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Charter - s.9 Detention and Imprisonment

. R. v. Cameron

In R. v. Cameron (Ont CA, 2024) the Ontario Court of Appeal considered the law of warrantless arrest, an issue that arises in Charter s.9 ['Detention or imprisonment']:
[39] In deciding whether a warrantless arrest contravenes s. 9 of the Charter, the court is to consider whether the arresting officer had subjective reasonable and probable grounds on which to base the arrest, and then whether those grounds were justifiable from an objective point of view: R. v. Storrey, 1990 CanLII 125 (SCC), [1990] 1 S.C.R. 241, at pp. 250-51; R. v. Fyfe, 2023 ONCA 715, 432 C.C.C. (3d) 145, at para. 52.

[40] In this case, the issue is whether the grounds for arresting the appellant were justified from an objective point of view. In considering the objective component of reasonable and probable grounds, as recently held by this court in R. v. Harvey, 2024 ONCA 47, at para. 25, the inquiry “proceeds from a holistic consideration of all of the facts” and “[i]t is not a matter of parsing each factual occurrence seriatim to determine whether or precisely when reasonable and probable grounds arose”. As held in Fyfe, at para. 62, this inquiry is based on the “totality of the circumstances” or the “cumulative effect of the totality of the circumstances”.

[41] In addition, in the context of reasonable and probable grounds for an arrest, a suspect’s criminal history or past record of violence can be relevant and form part of the cumulative circumstances supporting an arrest: Storrey, at p. 250.

[42] The trial judge’s approach to the circumstances of the appellant’s arrest in this case is consistent with the law. Contrary to the appellant’s position, he was not only arrested because he was known to the police and because of his proximity to the scene of the robbery. There were many other factors that justified the arrest, including that he was seen making a U-turn near the driveway of the residence where the robbery occurred, that the police had seen no other vehicles on the road on their way to the scene and that they were told there were four armed suspects who had just left the house. With respect to the appellant, the police were not only aware of his previous record, which included violent offences, but that he was approximately 80 kilometers away from his known address. Accordingly, in my view, the trial judge made no error in finding that these cumulative circumstances objectively justified the appellant’s arrest.
. R. v. Williams

In R. v. Williams (Ont CA, 2023) the Court of Appeal considered Charter s.24(2) evidence exclusion doctrine, here in a Charter s.9 'detention' context:
Should the evidence be excluded pursuant to s. 24(2)?

[67] If an appellate court comes to a different conclusion than the trial judge regarding whether a Charter right was breached, the appellate court is entitled to undertake a fresh s. 24(2) analysis, accepting the underlying findings of fact made by the trial judge not tainted by error: R. v. Reilly, 2020 BCCA 369, at para. 120, aff’d 2021 SCC 38; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 138.

[68] I have concluded that the trial judge erred in finding that no breach of s. 9 occurred. The appellant was arrested for breach of the undertaking in the absence of reasonable and probable grounds for that arrest. I have also concluded that the trial judge did not err in concluding that no breach of s. 8 occurred. Although the search was not justified as one that was incidental to the arrest for breach of the undertaking, it was a search that was authorized under s. 12(3) of the CCA.

[69] A s. 9 breach will warrant a s. 24(2) analysis where it is sufficiently connected, temporally and contextually, to the evidence sought to be excluded, even if that evidence was obtained during a constitutionally sound search: R. v. Cuff, 2018 ONCA 276, 359 C.C.C. (3d) 415, at para. 30. Conducting a fresh s. 24(2) analysis, I reach the same conclusion as the trial judge – the evidence of the loaded firearm should not be excluded. In my view, the admission of the evidence would not bring the administration of justice into disrepute.

[70] The first Grant factor is the seriousness of the Charter-infringing state conduct. The focus is on whether there has been misconduct from which the court should dissociate itself, situating the conduct on a scale of culpability and considering surrounding circumstances that exacerbate or attenuate its seriousness: R. v. McColman, 2023 SCC 8, 423 C.C.C. (3d) 423, at paras. 57-59.

