Duty to Deliver Detainee to a Justice Without Unreasonable Delay

From Criminal Law Notebook
This page was last substantively updated or reviewed June 2020. (Rev. # 95889)

General Principles

See also: Initial Post-Charge Detention and Judicial Interim Release

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

Section 503(1) sets a "dual time limit" for holding a detainee. They must be taken before a justice either (a) without unreasonable delay and (b) in any event no later than 24 hours after arrest.[1]

This section does not permit that the police can "always" hold for up to 24 hours. It is simply an "outside limit" on what is reasonable delay.[2]

When Exceeding 24 Hours Permitted

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.

Duty to Take Before a Judge

This duty reflects the English common law duties upon arrest. [3]

Purpose

One of the purposes behind s. 503 is to require that an accused "come out of police custody into judicial supervision within the 24 hours or without unreasonable delay to ensure the ongoing protection of the appellant's Charter rights."[4] It also ensures that a detainee is not held "incommunicado."[5]

Section 503 states:

Taking before justice

503 (1) Subject to the other provisions of this section, a peace officer who arrests a person with or without warrant and who has not released the person under any other provision under this Part [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:

(a) if a justice is available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice without unreasonable delay and in any event within that period; and
(b) if a justice is not available within a period of 24 hours after the person has been arrested by the peace officer, the person shall be taken before a justice as soon as possible.
Re-evaluation of detention

(1.1) At any time before the expiry of the time referred to in paragraph (1)(a) [bring detainee to justice – if justice available] or (b) [bring detainee to justice – if justice not available], a peace officer who is satisfied that the continued detention of the person in custody for an offence that is not listed in section 469 [exclusive jurisdiction offences] is no longer necessary shall release the person, if

(a) the peace officer issues an appearance notice to the person; or
(b) the person gives an undertaking to the peace officer.
Person delivered or in custody

(2) Subsections (1) [duty to take a detainee before a justice] and (1.1) [continued re-evaluation of 24 hour detention] also apply to a peace officer to whom a person is delivered under subsection 494(3) [deliver to police after citizen's arrest] or into whose custody a person is placed under subsection 163.5(3) of the Customs Act, except that the 24-hour period referred to in paragraphs (1)(a) [bring detainee to justice – if justice available] and (b) [bring detainee to justice – if justice not available] begins after the person is delivered to the officer.

[omitted (2.1), (2.2), (2.3), (3), (3.1), (4) and (5)]
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); 2019, c. 25, s. 217.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 503(1), (1.1) and (2)

The 24 hours time limitation is the outer limit of what is reasonable.[6]

Every police officer has a duty to ensure that the "person is not detained any longer than is absolutely necessary."[7]

Where the decision to detain is not made out, such as under s. 498 [1], it may be grounds for a stay of proceedings.[8]

This is governed by section 83.3 of the Criminal Code:

Duty of peace officer

83.3
[omitted (1), (2), (3) and (4)]

Duty of peace officer

(5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i) [judicial release – arrest without warrant &ndash exigent circ], the peace officer shall, within the time prescribed by paragraph (6)(a) [judicial release – when person to be taken before judge – 24 hour rule] or (b) [judicial release – when person to be taken before judge – 24 hour exception],

(a) lay an information in accordance with subsection (2) [grounds for laying information for terror recognizance]; 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 [Pt. XV – Special Procedure and Powers (ss. 483 to 492.2)], is satisfied that the person should be released from custody unconditionally, and so releases the person.
[omitted (7), (7.1), (7.2), (8), (8.1), (9), (10), (11), (11.1), (11.2), (12), (13) and (14)]
2001, c. 41, s. 4; 2013, c. 9, s. 10; 2015, c. 20, s. 17; 2019, c. 13, s. 146; 2019, c. 25, s. 24.


[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 83.3(5) and (6)

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

Youths

Youths are also to be brought before a justice who are able to determine release under s. 20(1) and 33(1) of the YCJA.[9]

  1. ↑ R v Reilly, 2019 ABCA 212 (CanLII), 376 CCC (3d) 497, per Slatter JA, at para 6 ("Section 503(1)(a) provides a dual time limit for the holding of the bail hearing. The detained person must be taken before a justice a) without unreasonable delay, and b) in any event no later than 24 hours after the person was arrested.")
  2. ↑ Reilly, ibid., at para 7
    R v EW, 2002 NFCA 49 (CanLII), 168 CCC (3d) 38, at paras 13 to 15
    R v Precourt, 1976 CanLII 692 (ON CA), 18 OR (2d) 714 at p. 722 (cited to OR)
  3. ↑ see John Lewis v Tims, [1952] 1 All ER 1203 (H.L.) reviewing common law
  4. ↑ R v Salehi, 2019 BCSC 197 (CanLII), BCJ No 235, per Devlin J, at para 68
    R v Poirier, 2016 ONCA 582 (CanLII), 131 OR (3d) 433, per Weiler JA, at para 58
  5. ↑ Salehi, supra, at para 73
    R v Montgomery, 2016 BCCA 379 (CanLII), 341 CCC (3d) 147, per Frankel JA, at para 216
  6. ↑ R v Storrey, 1990 CanLII 125 (SCC), [1990] 1 SCR 241 at p. 256 (“twenty-four hours is the outer limit of what is a reasonable period where a justice is available within that period.”)
  7. ↑ R v Simpson, 1994 CanLII 4528 (NL CA), 88 CCC (3d) 377, per Goodridge JA
  8. ↑ R v Lewis, 2001 BCPC 426 (CanLII), BCJ No 2856, per Dossa J
    R v McKelvey, 2008 ABQB 466 (CanLII), 79 WCB (2d) 17, per Langston J
  9. ↑ See Bail for Young Accused
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