Arrest power and interrogation techniques Arrest and the Charter

Evidence collected? Next, question suspects. Once the police have collected physical evidence, they begin to question suspects. Depending on the evidence collected, the police may make an arrest either before or after questioning. Procedures for how the police deal with suspects are outlined in the Criminal Code, and protected by the Charter. If proper procedures are not followed, the evidence obtained may be deemed inadmissible and the case thrown out.

Questioning the Accused “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?”

What does the Charter say? Police cannot force a suspect to answer their questions; Under Section 7 of the Charter, any detained or arrested suspect has the right to remain silent; Once an arrested person has been informed of his/her rights, anything said or put in writing can be used against that person in court.

What do you think? While being interrogated in September 2000, Stuart McKellar Cameron told police seven times that he didn’t want to talk. Nonetheless, officers continued their interrogation until Cameron finally confessed to the murder of one sister and the attempted murder of the other. Should Cameron’s confession be allowed in this circumstance?

Consider this... In November 2007, the Supreme Court of Canada ruled that information provided after an accused has requested the right to remain silent is admissible if the information was provided by the accused voluntarily (R. v. Singh). The accused had been arrested for 2nd degree murder for shooting an innocent bystander who had been in the doorway of a pub when shots were fired. The accused was advised of his right to counsel, and he met and consulted with counsel. During 2 subsequent interviews with the police, the accused stated on numerous occasions (18 times), that he wished to exercise his right to remain silent. The interviewing officer kept questioning him in an effort to get a confession.

Consider this cont’d. Though he never confessed, the accused stated a number of things to the interviewer, which, when combined with other evidence, became probative of the issue of identification at trial (it incriminated him as he knew details only the person who committed the crime would have known) . Singh was convicted, after both the Court of Appeal and the trial judge found that the statements made came freely (were voluntary) and did not result from the police infringing his right to silence. He took his case to the Supreme Court of Canada, which stated “it is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police. Such an approach would overshoot the protection afforded to the individual’s freedom of choice...More importantly, this approach ignores the state interest in the effective investigation of crime. The critical balancing of state and individual interests lies at the heart of this Court’s decision....”

Interrogation Techniques The goal of interrogation is to obtain the truth; The beginning of the interrogation involves open- ended, non-threatening questions, such as “Tell me what happened.”, to encourage the suspect to talk about the incident and provide answers with a lot of information. Later in the investigation, questions are designed to get specific answers, such as “What time did you leave your house?”

The Four-Stage Approach to the Interrogation Process The suspect is asked to describe: The entire incident; The period before the offence took place; The details of the actual offence; The period following the offence.

Arrest and Detention Procedures The police can either arrest or detain a suspect; A person placed under ARREST is legally deprived of his or her liberty. In order for an arrest to be lawful, the arresting officer must do the following: Identify him/herself as a police officer; Advise the accused that he/she is under arrest; Inform the accused of the charge and show the arrest warrant if one has been obtained; Touch the accused to indicate that he/she is in legal custody. Once in custody, the police must inform the accused of their right to counsel.

Detaining a suspect Sometimes, the police will DETAIN a suspect, instead of arrest them. To detain someone is to legally deprive them of their liberty, with or without physical restraint. You have been detained if you are kept in custody or are temporarily held by the police and you feel you have no choice but to consent to whatever the officer requests. If a person is detained, they must be informed of the reason for their detention and their right to retain counsel.

Arrest vs. Detention - example A serious assault takes place and the police are called. The victim is conscious and gives the police a description of the person who assaulted him. After searching the neighbourhood, the police stop Fred who completely fits the description, and ask him to accompany them to division headquarters to answer a few questions. Fred asks if he has a choice, and the police say no because he fits the description, but once he gets to the station he can call a lawyer. AT THIS POINT HE HAS BEEN DETAINED. If Fred refuses to accompany the police to the station, they will place him under ARREST, and take him to the station against his will.

Reasonable Grounds The police cannot just place anyone under arrest; they must prove they have REASONABLE GROUNDS for suspecting the person they want to arrest is the offender. REASONABLE GROUNDS means that based on the information available, a reasonable person would conclude that the suspect committed the offence.

What are your rights when you have been detained? You don’t have to answer any questions, unless you are in a specific situation, such as a spot check on a highway; If someone is detained or arrested in an arbitrary (without meaning) or improper manner, the individual may demand to speak to a lawyer and request the officer’s name and badge number, and sue the police for unlawful arrest or detention. You are allowed to use as much force as necessary to resist an illegal arrest, or search, but it must be REASONABLE.