The Forgotten Right: Section 9 of the Charter, its Purpose and Meaning

40 Supreme Court Law Review (2d)

38 Pages Posted: 24 May 2012 Last revised: 30 Oct 2013

See all articles by James Stribopoulos

James Stribopoulos

Superior Court of Justice (Ontario) / Formerly Osgoode Hall Law School, York University

Date Written: 2008

Abstract

This paper examines why section 9 of the Charter, the right not to be arbitrarily detained or imprisoned, has failed to flourish. The paper argues that the right has essentially remained dormant because the Supreme Court of Canada has not yet expressly identified the underlying purpose of this important constitutional guarantee. After briefly canvassing the current state of affairs under section 9, the paper shifts to a purposive analysis of the guarantee. Its historic antecedents, the provision’s drafting history, the international influences that helped shape its framing, the testimony of senior civil servants involved in its drafting, as well as its relationship to the other legal rights provisions, are all considered in an effort to bring to the surface the guarantee’s purpose: to protect individual liberty against unjustified state interference. With that purpose revealed, the paper turns to a critical analysis of the section 9 jurisprudence, arguing in favour of a renewed understanding of its key defining terms, “arbitrarily” and “detention”, in light of the overarching purpose of the guarantee. The paper contends that it is only through this sort of purposeful revitalization that section 9 can be transformed from a largely forgotten right to a meaningful constitutional protection of our most cherished freedom: liberty.

Reprinted with the permission of LexisNexis.

Keywords: charter, section 9, forgotten, right, purpose, meaning, imprisoned, detention, arbitrary

JEL Classification: K00, K40, K41, K42, K49

Suggested Citation

Stribopoulos, James, The Forgotten Right: Section 9 of the Charter, its Purpose and Meaning (2008). 40 Supreme Court Law Review (2d). Available at SSRN: https://ssrn.com/abstract=2065404

James Stribopoulos (Contact Author)

Superior Court of Justice (Ontario) / Formerly Osgoode Hall Law School, York University

No Address Available

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
52
Abstract Views
453
rank
406,635
PlumX Metrics