Arrest and Detention

Questioning the Accused Procedures for dealing with suspects are codified in the Criminal Code which has been developed through case law and enshrined in the Charter of Rights and Freedoms. Police officers are required to ask suspects questions as they investigate a crime; however, they cannot force a person to answer their questions. Section 7 of the charter outlines this. The police must give the suspect a chance to make a free and meaningful choice about whether to speak or remain silent. The police are required to inform the person of a right to counsel.

Questioning the Accused Cont.. They read or say: You have the right to retain and instruct legal counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free 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? After they are read their rights, anything a person says to the police or puts into writing can be used against that person in trial.

Arrest and Detention Procedures Arrest: legally depriving someone of liberty by seizing or touching the person to indicate that he or she is in custody In order for an arrest to be lawful, the arresting officer must follow these four steps: Identify himself/herself as a police officer Advise the accused that he/she is under arrest Inform the accused promptly of the charge and show an arrest warrant if one has been obtained Touch the accused to indicate that he/she is in legal custody The accused in custody must be informed of their right to counsel

Detention In certain circumstances, instead of arresting the suspect, the police will detain the person. Detention: Legally depriving a person of liberty for the purpose of asking questions, with or without physical restraint. People detained by police must be promptly informed of the reasons for the detention and of their right to retain counsel. An example of detention: Francis fits the description given by an assault victim Police ask him to accompany them to the station for questioning Francis asks if he has to, police say yes He agrees – this is detention If he doesn’t agree, the police can place him under arrest and take him to the station against his will The police cannot arrest anyone the suspect of committing a criminal offence. They must have reasonable grounds for suspecting that a person they wish to arrest was the offender.

reverse onus Some circumstances may justify a reverse onus, which means that the burden of proofs shifts; rather than the Crown having to show cause that the accused should be Imprisoned, it is up to the defense to show cause why bail should be granted. This happens when: The accused is charged with committing an indictable offence while already out on bail offence is indictable and the accused is not a Canadian citizen The charge involves failure to appear or breach of a bail condition The accused is charged with importing, trafficking, or possession for the purpose of trafficking narcotics (or conspiracy to commit any of these crimes). If the accused falls into one of these categories, bail will be denied unless the accused convinces the judge that he/she will attend court as required, not commit a crime while out on bail, and not interfere with the administration of justice in any way.

Habeas Corpus If an accused person who has been arrested and denied bail believes that he or she has been illegally detained, that person can file a writ of habeas corpus to appeal the court’s refusal to a higher court. A writ of habeas corpus requires the Crown to produce the detained person in court and then give reasons to justify keeping this person in custody after trial. It also requires the Crown to show that the prisoner is not being mistreated in any way. If the Crown cannot justify the continued detention of the prisoner to the higher court’s satisfaction, the court may order the prisoner to be released until trial.