Initial Post-Charge Detention: Difference between revisions

From Criminal Law Notebook
← Older edit
VisualWikitext
m Text replacement - "\{\{Fr\|([^\}\}]+)\}\}" to "Fr:$1"
 
(55 intermediate revisions by the same user not shown)
Line 1: Line 1:
[[Fr:Détention_initiale_après_l'inculpation]]
{{Currency2|January|2020}}
{{LevelZero}}{{HeaderArrest}}
{{LevelZero}}{{HeaderArrest}}
==General Principles==
==General Principles==
{{seealso|Release by Police on Undertaking|Detention With Charges Outstanding}}
{{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>


{{reflist|2}}
{{reflist|2}}
==Duty Upon Deciding to Detain==
{{seealso|Judicial Interim Release}}
Section 503(1) requires that once the accused is detained without release they are to bring the accused before a justice:
{{quotation|
; 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) {{AnnSec|494(3)}} 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,
...<br>
R.S., 1985, c. C-46, s. 503;
R.S., 1985, c. 27 (1st Supp.), s. 77;
{{LegHistory90s|1994, c. 44}}, s. 42;
{{LegHistory90s|1997, c. 18}}, s. 55;
{{LegHistory90s|1998, c. 7}}, s. 3;
{{LegHistory90s|1999, c. 25}}, s. 7(Preamble).
|[{{CCCSec|503}} CCC]
}}
This duty reflects the English common law duties upon arrest. <ref>
see ''John Lewis v Tims'', [1952] 1 All ER 1203 (H.L.) reviewing common law
</ref>
{{reflist|2}}
==Release==
{{quotation|
; Release from custody — arrest without warrant
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
:(a) the peace officer intends to compel the person’s appearance by way of summons;
:(b) the peace officer issues an appearance notice to the person; or
:(c) the person gives an undertaking to the peace officer.
; Person delivered or detained
(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.
; Exception
(1.1) The peace officer shall not release the person 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.<br>
; When subsections (1) and (1.01) do not apply
(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).
<br>
...<br>
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);
2019, c. 25, s. 213.
| [{{CCCSec|498}} CCC]
}}
{{C75-fix}}
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>
''R v Viszlai'', [http://canlii.ca/t/ftnz7 2012 BCCA 442] (CanLII){{perBCCA|Frankel JA}}{{atL|ftnz7|47}}<br>
''R v Sapusak'', [1998] OJ No 3299{{NOCANLII}}<br>
''R v Coulter'', [2000] OJ No 3452 (Ont. Ct. J.), affirmed [2001] OJ No 5608 (Sup. Ct. J.){{NOCANLII}}<br>
''R v Padda'', [http://canlii.ca/t/1k1rw 2003 CanLII 52405] (ON CJ), [2003] OJ No 5502 (Ont. Ct. J.){{perONCJ|Duncan J}}<br>
''R v Gaudette'', [2005] OJ No 2399 (Ont. Ct. J.){{NOCANLII}}, reversed for other reasons, [2006] OJ No 3732 (Sup. Ct. J){{NOCANLII}}<br>
''R v Kisil'', [http://canlii.ca/t/25pcb 2009 ONCJ 424] (CanLII), [2009] OJ No 3821 (Ont. Ct. J.){{perONCJ|Nadel J}}<br>
''R v Prentice'', [http://canlii.ca/t/29dmw 2009 ONCJ 708] (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.){{perONCJ|Schwarzl J}}<br>
''R v Key'', [http://canlii.ca/t/fpg80 2011 ONCJ 780] (CanLII), [2011] OJ No 5972 (Ont. Ct. J.){{perONCJ|Robertson J}}<br>
''R v Baxter'', [http://canlii.ca/t/fq71p 2012 ONCJ 91] (CanLII), [2012] OJ No 796 (Ont. Ct.J){{perONCJ|Schwarzl J}}<br>
</ref>
{{reflist|2}}
===Impaired Driving Investigations===
Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:<ref>
''R v Price'', [http://canlii.ca/t/29cc4 2010 ONSC 1898] (CanLII){{perONSC|Durno J}}{{atL|29cc4|93}}<br>
</ref>
# the accused's blood alcohol level,
# whether the accused was charged with impaired operation,
# his or her level of comprehension,
# that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension),
# that the accused's vehicle would have been impounded,
# 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,
# whether the accused had a criminal record and if so, its contents,
# whether the accused had outstanding charges,
# 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.<ref>
{{ibid1|Price}}{{atL|29cc4|93}}<br>
</ref>
{{Reflist|2}}
==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 a 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.
; 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".<ref>
''R v Salehi'', [http://canlii.ca/t/hxmh6 2019 BCSC 197] (CanLII){{perBCSC|Devlin J}}{{atL|hxmh6|68}}<br>
''R v Poirier'', [http://canlii.ca/t/gsm89 2016 ONCA 582] (CanLII){{perONCA|Weiler JA}}{{atL|gsm89|58}}<br>
</ref>
It also ensures that a detainee is not held "incommunicado".<ref>
{{supra1|Salehi}}{{atL|hxmh6|73}}<br>
''R v Montgomery'', [http://canlii.ca/t/gtr51 2016 BCCA 379] (CanLII){{perBCCA|Frankel JA}}{{atL|gtr51|216}}
</ref>
Section 503 states:
{{Quotation|
; 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 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) 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
:(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) 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.
<br>...<br>
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;
{{LegHistory90s|1999, c. 25}}, s. 7(Preamble).<br>{{Annotation}}
|[{{CCCSec|503}} CCC]
}}
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>
''R v Lewis'', [http://canlii.ca/t/5lp8 2001 BCPC 426] (CanLII){{perBCPC|Dossa J}}<br>
''R v McKelvey'', [http://canlii.ca/t/20dnb 2008 ABQB 466] (CanLII){{perABQB|Langston J}}</ref>
This is governed by section 83.3 of the ''Criminal Code'':
{{quotation|
; Duty of peace officer
83.3<br>...<br>
; Duty of peace officer
(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.<br>
; 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,<br>
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.
<br>
...<br>
{{LegHistory00s|2001, c. 41}}, s. 4.<br>{{Annotation}}
|[{{CCCSec|83.3}} CCC]
}}
For more details on this see the Chapter on [[Compelling the Accused to Attend Court]].


