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Investigative Process 1

Investigative Process 1. Investigation and trial process What is a legal arrest? What are the rights of the police and the accused? The fine line between protection and freedom. National- RCMP. Investigation. RCMP, http://www.rcmp-grc.gc.ca/rpp/rpp-2008-eng.htm (11/01/10). National- CSIS.

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Investigative Process 1

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  1. Investigative Process 1 Investigation and trial process What is a legal arrest? What are the rights of the police and the accused? The fine line between protection and freedom.

  2. National- RCMP Investigation RCMP, http://www.rcmp-grc.gc.ca/rpp/rpp-2008-eng.htm (11/01/10)

  3. National- CSIS Investigation CSIS, http://www.csis-scrs.gc.ca/prrts/index-eng.asp (11/01/10)

  4. Provincial- OPP & Sûreté du Québec Investigation

  5. Local- VPD, WPS, HRP Investigation

  6. Must go beyond suspicion • Must establish • An offense has been committed • Establish reasonable grounds • Action options • Appearance notice • Summary conviction, hybrid, less serious indictables • Names offense, time/place/location of apperance • Accused must receive a copy and sign • Warrant for arrest • If arrest is impossible at the scene • Summons issued to appear, delivered by representative of court • Arrest Arrest

  7. Miranda Rights in Canada? "You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?" (See: R. v. Hebert[1990] 2 S.C.R. 151) “While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have counsel present during the course of an interrogation. Once a suspect has asserted their right to counsel, the police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have counsel present during the questioning. Also, in Canada even if the suspect emphatically asserts his decision to remain silent, the police may continue to interrogate him. “ • Action options • Arrest • Purpose: lay charges, preserve evidence, preventative • Can be done without warrant if sufficient evidence exists that an offense has, is or will occur. • Musts: • Identification by police officers • Advise of arrest • Inform of charges (section 10 (a) of Canadian Charter of Rights and Freedoms) • Inform of rights (section 10 (b) of Canadian Charter of Rights and Freedoms) • If resistance occurs: • Mays • Use as much force as is necessary to prevent escape • Use deadly force if: harm/death to others, flees to escape arrest, no alternative means of preventing escape Arrest Criminal Liability Exists

  8. Citizens’ Rights Being Detained I.e. being stopped for questioning Should be a temporary ‘stage’- should lead to arrest or being let go Illegal detention may be resisted with reasonable force Being Arrested Charter of Rights and Freedoms Informed of reason for arrest Informed of right of lawyer, including duty counsel/legal aid 60% gave statements and 70% give written statements before consultation with lawyer. Why? Accused must be of sound mind and be able to understand the rights

  9. Citizens’ Rights

  10. Police Rights Upon arrest Search to look for evidence (related) Search to look for items for escape or harm May take away possessions Take to police station Accused may refuse to Be in a line up Submit to polygraph test Submit blood, urine or breath samples (except in impaired driving) Submit DNA without a warrant

  11. Search Laws and Procedures Search Warrants Required legal documents that must be obtained before search of any property belonging to the accused. Obtaining Police must swear to judge/JOP that offense committed and reasonable grounds of evidence on the property Counterbalance: Section 8 of Charter Telewarrants Using Date indicated between 6am and 9pm Only in areas indicated Seized items may be kept for 3 months, unless needed as evidence in imminent trial

  12. Search Laws and Procedures Entry Use of Force Searching of Persons Electronic Surveillance Limits: bodily integrity and property Exceptions: Controlled Drugs and Substances Act, provincial liquor laws, anti-terrorism, non-private residences Cases page 198, 199

  13. Detention and Release Procedures Detention occurs after arrest if: Grounds for further offenses Indictable offenses with penalties >5 years Brought in front of judge within 24 hours for bail hearing. As of 1985, less emphasis on money being paid. Why? If charge serious, reverse onus in effect.

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