Arrest and Detention

Arrest and Detention Law 120 - Mr. Denton

Arrest and Detention • After collection of physical evidence police usually begin questioning suspects. • Depending on amount of evidence police may make an arrest either before or after questioning. • Procedures for dealing with suspects covered in both Criminal Code and Charter of Rights and Freedoms • If procedures not followed, case can fall apart later in court – evidence may be inadmissible.

Questioning the Accused • Police must ask suspects questions as they investigate but cannot force a suspect to answer. • Suspects have the following rights according to the Criminal Code: • The right to remain silent • Right to retain and instruct counsel without delay • Right to telephone any lawyer they wish • Right to free legal counsel from a legal aid lawyer • If charged with an offence, the right to contact Legal Aid Plan for legal assistance. • Once arrested person has been informed of rights , anything they say or write can be used against them in court

Interrogation Techniques • When police interview a suspect, their primary goal is to obtain the truth. • Best way to accomplish goal is to develop trusting relationship with accused. • At the beginning of the questioning process, the police tend to use open-ended, non-threatening questions (i.e. “Tell me what happened”) then questions become more closed (i.e. “What time did you leave the house”)

Interrogation Techniques (cont) • Most of the time, police use a four-stage approach in the interrogation process. • Suspects are asked to describe: • The entire incident • The period before the offence took place • The details of the actual offence • The period following the offence.

Consider This • While being interrogated in September 2000, Stuart McKellar Cameron told police seven times that he didn’t want to talk. Nonetheless, the 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 admissible as evidence in this circumstance? Explain.

Arrest and Detention Procedures • Criminal case usually begins when police formally charge a person with committing an offence. • Police may either arrest or detain a suspect. • Person who is arrested is deprived of his/her liberty by legal authority.

Arrest (cont) • In order for an arrest to be lawful, the arresting officer must follow four steps: • Identify himself or herself as a police officer • Advise the accused that he or she is under arrest. • Inform the accused promptly of the charge and show the arrest warrant if one has been obtained. • Touch the accused to indicate that he or she is in legal custody. Once the accused is in custody, the police must inform the person of the right to counsel.

Detention • In certain circumstances, instead of arresting the suspect, police will detain the person. • Detention involves stopping someone and asking the individual to answer a few questions. • Person is still being denied of liberty with or without physical restraint and must be informed promptly of the reasons and of their right to counsel.

Detention (cont) • Police are called to scene of a serious assault. The victim is conscious and able to give a description of the person who assaulted him. Police comb the neighborhood and find Francis who fits the description in every aspect. They stop Francis and ask him to accompany them to division headquarters to answer a few questions. He asks if he has a choice in the matter and they say no as he fits the description they were given by the victim. • Francis must go with them but may call a lawyer when he gets to the station. He has been detained and if he refuses to go he can be arrested by the police and taken against his will.

Reasonable Grounds • Police cannot arrest just anyone of committing an offence. They must have some proof and reasonable grounds the person to suspect the person they wish to arrest. • Reasonable grounds means that based on the information available, a reasonable person would conclude that the suspect had committed a criminal offence.

Reasonable citizens usually co-operate with the police when stopped or questioned. If questioning persists beyond a reasonable point an individual may ask to speak to a lawyer and be given the police officer’s name and badge number. • If a person is arrested in an arbitrary or improper manner, the person may sue the police for an unlawful arrest.

Appearance Notice • Police have 3 methods of apprehending an offender: appearance notice; arrest with warrant; arrest without warrant. • Most summary offences and less serious indictable offences the police will not arrest the person but issue an appearance notice • Appearance notice is a legal document compelling an individual to appear in court on a certain date at a certain time. Accused must sign and obtain a copy of the appearance notice.

Arrest with a Warrant • If the accused doesn’t show up to court as instructed the police can ask the judge to issue a bench warrant. The accused will then be arrested for the original offence plus charged with failure to appear. • If person charged with a serious indictable offence, the police may ask a Judge to issue a summons. Usually issued if the police believe the person will come to court voluntarily. • Delivered by a sheriff the summons informs the individual when to appear in court and usually asks them to report to the police station for fingerprinting.

If the police believe a person will not appear in court willingly, they can obtain an arrest warrant which involves providing a sworn “information” before a Judge or Justice of the Peace. • An information is statement given under oath telling the Court details of the offence. Once the police ‘lay an information’ the Court decides whether or not to issue an arrest warrant. • An arrest warrant is a written court order directing the police to arrest a suspect. Warrant provides the name of the accused, the offence the person is charged with and the reason for the warrant.

Arrest without a Warrant • Three circumstances police can arrest without a warrant: • Reasonable grounds to suspect person has either committed or is about to commit an indictable offence • They find a person in the act of committing a criminal offence • They find a person they believe is named on an arrest warrant. • These circumstances are extended to all peace officers. Peace officers are such officials as mayors, prison guards, customs officers, aircraft pilots and fisheries officers.

Citizen’s Arrest • Most common form of citizen’s arrest involves incidents of shoplifting. Instead of being arrested by the police, a suspect is arrested by a store detective or salesperson. • Immediately after a citizen’s arrest is made the suspect must be turned over to a peace officer. • Generally, citizen’s arrests are rare. Many people are afraid of being sued for false arrest or injured in a fight with a desperate or violent suspect.

The following circumstances are when a citizen’s arrest may be made: • Anyone may arrest without a warrant • A person whom he finds committing an indictable offence or, on reasonable grounds, believes has committed a criminal offence or is escaping from or being pursued by persons who have legal authority to arrest that person. • If an individual is committing a criminal offence on or in relation to property, that person maybe arrested without a warrant by: • The owner or a person in lawful possession or someone authorized by the owner or person in lawful possession of of the property

Persuasive Writing Assignment#2 • In a persuasive paragraph written in formal style, respond to the following: • The Criminal Code gives the police the authority to arrest a person without a warrant if they suspect, on reasonable grounds, that he or she is planning a terrorist activity. Does this violate the right of Canadians not to be arbitrarily detained or arrested? Explain. • Paragraph should be at least 250 words long and double spaced. Follow the checklist and rubric you received from the first writing assignment. Due tomorrow.

Arrest and Detention