6.2 - Arrest & Detention

Result of Criminal Investigation

The overall goal of every criminal investigation is the identification and apprehension of the person who committed the crime.  Once the suspect has been identified, the police may arrest or detain the person for questioning.  Procedures that police must follow for arrest and detention are outlined in the CCC, are refined by case law, and have boundaries established in the Charter.  If police do not follow these procedures, they risk losing the ability to prosecute that suspect.

Questioning the Accused

Once police have identified and arrested a suspect in a crime, they will want to question the person.  As a matter of fact, police are required to question an accused person.  The accused person is, however, not required to answer any of these questions from the police.  Once a person is arrested, and has been informed of their rights, anything that they say to police, or write for police may be used in court.  These and other rights are clearly presented in the police warnings read to an arrested person by the police upon being arrested.

Steps in Arrest & Detention

An arrest is legally depriving someone of liberty by seizing or touching them to indicate that he/she is in custody.  The five typical steps in an arrest include the following:

• identify oneself as police

• advise accused of arrest

• inform them of charge, and show arrest warrant (if one)

• touch the accused

• inform them of the right to counsel

A person may be arrested if a police officer has reasonable grounds to arrest them.  Reasonable grounds refers to information that would have a reasonable person to conclude that a suspect had committed a criminal offence.  Detention is somewhat similar to an arrest.  Detention is legally depriving a person of his liberty for the purpose of asking questions, with or without physical restraint.  The steps followed by police for detention are similar to those for an arrest, and include the following:

• identify oneself as police

• advise person that they’re being detained

• inform them as to reason for the detention

• inform them of the right to counsel

It is very important to understand that both arrest and detention procedures are intended to facilitate a criminal investigation, while also protecting a person’s Charter rights.

Methods Used to Bring Suspect to Court

Police apprehend suspects of a criminal offence using one of these three methods:  using an appearance notice, arrest with a warrant, and arrest without a warrant  The first method is through the use of an appearance notice.  This is a legal document issued by the court compelling an accused person to appear in court at a specific date and time.  These are used for less serious offenses.  However, if the accused person does not appear in court, then the judge may issue a bench warrant.  A bench warrant is an arrest warrant issued directly by a judge when an accused person fails to appear in court.

The second method that police use is an arrest with a warrant.  One example of such an arrest is through the use of a summons.  A summons is a legal document issued by a court that orders a person to appear in court for an indictable offence.  These are used when the accused is expected to voluntarily show up for court.  If the court is not sure that the accused will show up for court, then they may issue an arrest warrant.  An arrest warrant is a written court order that directs police to arrest the suspect.  Police will then find the suspect, and arrest him/her.

The third method used by police in the apprehension of a suspect is an arrest without a warrant.  The CCC lists three circumstances where a police officer may arrest a suspect; and two of these are without an arrest warrant.  The first two circumstances below refer to situations where police do not have an arrest warrant:

• police have reasonable grounds that the person has committed an indictable offense, or is about to commit an indictable offense

• if police catch someone committing a criminal offense

• if police find a person named in an arrest warrant

Although all of the discussion regarding arrests have been focused on arrests by police, it is interesting to note that private citizens may also lawfully arrest criminal suspects.  This is accomplished through a citizen’s arrest, which is an arrest without a warrant by a person other than a peace officer.  Such arrests are legal, but are not encouraged, given that it may put the citizen in danger.

Searches

Searches in a criminal investigation may occur both during, and after, the investigation.  Here are a few simple guidelines for police searches during an investigation:

• search of the person  --  as part of a criminal investigation, police may search a person if they have reasonable and probable grounds to believe that they’re carrying an illegal weapon, or a weapon used to commit a crime  --  no search warrant needed

• search of the person  --  if police find someone in an area where they are searching for drugs, and they have reason to believe that the person might have drugs on them  --  no search warrant needed

• search of a vehicle  --  if police have reasonable and probable grounds to believe that a person’s car contains illegal drugs or alcohol, or evidence related to the commission of a crime  --  no search warrant needed

• search of a residence  --  police need permission of the occupant or a search warrant to search a residence

A search warrant is a court document giving police the right to search a specific location.  Search warrants are designed to search specific locations for specific evidence.  If police find evidence not listed on the search warrant, they may keep/use it if it is related to the crime being investigated.  However, if police find evidence related to an unrelated crime, they must first obtain another search warrant relative to the second crime/evidence before the new evidence would be considered admissible.

Given that the above discussion is specific to searches during an investigation, what about searches after a person has been arrested?  The same search rules apply after an arrest.  However, it is important to note that police do not need a search warrant to search a person that they’ve just arrested.  The simple reason for this is that the search is done to ensure officer safety.

Procedures After Arrest

After a person has been arrested, there are a few other things that happen.  First, the arrested person is fingerprinted and photographed (‘mugshot’).  Second, the person may be remanded in custody or released.  Being remanded means that they are locked up in a local jail cell to await transfer to a local correctional facility where they will remain until their trial.  People charged with serious indictable offenses will usually remain in custody until their trial.  However, sometimes accused persons will be released on bail.  Bail is the temporary release of an accused who posts money or some other security to guarantee that they will show up in court for their trial.  If they don’t show up, then they lose the money.  If they show up, then they get their money back.  Less serious crimes may result in the accused being released after the arrest processing has been completed.

Releasing an arrested person may take one of the following three forms:  promise to appear, recognizance without surety, and recognizance with surety.  First, a promise to appear is a signed agreement that the accused person will appear in court at the time of the trial.  Second, a recognizance without surety is a signed agreement where the accused agrees to appear in court for trial, and may be fined up to $500 if they miss that court date.  Finally, a recognizance with surety, is similar to a recognizance without surety, but has the added element of surety.  Surety is money put up by a person other than the accused to ensure that the accused appears in court.  The money is lost if the accused misses the court date.

Summary

So then, after the arrested person has been processed, and either remanded or released, then the next things to happen revolve around preparation for the trial.  The police and crown prosecutor will begin to compile evidence to convict the accused, while the defence attorney will begin to compile evidence intended to cause doubt that the accused committed the act.  These actions will be the focus of later sections.