What is the test for an arrest and detention order?
Saskatchewan, Canada
The following excerpt is from Kendall and Kendall v. Gambles Canada Ltd., Graham, Bowering and Landru, 1981 CanLII 2149 (SK QB):
Since the defendants must prove, on a balance of probabilities that their imprisonment of the plaintiffs was justified: Fry v. Fedoruk, 1950 CanLII 24 (SCC), [1950] S.C.R. 517, that raises their powers of arrest and detention.
The plaintiffs were arrested for theft, an indictable offence, but the prosecution failed. However that in itself does not end the matter. The defendants may in this action show, as their justification for the imprisonment of the plaintiffs that in fact the plaintiffs were found committing the offence, Frey v. Fedoruk (supra). But this too they have failed to do. Can their arrest still be justified?
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