Arrest and Detention
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Canada: Arrest Procedures
Types 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 Notice
Appearance 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. 1-800265-0451 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 #1
Billy 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 assault, theft, or an
"attempted" robbery which took place.
• Section 343 of Criminal Code defines robbery as theft with violence
or the threat of violence and identifies robbery as an indictable
offence. Assault is under section 265 of the Criminal Code and is a
hybrid offence and theft is also a hybrid offence under section 322.
• 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. Billy can also arrest the perpetrator if he
has witnessed the commission of any offence.
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)