[71] Here, there was no wilful or reckless disregard of Charter rights, or a systemic pattern of Charter infringing conduct. It was reasonable for the police to keep track of the consent on Versadex, so that it would be immediately accessible. It was reasonable for the police, in conducting the operation that led to the appellant’s arrest, to have Officer Yeo at a computer at the station, ready to access databases, including CPIC and Versadex, and provide results to the officers at the scene. The arrangements were consistent with Charter compliance. The Charter breach – the arbitrary deprivation of the appellant’s liberty – occurred because of a mistake – the failure to search Versadex for the consent. This is a search that should have been done, but nothing in the circumstances exacerbates that misconduct. The trial judge found the police did not “take a short cut, or cut corners, or act capriciously on a mere whim, nor were they cavalier…indifferent or thoughtless.”

[72] I do not agree with the trial judge that the police conduct was “barely along the fault line”. It is important, when two databases are being maintained, to access both when required. I find the misconduct to be of moderate seriousness, but I do not find it to be egregious. It pulls slightly in favour of exclusion.

[73] However, the second factor, the impact on the appellant’s Charter-protected interests, was minimal. The search and discovery of the firearm did not impact his Charter rights, as the search was justified under the CCA. The firearm was in fact discovered by a Charter compliant search. “[When evidence is] independently discoverable, the impact of the breach on the accused is lessened and admission is more likely”: Grant, at para. 125. Although the appellant refers to having been arrested at gun point, the trial judge found that Officer Girgis “had his service revolver at the low ready position given what he knew” about the appellant’s prior firearm conviction, but that no physical force was used and the police were not overbearing or heavy handed in their conduct. The deprivation of liberty under this arrest was short. The firearm was discovered shortly after the arrest for breach of the undertaking, and the appellant was lawfully rearrested for possession of a firearm immediately after the search revealed its presence.

[74] The second Grant factor does not favour exclusion.

[75] The third Grant factor, society’s interest in the adjudication of the case on its merits, strongly favours admission. The evidence was reliable and crucial to the Crown’s case on a serious charge: “Admission of the evidence in this case would better serve the truth-seeking function of the criminal trial process and would not damage the long-term repute of the justice system”: McColman, at paras. 69-71, 73.

[76] Balancing the factors and considering all of the circumstances, the evidence should not be excluded under s. 24(2) of the Charter.
. Deskin v. Ontario

In Deskin v. Ontario (Div Court, 2023) the Divisional Court considered a JR against a provincial decision which "gave six months notice to the Applicants that payments for therapy that they had been receiving for 15 years for their autistic children (now adults) to fund Applied Behavioural Analysis (“ABA”) (also called Intensive Behavioural Intervention or “IBI”)".

In these quotes the court considers whether Charter s.7 ['life, liberty and security of the person'], 9 ['detention'] and 12 ['cruel and unusual treatment'] apply to the case:
Analysis of Whether there was a Breach of Michael Deskin’s Charter rights under sections 7, 9 and 12

[107] Michael Deskin was an involuntary patient in the psychiatric ward of St. Joseph’s Hospital for approximately two weeks in November 2019 after which time the hospital determined that he was fit for discharge. Michael’s family did not accept the hospital’s discharge of Michael for the next 3 months, resulting in Michael remaining in hospital despite his suitability for discharge.

[108] The evidence is that had the Deskins been willing to consider a group home, it is very likely Michael would have had a residential placement by the time of the Decision. Michael’s admission to St. Joseph’s Hospital was subject to the processes under the Mental Health Act that have been found to conform with ss. 7, 9 and 12 of the Charter.[55] The Deskins did not attempt to arrange a transfer to a group home from the hospital through December 2019 and January 2020. Michael was also receiving 50 hours of ABA per week funded by the Ministry at the time he was involuntarily committed.

