Case Studies On Pre-Trial Detention Abuse
Main Areas Compared:
Arrest powers
Detention and right to counsel
Search and seizure
Stop-and-search
Interrogation and confessions
Judicial oversight and remedies
1. Police Powers of Arrest
Canada
Police arrest powers in Canada are governed primarily by the Criminal Code and the Canadian Charter of Rights and Freedoms (Charter).
Key Legal Standards
Police may arrest if they have reasonable grounds to believe an offence has been or is being committed.
Detained persons must be informed promptly of the reasons for arrest (s. 10(a) Charter).
The detainee has the right to counsel without delay (s. 10(b) Charter).
Key Canadian Case 1: R. v. Storrey (1990, SCC)
Importance: Establishes the “reasonable grounds” standard for arrest.
Facts: Police arrested Storrey without verifying evidence against him.
Decision: The Supreme Court held the arrest unlawful because officers did not have objectively reasonable grounds.
Principle:
Grounds for arrest must be both subjectively believed AND objectively reasonable.
Police cannot rely on vague suspicion.
United Kingdom
The UK’s arrest powers mainly stem from Police and Criminal Evidence Act 1984 (PACE).
Key Legal Standards
Police must have reasonable suspicion that a person has committed or is about to commit an offence.
Arrest must be necessary for reasons specified in PACE (e.g., establish identity, prevent disappearance).
Key UK Case 1: Castorina v Chief Constable of Surrey (1988)
Importance: Defines reasonable suspicion under PACE.
Facts: Castorina was arrested for burglary based only on unverified information.
Decision: Court held arrest lawful because the officer’s suspicion was reasonable based on the information available at that time.
Principle:
Police need not prove guilt; they only need “reasonable suspicion.”
Lower standard than Canada’s reasonable grounds.
2. Detention and Right to Counsel
Canada
Key Canadian Case 2: R. v. Grant (2009, SCC)
Importance: Defines detention and sets out test for admissibility of evidence.
Facts: Grant was approached and questioned by officers, which led to incriminating statements.
Decision: Court held he was psychologically detained, and rights under s. 10(b) applied.
Principle:
“Detention” includes psychological compulsion, not just physical restraint.
Establishes the Grant Test for excluding evidence:
Seriousness of Charter breach
Impact on accused’s rights
Society’s interest in a trial on the merits
United Kingdom
Under PACE, detainees must be informed of their right to legal advice.
Key UK Case 2: R. v. Samuel (1988)
Importance: Protects detainee’s right to a lawyer.
Facts: Samuel was denied access to a solicitor during questioning.
Decision: The Court of Appeal held that denying him legal access made confession evidence unreliable and unfair.
Principle:
Police cannot delay access to a lawyer without strong justification.
Protects voluntariness and fairness of interrogation.
3. Search and Seizure
Canada
Searches must comply with s. 8 of the Charter, guaranteeing freedom from unreasonable search and seizure.
Key Canadian Case 3: R. v. Collins (1987, SCC)
Importance: Landmark case defining "reasonable search."
Facts: Police used a “drug-grab” technique without warrant.
Decision: Search was unreasonable, evidence excluded.
Principle:
Reasonable search must be authorized by law, reasonable in manner, and law itself must be reasonable.
A powerful check on police search powers.
Key Canadian Case 4: R. v. Golden (2001, SCC) – Strip Search Case
Facts: Golden was strip-searched in a public area.
Decision: Court found the search violated s. 8 because it was degrading and unnecessary.
Principle:
Strip searches require clear justification, privacy safeguards, and strict procedural controls.
United Kingdom
PACE governs search powers. UK law gives broader police discretion than Canada, with fewer constitutional constraints.
Key UK Case 3: O’Hara v. Chief Constable (1997, House of Lords)
Importance: Confirms subjective/objective test for suspicion in searches and arrest.
Facts: Police arrested and searched O’Hara based on intelligence reports.
