Arrest Procedure: Difference between revisions
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An arrest consists of two elements:<ref>R v Whitfield [1970] SCR 46, [http://canlii.ca/t/1tvvl 1969 CanLII 4] (SCC){{perSCC|Judson J}}<br> | An arrest consists of two elements:<ref>R v Whitfield [1970] SCR 46, [http://canlii.ca/t/1tvvl 1969 CanLII 4] (SCC){{perSCC|Judson J}}<br> | ||
R v Lo, [http://canlii.ca/t/1f4dr 1997 CanLII 1908] (BC SC){{perBCSC|Romilly J}} at paras 6 to 10<br> | ''R v Lo'', [http://canlii.ca/t/1f4dr 1997 CanLII 1908] (BC SC){{perBCSC|Romilly J}} at paras 6 to 10<br> | ||
R v Latimer, [http://canlii.ca/t/1fr3w 1997 CanLII 405] (SCC), (1997), 112 CCC (3d) 193{{perSCC|Lamer CJ}} at paras 24-5<br> | ''R v Latimer'', [http://canlii.ca/t/1fr3w 1997 CanLII 405] (SCC), (1997), 112 CCC (3d) 193{{perSCC|Lamer CJ}} at paras 24-5<br> | ||
</ref> | </ref> | ||
# the actual seizure or touching of a person's body with a view towards his detention or | # the actual seizure or touching of a person's body with a view towards his detention or | ||
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An arrest will only be lawful if:<ref> | An arrest will only be lawful if:<ref> | ||
R v Lo at paras 6 to 10<br> | R v Lo at paras 6 to 10<br> | ||
See also R v Storrey, [http://canlii.ca/t/1fsxl 1990 CanLII 125] (SCC), (1990), 53 CCC (3d) 316{{perSCC|Cory J}} at 322-4 (S.C.C.)<br> | See also ''R v Storrey'', [http://canlii.ca/t/1fsxl 1990 CanLII 125] (SCC), (1990), 53 CCC (3d) 316{{perSCC|Cory J}} at 322-4 (S.C.C.)<br> | ||
R v Grant, [2009] 2 SCR 353, [http://canlii.ca/t/24kwz 2009 SCC 32] (CanLII){{perSCC|McLachlin CJ and Charron J}} at paras 54-6<br> | ''R v Grant'', [2009] 2 SCR 353, [http://canlii.ca/t/24kwz 2009 SCC 32] (CanLII){{perSCC|McLachlin CJ and Charron J}} at paras 54-6<br> | ||
</ref> | </ref> | ||
# police have a subjective belief that there are reasonable and probable grounds to arrest the accused. | # police have a subjective belief that there are reasonable and probable grounds to arrest the accused. | ||
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===Identification=== | ===Identification=== | ||
Once a person is lawfully arrested they have an obligation to identify themselves.<Ref> | Once a person is lawfully arrested they have an obligation to identify themselves.<Ref> | ||
R v Pauli, [http://canlii.ca/t/g8ntl 2014 SKQB 246] (CanLII){{perSKQB|Dawson J}} | ''R v Pauli'', [http://canlii.ca/t/g8ntl 2014 SKQB 246] (CanLII){{perSKQB|Dawson J}} | ||
</ref> | </ref> | ||
Failure to do so may result in an offence of obstruction.<ref> | Failure to do so may result in an offence of obstruction.<ref> | ||
Revision as of 19:49, 12 January 2019
Introduction
At the time of arrest, an officer must typically inform the accused of the following and confirm that they understand:
- inform of reason for arrest
- Charter of Rights caution / Right to Silence
- right to speak to a lawyer
- access to legal aid
- secondary police cautions
Validity of Arrest
An arrest consists of two elements:[1]
- the actual seizure or touching of a person's body with a view towards his detention or
- the pronouncing of "words of arrest" to a person who submits to the arresting officer.
An arrest will only be lawful if:[2]
- police have a subjective belief that there are reasonable and probable grounds to arrest the accused.
- the grounds must be objectively justifiable
- ↑ R v Whitfield [1970] SCR 46, 1969 CanLII 4 (SCC), per Judson J
R v Lo, 1997 CanLII 1908 (BC SC), per Romilly J at paras 6 to 10
R v Latimer, 1997 CanLII 405 (SCC), (1997), 112 CCC (3d) 193, per Lamer CJ at paras 24-5
- ↑
R v Lo at paras 6 to 10
See also R v Storrey, 1990 CanLII 125 (SCC), (1990), 53 CCC (3d) 316, per Cory J at 322-4 (S.C.C.)
R v Grant, [2009] 2 SCR 353, 2009 SCC 32 (CanLII), per McLachlin CJ and Charron J at paras 54-6
Identification
Once a person is lawfully arrested they have an obligation to identify themselves.[1] Failure to do so may result in an offence of obstruction.[2]
- ↑ R v Pauli, 2014 SKQB 246 (CanLII), per Dawson J
- ↑ e.g. Pauli, ibid.
Notice Upon Arrest
Duty of person arresting
29 (1) It is the duty of every one who executes a process or warrant to have it with him, where it is feasible to do so, and to produce it when requested to do so.
Notice
(2) It is the duty of every one who arrests a person, whether with or without a warrant, to give notice to that person, where it is feasible to do so, of
- (a) the process or warrant under which he makes the arrest; or
- (b) the reason for the arrest.
Failure to comply
(3) Failure to comply with subsection (1) or (2) does not of itself deprive a person who executes a process or warrant, or a person who makes an arrest, or those who assist them, of protection from criminal responsibility.
R.S., c. C-34, s. 29.
– CCC
Topics
- Alternatives to Charging
- Warrantless Arrests and Warrant Arrests
- Reasonable and Probable Grounds to Arrest
- Right to be Informed of Reasons for Arrest or Detention (s. 10(a))
- Right to Counsel (s. 10(b))
- Right of Youth to Notify Parents
- Right Against Self-Crimination
- Voluntariness
- Right to be Informed of Charges
- Taking Photographs and Fingerprints of Accused Persons
- Initial Post-Charge Detention
- Release
- Acting in Authority - Immunity for Use of Force