WHAT TO MENTION ABOUT DETENTION: HOW TO USE PURPOSE TO UNDERSTAND AND APPLY DETENTION-BASED CHARTER RIGHTS

Abstract

This paper is about the important contribution made by the recognition in R. v. Grant of an integrated purposive theory for the Charter’s detention and arbitrariness concept. Specifically, the Grant Court identified a choice-based purpose underlying the detention concept. It held that detention-based Charter rights exist, firstly, to protect the liberty of individuals to choose their movements and actions free from state interference, and secondly, to preserve those choices that the law confers on individuals to control their own movements or actions where state agents have taken their liberty away. Understanding that this is the mission of the detention concepts reveals the coherence of existing detention authority. It also provides guidance on how to resolve difficult, fact-dependent decisions such as whether psychological detention occurred. Meanwhile the Grant Court used the concept of arbitrariness to identity when a detention that does occur will be prima facie justified. Significantly, it held that the purpose of the arbitrariness concept is to ensure that detentions will be prima facie constitutional only if they comply with the principles of fundamental justice, including the principle of legality. A detention that is not supported by law will breach that principle and therefore be arbitrary. More simply put, an illegal detention is an arbitrary detention. Even where a detention is supported by law, section 9 will be violated if the law permitting the detention does not advance state interests (contrary to the “principle of arbitrariness”) or confers more authority than needed to advance those state interests that the law does try to pursue (contrary to the “principle of overbreadth”). Tying arbitrariness to principles of fundamental justice in this way not only furnishes a conceptual foundation for the existing law, it should also guide decisions on difficult questions of investigative detention and the constitutional validity of legislation authorizing detention. These same principles also provide the avenue for using section 9 of the Charter to ensure that state conduct associated with otherwise legal detentions is appropriate. Simply put, this paper seeks to demonstrate how an understanding of these purposes as explained in R. v. Grant provides the key to the proper understanding and proper application of the law of detention.