Une fouille sans mandat est à première vue inconstitutionnelle, et il incombe au ministère public d’établir qu’elle n’est pas abusive

R. v. Gerson-Foster, 2019 ONCA 405

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[74]      Section 9 of the Charter provides that “everyone has the right not to be arbitrarily detained or imprisoned.” The arbitrariness of a detention turns on its legality. As McLachlin C.J. and Charron J. explained in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54:

Section 9 serves to protect individual liberty against unlawful state interference. A lawful detention is not arbitrary within the meaning of s. 9, unless the law authorizing the detention is itself arbitrary. Conversely, a detention not authorized by law is arbitrary and violates s. 9. [Citations omitted.]

[75]      In order to defeat Mr. Gerson-Foster’s s. 9 claim, the Crown has to prove that Mr. Gerson-Foster’s arrest was lawful. Ordinarily it would have been Mr. Gerson-Foster’s burden, as the Charter claimant, to prove his arrest to have been unlawful, but Mr. Gerson-Foster has also brought an s. 8 claim against the warrantless searches that were conducted. Warrantless searches are presumptively unreasonable, and where, as here, the Crown seeks to rebut that presumption by claiming a search was lawfully conducted incident to an arrest, the Crown must show that the arrest was lawful: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 87. In order to avoid inconsistent outcomes on the same issue because of conflicting burdens, where the arrest the Crown is relying upon to justify the search incident to arrest is subject to an s. 9 challenge, the Crown will carry the burden on both of the overlapping ss. 8 and 9 claims and must prove that the arrest was legal: R. v. Lee, 2017 ONCA 654, 351 C.C.C. (3d) 187, at paras. 82-83; R. v. Brown (1996), 1996 CanLII 1794 (ON CA), 47 C.R. (4th) 134 (Ont. C.A.); R. v. Besharah, 2010 SKCA 2, 251 C.C.C. (3d) 516, at paras. 32-35.