Arbitrary Detention as Legal Defence
Breach of the right to be free from arbitrary detention (Section 9 of the Charter of Rights and Freedoms).
What this Means
The Canadian Charter of Rights and Freedoms sets out the rights that a person has when interacting with the police and the justice system. Section 9 of The Charter protects every person’s individual liberty from unlawful state interference.
In Canada, every person is entitled to individual liberty and not to be deprived of it except in accordance with the principles of fundamental justice. This means that any authority acting on behalf of the government (including the police and the Crown Attorney) must not detain or imprison you unless it is done pursuant to a valid law that is reasonable and unless the detention or imprisonment is done in a reasonable manner.
A detention occurs when there is some form of physical OR psychological restraint by the state (for example, if the police say or do something to make you believe that you are not free to leave).
If we are successful at establishing that one or more of your rights under the Charter were violated, we may be able to get evidence critical to the case against you thrown out (for example; drugs, guns, breath samples, financial records) or we may even be able to get the entire case against you thrown out.
At Every Defence, we have successfully defended hundreds of cases by showing that our clients’ rights under the Charter were breached.
Charged with a Criminal Offence? Get Every Defence.
Do not plead guilty without discussing your case with a lawyer. Many criminal offences have mandatory minimum sentences and a conviction will often result in a lengthy jail sentence. Being found guilty may result in negative employment, immigration and personal consequences to you and your family for years to come.
Our client was charged with Fail to Remain at the Scene of an Accident, Impaired Driving and Refuse Breath Sample. The police received several calls regarding a car that had driven onto the sidewalk and crashed into a utility pole and fire hydrant. The driver ran away from the vehicle and fled through an alleyway. Police searched the area and observed our client, who fit the description of the man witnesses had seen running from where the accident had happened. After speaking to our client for a few minutes, our client became belligerent leading the police officers to handcuff him and detained him in their police car. Our client appeared to be impaired by alcohol. Because our client had refused to identify himself, the police went through his wallet to try to locate his identification. When going through his wallet, the police found a vehicle permit for the vehicle that had been in the accident. At trial, we demonstrated that none of the witnesses actually saw our client get out of the vehicle that had been in the accident. We also successfully argued that our client’s Charter right to be free from arbitrary detention was breached when the police handcuffed and detained him in the police car. They also breached his right to be free from unreasonable search and seizure when they went through his wallet and found the vehicle permit. As a result of these breaches, the circumstantial evidence of the vehicle permit was excluded from evidence and the charges against our client were dismissed.
Our client was charged with Assault Cause Bodily Harm and Assault in relation to a bar fight in which one of the victims was seriously injured as a result of being hit in the head with a beer bottle. We were able to convince the Crown Attorney that considering the commotion inside the bar at the time, the number of people involved in the fight, the poor lighting inside the bar and the fact that all the witnesses appeared to be intoxicated, it was extremely unlikely that it could be proven that our client was the individual who had committed the assaults in question. The charges against our client were withdrawn prior to trial.
Our client was charged with Flight from Police and Dangerous Driving. He was accused of going close to 200 km/hr on a motorcycle and, when the police tried to pull him over, fleeing at an even higher rate of speed and evading the police officer who was in pursuit. The police officer noted the licence plate number but was unable to identify the rider. At trial, the Crown Attorney had to rely entirely on circumstantial evidence to try to prove the case; specifically the owner of the motorcycle testified that he had loaned the bike to our client on the night of the incident and that our client had even confided in him that he had been able to outrun the police. At trial, the credibility of the owner of the motorcycle was attacked through effective cross-examination. The charges against our client were dismissed on the basis that the identification of the rider of the motorcycle had not been proven.
Our client was charged with robbing a man of his wallet in an alleyway. It was alleged that our client had befriended the victim in a bar and that when they went outside for a cigarette together, our client threatened and assaulted the victim and stole his wallet. Our client’s health card was found by the victim in the ground in the alleyway where the robbery had taken place shortly after the assailant was said to have fled. At trial, through effective cross-examination, we successfully demonstrated that victim’s ability to describe the assailant was unreliable and that he may have been mistaken in his belief that the individual who’s photograph was on the health card (our client) was the same person who had robbed him. After our cross-examination of the victim, the Crown Attorney invited the judge to dismiss the charge.
Our client was charged with several domestic related assaults that his girlfriend alleged had occurred over the course of a couple of months. At trial, our client testified that any physical altercations with his girlfriend were the result of his girlfriend having been the aggressor and that any force he used was done for the purpose of defending himself. We also called witnesses who testified about they dynamic of the relationship and that, on several occasions, they had observed the complainant behave in an aggressive manner towards our client. As a result of our effective cross-examination of the complainant, the judge has significant concerns about the complainant’s credibility. The trial judge concluded that based on all of the evidence, he was uncertain of who to believe and that he had a reasonable doubt that our client may have acted in self-defence. Our client was found not guilty of all the charges.
Our client was charged with assault bodily harm after it was alleged that while at a party, our client hit a man in the face with a glass that resulted in serious injuries. At trial, our client testified that his friend had invited him to a party and that while he was socializing, one of the partygoers accused our client of flirting with his girlfriend. This man, along with his friends, surrounded our client in a threatening manner. Our client, who was holding a glass of beer at the time, believed one of the men was about to punch him and that he reacted by striking the man in the face with the glass he was holding. The Court did not reject our client’s evidence and found that it had at least a reasonable doubt that our client had acted in self-defence.