[109] It is not the case that any involuntary admission under the Mental Health Act or detention under the Criminal Code is unconstitutional. The necessary elements of such a claim have not been advanced. The Deskin Applicants cannot use this application for judicial review to launch a collateral attack on processes occurring under the Mental Health Act. Speculation regarding future admission or incarceration cannot ground their Charter claim.

[110] The Deskin Applicants rely on Canadian Doctors for Refugee Care v. Canada (Attorney General)[56] [Canadian Doctors] where the Federal Court held that the Government of Canada violated s. 12 rights when it withdrew healthcare coverage for certain categories of refugee claimants. The Deskin Applicants argue that the present case is similar, in that the province has withdrawn support for Michael, leaving him without treatment and facing the prospect of indefinite involuntary detention.

[111] The facts in Canadian Doctors are distinguishable from the situation in this matter. The impugned measures were specifically designed to encourage unsuccessful refugee claimants to leave the country quickly once their claims were rejected by denying them health benefits that were available to other refugee claimants, permanent residents and temporary foreign workers. In contrast, here, the Deskin Applicants are seeking to maintain discretionary funding that is not available to other eligible people.

[112] At issue in PHS[57] (which the Applicants rely upon in their submissions) was the Controlled Drugs and Substances Act (“CDSA”)[58] which prohibits possession and trafficking of controlled substances subject to an exemption at the discretion of the Minister of Health, for medical and scientific purposes. The Court found that the staff’s minimal involvement with clients’ drugs may bring them within the legal concept of illegal possession of drugs, contrary to s. 4(1) of the CDSA. As such, the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA engages the liberty interests of staff.[59] The threat to the liberty of the staff in turn impacts on the s. 7 rights of clients who seek the health services provided by the clinic.

[113] The Court in PHS found that the Minister’s decision not to grant an exemption to the lifesaving and health-protecting services offered at the drug clinic, in the special circumstances of this case, contravened the s. 7 rights of the claimants. The court held that where a decision made pursuant to valid legislation could subject a person to detention, it will engage their s. 7 Charter rights.[60] The court found that the Minister's exercise of their discretion violated the claimants’ Charter rights. The Court further held that: “The minister cannot simply deny an application for an exemption on the basis of policy simpliciter, insofar as it affects Charter rights, his decision must accord with the principles of fundamental justice.”[61]

[114] PHS is a very different fact scenario than this case. It falls within the dominant line of s. 7 cases dealing with a deprivation as a result of a person’s interaction with the criminal justice system. There is nothing in the CYFSA or SSPPDA comparable to the penalty of imprisonment and the discretion to exempt that the Court in PHS considered under the CDSA.

[115] The Deskin Applicants analogize Michael’s situation of being segregated from his family, community, and the rest of the hospital population when he was involuntarily detained to the circumstances in the case of Francis v. Ontario (Francis)[62]. In Francis, the Court considered the impact of administrative segregation on the Seriously Mentally Ill (“SMI”) Inmates defined as those that manifested themselves in significant impairments and/or chronic and severe suicidal ideation or self-injury. The Court of Appeal affirmed the motion judge’s finding that the s. 7 and s. 12 Charter rights of the SMI Inmates were breached when those inmates were placed in administrative segregation.

[116] Michael Deskin’s situation when at St. Joseph’s Hospital cannot be analogized to the administrative segregation in Francis. The evidence is that the family took steps to have Michael admitted to the hospital and then he remained for a longer period after the hospital was ready to discharge him because the family refused the discharge. Rather than being administratively segregated, the evidence is that he had day and night care including some of the ABA team that had supported him in the past.

