"You can't go out, you are arrested."

"So it seems," said K. "But what for?" he added.

"We are not authorized to tell you that..."

                          Franz Kafka, The Trial (Everyman's Library, Alfred A. Knopf, 1992, at page 3)

 

The Canadian constitution sets out the fundamental rules of engagement between the state and the individual.

Canadians do not live in a society that permits the state to take custody of an individual without a word of explanation. Section 10(a) of the Canadian Charter of Rights and Freedoms states:

            Everyone has the right on arrest or detention

              … to be informed promptly of the reasons therefor…

As stated by Lamer, C.J., as he was then, speaking for a unanimous Supreme Court of Canada in R. v. Latimer, [1997] S.C.J. No. 11 at paragraph 28, “…it would be a gross interference with individual liberty for persons to have to submit to arrest without knowing the reasons for arrest…” (emphasis added).

Another rationale for requiring a state official to explain the reasons for an arrest or detention has to do with the meaningful exercise of an individual’s right to retain and instruct counsel. As discussed by Iacobucci J., speaking for a majority of the Supreme Court of Canada in R. v. Borden (1994), 92 C.C.C. (3d) 404 at paragraph 44:

…One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention 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…

A state official must ensure that a detainee appreciates the nature and gravity of the matter under investigation prior to asking whether the detainee wants to speak with a lawyer.

A lawyer must also have a clear understanding of the seriousness of the detainee’s predicament in order to provide appropriate legal advice at the time of arrest or detention. The advice that a lawyer provides to a detainee is necessarily tailored to the nature of the matter that is under investigation.

While a state official must provide sufficient information to allow an individual to appreciate the jeopardy of his or her situation, the time of arrest or detention is not a time of full disclosure. The police do not have to identify the precise charges the detainee is facing or disclose all of the factual details of the matter under investigation (see R. v. Smith, [1991] 1 S.C.R. 714 at paragraph 28).

A detainee should also appreciate that while the police are not permitted to lie about the nature of the matter that is under investigation, the police are permitted to deceive the detainee about the nature and strength of the evidence against him or her. 

Other considerations:

  • The constitutional obligations imposed on the state under section 10 of the Canadian Charter of Rights and Freedoms are activated when a state official arrests or detains an individual. While it is clear when a state official places an individual under arrest, whether a state official has detained an individual may be more ambiguous and is often the subject of argument by counsel at trial. The interpretation of 'detention' within the meaning of section 10 of the Charter will be explored in a subsequent post.

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