Investigation and
Arrest
Law 12
Part 1
The Arrest
Due Process
Introduction

Procedures for dealing
with suspects are
codified in the Criminal
Code which has been
developed through
case law and enshrined
in the Charter of Rights
and Freedoms
i) Laying a charge
1) Arrest
Formally charged with a
criminal offence, taken to the
station to be booked
Or
2) Appearance Notice
Ordered to appear at court
on a specific date to answer
to a charge
How long to lay a charge?

Indictable offences



no statute of limitations
for as long as the accused lives
Summary conviction offences

6 months
Arrest
1.
2.
Must determine that an offense has been
committed
Must have reasonable grounds to believe
that the suspect committed the offense
3 Choices
1. Issue an
Appearance Notice
2. Arrest the
suspect
3. Obtain a warrant
for arrest
1. Appearance Notice

Summary, hybrid and less serious indictable offences

Names the offense the accused has been charged with

Time and place of court appearance

Accused must sign the document and receive a copy

Officer will swear and information before a judge or justice of
the peace
 States that the officer believes on reasonable grounds that the
person named in the appearance notice committed the offence
ii) First Appearance
Arraignment
• Charge formally read in front of a
Justice of the Peace
• Accused is advised to obtain counsel
• Crown might request a show cause
hearing
• Either released on own recognizance or
remanded in custody
Arraignment outcomes

Case Remanded


if hybrid - charge is classified


This means the case is put off until a later date
crown elects - either summary conviction or
indictable
Crown drops charges

if not enough evidence

(case ends at this point)
Arrest
1.
2.
Must determine that an offense has been
committed
Must have reasonable grounds to believe
that the suspect committed the offense
3 Choices
1. Issue an
Appearance Notice
2. Arrest the
suspect
3. Obtain a warrant
for arrest
2. Arresting the Suspect



More serious indictable offences
Suspect is arrested and taken into custody
Arresting officer must





Identify themselves
Advise the accused that he or she is under arrest
Inform the accused of the right to a lawyer (section 10(b)
of the Charter)
Inform the accused of the charges (section 10(a) of the
Charter “everyone has the right on arrest or detention to
be informed promptly of the reasons therefore.”
Purpose of arrest
1.
2.
3.
Lay charges
Preserve evidence
Prevent the accused form committing further offences
Arresting without a warrant
Section 495 of Criminal Code - Any officer can
arrest without a warrant if there is

1.
2.
3.

reasonable grounds to suspect a person has either
committed an indictable offence or is about to commit one
They find a person in the act of committing criminal
offense
They find a person whom they believe is named on an
arrest warrant
Section 495 applies to all “peace officers” (mayors,
prison guards, customs officers, aircraft pilots, and
fisheries officers
Citizen’s arrest

Shoplifting most common

Suspect is arrested by a
store detective or
salesperson

Immediately after a citizen’s
arrest the suspect must be
turned over to a peace officer

Conditions for Citizen’s
arrest – Section 494 CC
The Arrest
1. Notice on arrest: I am arresting
________ for ________(reason
for the arrest)
2. Right to council: It is my duty to
inform you that you have the right
to retain and instruct legal counsel
without delay……Do you
understand?
3. Caution to the charged person:
You (are charged, will be charged)
with ________. Do you wish to
say anything in answer to the
charge? You are not obligated to
say anything unless you wish to
do so, but whatever you say may
be given in evidence….
Resisting arrest
Police can use as much force as is necessary to
prevent an escape
Police are criminal liable for the use of
unnecessary force




1.
2.
3.
Maybe be necessary to use force causing bodily harm or
death if it protects others from death of bodily harm
1994 – Parliament passed a law giving police the power
to use deadly force – in the following situations:
The behaviour of a suspect might cause serious harm or
death to others
The suspect flees to escape arrest
There is no alternative means to prevent escape
Advanced Taser
Thomas A. Swift’s Electric Rifle
CBC archives – Robert Dziekanski
Arrest
1.
2.
Must determine that an offense has been
committed
Must have reasonable grounds to believe
that the suspect committed the offense
3 Choices
1. Issue an
Appearance Notice
2. Arrest the
suspect
3. Obtain a warrant
for arrest
3. Obtaining a warrant for an
arrest

Police ask judge to issue a summons (legal
document issued for an indictable offence, ordering
an accused to appear in court)




