This paper points to the surprising fact that 25 years of Charter decisions have not produced a section 9 jurisprudence. The Supreme Court of Canada has said relatively little about arbitrary detention, and much of what it has said is in need of clarification. To date, no consistent framework for analyzing section 9 claims has been articulated: A quarter-century of case law on the right to be free from arbitrary detention has not yet resulted in a clear definition of either the word “arbitrary” or the word “detention”. Indeed, among the relatively few cases which have been decided, the most significant results have been to recognize the existence of new police powers. In that event, the primary effect of section 9 case law to date has been to limit personal rights rather than to protect the m. This paper considers three issues: (1) whether “arbitrary” has or should be equated with “unlawful”; (2) what “arbitrary” means, and (3) what “detention” means. The analysis proceeds in two stages: first, by considering the first 25 years of case law, and the n by considering the start of the second 25 years — or, more simply, everything up to the Supreme Court’s decision in R. v. Clayton and the n Clayton itself. The intent is to show that both prior to and after Clayton, the Court has not created a section 9 jurisprudence. Important questions were left essentially unaddressed until this most recent decision. Clayton addressed some of those issues, but it did so in a way that still does not create anything which could be called a section 9 jurisprudence. Indeed, that decision seems to reflect a retrograde approach which would be more detrimental than beneficial to the protection of Charter rights in general.
"Arbitrary Detention: Whither — or Wither?: Section 9."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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