History of the Section


Section 21 is modelled on articles 9 and 11 of the ICCPR. However, unlike article 9 of the ICCPR, s. 21 does not confer a right to compensation for breach of the right. Similar rights exist in comparative law. Refer to the table below for further information.

Comparative rights table

Charter

21. Right to liberty and security of person


Section 21(1): Every person has the right to liberty and security.


Section 21 (2): A person must not be subjected to arbitrary arrest or detention.


Section 21 (3): A person must not be deprived of his or her liberty, except on grounds, and in accordance with procedures, established by law.


Section 21 (4): A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her.


Section 21 (8) provides that a person must not be imprisoned only because of his or her inability to perform a contractual obligation.

Section 21(5): A person who is arrested or detained on a criminal charge (a) must be promptly brought before a court, (b) has the right to be tried without unreasonable delay and (c) must be released if paragraph (a) or (b) is not complied with.


Section 21(6) provides that a person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to appear –
(a) for trial; and
(b) at any other stage of the judicial proceeding; and
(c) if appropriate, for execution of judgment.


Section 21(7) provides that any person who is deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of the detention. In relation to that application, the court must (a) make a decision without delay, and (b) order the release of the person if it finds that the detention is unlawful.

ICCPR

Article 9:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.


2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.


3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation
Article 11:


No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

ACT: Human Rights Act 2004

Section 18

S Africa: Constitution of the republic of South Africa 1996 Chapter 2

Section 12(1)(a) and (b).
Section 35(2)(a).
Section (1)(d) and (e).
Section (f).

UK: Human Rights Act 1998
Schedule 1, art. 5.
Canada: Canadian Charter of Rights and freedoms

Sections 7 and 9.

Section 10

Section 11(e).

New Zealand: New Zealand Bill of Rights Act 1990

Section 22

Section 23(1)(2) and (3)