Arrest, Detention and Pre-Trial Release

1. Arrest, Detention and Pre-Trial Release

2. Once the police have collected physical evidence, they begin to question suspects. • Depending on the evidence collected, the police may make an arrest either before or after questioning. • Procedures for how the police deal with suspects are outlined in the Criminal Code, and protected by the Charter. • If proper procedures are not followed, the evidence obtained may be deemed inadmissible and the case thrown out.

3. QUESTIONING THE ACCUSED “You have the right to retain and instruct legal counsel without delay. You have the right to telephone any lawyer that you wish. You also have the right to free legal advice from a legal aid lawyer. If you are charged with an offence, you can contact the Legal Aid Plan for legal assistance. Do you understand? Do you wish to telephone a lawyer now?”

4. Police cannot force a suspect to answer their questions; • Under Section 7 of the Charter, any detained or arrested suspect has the right to remain silent; • Once an arrested person has been informed of his/her rights, anything said or put in writing can be used against that person in court.

5. What do you Think? • While being interrogated in September 2000, Stuart McKellar Cameron told police seven times that he didn’t want to talk. Nonetheless, officers continued their interrogation until Cameron finally confessed to the murder of one sister and the attempted murder of the other. Should Cameron’s confession be allowed in this circumstance?

6. Consider this... • In November 2007, the Supreme Court of Canada ruled that information provided after an accused has requested the right to remain silent is admissible if the information was provided by the accused voluntarily (R. v. Singh). • The accused had been arrested for 2nd degree murder for shooting an innocent bystander who had been in the doorway of a pub when shots were fired. • The accused was advised of his right to counsel, and he met and consulted with counsel. • During 2 subsequent interviews with the police, the accused stated on numerous occasions (18 times), that he wished to exercise his right to remain silent.

7. Consider this... • The interviewing officer kept questioning him in an effort to get a confession. • Though he never confessed, the accused stated a number of things to the interviewer, which, when combined with other evidence, became probative of the issue of identification at trial (it incriminated him as he knew details only the person who committed the crime would have known) .

8. Consider this... • Singh was convicted, after both the Court of Appeal and the trial judge found that the statements made came freely (were voluntary) and did not result from the police infringing his right to silence. • He took his case to the Supreme Court of Canada, which stated “it is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police. Such an approach would overshoot the protection afforded to the individual’s freedom of choice...More importantly, this approach ignores the state interest in the effective investigation of crime. The critical balancing of state and individual interests lies at the heart of this Court’s decision....”

9. Interrogation Techniques • The goal of interrogation is to obtain the truth; • The beginning of the interrogation involves open-ended, non-threatening questions, such as “Tell me what happened.”, to encourage the suspect to talk about the incident and provide answers with a lot of information. • Later in the investigation, questions are designed to get specific answers, such as “What time did you leave your house?”

10. The Four-Stage Approach to the Interrogation Process • The suspect is asked to describe: • The entire incident; • The period before the offence took place; • The details of the actual offence; • The period following the offence.

11. Arrest and Detention Procedures • The police can either arrest or detain a suspect; • A person placed under ARREST is legally deprived of his or her liberty. • In order for an arrest to be lawful, the arresting officer must do the following: • Identify him/herself as a police officer; • Advise the accused that he/she is under arrest, and inform the accused of the charge and show the arrest warrant if one has been obtained; • Advise the accused of their rights; • Touch the accused to indicate that he/she is in legal custody. • Once in custody, the police must inform the accused of their right to counsel.

12. Sometimes, the police will DETAIN a suspect, instead of arrest them. • To detain someone is to legally deprive them of their liberty, with or without physical restraint. • You have been detained if you are kept in custody or are temporarily held by the police and you feel you have no choice but to consent to whatever the officer requests. • If a person is detained, they must be informed of the reason for their detention and their right to retain counsel.

13. Arrest vs. Detention - example • A serious assault takes place and the police are called. • The victim is conscious and gives the police a description of the person who assaulted him.

14. Arrest vs. Detention - example • After searching the neighbourhood, the police stop Fred who completely fits the description, and ask him to accompany them to division headquarters to answer a few questions. • Fred asks if he has a choice, and the police say no because he fits the description, but once he gets to the station he can call a lawyer. AT THIS POINT HE HAS BEEN DETAINED. • If Fred refuses to accompany the police to the station, they will place him under ARREST, and take him to the station against his will.

15. The police cannot just place anyone under arrest; they must prove they have REASONABLE GROUNDS for suspecting the person they want to arrest is the offender. • REASONABLE GROUNDS means that based on the information available, a reasonable person would conclude that the suspect committed the offence.

16. What are your rights when you have been detained? • You don’t have to answer any questions, unless you are in a specific situation, such as a spot check on a highway; • If someone is detained or arrested in an arbitrary (without meaning) or improper manner, the individual may demand to speak to a lawyer and request the officer’s name and badge number, and sue the police for unlawful arrest or detention. • You are allowed to use as much force as necessary to resist an illegal arrest, or search, but it must be REASONABLE.

