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| | [[Fr:Détention_initiale_après_l'inculpation]] |
| | {{Currency2|January|2020}} |
| {{LevelZero}}{{HeaderArrest}} | | {{LevelZero}}{{HeaderArrest}} |
| ==General Principles== | | ==General Principles== |
| | {{seealso|Release by Police on Undertaking|Continued Detention After Appearing Before a Justice}} |
| 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.<ref> | | 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.<ref> |
| ''R v Grant'', [http://canlii.ca/t/24kwz 2009 SCC 32] (CanLII), [2009] 2 SCR 353{{perSCC|McLachlin CJ and Charron J}}{{atL|24kwz|54}} (“[A] detention not authorized by law is arbitrary and violates s. 9 [of the Charter]”)</ref>
| | {{CanLIIRP|Grant|24kwz|2009 SCC 32 (CanLII)|[2009] 2 SCR 353}}{{perSCC-H|McLachlin CJ and Charron J}}{{atL|24kwz|54}} (“[A] detention not authorized by law is arbitrary and violates s. 9 [of the Charter]”)</ref> |
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| {{reflist|2}} | | {{reflist|2}} |
| ==Release==
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| ===When Detained by Officer-in-Charge===
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| {{quotation|
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| ; Release from custody — arrest without warrant
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| 498 (1) Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469, and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if
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| :(a) the peace officer intends to compel the person’s appearance by way of summons;
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| :(b) the peace officer issues an appearance notice to the person; or
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| :(c) the person gives an undertaking to the peace officer.
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|
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| ; Person delivered or detained
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| (1.01) Subsection (1) also applies in respect of a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act and who is detained in custody for an offence other than one listed in section 469 and who has not been taken before a justice or released from custody under any other provision of this Part.
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|
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| ; Exception
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| (1.1) The peace officer shall not release the person if the peace officer believes, on reasonable grounds,
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| :(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
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| ::(i) establish the identity of the person,
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| ::(ii) secure or preserve evidence of or relating to the offence,
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| ::(iii) prevent the continuation or repetition of the offence or the commission of another offence, or
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| ::(iv) ensure the safety and security of any victim of or witness to the offence; or
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| :(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.<br>
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|
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| ; When subsections (1) and (1.01) do not apply
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| (2) Subsections (1) and (1.01) do 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).
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| <br>
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| ...<br>
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| R.S., 1985, c. C-46, s. 498;
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| R.S., 1985, c. 27 (1st Supp.), s. 186;
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| 1997, c. 18, s. 52;
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| 1998, c. 7, s. 2;
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| 1999, c. 25, ss. 4, 30(Preamble);
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| 2019, c. 25, s. 213.
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| | [{{CCCSec|498}} CCC]
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| }}
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| {{C75-fix}}
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|
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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 detain a person until they are sober and safe to be released.<ref>
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| ''R v Viszlai'', [http://canlii.ca/t/ftnz7 2012 BCCA 442] (CanLII){{perBCCA|Frankel JA}}{{atL|ftnz7|47}}<br>
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| ''R v Sapusak'', [1998] OJ No 3299{{NOCANLII}}<br>
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| ''R v Coulter'', [2000] OJ No 3452 (Ont. Ct. J.), affirmed [2001] OJ No 5608 (Sup. Ct. J.){{NOCANLII}}<br>
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| ''R v Padda'', [http://canlii.ca/t/1k1rw 2003 CanLII 52405] (ON CJ), [2003] OJ No 5502 (Ont. Ct. J.){{perONCJ|Duncan J}}<br>
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| ''R v Gaudette'', [2005] OJ No 2399 (Ont. Ct. J.){{NOCANLII}}, reversed for other reasons, [2006] OJ No 3732 (Sup. Ct. J){{NOCANLII}}<br>
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| ''R v Kisil'', [http://canlii.ca/t/25pcb 2009 ONCJ 424] (CanLII), [2009] OJ No 3821 (Ont. Ct. J.){{perONCJ|Nadel J}}<br>
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| ''R v Prentice'', [http://canlii.ca/t/29dmw 2009 ONCJ 708] (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.){{perONCJ|Schwarzl J}}<br>
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| ''R v Key'', [http://canlii.ca/t/fpg80 2011 ONCJ 780] (CanLII), [2011] OJ No 5972 (Ont. Ct. J.){{perONCJ|Robertson J}}<br>
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| ''R v Baxter'', [http://canlii.ca/t/fq71p 2012 ONCJ 91] (CanLII), [2012] OJ No 796 (Ont. Ct.J){{perONCJ|Schwarzl J}}<br>
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| </ref>
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| {{reflist|2}} | | {{reflist|2}} |
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| ===Impaired Driving Investigations=== | | ==Duty to Take Detainee to a Judge== |
| Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:<ref>
| | * [[Duty to Deliver Detainee to a Justice Without Unreasonable Delay]] |
| ''R v Price'', [http://canlii.ca/t/29cc4 2010 ONSC 1898] (CanLII){{perONSC|Durno J}}{{atL|29cc4|93}}<br>
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| </ref>
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| # the accused's blood alcohol level,
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| # whether the accused was charged with impaired operation,
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| # his or her level of comprehension,
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| # that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),
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| # that the accused's vehicle would have been impounded,
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| # 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,
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| # whether the accused had a criminal record and if so, its contents,
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| # whether the accused had outstanding charges,
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| # his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment.
