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}}{{ats|6 to 10}}<br> | ''R v Lo'', [http://canlii.ca/t/1f4dr 1997 CanLII 1908] (BC SC){{perBCSC|Romilly J}}{{ats|6 to 10}}<br> | ||
''R v Latimer'', [http://canlii.ca/t/1fr3w 1997 CanLII 405] (SCC), (1997), 112 CCC (3d) 193{{perSCC|Lamer CJ}} | ''R v Latimer'', [http://canlii.ca/t/1fr3w 1997 CanLII 405] (SCC), (1997), 112 CCC (3d) 193{{perSCC|Lamer CJ}}{{ats|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> | ||
{{supra1|Lo}}{{ats|6 to 10}}<br> | {{supra1|Lo}}{{ats|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}} | See also ''R v Storrey'', [http://canlii.ca/t/1fsxl 1990 CanLII 125] (SCC), (1990), 53 CCC (3d) 316{{perSCC|Cory J}}{{atps|322-4}} (SCC)<br> | ||
''R v Grant'', [2009] 2 SCR 353, [http://canlii.ca/t/24kwz 2009 SCC 32] (CanLII){{perSCC|McLachlin CJ and Charron J}} | ''R v Grant'', [2009] 2 SCR 353, [http://canlii.ca/t/24kwz 2009 SCC 32] (CanLII){{perSCC|McLachlin CJ and Charron J}}{{ats|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. | ||
Revision as of 20:21, 14 February 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
- ↑
Lo, supra, at paras 6 to 10
See also R v Storrey, 1990 CanLII 125 (SCC), (1990), 53 CCC (3d) 316, per Cory J, at pp. 322-4 (SCC)
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
Use of Force
It has been suggested that there is a constitutional obligation for police to make a "contemporaneous complete record of the circumstances of, and reasons for, their use of force during an arrest".[1]
- ↑
R v Acheampong, 2018 ONCJ 798 (CanLII), per Burstein J, at para 59
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