Constitutional Law, Criminal Law, Criminal Procedure, right to a trial, Section 7, Section 8, Charter of Rights and Freedoms, Section 9, arbitrarily detained, arbitrary detention
It is a remarkable fact that more than 25 years after the Canadian Charter of Rights and Freedoms came into effect, we still have no section 9 jurisprudence. It is not that there have been no decisions at all concerning the right not to be arbitrarily detained, of course, but taken in total they do not come anywhere near setting out an analytical framework. This stands in contrast to most other legal rights in the Charter. Section 7 jurisprudence has established the two-step approach to take in assessing claims under that section, including a three-step test for determining whether a proposed rule is a principle of fundamental justice. For section 8 claims, very extensive case law has established that the right applies only where there is a reasonable expectation of privacy and that warrantless searches are prima facie unreasonable, and, most importantly, R. v. Collins has established a three-step test — (1) is the search authorized by law? (2) is the law itself reasonable? and (3) is the search carried out in a reasonable manner? — to assess any new situation involving a search. Similar observations can be made around the development of informational and implementational rights relevant to section 10(b) or to the four-part analysis of whether there has been a violation of the right to a trial within a reasonable time in section 1 l(b).
Steven Coughlan, "Arbitrary Detention: Whither - or Wither? - Section 9" (2008) 40:2 SCLR 147.