehicle and it collided into a tree ("R. v. Therens.", n.d.)
• Police officer demanded Therens to provide samples of his breath for analysis pursuant to section 235 (1) of the criminal code ("R. v. Therens.", n.d.)
• Therens accompanied the officer to police station, he agreed with the officer’sdemand, he was charged with drunk driving and according to section, 236(1) of the criminal code ("R. v. Therens.", n.d.)
• During the trial the respondents counsel referred to s. 24 of the Charter and s. 10(b) of the Charter that Thernes had been denied the right to be informed, upon arrest or detention, of his right to retain and instruct counsel without delay ("R. v. Therens.", n.d.)
• trial judge allowed the application and dismissed the charge for lack of other evidence of the Therens blood alcohol level ("R. v. Therens.", n.d.)
• The judge held that therens had been denied the right given by s. 10 of the Charter, that the court was empowered by s. 24(1), therefore under the s. 24(2) the test was laid down ("R. v. Therens.", n.d.)

Description

• Analyzes the rights everyone has on arrest or detention ("Canadian Charter of Rights and Freedoms - Section 10", 2003)
• Each citizen has the right to be informed of the reasons for arrest or detention ("Canadian Charter of Rights and Freedoms - Section 10", 2003)
• Once the individual has been informed, they can better assess the situation and decide upon an appropriate response, such as seeking counsel or responding to police questions ("Canadian Charter of Rights and Freedoms - Section 10", 2003)
• The individual has the right to avail themselves of assistance from someone who is familiar with the law and who acts independently of the state (preferably a lawyer) ("Canadian Charter of Rights and Freedoms - Section 10", 2003)
• The police also have the duty to inform the detained person of legal services available in the jurisdiction ("Canadian Charter of Rights and Freedoms - Section 10", 2003)
• Court has also held that an accused person must be reasonably diligent (careful/persevering) in attempting to seek the advice of counsel ("Canadian Charter of Rights and Freedoms - Section 10", 2003)

Unfamiliar Terms

Habeas Corpus: “is a writ that is used to bring a party who has been criminally convicted in state court into federal court. Usually, writs of habeas corpus are used to review the legality of the party’s arrest, imprisonment, or detention” ("Privacy Policy", 1992)

Detention: “is directed to a restraint of liberty of varying duration other than arrest in which a person may reasonably require the assistance of counsel and might be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee” ("Supreme Court Judgments", n.d.)

Arrest: “An arrest is using legal authority to deprive a person of his or her freedom of movement. An arrest is generally made with an arrest warrant. An arrest may be made without a warrant if probable cause and exigent circumstances are presented at the time of the arrest” ("Arrest", 1992)

In Simple Terms

Section 10 of the Charter explains having the rights upon arrest or detention. It specifies knowing your rights before being held in arrest or detention and counselling your lawyer before answering any questions by the police. Each citizen has the legal consent to have the validity of the arrest or detention by way of habeas corpus. If the detention is not lawful the respected citizen is to be released.

What Does the Charter Say?

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 corpus and to be released if the detention is not lawful” (Alexandrowicz, 2004)