Arrest and Detention P

Learning Goals I can describe the process of a police investigation, including the questioning of an accused and the gathering of evidence I can describe the process of a police investigation, including the questioning of an accused and the gathering of evidence I can identify the elements of a legal arrest, including the rights of an accused under arrest or detention I can identify the elements of a legal arrest, including the rights of an accused under arrest or detention

The Accused’s Rights must be informed of the reason for the arrest must be informed of the reason for the arrest has the right to retain council (and must be informed of that right - - see page 202 in text) has the right to retain council (and must be informed of that right - - see page 202 in text) has the right to remain silent if no lawyer is present has the right to remain silent if no lawyer is present has the right to refuse testing of urine and blood samples, and to refuse a line up for identification purposes has the right to refuse testing of urine and blood samples, and to refuse a line up for identification 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 Techniques While questioning suspects police: begin with open-ended questions: “Tell me what happened.” finish interrogation with closed questions to get specifics: “What time did you leave your home.”

Michael Rafferty Questioning

Russell Williams Interrogation

So You’re Busted The arresting police officer must: The arresting police officer must: 1. Identify him/herself and the accused. 2. Tell the accused that they are under arrest. 3. Tell the accused why they are under arrest. 4. The police officer must touch the accused to symbolize that the accused is in custody.

The Rights of Police have the right to search the person under arrest have the right to search the person under arrest have the right to take the arrested person to the police station have the right to take the arrested person to the police station have the right to fingerprint the accused if the offense is indictable have the right to fingerprint the accused if the offense is indictable

Questioning Police may officially detain a suspect and question without officially arresting them Police may officially detain a suspect and question without officially arresting them The police must have reasonable grounds for suspecting or detaining the offender. The police must have reasonable grounds for suspecting or detaining the offender. Must have evidence Must have evidence Depending on the amount of evidence collected, the police may make an arrest either before or after questioning. Depending on the amount of evidence collected, the police may make an arrest either before or after questioning. Procedures for dealing with suspects have been codified in the Criminal Code, developed through case law and entrenched in the Charter. Procedures for dealing with suspects have been codified in the Criminal Code, developed through case law and entrenched in the Charter.

More Questioning Once they have been informed of his/her rights, anything the accused chooses to say to the police or puts in writing can be used against them. Once they have been informed of his/her rights, anything the accused chooses to say to the police or puts in writing can be used against them. Police officers are not allowed to force a suspect to answer their questions. Police officers are not allowed to force a suspect to answer their questions.

Apprehending a Suspect 3 ways for police to apprehend: 3 ways for police to apprehend: Appearance Notice Appearance Notice Arrest with a Warrant Arrest with a Warrant Arrest without a Warrant Arrest without a Warrant

1. Appearance Notice For most Summary Convictions offenses and less serious indictable offences. For most Summary Convictions offenses and less serious indictable offences. Issued an Appearance Notice Issued an Appearance Notice Telling the accused to show up in court on a certain date and at a certain time. Telling the accused to show up in court on a certain date and at a certain time. Failure to show??? – Bench Warrant issued Failure to show??? – Bench Warrant issued Arrested and charge of “Failure to Appear” added on. Arrested and charge of “Failure to Appear” added on.

2. Arrest with a Warrant A Summons A Summons For indictable offenses, but police think the accused will voluntarily show up for trial. For indictable offenses, but police think the accused will voluntarily show up for trial. Informs the accused of charges and when to appear. Informs the accused of charges and when to appear. Failure to show??? – Bench Warrant issued Failure to show??? – Bench Warrant issued Arrested and “Failure to Appear” added on. Arrested and “Failure to Appear” added on.

Arrest with a Warrant cont’d Arrest Warrant Arrest Warrant A written court order directing the police to arrest the suspect. A written court order directing the police to arrest the suspect. For indictable offenses, but police think the accused will not show up voluntarily. For indictable offenses, but police think the accused will not show up voluntarily. Police lay an Information (details of an offense under oath), and the judge makes the call on whether to issue a warrant. Police lay an Information (details of an offense under oath), and the judge makes the call on whether to issue a warrant.

3. Arrest without a Warrant For Police and Peace Officers (mayors, prison guards, customs officials, pilots, etc.) For Police and Peace Officers (mayors, prison guards, customs officials, pilots, etc.) Can happen if: Can happen if: 1. Reasonable grounds to believe that a person committed an offense or is about to commit one. 2. Person in the act of committing a criminal offense. 3. Find a person who they believe is on an arrest warrant.

4)Citizen’s Arrest Arrest by someone other than a peace officer Arrest by someone other than a peace officer Most common type is for shoplifting Most common type is for shoplifting Ex. Store Detective, salesperson Ex. Store Detective, salesperson Suspect must immediately be turned over to a peace officer Suspect 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 offence -citizen finds a person escaping or being pursued by legal authorities -citizen finds a person committing a criminal offence on or in relation to their own property See pg 206 for Criminal Code outline.

