Great Strides in Section 9 Jurisprudence
Section 9, Grant, Hunter v Southam, Arbitrary Detention, Unlawful Detention, Supreme Court of Canada
The perfect is the enemy of the good. Could the approach to section 9 laid out in Grant have been constructed differently? Yes. But are we, because of that decision, magnitudes of order clearer on how to approach section 9? Also yes. The Supreme Court's decision in Grant, seemingly the product of careful negotiation given the time it has taken for the judgment to be handed down in a fashion having a clear majority, has created what has for over 25 years been lacking with regard to arbitrary detention. Where before we had very few decisions, those decisions not easily reconcilable with each other, and lower courts forced to create their own doctrine on unresolved issues, we now have an overarching framework which can be applied. Questions remain unresolved, but it is now clear what approach to take in resolving them. Grant is to section 9 what Hunter v. Southam is to section 8.
Prior to this, there were very few clear rules around section 9. The Court had defined "arbitrary" as a discretion with "no criteria, express or implied, which govern its exercise". This was not merely one way of being arbitrary, it was offered and applied as the meaning of arbitrariness. Although this was the definition, however, lower courts frequently had to deal with situations in which powers to detain were misused: not applied without criteria, but applied based on improper criteria. Other Supreme Court decisions suggested in passing that improperly used powers could result in an arbitrary detention, though they did not reconcile this possibility with, or even mention, the "no criteria" definition. The difficulty here is that a stop based on something like racial profiling seems obviously to violate section 9, but it is not a detention based on no criteria — quite the opposite. Further related to the meaning of "arbitrary", it was not clear what the relationship between unlawfulness and arbitrariness was. It had been decided that a lawful detention was not arbitrary, though exactly how that rule was to interact with the suggestion that misuse of a legal power could make a detention arbitrary had not been discussed. It had not been decided — indeed, it had been deliberately left undecided — whether an unlawful detention was by nature arbitrary. Many lower courts had concluded that a detention could fail to comply with the law but still not have been arbitrary: that something more than mere unlawfulness was needed to make a detention arbitrary. If that was true, it was not clear exactly what more was needed. If that was not true, it was unclear how one would relate two different rules, which might well conflict: "arbitrary equals no criteria" and "arbitrary equals unlawful."
Steve Coughlan, "Great Strides in Section 9 Jurisprudence" (2009) 66 CR (6th) 75.