One of the most important constitutional protections in Canadian criminal law is found in section 9 of the Canadian Charter of Rights and Freedoms. Section 9 guarantees that everyone has the right not to be arbitrarily detained or imprisoned. This provision places strict limits on police powers and plays a central role in protecting individuals from unlawful arrest and detention.
At Vayeghan Litigation, section 9 Charter challenges frequently arise in cases involving warrantless arrests, street encounters, traffic stops, and police investigations that escalate without proper legal grounds.
WHAT SECTION 9 OF THE CHARTER PROTECTS
Section 9 protects individuals from arbitrary state interference with their liberty. An arrest or detention will violate section 9 if:
- it is not authorized by law,
- the law itself is arbitrary, or
- the police conduct exceeds what the law permits in the circumstances.
In practical terms, police must meet a clearly defined legal threshold before taking away a person’s freedom. The Charter does not allow arrests based on hunches, convenience, or speculative investigation.
REASONABLE AND PROBABLE GROUNDS FOR ARREST
The law is that the police must have reasonable and probable grounds before making an arrest. The Supreme Court of Canada confirmed that an arrest made without reasonable and probable grounds violates section 9 of the Charter.
Reasonable and probable grounds consist of two essential components:
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Subjective belief
The arresting officer must genuinely believe that the person committed the offence. -
Objective reasonableness
That belief must be objectively justifiable. A reasonable person, standing in the shoes of the arresting officer and possessing the same information, would also conclude that grounds for arrest existed.
If either component is missing, the arrest is unlawful.
WHAT “REASONABLE GROUNDS” ACTUALLY MEANS
The reasonable grounds standard is not proof beyond a reasonable doubt. Police do not need enough evidence to secure a conviction at the arrest stage. However, it is far more demanding than mere suspicion.
Courts have repeatedly held that reasonable grounds require information giving rise to a reasonable probability that an offence was committed. The courts have held that vague concerns, incomplete information, or unverified assumptions are insufficient.
Police cannot rely on speculation or arrest someone merely to “see what turns up.” The arrest must be grounded in specific, reliable, and articulable facts pointing to criminal conduct.
POLICE EXPERIENCE DOES NOT LOWER THE LEGAL STANDARD
Courts may consider an officer’s training and experience when assessing objective reasonableness, but this factor is never determinative.
An officer’s intuition, instincts, or familiarity with criminal patterns does not excuse a lack of lawful grounds. The focus remains on whether the arrest was objectively justified on the facts.
ARREST VS. DETENTION: A CRITICAL LEGAL DISTINCTION
Section 9 jurisprudence draws a clear distinction between arrest and detention.
- Arrest requires reasonable and probable grounds.
- Investigatory detention requires only reasonable suspicion that the individual is connected to a particular crime and that the detention is reasonably necessary.
This distinction is crucial. Reasonable suspicion authorizes brief investigative stops, not custodial arrests. As the British Columbia Court of Appeal has emphasized, reasonable grounds represents a higher threshold than reasonable suspicion.
Police cannot collapse this distinction by arresting someone merely to continue investigating.
POLICE CANNOT ARREST TO “INVESTIGATE”
One of the most common section 9 violations occurs when police arrest first and investigate later. The Supreme Court of Canada has unequivocally rejected this approach.
In R. v. Storrey, the Court held that police cannot arrest an individual in order to obtain reasonable grounds. Grounds must exist before the arrest occurs. Using arrest as an investigative shortcut violates section 9 and undermines the rule of law.
SECTION 9 IS ALWAYS A CASE-BY-CASE ANALYSIS
Whether an arrest breaches section 9 is determined through a case-by-case analysis. Courts assess the totality of the circumstances, including:
- what information police actually had at the time of arrest,
- how that information was obtained, and
- whether the officer’s conclusions were objectively reasonable.
Small factual differences can carry major legal consequences, which is why careful Charter analysis is essential in any criminal case involving police intervention.
REMEDIES FOR SECTION 9 CHARTER VIOLATIONS
When police breach section 9, serious consequences can follow. Evidence obtained as a result of an unlawful arrest or detention may be excluded under section 24(2) of the Charter. In some cases, a section 9 violation can result in the exclusion of key evidence or the collapse of the prosecution’s case.
WHY SECTION 9 CHARTER LITIGATION MATTERS
Section 9 is not a technical loophole. It is a fundamental constitutional safeguard that protects personal liberty and ensures police accountability. Challenging unlawful arrests is often a central pillar of an effective criminal defence strategy.
At Vayeghan Litigation, we rigorously analyze police conduct, scrutinize whether the legal standards for arrest and detention were met, and pursue Charter remedies wherever violations occur. If you have been arrested or detained and believe your rights were violated, experienced Charter litigation counsel can make a decisive difference.
For experienced criminal defence and Charter representation in Vancouver, contact Vayeghan Litigation Law Corporation.
Contact Vayeghan Litigation today for a confidential consultation and take the first step toward protecting your future.
Call us at 778-653-3995 or email law@mvlitigation.com now to discuss your case.