When police believe suspect will appear in court voluntarily
Delivered by a sheriff or deputy
Suspect directed to police station for finger printing
Failure to appear results in the issuing of a bench warrant
(arrest warrant issued directly by a judge)
3. Obtaining a warrant for an
arrest continued
When police have reasonable grounds to believe the accused of a
serious indictable offense will not appear in court willingly


Obtain an arrest warrant
Provide a sworn information (statement given under oath,
informing the Court of the details of the arrest)
 Judge / Justice of the Peace decide if it is in the public interest to
issue a warrant for the person’s arrest
 Arrest Warrant a written court order, directing the arrest of the
suspect

Includes name of accused, the offence charged with, reason for the
warrant
Part 2
Citizen’s / Police Rights
Citizen’s Rights

Sections 7-11 of Charter (arrest and detention)



Open to interpretation
Assumptions drawn during questioning
Rights on Being Detained:




Detained when stopped and questioned by an officer
Right not to answer questions unless in specific situations
Detention should lead quickly to arrest – otherwise the
person should be set free
Citizens illegally detained can sue police for false arrest or
detention
Agenda


Searches
Interrogation Techniques
Upon Arrest

After the Arrest (Continued on your handout)
Russell Williams Case

Criminal Court Structure

Textbook Questions

Week Agenda


Wednesday: Violent Crimes (Assault)
Thursday Comp Check: Charts



Structure of the Court
Participants in a Courtroom
Stages in a Criminal Trial By Jury

Friday: Structured Study Time for Chapter 9 Quiz

Monday: Chapter 9 Quiz
Citizen’s Rights

Rights on Being
Arrested:




To be informed of the
reason for the arrest
To a lawyer without delay,
availability of a duty
counsel
Legal aid
Must truly understand your
rights when read to you
 Sober up
 translators
Searches

Why are people who are arrested searched?

Why are the possessions of people who are
arrested taken away?

When is it appropriate to perform a strip or
frisk search of a suspect?
Police Rights



Search the accused upon arrest
Take away the possessions of the accused
Take the accused to the police station


Perform a more detailed search
Section 487.04 of Criminal Code

Allows police, with a warrant to get DNA samples
Searches

A careful balance between the individual’s right to privacy with
the state’s need to conduct a thorough investigation
 Search rules established in both statute and common law
 Most cases require a warrant (some exceptions)

Chapter 4, S.8 of the Charter protect people in Canada from
unreasonable search and seizure

Strip-search and skin-frisk
 Performed by officers of the same sex
 Performed at the police station
 With sufficient reason
Searches Continued

Obtaining a Search Warrant



Using a Search Warrant



Officer swears before a judge,
who issues the warrant if
testimony is accepted
To ensure section 8 of the Charter
“secure against unreasonable
search or seizure”
Only on the day of indicated
Only specific items identified
Need a warrant to use electronic
surveillance equipment –
exception (suspected terrorists)
Questioning the Accused

Police are required to question suspects

Police cannot force a suspect to answer a questions



Section 7 “detained person has the right to remain silent…
Police must give suspect a chance to “make a free and
meaningful choice about whether to speak or remain
silent”
Police must promptly inform arrested person of the
reason for their arrest and their right to counsel
Interrogation Techniques
Interview suspects to obtain the truth (ideally
through a trusting relationship with the suspect)




Begin with open-ended, non-threatening questions –
designed to encourage the suspect to speak
Conclude with closed questions – designed to get specific
information
4 Stage approach to interrogation
1.
2.
3.
4.
Describe the entire incident
Describe the period before the incident took place
Describe the details of the offence
The period following the offence
AFTER THE ARREST…
Pre – Trial Release

Bail: Bail is written
Considerations:
permission from a court,
allowing a person charged with
a criminal offence to be out of
jail while they wait for their
trial, or some other result in
their case (such as a guilty
plea or a withdrawal of their
charges).




whether the accused has a
criminal record
how serious the charges are
if the accused is already
facing other charges at the
time of their arrest
whether there are reasons to
believe the accused won’t
show up for their court date.
Pre- Trial Release

Surety: is someone who agrees to take
responsibility for a person accused of a
crime.
Plea Bargaining

Accused agrees to plead guilty to a less serious charge if
the crown drops the more serious charge
e.g. Murder to Manslaughter
Benefits
shorter trials
 saves money
 provides police with valuable
information
Certainty of accused at least
being guilty of something

Criticisms
Criminal gets off easy - public
loses confidence, becomes cynical
Victims are not consulted
Police tend to overcharge

iii) Second Appearance
1) Enter Plea – guilty / not guilty
2) Elect court and type of trial
No Choice: when
Most Serious
superior court
jury trial
OR
Least Serious
provincial court
judge trial
Crimes for which the accused does
have a choice of type of trial

