Right to liberty:

If you are developing a policy or program involving the arrest or detention of individuals, consider taking the following steps:

  • Set out clearly the circumstances in which the power may be used and who may effect the arrest or detention.
  • Ensure that the discretion to arrest or detain is prescribed in terms that are consistent with the objective of the policy.
  • Ask yourself whether there are clearly defined, express criteria for determining when an individual can be detained.
  • Consider including in the policy:
    • a provision for officers to receive training as to the circumstances when the power can be used; and
    • a mechanism by which practice guidelines are developed and disseminated for officers exercising powers of arrest or detention.

The legislation should:

  • ensure that the enforcement officer gives a person who is arrested or detained (‘the detainee’) sufficient information about the reasons for arrest or detention;
  • ensure that sufficient information is provided to the detainee about any proceedings to be brought against him or her;
  • ensure that a detainee may seek judicial review of the legality of the detention; and
  • establish minimum standards and conditions to which the detainee may be subjected.

Assess your policy or practice against the following criteria:

  • Are the grounds for arrest or detention prescribed by law?
  • Will the arrest or detention be made in accordance with proper procedures?
  • Is the arrest or detention necessary and reasonable in the circumstances (for example, to prevent flight or a breach of the peace, prevent a rapid spread of disease, avoid interference with evidence or prevent the recurrence of a crime)?
  • Is the length of time that the person may be arrested or detained justifiable in the circumstances?

Judicial review of the legality of detention

  • Include a provision in new Bills and policy proposals that provides for judicial oversight of detention and ensure that it is possible for detained persons to make an application for judicial review if there is a change in basis for, or the conditions of, their detention.

Right to security

  • Ensure that you have guidelines in place for dealing with threats to a person’s physical security (including persons in a custodial facility) that comply with the Charter obligations under s. 21 and s. 9.