Arrest Procedure

From Criminal Law Notebook

Introduction

At the time of arrest, an officer must typically inform the accused of the following and confirm that they understand:

  1. inform of reason for arrest
  2. Charter of Rights caution / Right to Silence
  3. right to speak to a lawyer
  4. access to legal aid
  5. secondary police cautions

Validity of Arrest

An arrest consists of two elements:[1]

  1. the actual seizure or touching of a person's body with a view towards his detention or
  2. the pronouncing of "words of arrest" to a person who submits to the arresting officer.

An arrest will only be lawful if:[2]

  1. police have a subjective belief that there are reasonable and probable grounds to arrest the accused.
  2. the grounds must be objectively justifiable

Previously an arrest would no longer be considered valid if the accused was ultimately acquitted of the charges. Now the consideration is only on what is apparent to the officer at the time of arrest.[3]

Where the officer is honestly mistaken as the existence of a law that does not exist, it cannot be objectively justifiable.[4]

  1. ↑ 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 to 5
    R v Biron, [1976] 2 SCR 56, 1975 CanLII 13 (SCC)
  2. ↑ 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 to 56
  3. ↑ Biron, supra
  4. ↑ R v Houle, 1985 ABCA 275 (CanLII), 24 CCC (3d) 57 (ABCA), per Stevenson JA

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]

  1. ↑ R v Pauli, 2014 SKQB 246 (CanLII), per Dawson J
  2. ↑ 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

See also: Acting in Authority

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]

  1. ↑ R v Acheampong, 2018 ONCJ 798 (CanLII), per Burstein J, at para 59

Topics

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