This section of the Charter has also been raised on a few occasions in relation to prison matters. In particular, it has been raised in relation to transfers, the continued detention of habitual criminals, dangerous offender applications and the effects of s20 of the Parole Act.

    In R v Lyons, the dangerous offender provisions of the Criminal Code were held not to be arbitrary, bearing in mind the requirement of consent of the highest office of the Crown or his lawful deputy. In the court's view, the words "arbitrarily" mean without a good reason in the sense that it is unreasonable, capricious, unjustifiable and applied purely by chance. In Re Mitchell and the Queen, a prisoner who had been declared a habitual criminal and sentenced to preventative detention under the old provisions of the Criminal Code, since repealed and replaced by the dangerous offender provisions, argued that he was being arbitrarily detained. The court held that the prisoner had failed to establish a prima facie violation of his right under this section as no evidence was adduced by him as to what criteria the National Parole Board in fact employed in reviewing his detention. The court noted that s695.1(2) of the Criminal Code required the National Parole Board to review his condition, history and circumstances every year for the purpose of determining whether he should be granted parole and that s10(1)(a) of the Parole Act set out clearly defined standards to guide the Board in making that decision. Consequently, the court was of the view that there was nothing inherently capricious or unreasonable about the procedure and in the absence of evidence as to what criteria the Board in fact employed in reviewing his detention, was not prepared to find that his continued detention was contrary to this section of the Charter. The court agreed, however, that simply because the statute set out a certain specific procedure, did not necessarily mean that the procedure was free from an attack under this section. The procedure itself would have to be scrutinized by the court to determine whether or not it was arbitrary in a sense of being capricious, unreasonable or unjustifiable.

    In Maxie v The National Parole Board (supra), s20 of the Parole Act was considered in relation to this section and found not to authorize arbitrary detention or imprisonment either in the circumstances of the particular case or in looking generally at the statutory provisions as a whole. In Dankoski v Warden of William Head Institution, a prisoner applied for a recredit of remission under s20(3) of the Parole Act after the revocation of his parole and the Parole Board told him that they had decided to recredit 105 days. However, the prisoner remained in custody after the time for release, taking into account the recredit and the court held that this continued detention or imprisonment was arbitrary and ordered the prisoner's release forthwith on mandatory supervision until his warrant expiry date.

    In Dubois v Sauve (supra), it was held that a transfer to administrative segregation in a special handling unit because of a new policy directive applying to the prisoner's particular circumstances did not amount to arbitrary detention or imprisonment even though the prisoner had been a model prisoner prior to the new policy. On the other hand, in Hay (supra), a prisoner who had earned a transfer to minimum security and was then suddenly transferred back to maximum security because of a change in policy effecting his particular situation, resulted in the court quashing the transfer and holding that the transfer, as a result of a policy, and without any fault or misconduct on the part of the prisoner, was arbitrary, cruel and unusual treatment or punishment and unfair in derogation of the principles of natural justice and therefore s7 of the Charter.

    Though the Supreme Court of Canada has yet to comment on this specific section, the decision of the court in Therens (supra), and in particular that portion of the judgment pertaining to the meaning of the word "detention" under s10 of the Charter should be considered in relation to the word "detained" in this section.