17. Methods of Apprehending an Offender • There are 3 methods of apprehending an offender: • Appearance Notice • Arrest With a Warrant • Arrest Without a Warrant

18. 1. Appearance Notice • For most summary conviction offences and less serious indictable offences; • A legal document compelling the accused to appear in court on a certain date at a specific time. • The accused must sign the notice and be given a copy. • If the accused fails to show up to court, the police may request that the judge issue a BENCH WARRANT, and the accused will be arrested for the original offence and charged with “failure to appear”.

19. 2. Arrest With A Warrant • For serious indictable offences. • If the police believe the suspect will appear in court voluntarily, they might request a judge or justice of the peace issue a SUMMONS • A SUMMONS is a legal document for an indictable offence ordering the accused to appear in court; • Failure to appear may result in the issuance of a bench warrant.

20. If the police have reasonable grounds to believe that the accused will NOT appear in court willingly, they can obtain an ARREST WARRANT – a written court order directing the arrest of the suspect; • The police first must swear an INFORMATION – a statement given under oath telling the court of the details of an offence • An arrest warrant provides the name of the accused, the offence the person is charged with, and the reason for the warrant. • You are obligated to accompany the police once arrested, and submit to fingerprinting and being photographed if you have been charged with an indictable offence.

21. 3. Arrest Without a Warrant • Sometimes the police might arrest a suspect without a warrant; these circumstances are listed under Section 495 of the Criminal Code and include when the police: • Have reasonable grounds to suspect a person has either committed, or is about to commit, an indictable offence; • Find a person in the act of committing a criminal offence; • Find a person who they believe is named on an arrest warrant. • These provisions also extend to all peace officers, including mayors, prison guards, customs officers, aircraft pilots, and fisheries officers.

22. What Do You Think? • Ontario’s Safe Street Act (1999) gives police the authority to arrest aggressive panhandlers and squeegee kids without a warrant. • Do you think this law violates the rights of Canadians not to be arbitrarily detained or arrested?

23. What are your rights once you have been arrested? • To be informed immediately of your right to a lawyer or duty counsel, and the reason for your arrest. • To refuse to answer any questions except for your name, address, occupation, and date of birth. • To truly understand your rights when they have been read to you, i.e. If you are impaired, the police must wait until you are sober to read you your rights. • To NOT take part in a line-up or polygraph test, or give blood, urine, or breath samples (except in impaired driving cases), and to request a warrant should the police ask you to do so. • To be presumed innocent until proven guilty. • To not incriminate yourself. • To habeas corpus (a fair and speedy trial).

24. Citizen’s Arrest • An arrest without a warrant by someone other than a peace officer. • Most commonly involves when someone is caught shoplifting and arrested by a salesperson. • Very rare.

25. Circumstances Under Which a Citizen’s Arrest Can Be Made: • Outlined in Section 494 of the Criminal Code: • Anyone may arrest without a warrant • A person whom he finds committing an indictable offence, or • A person who, on reasonable grounds, he believes • Has committed a criminal offence, and • Is escaping from and freshly pursued by persons who have lawful authority to arrest that person. • Anyone who is • The owner or a person in lawful possession of property, or, • A person authorized by the owner or by a person in lawful possession of property may arrest without warrant a person whom he finds committing a criminal offence on or in relation to that property. • A person can also arrest without a warrant if the police have requested their assistance in doing so.

26. Pre-Trial Release • If arrested for a summary conviction or an indictable offence for which the penalty is less than $5000, the accused is usually released.

27. Upon release, the accused is required to either: • Sign a PROMISE TO APPEAR, where the accused promises to appear in court on the specified date and time; • Granted if the police believe the accused will appear voluntarily and will not commit any offences while awaiting trial; • Failure to appear results in a warrant issued for the arrest of the accused.

28. Enter a RECOGNIZANCE, which is the same as a promise to appear, except that it also requires the accused to pay a sum of money if they fail to show up. • May be issued with or without a SURETY – a person who agrees to pay the money if the accused fails to show at trial. • Sign an UNDERTAKING, guaranteeing that he/she will appear at court, however their release is with conditions, such as not leaving town, not socializing with certain people, reporting to the police station once a week.

29. BAIL • If a person has been charged with an indictable offence, the penalty for which is greater than 5 years, the law requires they be brought before the court within 24 hours for a bail hearing. • BAIL is money, or other security, paid to a court to ensure their appearance in court on the date required. • Failure to appear means that the person who posted the money loses it.

30. There is now less emphasis on payment of money as a condition of being released for fear of discriminating against the poor. • If a person pleads not guilty and promises to appear in court, the judge will release the individual on bail conditions, including a curfew, restriction on where they can go, etc. • Once released, the accused may be fingerprinted and photographed.

31. Section 11(c) of the Charter guarantees that no one can be denied bail without just cause. • If the charges are serious, i.e. Murder, the accused must convince the court why they should not stay in custody and be released back into society. • For less serious offences, if the Crown does not want to release the accused before trial, they must SHOW CAUSE as to why the accused should remain in police custody. • This is called a SHOW CAUSE HEARING; • The Crown must prove that the accused would miss his/her trial date, or is a threat to the protection and safety of the public, to have bail denied.

32. Investigate some more... • Read R. v. Clayton on p. 156 and complete questions 1 – 4. • Read pages 160 – 163. Complete R. v. Singh questions 1 – 4 on p. 163. • Read Sect. 5.5 (pgs. 164 – 167. Complete You Be the Judge for R. v. Hall on page 166.