Section 9: Arbitrary Detention and Your Right Not to Be Held Without Cause

When the police stop you on the street, pull your car over, or hold you at a checkpoint, a fundamental question arises: did they have the legal right to do so? Section 9 of the Canadian Charter of Rights and Freedoms answers that question. It states: “Everyone has the right not to be arbitrarily detained or imprisoned.”

This is not a technicality. It is the constitutional safeguard that prevents the state from stopping, holding, and questioning people without justification. When police detain someone without the legal authority to do so, it is a Charter violation — and the evidence obtained during that detention may be excluded from trial under Section 24(2), potentially resulting in an acquittal or a withdrawal of charges.

This article explains what “detention” means in Canadian law, when police can lawfully detain you, what makes a detention “arbitrary,” and the remedies available when your Section 9 rights are violated.

What Is “Detention”?

Detention is not limited to being placed in handcuffs or locked in a cell. The Supreme Court of Canada significantly broadened the definition in R v Grant, establishing that detention occurs in three situations:

1. Physical Detention

This is the most obvious form. You are physically restrained by police — handcuffed, placed in the back of a cruiser, or physically prevented from leaving.

2. Legal Detention

You are subject to a legal obligation to comply with a police demand. The most common example is a traffic stop: when a police officer activates their lights and directs you to pull over, you are legally obligated to stop under the Highway Traffic Act. You are detained from the moment you comply.

3. Psychological Detention

This is where the law becomes more nuanced — and where many Section 9 arguments arise. Psychological detention occurs when a person is not physically restrained and not subject to a legal obligation, but a reasonable person in their circumstances would conclude that they were not free to leave. The Grant test asks:

• Would a reasonable person conclude that the police had effectively taken control of the situation, such that the person had no choice but to comply?
• Relevant factors include the circumstances of the encounter (location, number of officers, language used, physical gestures), and whether the police made a demand or direction that a reasonable person would feel compelled to obey.

The distinction between a consensual encounter and a detention is critical. If you are merely having a voluntary conversation with a police officer — and you are free to walk away — you are not detained, and Section 9 is not engaged. But if the officer’s conduct would lead a reasonable person to believe they must stay and comply, you are detained, even if no one explicitly said “you are detained.”

This distinction matters enormously. If you are detained, your rights under Sections 9 and 10(b) (right to counsel) are triggered immediately. If the police treat the encounter as consensual but a court later finds it was a detention, any evidence obtained may be vulnerable to exclusion.

When Can Police Lawfully Detain You?

Not every detention is a Charter violation. The police have several lawful bases for detaining individuals.

Investigative Detention

The Supreme Court recognised the police power of investigative detention in R v Mann. An officer may briefly detain a person for investigative purposes where the officer has reasonable grounds to suspect that the person is connected to a particular crime that has been or is being committed. This is a lower standard than the “reasonable grounds to believe” required for an arrest, but it is not a blank cheque. The officer must be able to articulate specific facts that give rise to the suspicion — not a mere hunch, not a “gut feeling,” and not a vague sense that something is “off.”

An investigative detention must be brief and minimally intrusive. The officer may ask questions (though you are not obligated to answer — see our article on the right to silence), and in some circumstances may conduct a protective pat-down search if there are grounds to believe the person is armed and dangerous. But the detention cannot be prolonged or escalated into a de facto arrest without the grounds for arrest being established.

Arrest

Police may arrest you with or without a warrant if they have reasonable grounds to believe that you have committed or are about to commit a criminal offence. An arrest is a more significant deprivation of liberty than an investigative detention, and it triggers additional rights, including the right to be informed of the reason for the arrest and the right to counsel.

Traffic Stops

Under the Highway Traffic Act and similar provincial legislation, police have broad authority to stop vehicles for regulatory purposes — checking licences, insurance, vehicle fitness, and sobriety. These stops are lawful even without suspicion of criminal activity. However, the stop must remain connected to its regulatory purpose. If an officer uses a routine traffic stop as a pretext to conduct a criminal investigation, the detention may become arbitrary. This is a common issue in impaired driving cases where the defence argues the stop was really aimed at fishing for evidence of impairment.

Checkpoints and Roadblocks

Police may set up RIDE (Reduce Impaired Driving Everywhere) checkpoints to screen for impaired drivers. These brief, standardized stops have been upheld as a reasonable limit on Section 9 rights under Section 1 of the Charter, given the significant public safety interest in keeping impaired drivers off the road. However, the checkpoint must be operated in a non-discriminatory manner, and the detention must remain brief and focused on its screening purpose.

What Makes a Detention “Arbitrary”?

A detention is arbitrary if it is not authorized by law, or if the law authorizing it is itself arbitrary (i.e., it allows for detention without sufficient criteria or safeguards). In practical terms, the most common situations where a detention is found to be arbitrary include:

No Reasonable Suspicion

For an investigative detention, the officer must have reasonable grounds to suspect a connection to criminal activity. If the officer stopped you because you were “in the wrong neighbourhood at the wrong time,” or because you “looked nervous,” or because of vague, unparticulated suspicion, the detention is arbitrary. The standard is objective: the court asks whether the facts known to the officer at the time, viewed through the lens of a reasonable person with the officer’s training and experience, supported a reasonable suspicion.

