Arrest and DetentionArrest and Detention

P. 202-213P. 202-213

Learning GoalsLearning Goals

I can describe the process of a police I can describe the process of a police investigation, including the investigation, including the questioning of an accused and the questioning of an accused and the gathering of evidencegathering of evidence

I can identify the elements of a legal I can identify the elements of a legal arrest, including the rights of an arrest, including the rights of an accused under arrest or detentionaccused under arrest or detention

The Accused’s RightsThe Accused’s Rights must be informed of the reason for the must be informed of the reason for the

arrestarrest has the right to retain council (and must has the right to retain council (and must

be informed of that right - - see page 202 be informed of that right - - see page 202 in text)in text)

has the right to remain silent if no lawyer has the right to remain silent if no lawyer is presentis present

has the right to refuse testing of urine and has the right to refuse testing of urine and blood samples, and to refuse a line up for blood samples, and to refuse a line up for identification purposesidentification purposes

“You have the right to retain and instruct legal counsel without delay. You have the right to telephone any lawyer that you wish. You also have the right to free legal advice from a legal aid lawyer. If you are charged with an offence, you can contact the Legal Aid Plan for legal assistance. Do you understand? Do you wish to telephone a lawyer now.”

Interrogation TechniquesInterrogation Techniques

While questioning suspects police:While questioning suspects police:

begin with begin with open-ended open-ended questions: questions: “Tell me what happened.”“Tell me what happened.”

finish interrogation with finish interrogation with closedclosed questions to get specifics: “What time questions to get specifics: “What time did you leave your home.”did you leave your home.”

Michael Rafferty QuestioningMichael Rafferty Questioning

Russell Williams InterrogationRussell Williams Interrogation

So You’re BustedSo You’re Busted

The arresting police officer must:The arresting police officer must:

1.1. Identify him/herself and the accused.Identify him/herself and the accused.

2. Tell the accused that they are under arrest.2. Tell the accused that they are under arrest.

3. Tell the accused why they are under arrest.3. Tell the accused why they are under arrest.

4. The police officer must touch the accused to 4. The police officer must touch the accused to symbolize that the accused is in custody.symbolize that the accused is in custody.

The Rights of PoliceThe Rights of Police

have the right to have the right to search the person search the person under arrestunder arrest

have the right to have the right to take the arrested take the arrested person to the police person to the police stationstation

have the right to have the right to fingerprint the fingerprint the accused if the accused if the offense is indictable offense is indictable

QuestioningQuestioning Police may officially detain a suspect and Police may officially detain a suspect and

question without officially arresting themquestion without officially arresting them

The police must have The police must have reasonable groundsreasonable grounds for for suspecting or detaining the offender.suspecting or detaining the offender. Must have evidenceMust have evidence Depending on the amount of evidence collected, Depending on the amount of evidence collected,

the police may make an arrest either before or the police may make an arrest either before or after questioning.  after questioning. 

Procedures for dealing with suspects have Procedures for dealing with suspects have been codified in the Criminal Code, developed been codified in the Criminal Code, developed through case law and entrenched in the through case law and entrenched in the Charter. Charter.

More QuestioningMore Questioning

Once they have been informed of Once they have been informed of his/her rights, anything the his/her rights, anything the accused chooses to say to the accused chooses to say to the police or puts in writing can be police or puts in writing can be used against them.  used against them. 

Police officers are not allowed to Police officers are not allowed to force a suspect to answer their force a suspect to answer their questions.questions.   

Apprehending a SuspectApprehending a Suspect

3 ways for police to 3 ways for police to apprehend:apprehend:

Appearance NoticeAppearance NoticeArrest with a WarrantArrest with a WarrantArrest without a WarrantArrest without a Warrant

1. Appearance Notice1. Appearance Notice

For most Summary Convictions For most Summary Convictions offenses and less serious indictable offenses and less serious indictable offences.offences.

Issued an Issued an Appearance NoticeAppearance Notice Telling the accused to show up in court on Telling the accused to show up in court on

a certain date and at a certain time.a certain date and at a certain time. Failure to show??? – Failure to show??? – Bench WarrantBench Warrant

issuedissued Arrested and charge of “Failure to Appear” Arrested and charge of “Failure to Appear”

added on.added on.

2. Arrest with a Warrant2. Arrest with a Warrant

A A SummonsSummons For indictable offenses, but police think For indictable offenses, but police think

the accused will voluntarily show up for the accused will voluntarily show up for trial.trial.