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| The analysis should not simply be limited to the BAC level results.<ref>
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| {{ibid1|Price}}{{atL|29cc4|93}}<br>
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| </ref>
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| {{Reflist|2}}
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| ==Taking to a Judge==
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| 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 a reason to detain the individual or else release them on any conditions.
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| 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.
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| ; Purpose
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| 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".<ref>
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| ''R v Salehi'', [http://canlii.ca/t/hxmh6 2019 BCSC 197] (CanLII){{perBCSC|Devlin J}}{{atL|hxmh6|68}}<br>
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| ''R v Poirier'', [http://canlii.ca/t/gsm89 2016 ONCA 582] (CanLII){{perONCA|Weiler JA}}{{atL|gsm89|58}}<br>
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| </ref>
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| It also ensures that a detainee is not held "incommunicado".<ref>
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| {{supra1|Salehi}}{{atL|hxmh6|73}}<br>
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| ''R v Montgomery'', [http://canlii.ca/t/gtr51 2016 BCCA 379] (CanLII){{perBCCA|Frankel JA}}{{atL|gtr51|216}}
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| </ref>
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| Section 503 states:
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| {{Quotation|
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| ; Taking before justice
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| 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 shall, in accordance with the following paragraphs, cause the person to be taken before a justice to be dealt with according to law:
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| :(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
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| :(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.
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| ; Re-evaluation of detention
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| (1.1) At any time before the expiry of the time referred to in paragraph (1)(a) or (b), 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 is no longer necessary shall release the person, if
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| :(a) the peace officer issues an appearance notice to the person; or
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| :(b) the person gives an undertaking to the peace officer.
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| ; Person delivered or in custody
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| (2) Subsections (1) and (1.1) also apply to a peace officer to whom a person is delivered under subsection 494(3) 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) and (b) begins after the person is delivered to the officer.
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| <br>...<br>
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| R.S., 1985, c. C-46, s. 503;
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| R.S., 1985, c. 27 (1st Supp.), s. 77;
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| 1994, c. 44, s. 42; 1997, c. 18, s. 55;
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| 1998, c. 7, s. 3;
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| {{LegHistory90s|1999, c. 25}}, s. 7(Preamble).<br>{{Annotation}}
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| |[{{CCCSec|503}} CCC]
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| }}
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| Where the decision to detain is not made out, such as under s. 498 [http://www.canlii.ca/t/7vf2#sec498], it may be grounds for a stay of proceedings.<ref>
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| ''R v Lewis'', [http://canlii.ca/t/5lp8 2001 BCPC 426] (CanLII){{perBCPC|Dossa J}}<br>
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| ''R v McKelvey'', [http://canlii.ca/t/20dnb 2008 ABQB 466] (CanLII){{perABQB|Langston J}}</ref>
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| This is governed by section 83.3 of the ''Criminal Code'':
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| {{quotation|
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| ; Duty of peace officer
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| 83.3<br>...<br>
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| ; Duty of peace officer
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| (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),
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| :(a) lay an information in accordance with subsection (2); or
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| :(b) release the person.<br>
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|
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| ; When person to be taken before judge
| | ==Out of Province Warrantless Arrests== |
| (6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules:
| | * [[Out of Province Warrantless Arrest]] |
| :(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
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| :(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,<br>
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| 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 {{AnnSec|Part XV}}, is satisfied that the person should be released from custody unconditionally, and so releases the person.
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| <br>
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| ...<br>
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| {{LegHistory00s|2001, c. 41}}, s. 4.<br>{{Annotation}}
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| |[{{CCCSec|83.3}} CCC]
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| }}
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| For more details on this see the Chapter on [[Compelling the Accused to Attend Court]].
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| {{reflist|2}}
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| ==See Also== | | ==See Also== |
| * [[Arrest Procedure]] | | * [[Arrest Procedure]] |
| * [[Detention With Charges Outstanding]] | | * [[Continued Detention After Appearing Before a Justice]] |
| * [[Initial Post-Charge Detention (Until December 18, 2019)]] | | * [[Initial Post-Charge Detention (Until December 18, 2019)]] |
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| [[Category:Bail]] | | [[Category:Bail]] |
