Initial Post-Charge Detention

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General Principles

Holding a person in custody when it is not prescribed by the provisions of the Criminal Code would be a violation of s. 9 of the Charter.[1]

  1. ↑ R v Grant, 2009 SCC 32 (CanLII), [2009] 2 SCR 353 at para 54 (“[A] detention not authorized by law is arbitrary and violates s. 9 [of the Charter]”)

Release

When Detained by Peace Officer

Release from custody by peace officer
497. (1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b) or (c) [issuing an appearance notice], the peace officer shall, as soon as practicable,

(a) release the person from custody with the intention of compelling their appearance by way of summons; or
(b) issue an appearance notice to the person and then release them.

Exception
(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3) [Remand in custody for return to jurisdiction where offence alleged to have been committed].
Consequences of non-release
(3) A peace officer who has arrested a person without warrant for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the peace officer’s duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; and
(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (1).

R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).

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When Detained by Officer-in-Charge

Release from custody by officer in charge
498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) [deliver to police after citizen's arrest] or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) [taking a detainee before a justice] for an offence described in paragraph 496(a), (b) or (c) [issuing an appearance notice], or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable,

(a) release the person with the intention of compelling their appearance by way of summons;
(b) release the person on their giving a promise to appear;
(c) release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or
(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person’s entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

Exception
(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence,
(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
(iv) ensure the safety and security of any victim of or witness to the offence; or
(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

Where subsection (1) does not apply
(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).
...
R.S., 1985, c. C-46, s. 498; R.S., 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30(Preamble).


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Section 498 directs an officer to release an accused as soon as practicable, unless one of the reasons listed in (1.1). One of the "reasonable public interest" grounds include the need to deain a person until they are sober and safe to be released.[1]

  1. ↑ R v Viszlai, 2012 BCCA 442 (CanLII) at para 47
    R v Sapusak, [1998] O.J. No. 3299(*no CanLII links)
    R v Coulter, [2000] O.J. No. 3452 (Ont. Ct. J.), affirmed [2001] O.J. No. 5608 (Sup. Ct. J.)(*no CanLII links)
    R v Padda, 2003 CanLII 52405 (ON CJ), [2003] O.J. No. 5502 (Ont. Ct. J.)
    R v Gaudette, [2005] O.J. No. 2399 (Ont. Ct. J.)(*no CanLII links) , reversed for other reasons, [2006] O.J. No. 3732 (Sup. Ct. J)(*no CanLII links)
    R v Kisil, 2009 ONCJ 424 (CanLII), [2009] O.J. No. 3821 (Ont. Ct. J.)
    R v Prentice, 2009 ONCJ 708 (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.)
    R v Key, 2011 ONCJ 780 (CanLII), [2011] O.J. No. 5972 (Ont. Ct. J.)
    R v Baxter, 2012 ONCJ 91 (CanLII), [2012] O.J. No. 796 (Ont. Ct.J)

Impaired Driving Investigations

Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:[1]

  1. the accused's blood alcohol level,
  2. whether the accused was charged with impaired operation,
  3. his or her level of comprehension,
  4. that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),
  5. that the accused's vehicle would have been impounded,
  6. whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound,
  7. whether the accused had a criminal record and if so, its contents,
  8. whether the accused had outstanding charges,
  9. his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.

The analysis should not simply be limited to the BAC level results.[2]

  1. ↑ R v Price 2010 ONSC 1898 (CanLII), per Durno J, at para 93
  2. ↑ Price, ibid. at para 93

Taking to a Judge

Under s. 503, when a police officer arrests an individual without a warrant, they have the discretion to hold the person for up to 24 hours until charges are laid and they must be prepared to show cause as to why the person should be kept in custody before a Judge of the Court or Justice of the Peace. The Justice will assess whether there is reason to detain the individual or else release them on any conditions.

The 24 hour time limitation can be extended where a judge or justice of the peace is not available within the time limit such as during weekends or holidays.

Section 503 states:

Taking before justice
503. (1) A peace officer who arrests a person with or without warrant or to whom a person is delivered under subsection 494(3) [delivery to police after citizen arrest] or into whose custody a person is placed under subsection 163.5(3) of the Customs Act shall cause the person to be detained in custody and, in accordance with the following provisions, to be taken before a justice to be dealt with according to law:

(a) where a justice is available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period, and
(b) where a justice is not available within a period of twenty-four hours after the person has been arrested by or delivered to the peace officer, the person shall be taken before a justice as soon as possible,

unless, at any time before the expiration of the time prescribed in paragraph (a) or (b) for taking the person before a justice,

(c) the peace officer or officer in charge releases the person under any other provision of this Part, or
(d) the peace officer or officer in charge is satisfied that the person should be released from custody, whether unconditionally under subsection (4) or otherwise conditionally or unconditionally, and so releases him.

...
R.S., 1985, c. C-46, s. 503; R.S., 1985, c. 27 (1st Supp.), s. 77; 1994, c. 44, s. 42; 1997, c. 18, s. 55; 1998, c. 7, s. 3; 1999, c. 25, s. 7(Preamble).

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Where the decision to detain is not made out, such as under s. 498 [1], it may be grounds for a stay of proceedings.[1]

This is governed by section 83.3 of the Criminal Code:

Duty of peace officer
83.3
...
(5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),

(a) lay an information in accordance with subsection (2); or
(b) release the person.

When person to be taken before judge
(6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules:

(a) if a provincial court judge is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period, and
(b) if a provincial court judge is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible,

unless, at any time before the expiry of the time prescribed in paragraph (a) or (b) for taking the person before a provincial court judge, the peace officer, or an officer in charge within the meaning of Part XV [Special Procedure and Powers, s. 483 to 492.2], is satisfied that the person should be released from custody unconditionally, and so releases the person.
...
2001, c. 41, s. 4.

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For more details on this see the Chapter on Compelling the Accused to Attend Court.

  1. ↑ R v Lewis, 2001 BCPC 426
    R v McKelvey, 2008 ABQB 466 (CanLII)

See Also

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