Can citizens arrest a suspect if… a person has committed a summary offence? a person has committed a summary offence?(No) a person is about to commit an indictable offence? a person is about to commit an indictable offence?(No) a person is found committing an indictable offence? a person is found committing an indictable offence?(Yes) a person is being pursued by the police? a person is being pursued by the police?(Yes) a person is stealing a motor boat? a person is stealing a motor boat?(Yes)

Search Laws The right to Privacy is guaranteed under the Charter of Rights and Freedoms. The right to Privacy is guaranteed under the Charter of Rights and Freedoms. Police must follow proper procedure when searching for evidence.

Search Warrant Must have one to search a specific location (eg. private home) Must have one to search a specific location (eg. private home) Just like an Arrest Warrant, Police lay an Information (details of an offense under oath), and the judge makes the call on whether to issue a warrant. Just like an Arrest Warrant, Police lay an Information (details of an offense under oath), and the judge makes the call on whether to issue a warrant. Police must follow rules. Police must follow rules. Only search a residence between 6am and 9pm. Only search a residence between 6am and 9pm. Only evidence listed on the warrant can be collected. Any illegal substances, with the exception of drugs, liquor and firearms must be left alone. Only evidence listed on the warrant can be collected. Any illegal substances, with the exception of drugs, liquor and firearms must be left alone. No people in the house can be searched. No people in the house can be searched.

Searching in a Public Place No warrant needed. No warrant needed. Any person can be searched in a public place if the police have reason to suspect someone. Any person can be searched in a public place if the police have reason to suspect someone.

Searching a Person Police do not have to obtain a warrant to search a person they have just arrested. Police do not have to obtain a warrant to search a person they have just arrested. Usually a cursory "pat-down" to check for weapons or concealed evidence. Usually a cursory "pat-down" to check for weapons or concealed evidence. Strip searches Strip searches The Supreme Court of Canada has laid down strict guidelines about how these may be conducted. The Supreme Court of Canada has laid down strict guidelines about how these may be conducted. Done at the Police Station Done at the Police Station

Case Study Read and answer questions: R. vs. Golden, pg R. vs. Golden, pg R. v. Polashak, p. 207 R. v. Stillman p. 331

Procedures After Arrest -Once arrested, accused cannot be forced into a line-up, but co-operation = possible innocence. -Once arrested, accused cannot be forced into a line-up, but co-operation = possible innocence. -only a suspect accused of an indictable offence can be photographed and fingerprinted – police can retain record for 10 years even if accused is not charged or if acquitted in court -only a suspect accused of an indictable offence can be photographed and fingerprinted – police can retain record for 10 years even if accused is not charged or if acquitted in court

Pre-Trial Release -once a person has been arrested, fingerprinted and photographed, police will often release them until trial – they sign a “promise to appear” -once a person has been arrested, fingerprinted and photographed, police will often release them until trial – they sign a “promise to appear” PROMISE TO APPEAR (Offence Act) COURT FILE NUMBER CANADA: PROVINCE OF Ontario I, of understand that 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 the day of , , at o'clock in the noon in Provincial Courtroom Number located at Ontario and to attend thereafter as required by the Court, in order to be dealt with according to law. Dated this day of , , at Ontario Signature of Defendant Signature of Officer in Charge

- accused might be required to sign a recognizance which promises to appear at risk of $500 fine - accused might be required to sign a recognizance which promises to appear at risk of $500 fine Sample Recognizance Sample Recognizance -police might also request a surety which is a person who is willing to pay if the accused does not show up for court -police might also request a surety which is a person who is willing to pay if the accused does not show up for court -if serious charge, accused may be kept in detention unless allowed Bail which is a temporary release upon posting of a sum of money -if serious charge, accused may be kept in detention unless allowed Bail which is a temporary release upon posting of a sum of money

A person can be held for a bail hearing for several reasons including: -Seriousness of the offences requires it -Risk that they will re-offend -Offender’s identity not confirmed -Flight risk -Repeat offender -Breach of parole -a show-cause hearing is held when prosecution does not want the accused to be released on bail A person can be held for a bail hearing for several reasons including: -Seriousness of the offences requires it -Risk that they will re-offend -Offender’s identity not confirmed -Flight risk -Repeat offender -Breach of parole -a show-cause hearing is held when prosecution does not want the accused to be released on bail

Habeas Corpus a person who has been arrested and denied bail and who believes they have been illegally detained may file a Writ of Habeas Corpus which requires the Crown to give reasons that justify the detention of the accused. (See R. v. Morales, p. 213) a person who has been arrested and denied bail and who believes they have been illegally detained may file a Writ of Habeas Corpus which requires the Crown to give reasons that justify the detention of the accused. (See R. v. Morales, p. 213) Section 10 of the Charter states that “every one has the right on arrest or detention…to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.” Section 10 of the Charter states that “every one has the right on arrest or detention…to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”