[117] The Deskin Applicants have not established that Michael’s Charter rights were breached. As a result, it is unnecessary to consider whether the Decision comports with the principles of fundamental justice. Had I found a Charter breach, I nevertheless would have found that the discontinuation of the Funding and transition to mainstream services reasonably furthers, and is proportionate to, the objectives of promoting equity and transparency in access to publicly funded services. It therefore comports with the principles of fundamental justice.
. R. v. Corner

In R. v. Corner (Ont CA, 2023) the Court of Appeal reviews case authority on Charter s.9 detention:
[76] The appellant properly concedes that the brief physical detention of the appellant by Constables Micallef and MacKinnon was justified and lawful. That detention lasted seconds and not minutes. At the time, the officers were responding to a 9-1-1 call and were engaged in the performance of their duties. They had reasonable grounds to believe that there may have just been a shooting at the scene. The officers were under a duty to respond to the 9-1-1 call and investigate. They were stepping into what could reasonably be viewed as a dangerous situation. They were entitled to take reasonable protective measures. The very brief physical detention of the appellant and the relatively unintrusive pat-down searches conducted by both officers amounted to reasonable protective measures, taken in a reasonable manner in the circumstances: R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at paras. 31-38; R. v. Clayton, 2007 SCC 32, [2007] 2 S.C.R. 725, at paras. 30-33; R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at paras. 34, 45; and R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at paras. 53-64.


[80] Detention for the purposes of s. 9 and s. 10 of the Charter refers to circumstances in which an individual’s liberty interests are significantly restrained by state authority. Psychological detention is established if state conduct would cause a reasonable person in the circumstances of the individual to conclude that their liberty interest was compromised such that they were under the control and direction of the police and unable to come and go as they wish: Suberu, at para. 29; R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 31-32, 44; and R. v. Le, 2019 SCC 34 (CanLII), 2019 SCC 692, [2019] 2 S.C.R. 692, at para. 25.

[81] The “reasonable person” standard clearly connotes an objective test. However, the subjective perceptions of the individual as they relate to the interaction with the police may assist in gauging the nature and degree of any power imbalance which may exist between the individual and the officer at the relevant time: Grant, at para. 32. The appellant did not testify on the voir dire, so there is no direct evidence of how he perceived his interaction with Constables Micallef and MacKinnon.

[82] Issues relating to detention, especially psychological detention, are fact-specific and context sensitive. The concept of detention as articulated in Grant “is premised upon a practical reality of interactions between police and citizen, especially where the interaction concerns a criminal investigation”: R. v. Lafrance, 2022 SCC 32, 416 C.C.C. (3d) 183, at para. 37. In circumstances in which psychological detention is a live issue, that “practical reality” will almost always include a power imbalance in favour of the police: Lafrance, at paras. 37-38. To decide whether detention arises in a particular case demands a “realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements”: Grant, at para. 32. See also Le, at para. 27; R. v. Tessier, 2022 SCC 35, 473 D.L.R. (4th) 317, at para. 108.

[83] The ultimate determination of whether a detention arises in a given situation is a question of law, reviewable on a correctness standard: Grant, at paras. 43-44; R. v. Reid, 2019 ONCA 32, 370 C.C.C. (3d) 265, at para. 18; and Lafrance, at para. 23. However, to the extent that the determination of that question rests on findings of fact, as it almost inevitably will, the trial judge’s factual findings are owed the usual deference on appeal. An appellate court can interfere with findings of fact only if a finding is tainted by a material misapprehension of evidence, a failure to consider material evidence, or if the finding cannot reasonably be supported on the evidence: Grant, at paras. 43-45.

[84] The court in Grant, at paras. 30-31, and the many cases that have followed Grant, identify three broad categories which capture the many specific factual considerations relevant to the psychological detention inquiry. Those categories are:
• The circumstances giving rise to the encounter as they would reasonably be perceived by the individual;

• The nature of the police conduct during the encounter; and

• The particular circumstances or characteristics of the individual, including things like age and minority status.

See e.g. Le, at para. 31; Tessier, at para. 105; and Lafrance, at para. 22.
[85] The categories identified in Grant are not mutually exclusive. ...


[90] The location of an individual when questioned by the police is part of the totality of the circumstances to be considered when determining whether that individual was detained: Grant, at para. 44; Le, at paras. 31, 43; Lafrance, at para. 34; and Tessier, at para. 108.


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Last modified: 29-03-24
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