Informs the accused of charges and Informs the accused of charges and when to appear.when to appear.

Failure to show??? – Failure to show??? – Bench WarrantBench Warrant issuedissued

Arrested and “Failure to Appear” added on.Arrested and “Failure to Appear” added on.

Arrest with a Warrant cont’dArrest with a Warrant cont’d

Arrest WarrantArrest Warrant A written court order directing the police to A written court order directing the police to

arrest the suspect.arrest the suspect. For indictable offenses, but police think the For indictable offenses, but police think the

accused will accused will notnot show up voluntarily.show up voluntarily.

Police lay an Police lay an InformationInformation (details of an (details of an offense under oath), and the judge offense under oath), and the judge makes the call on whether to issue a makes the call on whether to issue a warrant.warrant.

3. Arrest without a Warrant3. Arrest without a Warrant For Police and Peace Officers (mayors, For Police and Peace Officers (mayors,

prison guards, customs officials, pilots, etc.)prison guards, customs officials, pilots, etc.) Can happen if:Can happen if:

1.1. Reasonable grounds to believe that a Reasonable grounds to believe that a person committed an offense or is about person committed an offense or is about to commit one.to commit one.

2.2. Person in the act of committing a criminal Person in the act of committing a criminal offense.offense.

3.3. Find a person who they believe is on an Find a person who they believe is on an arrest warrant.arrest warrant.

4)4) Citizen’s ArrestCitizen’s Arrest Arrest by someone other than a peace officerArrest by someone other than a peace officer

Most common type is for shopliftingMost common type is for shoplifting Ex. Store Detective, salespersonEx. Store Detective, salesperson

Suspect must immediately be turned over to a peace officerSuspect must immediately be turned over to a peace officer Can occur if Can occur if

– – citizen finds someone in the act of committing an indictable citizen finds someone in the act of committing an indictable offenceoffence

-citizen finds a person escaping or being pursued by legal -citizen finds a person escaping or being pursued by legal authoritiesauthorities

-citizen finds a person committing a criminal offence on or in -citizen finds a person committing a criminal offence on or in relation to their own propertyrelation to their own property

See pg 206 for Criminal Code outline.See pg 206 for Criminal Code outline.

Can citizens arrest a suspect if…Can citizens arrest a suspect if…

a person has committed a summary offence? a person has committed a summary offence? (No)(No)

a person is about to commit an indictable offence? a person is about to commit an indictable offence? (No)(No)

a person is found committing an indictable a person is found committing an indictable offence?offence?(Yes)(Yes)

a person is being pursued by the police? a person is being pursued by the police? (Yes)(Yes)

a person is stealing a motor boat? a person is stealing a motor boat? (Yes)(Yes)

Search LawsSearch Laws

The right to Privacy The right to Privacy is guaranteed is guaranteed under the Charter under the Charter of Rights and of Rights and Freedoms.Freedoms.

Police must follow Police must follow proper procedure proper procedure

when searching for when searching for evidence. evidence.

Search WarrantSearch Warrant Must have one to Must have one to search a specific locationsearch a specific location (eg. (eg.

private home)private home) Just like an Arrest Warrant, Police lay an Just like an Arrest Warrant, Police lay an

InformationInformation (details of an offense under oath), (details of an offense under oath), and the judge makes the call on whether to and the judge makes the call on whether to issue a warrant.issue a warrant.

Police must follow rules. Police must follow rules. Only search a residence between 6am and Only search a residence between 6am and

9pm. 9pm. Only evidence listed on the warrant can be Only evidence listed on the warrant can be

collected. Any illegal substances, with the collected. Any illegal substances, with the exception of drugs, liquor and firearms must exception of drugs, liquor and firearms must be left alone. be left alone.

No people in the house can be searched.No people in the house can be searched.

Searching in a Public Place Searching in a Public Place

No warrant needed.No warrant needed. Any person can be searched in a public Any person can be searched in a public

place if the police have reason to suspect place if the police have reason to suspect someone.someone.

Searching a PersonSearching a Person

Police do not have to obtain a warrant Police do not have to obtain a warrant to search a person they have just to search a person they have just arrested.arrested.

Usually a cursory "pat-down" to check Usually a cursory "pat-down" to check for weapons or concealed evidence.  for weapons or concealed evidence. 

