Unchecked Power: The Constitutional Regulation of Arrest Reconsidered
McGill Law Journal, Vol. 48, pp. 225-294, 2003
35 Pages Posted: 1 Apr 2010
Date Written: 2003
Over the last twenty years the Canadian Charter of Rights and Freedoms has had a profound impact on almost every facet of the criminal investigative process. Arrest provides a conspicuous exception. This article casts a probing light on police arrest powers in Canada. exposing justifiable concerns about how these powers are sometimes used. Gaps in existing intake and bail procedures are explored, revealing how a police officer's partisan assessment of the grounds for an arrest can often control an individual's custodial status long into the criminal process.
A reconsideration of the constitutional treatment of arrest highlights why the Charter has not yet provided a meaningful check on police arrest decisions. The article questions the current reading of section 9, the right "not to be arbitrarily detained or imprisoned," for failing to recognize that unlawful arrests are inherently arbitrary. The author also explores how other Charter guarantees - including the right "to be secure against unreasonable seizure," the right to have the validity of a "detention determined by way of habeas corpus" and the right not to be denied one's "liberty" and "security" interests "except in accordance with the principles of fundamental justice" - could be interpreted to augment section 9 and mandate the creation of procedural safeguards to protect against unjustified arrests.
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