Charter of Rights and Freedoms FAQs
When it comes to FAQs related to our Charter of Rights and Freedoms it is best to remember that our Charter is at the highest end of our legal hierarchy. Even if an arrest was legally made and each step that followed was also entirely legal, if it can be determined that the subject's "Charter Rights" were infringed upon then the case will be dismissed and the subject released.
Thus, we must look closely at the "Charter" expectations, especially for civilian arrest or detentions.
What is the public's expectation when a person is arrested? What does section 10 of the Charter say on this matter?
The public's expectation is that they'll be given their "Charter Rights".
The Charter says:
Charter s.10. Everyone has the right on arrest or detention
a) to be informed promptly of the reasons therefore;
b) to retain and instruct counsel without delay and to be informed of that right; and
c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Is it reasonable under the law and in the public eye that the security officer and the employer should be held jointly responsible for a subject's death? What does section 24 (1) and (2) of the Charter say on this matter?
It is reasonable and expected.
Charter s.24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Charter s.24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Can there be a media perception of wrong doing by a security officer even though he was acting within the law to make an arrest?
Yes, the Ontario case of Patrick Shand is a prime example of where there absolutely was. Consensus was that the security guard was in a position where he "ought reasonably to have known better." The public expectation is of professionalism.
Where an arrest is made and a death results, is it reasonable that the people of a "free and democratic society" may review the circumstances in the media? What does section 2 (b) of the Charter say on this matter?
In this country it is an expectation.
Charter s.2. Everyone has the following fundamental freedoms:
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication...
The security officer did what they thought best under the circumstances in the Shand case. What does section 7 of the Charter say on this matter? Shand was deprived of life. Was fundamental justice observed? Might Shand be alive today if the officer recognized the symptoms of positional and restraint asphyxia?
Charter s.7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Fundamental justice was not observed.
Shand might possibly still be alive.
The Charter of Rights and Freedoms continues to change case law across this country. Several of our "Scenario FAQs" highlight just such outcomes.
We will continue to add to this Charter of Rights FAQs page as circumstances dictate.