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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.