Strip searchesStrip searches The Supreme Court of Canada has The Supreme Court of Canada has

laid down strict guidelines about how laid down strict guidelines about how these may be conducted.  these may be conducted. 

Done at the Police StationDone at the Police Station

Case StudyCase Study

Read and answer questions:Read and answer questions:

R. vs. GoldenR. vs. Golden, pg. 209., pg. 209.

R. v. Polashak, p. 207R. v. Polashak, p. 207

R. v. Stillman p. 331R. v. Stillman p. 331

Procedures After ArrestProcedures After Arrest

-Once arrested, accused cannot be -Once arrested, accused cannot be forced into a line-up, but co-forced into a line-up, but co-operation = possible innocence.operation = possible innocence.

-only a suspect accused of an -only a suspect accused of an indictable offence can be indictable offence can be photographed and fingerprinted – photographed and fingerprinted – police can retain record for 10 years police can retain record for 10 years even if accused is not charged or if even if accused is not charged or if acquitted in courtacquitted in court

Pre-Trial ReleasePre-Trial Release -once a person has been arrested, fingerprinted and -once a person has been arrested, fingerprinted and

photographed, police will often release them until trial photographed, police will often release them until trial – they sign a “– they sign a “promise to appearpromise to appear””

PROMISE TO APPEARPROMISE TO APPEAR(Offence Act)(Offence Act)

COURT FILE NUMBERCOURT FILE NUMBER

CANADA:CANADA:

PROVINCE OF OntarioPROVINCE OF OntarioI, .................................................. of ........................................ understand that I, .................................................. of ........................................ understand that

it is alleged that I have committed [set out substance of offence] it is alleged that I have committed [set out substance of offence] In order that I may be released from custody, I promise to attend court on In order that I may be released from custody, I promise to attend court on

the .......... day of ...................., 20...., at .......... o'clock in the ..........noon in the .......... day of ...................., 20...., at .......... o'clock in the ..........noon in Provincial Courtroom Number .......... located at .............................. Ontario Provincial Courtroom Number .......... located at .............................. Ontario and to attend thereafter as required by the Court, in order to be dealt with and to attend thereafter as required by the Court, in order to be dealt with according to law. according to law.

Dated this .......... day of ...................., 20...., at ........................................ Dated this .......... day of ...................., 20...., at ........................................ Ontario.Ontario.

....................................................................................................................................................................................

Signature of Defendant Signature of Defendant ....................................................................................................................................................................................

Signature of Officer in ChargeSignature of Officer in Charge

- accused might be required to sign a - accused might be required to sign a recognizancerecognizance which promises to which promises to appear at risk of $500 fine appear at risk of $500 fine

Sample RecognizanceSample Recognizance -police might also request a -police might also request a suretysurety

which is a person who is willing to pay if which is a person who is willing to pay if the accused does not show up for courtthe accused does not show up for court

-if serious charge, accused may be kept -if serious charge, accused may be kept in detention unless allowed in detention unless allowed Bail Bail which which is a temporary release upon posting of is a temporary release upon posting of a sum of moneya sum of money

A person can be held for a bail A person can be held for a bail hearing for several reasons including: hearing for several reasons including:

-Seriousness of the offences -Seriousness of the offences requires it requires it

-Risk that they will re-offend -Risk that they will re-offend -Offender’s identity not -Offender’s identity not

confirmed confirmed -Flight risk -Flight risk -Repeat offender -Repeat offender -Breach of parole -Breach of parole

-a -a show-cause hearingshow-cause hearing is held is held when prosecution does not want the when prosecution does not want the accused to be released on bail accused to be released on bail

Habeas CorpusHabeas Corpus a person who has been arrested and a person who has been arrested and

denied bail and who believes they have denied bail and who believes they have been illegally detained may file a been illegally detained may file a Writ Writ of Habeas Corpusof Habeas Corpus which requires the which requires the Crown to give reasons that justify the Crown to give reasons that justify the detention of the accused. (See R. v. detention of the accused. (See R. v. Morales, p. 213)Morales, p. 213)

Section 10 of the Charter states that Section 10 of the Charter states that ““every one has the right on arrest or every one has the right on arrest or detention…to have the validity of the detention…to have the validity of the detention determined by way of habeas detention determined by way of habeas corpus and to be released if the corpus and to be released if the detention is not lawful.”detention is not lawful.”