1. Arrest and Detention
Ch 8.3

2. 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.

3. 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.

4. Interrogation Techniques
The police use a variety of techniques to get someone to talk or confess about a crime. Often they use open-ended nonthreatening questions to put the person at ease and open up. Later the police will asked closed questions designed to elicit specific answers. Often they use a four stage approach in their interrogation. They ask the suspect to describe:
The entire incident
The period before the offence took place
The details of the actual offence
The period following the offence

5. 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

6. 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.

7. Appearance Notice
The police have three methods of apprehending an offender:
Appearance Notice – a legal document, usually issued for a less serious offence, compelling an accused person appear in court. If they fail to appear, the judge will issue a bench warrant. The accused will be arrested for the original offence and another offence called failure to appear.
Arrest with a warrant – a person suspected of committing a serious indictable offence may be issued a summons form the court. This occurs when the police believe the accused will appear in court voluntarily. Summons are delivered by a sheriff or deputy, it informs the accused of the charges and when to appear in court. Usually the accused is directed to go to the police station for fingerprinting. Failure to do this can lead to a bench warrant.
Arrest without a warrant - Section 495 of Criminal Code - Any officer can arrest without a warrant if there is
reasonable grounds to suspect a person has either committed an indictable offence or is about to commit one
They find a person in the act of committing criminal offense
They find a person whom they believe is named on an arrest warrant

8. Citizen’s Arrest
Shoplifting most common usually the suspect is arrested by a store detective or salesperson. Immediately after a citizen’s arrest the suspect must be turned over to a peace officer. Citizen’s arrests are rare – many people are afraid they will be sued for false arrest or injured in a fight. Conditions for Citizen’s arrest can be found in Section 494 CC.

9. Searches
Because the law seeks to balance the individual’s right to privacy with the state’s need to conduct a thorough investigation, both statute and common law carefully explain at what point the police may conduct searches and the kind of evidence they may collect. Generally the police have to obtain a warrant before conducting a search, but there are important exceptions to this rule.

10. Searching a person
The police do not have to obtain a warrant to search a person they have just arrested. But, the police have to satisfy three conditions for this exception to be legal:
The arrest must be lawful
The search must be connected to the lawful arrest
The manner in which the search is carried out must be reasonable
Except in the case of impaired driving an arrested person does not have to supply the police with breath, blood or urine samples. In most cases, to ensure that the arrested person is not carrying weapons or concealing evidence, the police will do a cursory search or “pat down” immediately after the arrest. A more thorough search may take place at the police station.

11. strip-searches
The practice of strip-searches, even those arrested for non-violent crimes has been fairly common in Canada. The Supreme Court placed limits on strip searches laying down strict guidelines for when and how they must be conducted
Strip searches can only be conducted when
Police have reason to believe the accused is concealing a weapon, drugs or other evidence
The search is authorized by a senior officer
The search is done by an officer of the same sex, and
Searches of body cavities are done only by medical personnel

12. Searching a Place
In most cases, police must obtain a warrant before searching places such as a residence, an office, or a storage area. The police must ensure the warrant is correctly obtained and filled out. To obtain a search warrant, a police officer must deliver a sworn information to a judge or justice of the peace. The information must specify the crime, items being searched for, and reasonable grounds they have to believe the items can be found here. For a private dwelling search warrant, unless noted, the search can only take place between the hours of 6:00am and 9:00pm. In the search items not listed in the search warrant can be confiscated as long as these items are related to the crime and are in plain sight.

13. Search Warrant
Search Warrant: a court document that gives police the right to search a specific location
In cases where the police believe they must act quickly to preserve evidence, they may obtain a telewarrant to search the premises. Telewarrant: a search warrant obtained by phone or fax
A search warrant is almost always required if the police wish to search a private home. Two exceptions apply where pressing circumstances make it difficult to obtain a warrant in time. Police must have reasonable grounds to believe that entering the dwelling is necessary to prevent
Imminent injury or death to any person, or
The destruction of evidence relating to an indictable offence
The controlled Drugs and Substance Act gives police to search any premise except a person’s residence for illegal drugs. The provincial liquor laws give the right to search automobiles illegal alcohol without first obtaining a warrant.

14. Procedure after Arrest
The only suspect the police have the right to photograph and fingerprint is someone who has been arrested for an indictable offence. If the police do not charge the person, or if the person is charged by acquitted in court, the police will usually retain the arrest record (including the fingerprints and photographs) for 10 years before destroying them. The police do not have the right to force an arrested person to participate in a line-up

15. Individual’s Rights
The accused does not have to take part in a line-up, where several individuals, including the suspect, line up for possible identification by the victims or witnesses. Nor must the suspect take a polygraph test (lie detector test) or give blood, urine, or breath samples (except in cases of impaired driving offences). The police are allowed to obtain DNA samples from a suspect but they must have a warrant to do so. It actually might be to the suspect’s advantage to permit evidence to be collected. For example, when murder has been committed under the influence of drugs or alcohol, the extent of the influence might affect the outcome of the trial or even the sentence.

16. Police Conduct
Police officers are responsible for their conduct and behavior when carrying out their duties. If they break the rules of police conduct, they can be charged under criminal law or sued under civil law. Each province has a board that reviews complaints from citizens concerning police conduct. Police officers often have to make quick decisions to save their own lives and those of others. At all times, officers must act on reasonable grounds using as much force as is necessary for that purpose.

17. Pretrial Release
Once a person has been arrested, fingerprinted and photographed, the police will often release the accused until the trial. Release is usually automatic for people accused of a summary conviction or indictable offence that carries a fine of $5000 or less. If the police believe the accused will appear in court voluntarily and will not commit and offences while awaiting trial, the accused will sign a promise to appear. If the accused does not appear on the assigned date, the court will usually issue a bench warrant for his/her arrest. In some cases, the accused may be required to sign a recognizance – a guarantee to appear in court when required. A fine of up to $500 may be levied if the accused fails to appear. Unless the accused comes from another province or lives more than 200km away, a deposit is not usually required. The police may also request a surety, someone who is willing to pay a certain sum of money if the accused fails to appear at trial. The surety also has to sign the recognizance form.

18. Bail
Usually the police will try to keep suspects accused of serious indictable offences in custody after arrest. In such cases, the accused has the right to make a bail application. Bail is the temporary release of a prisoner who posts a sum of money or other security to guarantee his/her appearances in court. A bail hearing must be held within 24 hours of an arrest, or if a magistrate is unavailable, as soon as possible thereafter. Section 11 of the Charter guarantees no one is to be denied reasonable bail without cause. If the Crown does not want the accused released before trial, a show-cause hearing is held to ‘show cause’ and convince the judge that the prisoner should stay in jail until the trial date. “Cause” includes reason to suspect the accused may flee; concern that releasing the accused may be a threat to the safety and protection of the public, or any other just cause. If the Crown is successful, the judge will issue a detention order to keep the accused in jail.

19. 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.

20. 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.