Arrest and Detention

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Canada: Arrest ProceduresTypes of Arrest: Arrest with a warrant Arrest without a warrant

After the arrest: Bail Appearance notice

What is an Arrest?• An arrest is to take or hold someone with legal authority

• Stating merely that one is “under arrest” is not enough to constitute an arrest – police must follow formal procedure

• Purpose of arrest:• To lay charges• Secure or preserve evidence• Prevent crime

• police cannot arrest just anyone they suspect of committing a criminal offence.

• must have some proof that an offence has been committed, and they must have "reasonable and probable" grounds to believe that person was the offender.

• REASONABLE AND PROBABLE GROUNDS means that based on the information available, a reasonable person would have a strong and honest belief that the person who is about to be arrested has committed a criminal offence.

Arrest and the Charter• Under Canadian Charter of Rights and Freedoms, individuals who have

been arrested, detained, or imprisoned are protected under:

• section 9 (the right to not be arbitrarily detained or imprisoned) and;

• section 10 (the right to be informed of the reasons for their arrest/detention, the right to retain counsel without delay, and the right to have the validity of their detention determined by way of habeas corpus).

• ARRESTED refers to legally depriving someone of liberty by seizing or touching the person to indicate that he or she is in custody

• DETAINED refers to legally depriving someone of liberty for the purpose of asking questions or giving a demand or direction, with or without the use of physical restraints.

Apprehending & Laying Charges

• The police have 3 methods of apprehending and charging suspects:

1. Appearance NoticeAppearance notices may be issued instead of making an arrest for summary

conviction, hybrid, and the least serious indictable offences.

2. Information Following the issue of an appearance notice, the officer will then swear an

INFORMATION - a written complaint, made under oath, stating that there is reason to believe that the accused has committed a criminal offence.

3. Bench Warrant If the accused fails to attend court - judge may issue a BENCH WARRRANT The accused will be arrested for both the original charge and the offence of “failing to

appear”.

Arrest With a Warrant

• Obtain from judge or justice of the peace (swearing an information to the court)

• INFORMATION is a solemn oath that someone believes that the person has committed and indictable offence and that there is sufficient evidence that an offence has been committed

• An ARREST WARRANT is a written court order directing the police to arrest the accused. If they have not appeared in court voluntarily (through a summons or appearance notice) The warrant will name and describe both the accused and the offence(s).

• Some warrants are only valid in the jurisdiction of the court, while others are valid everywhere in Canada.

• An arrest with a warrant can be made at ANY time; unlike an arrest without a warrant which may only occur under certain circumstances.

• Must show reasonable grounds to support the claim that the accused has committed the offence or judge can refuse to issue either a summons or a warrant for arrest.

Arrest Without a Warrant• According to section 495 of the Criminal Code, there are three

circumstances under which a police/peace officer may arrest a suspect without a warrant:

• if they have reasonable and probable grounds to suspect a person either has committed or is about to commit an indictable offence

• if they find a person in the act of committing any criminal offence

• if they find a person they believe is named on an arrest warrant

• In order to make a legal arrest, the arresting officer MUST:

1. Identify themself as an officer.

2. Advise the accused that they are under arrest (which includes touching the accused to signify that they are legally in custody).

3. Inform the accused of the charges (a right guaranteed under section 10(a) of the Canadian Charter of Rights and Freedoms). and as soon as possible:

4. Advise the accused that they have the right to retain counsel (s. 10(b) of the Charter)

• Just as with an appearance notice, after the arrest the officer must swear an information before a judge or justice of the peace.

In Summary:

Police may arrest a suspect WITHOUT a WARRANT if they:

have reasonable grounds to believe the suspect has committed an indictable offence or is about to commit an indictable offence

witness the suspect committing either:• an indictable offence• a summary offence.

believe a warrant for arrest to be in effect for the suspect

Citizen's Arrest• A CITIZEN'S ARREST refers to an arrest without a warrant by any person other than a

police/peace officer. According to Section 494 of the Criminal Code, citizens can make an arrest (without a warrant) under certain circumstances:

- if they observe a person committing an indictable offence- if they believe, on reasonable grounds, that someone has committed an

indictable offence and is escaping from/being pursued by the authorities- if they observe someone committing a summary conviction offence on

their (the citizen's) own property, or on property that they are responsible for monitoring (ie-security guards)

• A person making a citizen's arrest is obligated to deliver the arrested person to a peace officer as soon as possible.

