Charter Rights

Unlawful Arrest: Knowing Your Rights

Written on behalf of Barrison Law
Handcuffs on person representing the Charter rights of Canadians from unlawful detention or arrest

Being arrested is a stressful and confusing experience, but what happens when the arrest itself is unlawful? In Ontario, the Canadian Charter of Rights and Freedoms (the “Charter”) guarantees an individual’s protection from arbitrary arrest and detention.

This blog post will explore unlawful arrests in Ontario, your rights during an arrest, and potential remedies if your arrest was deemed unlawful.

Understanding Police Interactions

Before exploring what constitutes an unlawful arrest, it is important to understand the categories associated with interactions between the police and an individual. Any police interaction may be categorized as:

  • Investigative Detainment: Officials and law enforcement are authorized under the common law to hold an individual under investigative detainment while initial investigative checks are conducted.
  • Arrest: Police have statutory authorization under the Criminal Code to hold an individual longer than investigative detention.
  • Neither detainment or arrest: The categorization of a police interaction may also not be considered detainment or arrest, depending on the circumstances. Police may rightfully ask an individual questions and have a generally amicable conversation, however, there may be uncertainty regarding whether the questions are innocent or are part of an investigation.

Physical and Psychological Detention

In the case of R v. Grant, the Supreme Court of Canada defined detention under section 9 of the Charter as an occurrence where law enforcement or the state inflicts a significant amount of physical or psychological restraint that suspends the individual’s liberty interest. Psychological detention may occur if you are legally required to comply with the police’s restrictive request or demand, or if a reasonable person would conclude that they had no choice other than to comply with the request or demand based on the conduct of law enforcement or the state.

To distinguish between a physical and psychological detention, the Supreme Court of Canada outlined the following factors to consider:

“(a) the circumstances giving rise to the encounter as they would reasonably be perceived by the individual;

(b) the nature of the police conduct; and

(c) the particular characteristics or circumstances of the individual where relevant.”

What Constitutes Unlawful Arrest in Ontario?

An arrest consists of the actual seizure or touching of a person who police have reasonable grounds to believe an offence has been, or is about to be, committed. Upon arrest, police take the individual into custody and may charge them with a criminal offence under the Criminal Code of Canada (the “Criminal Code”).

An unlawful arrest occurs when the police detain or confine you without lawful justification. The Criminal Code guides police and the Crown in making lawful arrests and works in conjunction with the Charter to protect people from unlawful arrests. Some of the key elements of an arrest are outlined in detail below:

Reasonable Grounds

Police generally require “reasonable grounds” to believe you have committed, or are about to commit, an offence in order to arrest you.


For certain offences, a warrant is necessary for arrest. However, section 495(1) of the Criminal Code allows police to arrest you without a warrant if:

  • You have committed an indictable offence or the arresting officer has “reasonable grounds” to believe that you have, or are about to commit, an indictable offence,
  • You are in the process of committing a criminal offence, or
  • The arresting officer has “reasonable grounds” to believe that you are under a warrant for arrest or committal.

Proper Procedures

Police must follow proper arrest procedures, including informing you of the reason for your arrest and your right to remain silent and to a lawyer. Section 10 of the Charter provides that anyone who has been arrested or detained has the right to:

  • Be promptly informed of the reasons for the arrest or detention;
  • Be informed of their right to contact and consult with legal counsel without delay and be allowed to do so; and
  • Have the “validity of the detention be determined by way of habeas corpus (judicial review) and to be released if the detention is not lawful.”

Protections Under the Charter of Rights and Freedoms

If you have been arrested and police failed to follow the correct procedures prescribed under the Criminal Code, and it runs afoul with the protections under the Charter, the arrest may be considered unlawful. However, procedural errors do not necessarily invalidate the legality of an arrest, nor do they always constitute a Charter breach. Instead, an unlawful arrest is generally based on a lack of legal justification or total violation of a Charter right.

In the Supreme Court of Canada case of R v. Storrey, the Court held that reasonable and probable grounds must subjectively support an arrest and must be “justifiable from an objective point of view.”

Challenging a Detention or Arrest

Section 9 of the Charter provides that Canadians have the right to not be arbitrarily detained or imprisoned without common law or statute authorization. Further, if your personal belongings are searched as part of an unlawful arrest, this may infringe your section 8 Charter rights, which ensures that individuals have the right to be secure against unreasonable search or seizure. In order to bring a challenge against law enforcement for unlawful arrest, the accused bears the burden of proving that they were arbitrarily detained or arrested. A two-part test has been established by the Supreme Court of Canada to determine whether an unlawful arrest has occurred, which considers:

  1. Whether the individual was detained or imprisoned; and
  2. Whether that detention or imprisonment was arbitrary.

Contact the Criminal Defence Lawyers at Barrison Law for Representation in Bail Hearings

If you believe you have been unlawfully arrested, contact the experienced Oshawa criminal lawyers at Barrison Law. Our criminal defence lawyers will listen to the circumstances of your arrest and help you build your defence to protect your rights. We strive to build strategic defences in order to secure favourable pre-trial solutions. Please contact our office online or call us at 905-404-1947 to speak with a member of our team.