Initial Post-Charge Detention

General Principles

See also: Release by Police on Undertaking and Detention With Charges Outstanding

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]

↑ 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 Upon Deciding to Detain

See also: Judicial Interim Release

Section 503(1) requires that once the accused is detained without release they are to bring the accused before a justice:

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) 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,

...

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).

– CCC

This duty reflects the English common law duties upon arrest. ^[1]

↑ see John Lewis v Tims, [1952] 1 All ER 1203 (H.L.) reviewing common law

Release

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.

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).
...
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.

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This provision came into force on December 18, 2019.

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.^[1]

↑ R v Viszlai, 2012 BCCA 442 (CanLII), per Frankel JA, at para 47
R v Sapusak, [1998] OJ No 3299(*no CanLII links)
R v Coulter, [2000] OJ No 3452 (Ont. Ct. J.), affirmed [2001] OJ No 5608 (Sup. Ct. J.)(*no CanLII links)
R v Padda, 2003 CanLII 52405 (ON CJ), [2003] OJ No 5502 (Ont. Ct. J.), per Duncan J
R v Gaudette, [2005] OJ No 2399 (Ont. Ct. J.)(*no CanLII links) , reversed for other reasons, [2006] OJ No 3732 (Sup. Ct. J)(*no CanLII links)
R v Kisil, 2009 ONCJ 424 (CanLII), [2009] OJ No 3821 (Ont. Ct. J.), per Nadel J
R v Prentice, 2009 ONCJ 708 (CanLII), [2009] O.J. No 6001 (Ont .Ct .J.), per Schwarzl J
R v Key, 2011 ONCJ 780 (CanLII), [2011] OJ No 5972 (Ont. Ct. J.), per Robertson J
R v Baxter, 2012 ONCJ 91 (CanLII), [2012] OJ No 796 (Ont. Ct.J), per Schwarzl J

Impaired Driving Investigations

Factors that the police should consider when deciding whether to release a detainee in an impaired driving investigation include:^[1]

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.^[2]

↑ R v Price, 2010 ONSC 1898 (CanLII), per Durno J, at para 93
↑ Price, ibid., at para 93

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".^[1] It also ensures that a detainee is not held "incommunicado".^[2]

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 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.
...
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).

[annotation(s) added]

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Where the decision to detain is not made out, such as under s. 498 [1], it may be grounds for a stay of proceedings.^[3]

This is governed by section 83.3 of the Criminal Code:

Duty of peace officer

83.3
...

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.

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.
...
2001, c. 41, s. 4.

[annotation(s) added]

– CCC

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

↑ R v Salehi, 2019 BCSC 197 (CanLII), per Devlin J, at para 68
R v Poirier, 2016 ONCA 582 (CanLII), per Weiler JA, at para 58
↑ Salehi, supra, at para 73
R v Montgomery, 2016 BCCA 379 (CanLII), per Frankel JA, at para 216
↑ R v Lewis, 2001 BCPC 426 (CanLII), per Dossa J
R v McKelvey, 2008 ABQB 466 (CanLII), per Langston J

Deeming to Act Lawfully

495.
...

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.

– CCC

497.
...

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).

– CCC

498.
...

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).

– CCC

503
...

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).

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).

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Section 495(3) should be construed to deny any defence for failure to comply with 495(2).^[1]

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.

↑ R v Adams, 1972 CanLII 867 (SK CA), per Culliton CJ