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
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
[omitted (1), (1.1), (2), (2.1), (2.2) and (2.3)]
- 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.
[omitted (4) and (5)]
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.
- ↑ eg see Canada v Marshall (1984), 13 CCC (3d) 73, 1984 CanLII 3561 (ON SC), per Osborne J
Deeming to Act Lawfully
495.
[omitted (1) and (2)]
- 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.
[annotation(s) added]
498.
[omitted (1), (1.01), (1.1) and (2)]
- 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.
[annotation(s) added]
503
[omitted (1), (1.1), (2), (2.1), (2.2), (2.3), (3), (3.1) and (4)]
- 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.
[annotation(s) added]
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