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Arrest Procedures in Canada

•  arrest with a warrant

•  arrest without a warrant

•  bail

•  first appearance

•  after the arrest

What is an Arrest? Arrest: To take or hold a criminal suspect with legal authority. A formal arrest consists of actually touching a person's body with a view to his detention. The mere pronouncing of the words “you’re under arrest” is not enough to constitute an arrest, unless the person being arrested submits to the process. Purpose of Arrest: •  to lay a charge

•  to secure / preserve evidence •  to prevent crime

Note: Arrest may not be necessary. An officer may just deliver a summons or an appearance notice.

Obtaining the warrant à Police obtain an arrest warrant from a judge or Justice of the Peace (J.P.) by presenting an “information” to the court. Information: A written document presented to judge or justice of the peace (under oath) when someone reasonably believes that a person has committed an indictable offence. If the judge (or J.P.) concludes that there is sufficient evidence of an offence, a summons or warrant for the accused's arrest will be issued.

Arrest with a Warrant: Arrest Without a Warrant, In Summary:

Police may arrest a suspect if they:

•  have reasonable grounds to believe the suspect has:

•  witness the suspect committing either:

•  committed an indictable offence

•  an indictable offence

•  a summary offence.

•  is about to commit an indictable offence

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

Arrest Without a Warrant: 495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

(b) a person whom he finds committing a criminal offence; or

(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.

Question: Why would a police officer ever need to obtain an arrest warrant if, according to Section 495 (1), he can simply arrest anyone “he believes has committed … an indictable offence”? Answer: “Yes the police can arrest without warrant on reasonable grounds. They obtain a warrant when they don't know where the accused is, so that any officer (even ones who don't have that info) can arrest if they run into him. For example - driving stop for speeding, check id, arrest for outstanding warrant.” “If they need to go into a dwelling house to arrest they now need a ‘Feeney’ warrant, although that wasn't always the case.” Justice Joseph Kenkel

Why Does an Officer Need a Warrant?

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Most arrests occur without warrant: “Almost all arrests happen without warrant. Where the officer finds the accused committing an indictable offence (includes hybrid offences) or receives information from a witness or another officer that provides reasonable grounds to believe an offence is committed …. the officer may arrest. s.495”

-Joseph Kenkel Warrants are used when person’s whereabouts not known: “The warrant applies across Ontario (s.504) and can even apply across Canada (s.703). A warrant allows any police officer who may have contact with the accused to arrest without having to speak first to the original officers and obtain grounds etc.”

- Joseph Kenkel

How do Most Arrests Occur? Citizens Arrest:

Section 494 of the Criminal Code, describes the authority for ANYONE to arrest without a warrant. 494. (1) Any one may arrest without warrant (a) a person whom he finds committing an indictable offence; or (b) a person who, on reasonable grounds, he believes (i) has committed a criminal offence, and (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person. Arrest by owner, etc., of property (2) Any one who is (a) the owner or a person in lawful possession of property, or (b) a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. Delivery to peace officer (3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.

Miranda Warning Based on the US landmark case, Miranda v. Arizona, 1966. In this case the suspect, Ernesto Miranda, was not informed of his constitutional right to remain silent before he confessed to rape. The charge was dropped by the US Supreme Court. Following the Miranda decision, American police were required to inform arrested persons of their rights under the ruling, termed a “Miranda warning.” A picture of an American novelty coaster.

Mug shot of Ernesto Miranda

When a suspect is arrested, the following will take place:

•  The officers will identify themselves as police officers. •  The officer will take physical control of the suspect. This may be as simple as the officer placing a hand on the suspect’s shoulder. •  The suspect will be told that he is under arrest. •  The suspect will be advised of the reason for the arrest.

The officer will “Mirandize” (in Canada, the “police caution”) the suspect by stating (varies by police service):

"You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?"

• The suspect will be searched and should expect to be handcuffed to the rear, for public and officer safety, before being placed in a police vehicle.

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.

The right to silence is protected under section 7 and section 11(c) of the Canadian Charter of Rights and Freedoms. The accused may not be compelled as a witness against himself in criminal proceedings, and therefore only voluntary statements made to police are admissible as evidence. Prior to an accused being informed of their right to legal counsel, any statements they make to police are considered involuntarily compelled and are inadmissible as evidence. After being informed of the right to counsel, the accused may choose to voluntarily answer questions and those statements would be admissible.

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EXERCISE #1

Scenario: Ara 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. Ara'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. Ara, 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.

4.  Can Ara arrest the perpetrator?

Debriefing: The previous scenario identifies that either the "offence"

of robbery or an "attempted" robbery took place. Section 343 defines robbery and section 344, the

punishment section, identifies robbery as an indictable offence.

Paragraph 463(a) provides that anyone who attempts to

commit an indictable offence is also guilty of an indictable offence.

Ara has seen an indictable offence being committed,

whether actual or attempted, and has the authority under the Criminal Code to arrest the perpetrator

Robbery 343. Every one commits robbery who (a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes or uses any personal violence to that person; (c) assaults any person with intent to steal from him; or (d) steals from any person while armed with an offensive weapon or imitation thereof. R.S., c. C-34, s. 302. 344. Every person who commits robbery is guilty of an indictable offence and liable (a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and (b) in any other case, to imprisonment for life.

After the Arrest

•  released - if charge is not serious (appearance notice)

•  brought to police station - to clarify identity and address

After the arrest, the accused may be:

•  brought to court: •  may be released (appearance notice)

•  set bail (release on bail)

•  detain without bail

Note: Release means to be set free while awaiting trial. The accused must appear for his/her trial or they will be charged with “Failure to Appear” (Hybrid: 6 months / 2 years) and a bench warrant will be issued for their arrest.

Note: Bail refers to funds deposited with the court to ensure that the accused appears for trial. Bail will only be forfeited if the accused fails to appear for trial – NOT if the accused is convicted.

Duty Counsel is provided!

This becomes the accused’s

first appearance!

Search

•  Telewarrants can be issued if:

•  the offence is indictable

•  evidence is likely to be destroyed

•  Searches without a warrant can be conducted:

Generally, search warrants are required before police can search personal property (house, vehicle, clothing) for evidence. These are obtained from a judge who has heard reasonable grounds to believe that evidence of a crime exists in a certain place.

•  weapons (CC s. 117.02) •  incidental to lawful arrest (common law)

•  this refers to items on a person, including a cell-phone. 2014 Supreme Court 4-3 split decision: cell-phones can be searched incidental to lawful arrest, but passwords don’t need to be given.)

•  exigent (i.e urgent) circumstances (CC s. 487.12)

Pre-Trial Hearings

First Appearance: A criminal hearing in which the accused's name is called, the charge is read, and the accused pleads: i) guilty, ii) not guilty, or iii) request adjournment so as to seek further legal advice.

Bail Hearing: The hearing where it is determined whether the accused should be kept in custody or released on bail. The Crown Attorney must convince the court that the accused should be kept in jail until the trial.

A date is set for i) Preliminary Hearing (Inquiry) or, if they agree, for ii) trial.

If accused has been held in custody, bail may be set.

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Reasonable Grounds “reasonable grounds" is defined as: An honest belief that a given set of circumstances, (assuming them to be true), would reasonably lead any ordinary prudent and cautious man to the conclusion that a criminal offence had been committed and that the person is probably guilty. A "mere suspicion" does not constitute "reasonable grounds". (Hicks v. Faulkner, 1878, Q.B.D.)