Excessive Duration

An investigative detention is meant to be brief. There is no fixed time limit; courts look at whether the length was reasonably necessary in the circumstances. If the police hold you at the roadside for a long period while they wait for a drug-sniffing dog, or detain you for hours without forming grounds to arrest, the detention may have exceeded what is lawful and become arbitrary.

Improper Purpose

If the police detain you for one stated purpose but their real purpose is something else entirely, the detention may be arbitrary. A classic example is an officer who conducts a “safety check” at your door but is actually investigating a drug complaint. The stated authority does not match the actual purpose.

Racial Profiling

Racial profiling occurs when race or ethnicity is a factor — even one factor among many — in the decision to stop, detain, or search someone. The Supreme Court of Canada addressed this powerfully in R v Le, where officers entered the backyard of a townhouse and questioned a group of young racialized men without any grounds for doing so. The Court held that the social context of the encounter — including the well-documented reality of racial profiling — was relevant to determining whether a detention occurred and whether the Charter breach was serious.

A detention based in whole or in part on racial profiling is arbitrary. It is also a particularly serious Charter violation that weighs heavily in favour of excluding evidence under the Section 24(2) framework.

Street Checks and Carding

The practice of “carding” — police stopping individuals on the street to collect their personal information without any suspicion of criminal activity — has been the subject of significant legal and public policy debate in Ontario. While Ontario introduced regulations in 2017 restricting the practice, carding encounters can still give rise to Section 9 arguments when the police stop someone and the encounter amounts to a detention without lawful authority.

Your Rights Upon Detention

Once you are detained — whether through an investigative detention or a formal arrest — your Charter rights are immediately triggered:

• Section 10(a): You have the right to be informed promptly of the reasons for the detention.
• Section 10(b): You have the right to retain and instruct counsel without delay and to be informed of that right. This means the police must tell you that you have the right to a lawyer, provide you with a reasonable opportunity to call one (including the Legal Aid Ontario duty counsel hotline), and refrain from questioning you until you have had that opportunity. We discuss this right in detail in our article on your right to counsel.
• Right to silence: You are not obligated to answer police questions. You must identify yourself if asked (during a traffic stop or if you are lawfully detained), but you do not have to answer investigative questions. See our article on the right to silence during a police interview.

Remedies for Section 9 Violations

When a court finds that your Section 9 rights were violated, the primary remedy is the exclusion of evidence under Section 24(2) of the Charter. The court applies the three-part R v Grant framework:

1. The seriousness of the Charter-infringing conduct. Was the police conduct a minor, good-faith error, or was it a flagrant disregard for constitutional rights? Racial profiling, deliberate disregard for detention standards, and systemic patterns of overreach are treated as very serious.
2. The impact on the accused’s Charter-protected interests. How significantly did the breach intrude on the accused’s rights? A brief, unauthorized stop may have a lesser impact than an extended, unjustified detention involving a search.
3. Society’s interest in adjudication on the merits. This factor considers the reliability and importance of the evidence. Reliable physical evidence (drugs, firearms) that is essential to the Crown’s case weighs against exclusion, but this factor alone will not save evidence obtained through a serious breach.

In serious cases — particularly where the arbitrary detention is part of a pattern of overreach or is connected to racial profiling — a stay of proceedings may be the appropriate remedy under Section 24(1). A stay effectively ends the prosecution.

In drug trafficking and firearms cases, Section 9 challenges are particularly powerful because the physical evidence is often discovered as a direct result of the initial detention. If the detention is found to be arbitrary, the search that followed may also be unreasonable under Section 8, and the evidence may be excluded on multiple grounds.

Practical Defence Strategies

Challenging a detention requires a careful review of the evidence — including the officer’s notes, in-car camera footage, body-worn camera footage (where available), dispatch records, and the officer’s testimony. Defence lawyers look for:

• Gaps between the officer’s stated grounds and the objective evidence. Did the officer actually have reasonable suspicion, or are they reconstructing grounds after the fact?
• Timing. How long did the detention last? Was it truly brief and investigative, or did it become a de facto arrest?
• The reason for the stop. Was it genuinely connected to a lawful purpose, or was it pretextual?
• The accused’s characteristics. Was there any indication that race, ethnicity, age, or neighbourhood played a role in the officer’s decision?

These are not abstract arguments. They are the foundation of successful Charter applications that result in evidence being excluded and charges being withdrawn or dismissed. If you believe you were stopped by police without proper grounds, it is worth discussing the circumstances with a defence lawyer who can assess whether a Section 9 argument is available.

Contact a Criminal Defence Lawyer

If you have been charged with a criminal offence and believe you were detained without lawful justification, contact Mor Fisher LLP to discuss your case. A thorough review of the circumstances of your detention may reveal Charter arguments that can change the outcome of your case.

Call 705-721-6642 for a free consultation, or reach out online. We represent clients in Barrie, Toronto, Orillia, Newmarket, Brampton, and throughout Central Ontario.