Decision: Held lawful because officer honestly believed the intelligence and it was reasonable.
Principle:
UK standard tolerates greater reliance on intelligence and police experience.
Judicial deference to officers’ judgment.
4. Stop and Search
Canada
Police can stop individuals only with reasonable suspicion, except in limited contexts (e.g., random breath testing).
Key Canadian Case 5: R. v. Mann (2004, SCC)
Importance: Defines investigative detention and pat-down searches.
Facts: Mann was stopped and frisked without sufficient basis.
Decision: Detention was lawful but the search exceeded reasonable limits.
Principle:
Police may detain based on reasonable suspicion of a crime.
Search during detention is limited to protective pat-down for safety.
United Kingdom
PACE and Terrorism Act 2000 allow wide stop-and-search powers.
Key UK Case 4: Gillan & Quinton v. UK (2010, European Court of Human Rights)
Importance: Limits overly broad stop-and-search powers.
Facts: Activists were stopped near an arms fair without suspicion under anti-terrorism laws.
Decision: ECHR ruled the powers violated privacy rights (Article 8 ECHR) due to lack of safeguards.
Principle:
UK must ensure stop-and-search is not arbitrary.
Strengthened oversight requirements.
5. Confessions and Interrogation
Canada
Confession law strongly protects voluntariness under common law and the Charter.
Key Canadian Case 6: R. v. Oickle (2000, SCC)
Importance: Defines rules for voluntariness of confessions.
Facts: Police used psychological pressure in interrogation.
Decision: Confession admitted because pressure was not oppressive.
Principle:
Confession must be voluntary—no threats, promises, oppression, or unfair tactics.
Police techniques must not overbear the offender’s will.
United Kingdom
Key UK Case 5: R. v. Fulling (1987)
Importance: Defines “oppression” in UK confession law.
Facts: Confession obtained after psychological pressure but not physical abuse.
Decision: Court held this was not "oppression" under PACE.
Principle:
UK has a narrower definition of “oppression” compared to Canada.
Psychological tactics often allowed unless extreme.
6. Remedies for Police Misconduct
Canada – Charter Remedies
Section 24(2) allows exclusion of evidence if admitting it would bring the administration of justice into disrepute (Grant Test).
Courts frequently exclude unlawfully obtained evidence.
UK – PACE and Judicial Remedies
Evidence may be excluded under PACE s. 78, but courts often admit it unless the impropriety is extreme.
UK courts show more deference to police discretion than Canadian courts.
CONCLUSION: Key Differences
| Issue | Canada | United Kingdom |
|---|---|---|
| Constitutional Protection | Charter strongly limits police powers | No entrenched constitution; relies on PACE and case law |
| Arrest Standard | Reasonable grounds (higher threshold) | Reasonable suspicion (lower threshold) |
| Search & Seizure | Strong privacy protection | Broader police search powers |
| Stop-and-Search | Limited to reasonable suspicion | Very broad; includes suspicionless searches (restricted after Gillan) |
| Right to Counsel | Immediate and strict | May be delayed in limited cases |
| Exclusion of Evidence | More likely (Grant Test) | Less likely (PACE s. 78) |
Full List of Cases Explained
Canada
R. v. Storrey (1990) – Reasonable grounds for arrest
R. v. Grant (2009) – Detention, right to counsel, Grant Test
R. v. Collins (1987) – Reasonableness of searches
R. v. Golden (2001) – Strip search safeguards
R. v. Mann (2004) – Investigative detention and pat-down search
R. v. Oickle (2000) – Voluntariness of confessions
United Kingdom
Castorina v Chief Constable (1988) – Reasonable suspicion for arrest
R. v. Samuel (1988) – Right to solicitor
O’Hara v Chief Constable (1997) – Reliance on intelligence
Gillan & Quinton v UK (2010) – Limits to suspicionless stop-and-search
R. v. Fulling (1987) – Oppression and confessions
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