• Citizens arrests are unusual because they can often do more harm (to the citizen) than good, especially if the arrest does not go according to plan. For example, they could be sued for false arrest, or assaulted if the accused resists arrest.

• A citizen may also be commandeered by an officer to give assistance with making an arrest.

When a suspect is arrested:

• The officers will identify themselves as police officers.• The officer will take physical control of the suspect. • The suspect will be told that he is under arrest.• The suspect will be advised of the reason for the arrest.• The officer read suspect his/her rights by stating the suspect has a right:

• to retain and instruct counsel without delay.• to telephone any lawyer he/she wishes• has the right to free advice from a Legal Aid lawyer.

• The suspect will be asked if he understands his rights and whether he/she wishes to call a lawyer.

• The suspect will be searched and may be handcuffed for public and officer safety, before being placed in a police vehicle.

Police Caution• In Canada, the rights to counsel (or “police caution”) read to the

accused differs slightly from the American “Miranda” rights often heard on television shows or in movies. The Canadian version reads as follows:

• “I am arresting you for __________ (reasons for arrest are briefly described). It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand? Do you wish to call a lawyer now?”

General Caution• In addition, police provide a general caution as follows:

• “You (are charged, will be charged) with __________ (charged

is described). Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence.”

• The accused must fully understand their right to retain counsel. In other words, if the accused does NOT understand what they are being told (due to drunkenness, language barriers, or mental capacity), the police cannot proceed with questioning.

• In addition, the police must stop questioning the accused if they choose the right to retain counsel.

• Furthermore, the accused must be given privacy to discuss the situation with their lawyer, whether via telephone or in person.

• The accused DOES NOT have to participate in a line up or take a polygraph test

Police Rights• Upon arrest, police have right to search an accused for

evidence or weapons. Police may take possession of anything, regardless of whether it relates to the crime.

• The police have the right to take the accused to the police station, where further searches may occur. For indictable offences, fingerprinting and photographs may also be taken.

Citizens’ Rights Upon Arrest• People who have been charged with a crime have the right

to:

• know the reasons for their arrest or for their charge.• speak to a lawyer and they should exercise that right at the

earliest opportunity. (Specifically, people should contact a lawyer the minute they have been charged rather than wait for their first court appearance.)

• speak to the lawyer they wish to speak to.• have access to resources to help them contact the lawyer of

their choice.• remain silent.• have their case heard within a reasonable time.

Scenario #1Billy is shopping in the local corner grocery store. The perpetrator comes in and grabs the owner by the shirt with one hand and by the back of neck with the other. The perpetrator then demands the cash out of the register. Billy’s view of the cash register is blocked and he doesn't see if the perp. actually gets any money. The perpetrator then turns to leave. Billy, seeing no weapon, decides that he has an obligation to arrest the perpetrator for doing this.

1. What offence, if any, has been committed?

2. If the perpetrator did not get any money, has an offence been committed?

3. If you determine an offence has been committed in either 1. or 2. above, what type of offence is this? Quote the section.

can Billy arrest the perpetrator?

Analysis• previous scenario deals with "offence“ of robbery or an

"attempted" robbery which took place.

• Section 343 of Criminal Code defines robbery and section 344, the punishment section, identifies robbery as an indictable offence.

• Paragraph 463(a) of Criminal Code provides that anyone who attempts to commit an indictable offence is also guilty of an indictable offence.

• Billy has seen an indictable offence being committed, whether actual or attempted, and has the authority under the Criminal Code to arrest the perpetrator

After the Arrest• Accused can be:• Released with appearance notice (less serious charges)• Brought to police station (clarify details e.g. identity, address)• Brought to Court (where they may be released (appearance

notice), set bail, or detained without bail)*Note: Released means set free while awaiting trial

Image: Google Images

Pre-Trial Hearings• First Appearance: accused’s charges are read and accused

enters a plea (guilty, not guilty, or request an adjournment to seek legal advice)

• A date is set for Preliminary Hearing or trial

• A Bail Hearing determines whether the accused should await trial in custody or be released on bail (BAIL or JAIL)