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| Patrick J Ducharme |
Police officer conduct is considered to be lawful when it falls within the general scope of a duty imposed on the officer, either by statute or at common law. The officer’s actions, even if they interfere with liberty or property, must be necessary for carrying out the particular police duty and must also be reasonable in the circumstances. A peace officer that acts outside his powers does not act within the course or execution of his duty in respect of charges of obstruction, resistance, assault, disarming or murder. A peace officer acting outside his powers may himself be subject to criminal charges.
Not every unlawful arrest necessarily falls within the words “arbitrarily detained” used in section 9 of the Charter. The grounds of arrest may fall short of supporting reasonable and probable grounds, but the person making the arrest may honestly, though mistakenly, believe that reasonable and probable grounds exist. However, in circumstances where there is an absence of reasonable and probable grounds, and, the accused is arbitrarily detained or arrested, evidence obtained by the police may be ruled inadmissible.4 An arbitrary detention is one that is capricious, despotic or unjustifiable.
Section 9 of the Charter provides: Everyone has the right not to be arbitrarily detained or imprisoned.