Arbitrary Detention and Imprisonment Article by a BC Criminal Defence Attorney

Gordon Dykstra is a BC criminal defence attorney who defends people charged with crimes in BC.

This article by BC criminal attorney Gordon J. Dykstra is about arbitrary detention and imprisonment.

If you’re arrested you have:
 

1. The right to be informed of the reason for your arrest or detention,
2. The right to counsel, and
3. The right to habeas corpus (to only be detained in lawful circumstances)

But when are police allowed to arrest you?  The third right above ties into your right to liberty (section 7 of the Charter, discussed in another article) and to not be arbitrarily detained or imprisoned.  The right not to be arbitrarily detained or imprisoned comes from section 9 of the Charter and has resulted in judges carefully setting out the conditions in which police can limit your free movement or hold you in custody.

What is detention?

Detention includes more circumstances than just being locked in a room or put into physical restraints.  The courts have found that to realistically cover real-life situations, detention must have a broader definition.  Detention includes any situation where a police officer uses coercion or compulsion to assume “control over the movement of a person by a demand or direction which may have significant legal consequences.”  

This comes from a case where a man was requested by a police officer to go to a police station to give a blood-alcohol breath sample without having the opportunity to talk to a BC criminal attorney.  The right to an attorney is linked to being detained, so if being requested to go to the station was considered detention, then the man’s rights were violated.  In this case, they were (R v Therens, [1985] 1 SCR 613).

Since that case, the courts have maintained the same reasoning.  Detention is any significant physical or psychological restraint. It can’t be as simple as a minor delay in processing, but it need not be as extreme as being thrown into a jail cell.

What is arbitrary?

You don’t have the right to not be detained; you have the right not to be arbitrarily detained.  Obviously, in order for our criminal justice system to work, police need to be able to detain and imprison people.  However, this is limited to those circumstances when the reasons for detention are legally authorised.  The courts don’t give police the discretion to detain simply as they see fit.

When can police detain you?

There are obvious times when police or other authorities are allowed to detain you.  For example, if you’ve been convicted of a crime and are serving your sentence or if you’ve been arrested and charged with a crime (before you get bail), your detention is legal.

However, there are also other times when a detention may not violate your rights.  Police officers may detain you for investigative purposes “if there are reasonable grounds to suspect in all the circumstances that [you are] connected to a particular crime and that such a detention is necessary” (R v Mann, [2004] 3 SCR 59).  The use of this police power has to be reasonably and objectively justifiable and can’t be used randomly at an officer’s discretion.  

In addition, the courts have said that the detention cannot last very long, that the police must tell you why you’re being detained, and the detention does not mean that you have to speak to the police (you still have your right to silence).

If you've been charged with a crime in British Columbia, talk to Gordon Dykstra, a BC criminal attorney about your case.  Gordon offers free telephone consultations.  Schedule yours by calling him toll free at 1-877-153-4793.