+
Arrest and Detention
+
Arrests

Suspects are questioned after physical evidence has been
collected.

Depending on the amount of evidence collected, arrests may
happen before or after questioning.

If the police do not conduct their investigation according to
established procedures, a case may fall apart due to
inadmissible evidence that was obtained incorrectly.

Procedures are codifed in the Criminal Code, developed through
case law and enshrined in the Charter of Rights and Freedoms
+
Questioning the Accused

A suspect cannot be forced to answer an officer’s questions.
Section 7 of the Charter gives us the right to remain silent.

Police are required by law to promptly inform arrested
persons of the reason for their arrest and of their right to
counsel (see page 202).

After rights are read, anything he/she says to the police or
puts in writing can be used against that person in court.

Young People have special rights and protections under the
Youth Criminal Justice Act.
+
Interrogation Techniques

Primary goal – obtain the truth. Best way to do this is the
develop a trusting relationship.

At the beginning of the interrogation, police officers will use
open ended questions (“Tell me what happened).

Why do they ask these types of questions first?

Later they will ask closed questions (“What time did you
leave your house”). These questions provide specific
answers.

Four-stage approach to interrogation by asking to describe:

The entire incident,

The period before the incident took place,

Details of the actual offence, and

Period following the offence.
+
Arrest Procedures

Criminal case usually begins when the police formally
charge a person with committing an offence. A person is
either arrested or detained.

Arrest: when a person is deprived of his or her liberty by
legal authority. For an arrest to be lawful, officer must follow 4
steps:

Identify themselves as officers

Advise the accused they are under arrest

Inform of the charge and show the arrest warrant if one has been
issued

Touch the accused to indicate that they are in legal custody.

Once under arrest, the officer must inform the person of the
right to counsel.
+
Detention Procedures

Detention involves stopping someone and asking the
individual to answer a few questions.

When placed under detention, a person is deprived of their
liberty, with or without physical restraint.

Officers must promptly inform the person about why they are
being detained and their right to counsel.
+
Reasonable Grounds

The police cannot arrest just anyone they suspect of
committing a crime.

They must have reasonable grounds, which means that,
based on the information provided, a reasonable person
would conclude that the suspect had committed a criminal
offence.

If someone is detained or arrested in an improper manner,
that person may sue the police for an unlawful arrest.
+
3 Ways to Apprehend an Offender

Issue an appearance notice – for most summary convictions and
indictable offences that are less serious.

Gives the accused a date and time to be in court.

Must sign the appearance notice and be given their own copy.

If the accused does not show up in court, the police may ask the
judge to issue a bench warrant.

The accused will then also be charged with the offence of “failure
to appear”.

In this case, they may be held until their court date.
+
3 Ways to Apprehend an Offender

Arrest with a Warrant: When a person is suspected of
committing a serious indictable offence, the police may ask
the judge to issue a summons.

This is issued when the police believe the suspect will appear
voluntarily.

The summons is delivered by the sheriff and lets the accused
know about the charges and when to appear in court.

The accused will usually be directed to go to the police
station for fingerprinting. A bench warrant may be issued if
they do not do this.

If the police feel the individual will not appear willingly in
court, they will provide sworn “information” to the judge,
which is a statement given under oath with details of the
offence.

The judge will issue an arrest warrant if they feel it is in the
public’s best interest to have the person behind bars.
+
3 Ways to Apprehend an Offender

Arrest without a Warrant: There are 3 circumstances when a
person can be arrested without a warrant:

There are 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 a criminal offence

They find a person who they believe is named on an arrest
warrant.

These arrests can be carried out by peace officers as well
(mayors, prison guards, customs officers, and pilots)
+
Citizen’s Arrest

Most commonly for shoplifting.

Immediately after a citizen’s arrest, they must be turned over
to a peace officer.

Very rare – many people are afraid they may be sued for
false arrest or injured in a fight.

Section 494 of the Criminal Code outlines the circumstances
where a citizen’s arrest can be made (page 206).
+
Searches

The point at which police may conduct searches and
evidence they can collect is outlined in statute and common
law.

Police generally have to obtain a search warrant but there are
exceptions to this rule.
+
Searching a Person

Do not have to obtain a warrant for someone they just
arrested.

3 conditions in order for the search to be legal:

Arrest must be lawful

The search must be connect with the arrest.

Manner that the search is carried out must be reasonable.
+
Searching a Place

In most cases must obtain a search warrant, giving the police
the rights to search a specific location.

If the warrant is not filled out carefully by a police officer, it
may result in evidence obtained being thrown out.

To obtain a warrant: Information is given to a judge or justice
of the peace specifying the crime, items they are looking for,
and reasonable grounds they have for believing the items
are at a specific location.

Police must identify themselves to the resident and the
warrant before searching. They may confiscate items
pertaining to the case that are not listed on the warrant that
are in plain view.
+
Searching a Place (Continued)

If police feel they need to work quickly, they may obtain a
telewarrant – a search obtained over the phone or fax.

The Controlled Drugs and Substances Act gives police the
authority to search any premises except a person’s residence
for illegal drugs without first obtaining a residence. Anyone
found within the premises can be searched it they are
believed to be carrying illegal drugs.

Police may search a vehicle for illegal alcohol without first
getting a warrant.

s. 529(3) of the Criminal Code outline two exceptions when
police can enter without a warrant:

They believe that they need to enter to prevent imminent injury or
death to any person

There may be destruction of evidence relating to an indictable
offence.
+
Procedures After Arrest

Photographs and fingerprints will be taken if an indictable
offence.

Placed in a line-up if necessary but the individual cannot be
forced.

If they are not charged or acquitted in court, the police will
usually retain the arrest record for 10 years before
destroying it.
+
Pre-trial Release

People are typically released before court if their offence
carries a fine of less than $5000.

If they feel someone will show up voluntarily, they sign a
promise to appear,

Sometimes a person needs to sign a recognizance, which is
a guarantee to appear in court when required, under a
penalty of a fine of $500.

A surety may be required, which is someone who is willing
to pay the $500 fine if the accused does not appear in court.
They sign the recognizance form.
+
Bail

A temporary release of a prisoner who posts a sum of money or
other security to guarantee his or her appearance in court.

Bail hearing must be heard within 24 hours of arrest.

Section 11(e) of the Charter guarantees that no one is denied bail
without just cause.

Show-case hearing is held when the Crown does not want someone
released on bail.

If the Crown is unsuccessful the judge may issues a detention in order
to keep them in jail.

Reverse Onus occurs when they defence is arguing why bail should
be granted. This occurs when:

The accused is already on parole

Accused is not a Canadian resident and offence is indictable

Involves failure to appear or breach of bail

Importing, trafficking or possession with purpose of trafficking
+
Habeas Corpus

Rarely happens – when someone is denied bail and they feel
they have been illegally detained, they may file a write of
habeas corpus to appeal the court’s refusal to a higher court.

Crown has to show that the prisoner is not being mistreated
and give reasons to justify why they are being held until
court date.

If the Crown cannot justify the detention of the prisoner to the
high court’s satisfaction, they court may order the prisoner
released until trial.