If maximum in the criminal code is 5 years or
more
1) Superior court - judge and jury
2) Superior court - judge alone
3) Provincial court - judge

Case will be dealt with sooner
Choose Judge or Jury
1)
2)
Advantages of Jury
Trial
Juries more easily
manipulated than a
judge by a good lawyer
Time delays



3)
Prepare case
More time to reform
witnesses become less
reliable
Chance of 1 of 12
rather than all or
nothing
Advantages of Judge
Alone Trial
Judges are more
predictable
1)


2)
3)
not swayed by emotions
not influenced as easily
by lawyers
Many cases too
technical for juries
Judges must give a
reason for their verdict
1. Preliminary Hearing
• Provincial Court
• Determines if there is enough evidence
for a trial to be held in a higher
court
• Procedure
(charge read → plea entered → witness examined,
cross-examined, reexamined → lawyers sum up →
→ Judge rules)




Successful military career
Pilot to PM and Queen, as
well as other dignitaries.
Commanded CFB Trenton, a hub for air transport
operations in Canada and abroad and the country's
largest and busiest military airbase.
Convicted Murderer and Rapist

Guilty of 88 charges ranging from break and enters to the
murders of two women, one being a fellow officer in the
Canadian military.
Waived his right to a preliminary Trial
Preliminary Hearing continued
Judge Rules

stay of proceedings
or
Committal for trial
Direct Indictment



Crown applies for this. Skip the Preliminary
Hearing and proceed directly to trial
Note: Accused could waive right to a preliminary
Jury Selection Procedures

100-150 people
summoned from
municipal voting lists

Names randomly
selected and called

Lawyers say either
challenge (not accepted)
or content (accepted)
2. Jury Selection
Regulations:
18 years old, Canadian citizen, never
convicted of an indictable offence
Can’t be: a lawyer, judge, police officer,
prison guard, coroner, student at law, spouse
of a lawyer or a police officer, medical doctor,
veterinarian, firefighter, mp, mpp, senator,
member of the armed forces, suffering from a
mental disorder
Exemptions:
recent duty, over 70, physical disability
interfering with capacity to act as a juror
Facts about juries




responsible for verdict
12 members (Can
function 10)
Must be unanimous
(otherwise dismissed as a
hung jury)
Sequestered - isolated all juries when
deliberating- some juries
throughout the trial - in
high publicity cases
Juror’s duty

Jurors Oath
1) to base verdict solely
on the evidence
 advised not to read
papers or watch TV
news
2) Will come to a verdict in
good conscience
The Criminal Court
Structure
Provincial Court




Bottom of the
hierarchy of Canadian
courts
Judges appointed by
provincial gov’t
Cases tried by judge
alone – no jury
Hears summary
conviction offences
and some indictable
Types:


Summary offences:
less serious crimes
with lighter penalties
e.g. public nudity,
causing a disturbance
Indictable offences:
more serious crimes
with higher penalties
e.g. theft
Preliminary Hearings



Determine whether
there is sufficient
evidence to put the
accused on trial
Protects accused
from unnecessary
trials
Protects society from
unnecessary
expenses
Appeal

An application to a higher court to review the
decision made by a lower court

Appeals are heard in the Superior Court of the
province

Appeal of Summary Conviction – one judge
Appeal of Indictable Conviction – panel of three
to five judges

Superior Courts





Highest level of
provincial courts
Supreme Court of
Nova Scotia
Trial division and
appeal division
Jurisdiction in criminal
and civil matters
Trial by judge and
judge/jury
Federal Court of Canada


Trial and appeal division
Trials for civil claims
involving the federal
government ie.




Immigration matters
Intellectual Property
Federal Employment
Disputes
Enforceable throughout
the provinces.
Supreme Court of Canada





Highest court in Canada
Only hears appeals (but
they must grant
permission) from provincial
and federal courts
Matters of concern for all
Canadians
Also hears constitutional
questions from federal
government
9 judges (from all regions
of Canada, 3 must be from
Quebec)
Other Courts



Separate courts that deal with just federal
matters e.g. tax court, military law,
immigration
Aboriginal courts act similarly to provincial
superior courts - cannot make decisions that
conflict with federal criminal law
Aboriginal sentencing circles – purpose is
restorative justice
Work


In your textbook
Read pages 162-168
Questions 1-8 on Page 168