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| Patrick Ducharme |
The Supreme Court of Canada has struggled with the issue of whether every unlawful arrest will constitute a breach of the guarantee to protection against arbitrary detention in s. 9 of the Charter. It was the court’s decision in 1989 that if an officer honestly but mistakenly believes that reasonable and probable grounds exist and there is some basis for that belief, then the arrest, although subsequently found to be unlawful, is not arbitrary.
In 1989 the Supreme Court of Canada in R. v. Duguay2 decided that an unlawful detention was not necessarily arbitrary. However, in R. Grant3 in 2009 the court determined that unlawful detention will necessarily be arbitrary within the meaning of section 9 of the Charter, effectively overruling that aspect of the Duguay decision.
The above is the an excerpt of Patrick J Ducharme's book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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