{{reflist|2}}
{{reflist|2}}


==Warrantless Arrest and Release for an Offence Committed Outside of the Province==
==Duty to Take Detainee to a Judge==
Sections 503(3) and 503(3.1) govern the process of compelling attedance where a peace officer arrests an accused ''without'' warrant for an offence that was committed in a different province.
* [[Duty to Deliver Detainee to a Justice Without Unreasonable Delay]]


Under s. 503(3)(b) a justice of the peace may order the remand of an accused for a period of up to 6 days, during which time the police may execute a public interest arrest warrant.
==Out of Province Warrantless Arrests==
 
* [[Out of Province Warrantless Arrest]]
{{quotation|
503.<br>...<br>
; Remand in custody for return to jurisdiction where offence alleged to have been committed
(3) Where a person has been arrested without warrant for an indictable offence alleged to have been committed in Canada outside the territorial division where the arrest took place, the person shall, within the time prescribed in paragraph (1)(a) or (b), be taken before a justice within whose jurisdiction the person was arrested unless, where the offence was alleged to have been committed within the province in which the person was arrested, the person was taken before a justice within whose jurisdiction the offence was alleged to have been committed, and the justice within whose jurisdiction the person was arrested
:(a) if the justice is not satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, shall release that person; or
:(b) if the justice is satisfied that there are reasonable grounds to believe that the person arrested is the person alleged to have committed the offence, may
::(i) remand the person to the custody of a peace officer to await execution of a warrant for his or her arrest in accordance with section 528 {{AnnSec|528}}, but if no warrant is so executed within a period of six days after the time he or she is remanded to such custody, the person in whose custody he or she then is shall release him or her, or
::(ii) where the offence was alleged to have been committed within the province in which the person was arrested, order the person to be taken before a justice having jurisdiction with respect to the offence.
; Interim release
(3.1) Notwithstanding paragraph (3)(b), a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3), pending the execution of a warrant for the arrest of that person, be released
:(a) without conditions; or
(b) on the terms of a release order containing any conditions referred to in paragraphs 515(2)(a) to (e) that the justice considers desirable and to which the prosecutor consents.
<!--MAKE SURE I HAVE THIS QUOTATION CORRECT. I may have copied it wrong-->
<br>...<br>
|[{{CCCSec|503}} CCC]
}}
 
