Right to be Informed of Reasons for Arrest or Detention

From Criminal Law Notebook

General Principles

Section 10(a) of the Charter creates a constitutional right for those detained or arrested. The section states:

Arrest or detention

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;...

– CCRF

At point of detention the detainee must be "advised, in clear and simple language, of the reasons for the detention."[1]

Section 10(a) of the Charter entitles all people "the right on arrest or detention ... to be informed promptly of the reasons therefore". It is generally expected that the arresting officer, upon making the arrest, will inform the person of the reason for the arrest. However, where the reason is obvious and the person is well aware of the reason, it is not necessary.[2]

The rights under s.10(a) have been met where the substance of what the accused has been explained is what he is reasonably "supposed to understand in the context and circumstances of the case."[3] As well, the accused should understand the basis for his apprehension, detention or arrest and the extent of his jeopardy.[4]

  1. ↑ R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 21
    R v Kelly, 1985 CanLII 3483 (ON CA), 7 OAC 46, [1985] OJ No 2, per Morden JA, at para 14
  2. ↑ Koechlin v Waugh & Hamilton, 1957 CanLII 359 (ON CA), [1957] OJ No 105, 118 CCC 24, per Laidlaw JA
  3. ↑ R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J, at para 35
    R v SEV, 2009 ABCA 108 (CanLII), 448 AR 351, per curiam, at paras 22, 23
  4. ↑ R v Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217, per Lamer CJ, at para 31
    R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, 50 CCC (3d) 1, per Wilson J, at para 24

Purpose

One of the primary purposes of this right is "so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy."[1] Accordingly, a person can only exercise his right to counsel under s. 10(b) in a meaningful way if he knows the extent of his jeopardy.[2]

The purpose of s. 10(a) is to allow the detainee to immediately undertake his defence, including whether to respond to any accusations.[3]

  1. ↑ R v Borden, 1994 CanLII 63 (SCC), [1994] 3 SCR 145, per Iacobucci J, at p. 419
  2. ↑ R v SEV, 2009 ABCA 108 (CanLII), 448 AR 351, per curiam, at para 22
    R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, 50 CCC (3d) 1, per Wilson J, at para 24
  3. ↑ R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J, at para 2

Sufficiency of Information

The primary point of inquiry is whether the accused can reasonably be supposed to have understood the reason or basis for the investigation.[1]

There is no obligation to provide "precise or technical language" as long as the officer provided clear notice that "conveys the substance of the reason(s) for the detention."[2]

Failure to inform the accused that he is "arrested" and charged with a specific offence may not be fatal where the accused understood the basis for his apprehension and the extent of his jeopardy.[3]

To understand the extent of jeopardy it is not necessary to be aware of the precise charge face or the full extent of the details of the case.[4]

It is not necessary to always inform the accused of the circumstances of the offence. In a murder case it is not necessary to reveal the victim's identity.[5]

  1. ↑ R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J, at para 35
    R v Carrier, 2008 ABCA 134 (CanLII), 429 AR 107, per Hunt JA, at para 7
    R v Lund, 2008 ABCA 373 (CanLII), 440 AR 362, per Paperny JA, at paras 11 and 16 ("The inquiry must be whether, substantively, the accused can reasonably be supposed to have understood the basis for the investigation. ")
  2. ↑ R v Richards, 2016 ONSC 3556 (CanLII), per Hill J, at para 29
    R v Mann, 2004 SCC 52 (CanLII), [2004] 3 SCR 59, per Iacobucci J, at para 21
    Evans, supra, at para 35
    R v Nguyen, 2008 ONCA 49 (CanLII), 231 CCC (3d) 541, per curiam, at paras 16 to 20
  3. ↑ R v Latimer, 1997 CanLII 405 (SCC), [1997] 1 SCR 217, 112 CCC (3d) 193, per Lamer CJ, at para 31
  4. ↑ R v Smith, 1991 CanLII 91 (SCC), [1991] 1 SCR 714, 63 CCC (3d) 313, per McLachlin J, at para 28
  5. ↑ R v Jackson, 2005 ABCA 430 (CanLII), 204 CCC (3d) 127, per curiam

Promptly

This duty must be done "promptly."[1] What amounts to being promptly will turn on the specifics of the case.[2]

  1. ↑ In R v Borden, 1994 CanLII 63 (SCC), 92 CCC (3d) 404, per Iacobucci J
  2. ↑ R v Eatman (1982) 45 NBR (2d) 163 (NBQB)(*no CanLII links) at 165

Change in Circumstances

Any change in jeopardy may require a further caution and right to counsel. It must be a change that is discrete and fundamental to the purpose of the investigation. This includes new offences or more serious offences.[1]

The change in jeopardy does not include new evidence coming to light of the original offence being investigated.[2]

  1. ↑ R v Black, 1989 CanLII 75 (SCC), [1989] 2 SCR 138, per Wilson J, at para 25
    R v Evans, 1991 CanLII 98 (SCC), [1991] 1 SCR 869, per McLachlin J, at para 48
  2. ↑ R v SEV, 2009 ABCA 108 (CanLII), 448 AR 351, per curiam, at para 27

Specific Circumstances

In an impaired driving investigation, a suspect who is asked to attend the officer's vehicle for a screening test must first be advised of the reasons.[1]

There is some suggestion that a general warrant could permit police not to inform the detainee of the complete reason for detention.[2]

  1. ↑ R v Anderson, 2010 SKQB 70 (CanLII), 347 Sask R 283, per McIntyre J, at para 36
  2. ↑ R v Whipple, 2016 ABCA 232 (CanLII), 39 Alta LR (6th) 1, per curiam

Right to be Informed of Charges

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Right_to_be_Informed_of_Reasons_for_Arrest_or_Detention&oldid=95462"