Section 10

Rights on Arrest or Detention

s. 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.

What is Arrest?

Arrest is the seizure or touching of a person’s body to restrict their liberty through the use of force or circumstances that threaten using force. Merely pronouncing words of arrest is not sufficient on its own, unless the person sought to be arrested submits to the process (R v Whitfield, [1970] SCR 46).

You can be arrested if the police have reasonable and probable grounds that you committed an offence.

What is Detention?

Detention is broader than arrest — it is the suspension of a person’s liberty through significant physical or psychological restraint (R v Grant , 2009 SCC 32 at 44). Ordinarily, when a person encounters a peace officer, they are permitted to walk away. When your choice to cooperate is removed, you are “detained” (Grant at 21).

The two requirements for finding a detention are:

1. there is a demand or direction from a police authority, and in response
2. you submit to the deprivation of your liberty under the reasonable belief you have no other choice.

There are three conceptions of “detention”:

• physical detention — a person being physically restricted from exercising his or her liberty;
• legal detention — a person faces criminal liability for failing to comply with a peace officer’s demand (for example, being told to follow a police officer rather than be arrested); and
• psychological detention — a person submits to a police officer’s authority and/or is deprived of liberty, reasonably believing the choice to do otherwise does not exist.

A person is not detained by brief encounters with the police. For example, you are not detained when momentarily pulled to the side for general questioning during an investigation (R v Suberu, 2009 SCC 33 at 7). Comparatively, focused interrogation which could potentially result in a criminal charge would be considered detention. Isolation or restraint in a police station or vehicle would also count as detention

10(a): Informed Promptly of the Reasons

Police and state authorities are limited in their powers to interfere with personal liberty, and must be able to legally justify their reasons for doing so. Generally, a person is not obliged to submit to an arrest or detention unless they have been told the reason for it. Therefore, the word “promptly” in s. 10(a) means immediately — a person must be informed of the reason of arrest or detention as part of the arrest/detention process (R v Kelly (1985), 17 CCC (3d) 419 at 15 (Ont CA)).

When determining if there has been a violation of section 10(a), the court will look to the substance of what was said to the individual, rather than whether a formal speech was recited. The most important question is whether, in the particular circumstances, the instructions were sufficient to allow the individual to:

• make a reasonable decision as to whether or not to submit to arrest, and
• avoid undermining the right to counsel (R v Latimer, [1997] 1 SCR 217 at 30; R v Evans, [1991] 1 SCR 869).

10(b): Retain and Instruct Counsel Without Delay

Section 10(b) covers not only the right to be told that you can see legal counsel, but also the right to contact counsel, the right to seek legal aid, and the necessary information to acquire that aid R v Bartle, [1994] 3 SCR 173.

Police have three obligations to act in compliance with s. 10(b):

1. inform a detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
2. if a detainee has indicated a desire to exercise this right, provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
3. refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger) (R v Manninen, [1987] 1 SCR 1233; R v Bartle, supra).

The police must inform you of this right “without delay”, meaning it is engaged immediately after you are detained. The immediacy of this obligation may be limited by concerns for officer or public safety, or based on other reasonable limitations that are prescribed by law and justified under s. 1 of the Charter. (R v Subaru, 2009 SCC 33 at 2).

There are important limitations on this right. For example, section 10(b) does not guarantee:

• free and immediate legal advice on request (R v Prosper, [1994] 3 SCR 236);
• state-funded legal representation (i.e. legal aid) (R v Rowbotham, 1988 CanLII 147 (ON CA);
• ongoing legal representation (for example, during police interrogations) (R v Sinclair, 2010 SCC 35);
• the absolute right to retain legal representation of one’s choice (especially if this would cause unnecessary delay);
• legal representation before or during roadside sobriety tests (R v Orbanski; R v Elias, 2005 SCC 37); or
• legal representation when the detained individual is not reasonably diligent in exercising his or her right (R v Tremblay, [1987] 2 SCR 435).

The police are required to communicate your rights under section 10(b) in a way that you can easily understand, and they should take reasonable steps to ensure that you understand what you are being told. As well, the police must restate your right to retain counsel if the reasons for arrest or detention change significantly. (R v Evans, supra).

While it is possible to implicitly waive your right to retain and instruct a lawyer, it is much more likely that a court would accept a waiver of right if you:

• expressly waived your right, or
• were not diligent in obtaining counsel.

10(c): Right to Habeas Corpus

Section 10(c) codifies the right of a detained person to be brought before a Court to have the legality of their imprisonment reviewed.

An application for habeas corpus has three steps:

• First, the applicant must establish that he or she has been deprived of liberty.
• If a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality.
• If a legitimate ground is raised, the onus shifts to the respondent (the state) to show that the deprivation of liberty is lawful. (Mission Institution v Khela, 2014 SCC 24 at 30)

This provides a mechanism for unlawfully detained prisoners to be released. It also can be invoked by prisoners who are being subjected to additional segregation within the prison system itself (R v Miller, [1985] 2 SCR 613)

Habeas corpus is generally not available immediately upon request (in the same way that you must immediately be told of the reasons for arrest), but must be provided to you within a reasonable time period. What is reasonable will depend on the circumstance-particularly the severity-of the situation.

If you think your rights under section 10 have been breached, click here for the second step in the analysis (s.1)