Initial Post-Charge Detention
General Principles
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 to Take Detainee to a Judge
Under s. 503, when a police officer arrests an individual without a warrant have the limited discretion to hold the person for up to 24 hours until charges are laid and brought before a judge or justice to show cause as to why the person should be kept in custody. 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.
- Duty to Take Before a Judge
This duty reflects the English common law duties upon arrest. [1]
- 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".[2] It also ensures that a detainee is not held "incommunicado".[3]
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 [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] 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) [bring detainee to justice – if justice available] or (b) [bring detainee to justice – if justice not available], 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 [exclusive jurisdiction offences] 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) [duty to take a detainee before a justice] and (1.1) [continued re-evaluation of 24 hour detention] also apply to a peace officer to whom a person is delivered under subsection 494(3) [deliver to police after citizen's arrest] 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) [bring detainee to justice – if justice available] and (b) [bring detainee to justice – if justice not available] 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); 2019, c. 25, s. 217.
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The 24 hours time limitation is the outer limit of what is reasonable.[4]
Every police officer has a duty to ensure that the "person is not detained any longer than is absolutely necessary".[5]
Where the decision to detain is not made out, such as under s. 498 [1], it may be grounds for a stay of proceedings.[6]
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) [judicial release – arrest without warrant &ndash exigent circ], the peace officer shall, within the time prescribed by paragraph (6)(a) [judicial release – when person to be taken before judge – 24 hour rule] or (b) [judicial release – when person to be taken before judge – 24 hour exception],
- (a) lay an information in accordance with subsection (2) [grounds for laying information for terror recognizance]; 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.
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2001, c. 41, s. 4.
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For more details on this see the Chapter on Compelling the Accused to Attend Court.
- ↑ see John Lewis v Tims, [1952] 1 All ER 1203 (H.L.) reviewing common law
- ↑
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 Storrey, 1990 CanLII 125 (SCC), , [1990] 1 SCR 241 at p. 256 (“twenty-four hours is the outer limit of what is a reasonable period where a justice is available within that period.”)
- ↑ R v Simpson, 1994 CanLII 4528 (NL CA), per Goodridge JA
- ↑
R v Lewis, 2001 BCPC 426 (CanLII), per Dossa J
R v McKelvey, 2008 ABQB 466 (CanLII), per Langston J
Warrantless Arrest and Release for an Offence Committed Outside of the Province
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.
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.
503
...
- 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) [bring detainee to justice – if justice available] or (b) [bring detainee to justice – if justice not available], 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 [endorsing warrant], 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) [Release_by_Police_on_Undertaking#Exception_on_Out_of_Territory_OffencesRemand in custody for return to jurisdiction where offence alleged to have been committed – where grounds of arrest exist are shown], a justice may, with the consent of the prosecutor, order that the person referred to in subsection (3) [remand in custody for return to jurisdiction where offence alleged to have been committed], 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) [release order with conditions – required obligations] that the justice considers desirable and to which the prosecutor consents.
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2019, c. 25, s. 217.
- Non-Compliance
A failure to comply with 503(3) can result in a breach of rights under s 7 and 9 of the Charter of Rights and Freedoms.[1]
- Time Limitation
Under s. 503, the accused must be brought before a justice in the 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
497
...
- Where subsection (1) does not apply
(2) Subsection (1) 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) [remand in custody for return to jurisdiction where offence alleged to have been committed].
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R.S., 1985, c. C-46, s. 497; 1999, c. 25, s. 3(Preamble).
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498
...
- When subsections (1) and (1.01) do not apply
(2) Subsections (1) [release from custody – arrest without warrant] and (1.01) [release on arrest without warrant by citizen or on Customs Act] 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) [remand in custody for return to jurisdiction where offence alleged to have been committed].
...
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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- ↑ eg see Canada v Marshall (1984), 13 CCC (3d) 73, 1984 CanLII 3561 (ON SC), per Osborne J
Deeming to Act Lawfully
495.
...
- Consequences of arrest without warrant
(3) Notwithstanding subsection (2) [public interest exception to arrest power], a peace officer acting under subsection (1) [warrantless arrest power] 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) [public interest exception to arrest power].
R.S., 1985, c. C-46, s. 495; R.S., 1985, c. 27 (1st Supp.), s. 75.
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498.
...
- Consequences of non-release
(3) A peace officer who has arrested a person without a warrant, or who has been given the custody of a person arrested without a warrant, for an offence described in subsection (1) [release from custody – arrest without warrant], 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 peace officer did not comply with the requirements of subsection (1) [release from custody – arrest without warrant].
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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503
...
- Consequences of non-release
(5) Despite subsection (4) [release of person about to commit indictable offence], a peace officer having the custody of a person referred to in that subsection who does not release the person before the expiry of the time prescribed in paragraph (1)(a) [bring detainee to justice – if justice available] or (b) [bring detainee to justice – if justice not available] for taking the person before the justice 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; or
- (b) any other proceedings, unless in those proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (4) [release of person about to commit indictable offence].
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); 2019, c. 25, s. 217.
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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