S.
495 CC: May arrest for
ARREST & DETENTION:
Identifying Section 9 Violations
© Asad Kiyani 2016-2017
Was there an Exploratory
Investigation instead?
R v Suberu: Non-coercive,
exploratory questioning?
Factors to be Considered - (R v Grant)
Was there an Investigative
Detention?
Was there a (Psychological)
Detention? “Would the reasonable
person in the individual’s
circumstances conclude that he or
she had been deprived by the
state of the liberty of choice” to
stay or leave? (R v Grant)
Circumstances leading to stop
by police: Was individual singled
out? How? General inquiries?
Questioning of witnesses? Crowd
control? etc
Nature of Police Conduct:
Language, physical contact,
location, directions, presence of
others, etc
Relevant Circumstances of
Individual: Minority status, age,
“level of sophistication”? etc
s. 553, hybrid or summary
offences only if RB arrest
only way to ID person,
secure evidence, prevent
crime/ensure appearance
S. 495 CC: Peace
Officers Only May arrest
if find has or will commit
(1) an indictable offence;
or, (2) criminal offence; or
(3) is subject of warrant S. 494 CC: All Persons
Arrest if (1) find
committing an indictable
offence; or,
Legality of Arrest? (2) Reasonably believes
is escaping from
someone with lawful
authority after committing
an offence
What remedy (if any)
NO. Therefore
should follow under s.
a breach of s. 9
24 of the Charter?
Was Section 10 or Section
8 (or both) Violated?
Did Grounds for Detention
Exist?: Was detention reasonably Was There a Proper Personal or Motivated by Personal Enmity?
necessary in light of the ‘totality of Legislative Rationale?
the circumstances’? (R v Clayton)
Legislation confers unfettered
discretion (R v Hufsky)
Bias? Racism? See e.g. R v Rational standards for mandatory
Brown: (1) Do circumstances detention/arrest? Discretion to not
resemble phenomenon of racial detain? (R v Swain; Lyons)
Reasonably necessary in light of Reasonable suspicion that profiling? (2) Is there basis to
the ‘totality of the circumstances’? detainee implicated in criminal believe officer is lying about
(R v Clayton) activity? (R v Mann) reasons for detention?
Factors to be Considered -
Factors to be Considered -
(R v Clayton) (R v Mann)
Nature of Situation (incl. Clear Nexus to ongoing/recent
seriousness of alleged offence) criminal offence
Info Known About Suspect/Crime Particular Reasons for suspecting
Identity, description, behaviour, etc specific individual (not just geo.)
If Detention Properly Tailored: No
more restrictive than reasonably
necessary in light of risk (incl. geo &
temporal limits)