Section Ten of the Canadian Charter of Rights and Freedoms

Section Ten Of The Canadian Charter Of Rights And Freedoms

Section Ten of the Canadian Charter of Rights and Freedoms

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Section Ten of the Canadian Charter of Rights and Freedoms specifies rights upon arrest or detention, including the rights to consult a lawyer and the right to habeas corpus. As a part of a broader range of legal rights guaranteed by the Charter, section 10 rights may be limited by the Oakes test and/or the notwithstanding clause. However, section 10 has also spawned considerable litigation, and has made an impact in numerous cases.

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The section reads:



Detention

Section 10 is only triggered if a person is arrested or detained. The Supreme Court of Canada has stated that "detention" refers to a suspension of an individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude from the state conduct that there was no choice but to comply.

In cases without physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether a reasonable person in the individual’s circumstances would conclude they had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:R. v. Grant, para. 44

  • The circumstances giving rise to the encounter as would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining......
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