; Non-Compliance
A failure to comply with 503(3) can result in a breach of rights under s 7 and 9{{CCRF}}.<ref>
eg see ''Canada v Marshall'' (1984), 13 CCC (3d) 73, [http://canlii.ca/t/gcq91 1984 CanLII 3561] (ON SC){{perONSC|Osborne J}}
</ref>
 
; Time Limitation
Under s. 503, the accused must be brought before a justice in normal course within the time specified in s. 503(1)(a) and (b). The justice will order the remand of the accused for 6 days until the accused can be transported to the offence's jurisdiction.
 
; Arresting Under Section 497 or 498
 
{{quotation|
497<Br>...<br>
; Where subsection (1) does not apply
(2) Subsection (1) [''Release from custody by peace officer''] 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).
<br>...<br>
R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).{{annotation}}
|[{{CCCSec|497}} CCC]
}}
 
{{quotation|
498<Br>...<br>
; Where subsection (1) does not apply
(2) Subsection (1) [''Release from custody by officer in charge''] 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).
<br>...<br>
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).{{annotation}}
|[{{CCCSec|497}} CCC]
}}
 
{{reflist|2}}
 
 
==Deeming to Act Lawfully==
 
{{quotation|
495.<br>...<br>
; Consequences of arrest without warrant
(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his 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 (2).
 
R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
|[{{CCCSec|495}} CCC]
}}
 
{{quotation|
497.<br>...<br>
; 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).
|[{{CCCSec|497}} CCC]
}}
 
{{quotation|
498.<br>...<br>
; Consequences of non-release
(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody 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 officer’s duty for the purposes of
:(a) any proceedings under this or any other Act of Parliament; or
:(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1).
 
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).
|[{{CCCSec|498}} CCC]
}}
 
{{quotation|
503<br>...<br>
; Consequences of non-release
(5) Notwithstanding subsection (4), a peace officer or an officer in charge having the custody of a person referred to in that subsection who does not release the person before the expiration of the time prescribed in paragraph (1)(a) or (b) for taking the person before the justice shall be deemed to be acting lawfully and in the execution of his duty for the purposes of
:(a) any proceedings under this or any other Act of Parliament; or
:(b) any other proceedings, unless in such proceedings it is alleged and established by the person making the allegation that the peace officer or officer in charge did not comply with the requirements of subsection (4).
<br>
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).
|[{{CCCSec|503}} CCC]
}}
 
Section 495(3) should be construed to deny any defence for failure to comply with 495(2).<ref>
''R v Adams'', [http://canlii.ca/t/gbmk5 1972 CanLII 867] (SK CA){{perSKCA|Culliton CJ}}
</ref>
 
Notably there is no similar deeming provision in relation to the obligations under s. 503 which requires the accused to be brought to a justice.
 
{{reflist|2}}


==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)]]


[[Category:Bail]]
[[Category:Bail]]

Latest revision as of 07:08, 23 July 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 95808)

General Principles

See also: Release by Police on Undertaking and 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.[1]

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

Duty to Take Detainee to a Judge

Out of Province Warrantless Arrests

See Also

Retrieved from "https://criminalnotebook.ca/index.php?title=Initial_Post-Charge_Detention&oldid=95808"