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Charter: Arbitrary Detention

Section 9 of the Canadian Charter of Rights and Freedoms guarantees that everyone has the right not to be arbitrarily detained or imprisoned.

This right is most often infringed when police stop and question people out driving in their car or walking down the street. Police will stop someone based solely on a hunch or speculation that the person may be involved in illegal activity based on the way they look or act. Law enforcement are required to have reasonable grounds to believe someone has committed, or is about to commit a criminal offence before they stop and investigate a person. a police officer having anything less than reasonable grounds when detaining somebody may amount to an unlawful or arbitrary detention.

The cases below show examples of Pinkofskys lawyers uncovering the fact that police lacked the reasonable grounds to detain and investigate these individuals. In these cases, the evidence obtained during the course of the investigations were excluded from the evidence at trial. Most often, this would result in an acquittal for the accused.  

***Click on the case name in order to read the full judgment***

R v. Smart [2005] - In this case, Durham Region police officers arbitrarily detained a young black man in his vehicle in order to conduct a search of him and the contents of the car. The officers claimed that the Accused resembled someone who they knew to be a drug dealer. A short series of questions in cross-examination by defence counsel quickly revealed that the officers clearly knew this individual wasn't the person they were looking for. These officers blatantly carried out an arbitrary detention and search of the man's vehicle notwithstanding the fact that they had no legal authority to do so. The question for the Court to determine in this case was whether or not the detention and search violated the Accused person's Charter rights. Counsel's entire cross examination lasted less than five minutes and after he was finished, the Crown immediately asked the Judge to dismiss the case against the Accused. Counsel: Reid Rusonik  

R v. Dennis [2005] - This is a case where evidence of marijuana possession, a knife, breach of bail and obstructing police are excluded from evidence at trial resulting in an acquittal due to the illegal stop, search and questioning by a Peel police officer of a passenger in a motor vehicle without just cause. The Judge found that the police officer had lied about the fact that Mr. Dennis did not have his seatbelt on in order to further an otherwise impermissible line of questioning. Counsel:

R v. S.V. [2005] - a breach of bail case dealing with an arbitrary detention and search of three youths by police. The Judge ruled that the police had no basis to stop and question three boys playing basketball based solely on the type of clothing they were wearing. The evidence that one of the boys was breaching his house arrest bail was excluded at trial, resulting in an acquittal. Counsel:

R v. McKennon. [2004] - This is a case about two young men who were stopped and had their vehicle  illegally searched by Peel police. After officers discovered a handgun in the car, the officers fabricated the reason to pull over the car in the first place. The officers claimed that they had stopped the car because the passenger was not wearing his seatbelt. This claim was rejected by the Judge and the evidence of the handgun found in the car was excluded at trial. Mr. McKennon was acquitted of being in possession of a handgun as a result of this unlawful detention. Counsel: Reid Rusonik

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