Chapter 7

Investigation and Arrest

Part 1

The Arrest

Introduction

Procedures for dealing with suspects are codified in the Criminal Code which has been developed through case law and enshrined in the Charter of Rights and Freedoms

Arrest

1. Must determine that an offense has been committed

2. Must have reasonable grounds to believe that the suspect committed the offense

3 Choices

2. Arrest the suspect

1. Issue anAppearance Notice

3. Obtain a warrantfor arrest

1. Appearance Notice Summary, hybrid and less serious indictable offences

Names the offense the accused has been charged with

Time and place of court appearance

Accused must sign the document and receive a copy

Officer will swear and information before a judge or justice of the peace States that the officer believes on reasonable grounds that the

person named in the appearance notice committed the offence

2. Arresting the Suspect More serious indictable offences Suspect is arrested and taken into custody Arresting officer must

Identify themselves Advise the accused that he or she is under arrest Inform the accused of the right to a lawyer (section 10(b)

of the Charter) Inform the accused of the charges (section 10(a) of the

Charter “everyone has the right on arrest or detention to be informed promptly of the reasons therefore.”

Purpose of arrest1. Lay charges2. Preserve evidence3. Prevent the accused form committing further offences

Arresting without a warrant Section 495 of Criminal Code - Any officer can

arrest without a warrant if there is

1. reasonable grounds to suspect a person has either committed an indictable offence or is about to commit one

2. They find a person in the act of committing criminal offense

3. They find a person whom they believe is named on an arrest warrant

Section 495 applies to all “peace officers” (mayors, prison guards, customs officers, aircraft pilots, and fisheries officers

Citizen’s arrest

Shoplifting most common

Suspect is arrested by a store detective or salesperson

Immediately after a citizen’s arrest the suspect must be turned over to a peace officer

Conditions for Citizen’s arrest – Section 494 CC

The Arrest 1. Notice on arrest: I am arresting ________ for ________(reason for the arrest)

2. Right to council: It is my duty to inform you that you have the right to retain and instruct legal counsel without delay……Do you understand?

3. Caution to the charged person: You (are charged, will be charged) with ________. Do you wish to say anything in answer to the charge? You are not obligated to say anything unless you wish to do so, but whatever you say may be given in evidence….

Resisting arrest

Police can use as much force as is necessary to prevent an escape

Police are criminal liable for the use of unnecessary force

Maybe be necessary to use force causing bodily harm or death if it protects others from death of bodily harm

1994 – Parliament passed a law giving police the power to use deadly force – in the following situations:

1. The behaviour of a suspect might cause serious harm or death to others

2. The suspect flees to escape arrest3. There is no alternative means to prevent escape

Advanced Taser

Thomas A. Swift’s Electric Rifle

CBC archives – Robert Dziekanski

3. Obtaining a warrant for an arrest

Police ask judge to issue a summons (legal document issued for an indictable offence, ordering an accused to appear in court)

When police believe suspect will appear in court voluntarily Delivered by a sheriff or deputy Suspect directed to police station for finger printing Failure to appear results in the issuing of a bench warrant

(arrest warrant issued directly by a judge)

3. Obtaining a warrant for an arrest continued

When police have reasonable grounds to believe the accused of a serious indictable offense will not appear in court willingly

Obtain an arrest warrant Provide a sworn information (statement given under oath,

informing the Court of the details of the arrest) Judge / Justice of the Peace decide if it is in the public interest to

issue a warrant for the person’s arrest Arrest Warrant a written court order, directing the arrest of the

suspect Includes name of accused, the offence charged with, reason for the

warrant

Part 2

Citizen’s / Police Rights

Citizen’s Rights

Sections 7-11 of Charter (arrest and detention) Open to interpretation Assumptions drawn during questioning

Rights on Being Detained: Detained when stopped and questioned by an officer Right not to answer questions unless in specific situations Detention should lead quickly to arrest – otherwise the

person should be set free Citizens illegally detained can sue police for false arrest or

detention

Citizen’s Rights Rights on Being

Arrested: To be informed of the

reason for the arrest To a lawyer without delay,

availability of a duty counsel

Legal aid Must truly understand your

rights when read to you Sober up translators

Police Rights

Search the accused upon arrest Take away the possessions of the accused Take the accused to the police station

Perform a more detailed search Section 487.04 of Criminal Code

Allows police, with a warrant to get DNA samples

Searches A careful balance between the individual’s right to privacy with

the state’s need to conduct a thorough investigation Search rules established in both statute and common law Most cases require a warrant (some exceptions)

Chapter 4, S.8 of the Charter protect people in Canada from unreasonable search and seizure

Strip-search and skin-frisk Performed by officers of the same sex Performed at the police station With sufficient reason

CBC New article “SIU probes Ottawa police strip search”

Searches Continued Obtaining a Search Warrant

Officer swears before a judge, who issues the warrant if testimony is accepted

To ensure section 8 of the Charter “secure against unreasonable search or seizure”

Using a Search Warrant Only on the day of indicated Only specific items identified

Need a warrant to use electronic surveillance equipment – exception (suspected terrorists)

Questioning the Accused

Police are required to question suspects

Police cannot force a suspect to answer a questions Section 7 “detained person has the right to remain silent… Police must give suspect a chance to “make a free and

meaningful choice about whether to speak or remain silent”

Police must promptly inform arrested person of the reason for their arrest and their right to counsel

Interrogation Techniques Interview suspects to obtain the truth (ideally

through a trusting relationship with the suspect) Begin with open-ended, non-threatening questions –

designed to encourage the suspect to speak Conclude with closed questions – designed to get specific

information

4 Stage approach to interrogation1. Describe the entire incident2. Describe the period before the incident took place3. Describe the details of the offence4. The period following the offence