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. Arrest and Detention Procedures • The police can either arrest or detain a suspect; • For serious indictable offences, the police may arrest the 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; • Inform the accused of the charge(s); • Advise the accused of their rights (counsel, remain silent); • Touch the accused to indicate that he/she is in legal custody (handcuffs) • If the accused resists arrest, the police may use "as much force as necessary.”

10. 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. • If a person is detained, the detention should either lead to an arrest within a short period of time, or the person should be allowed to leave. • The police cannot force someone to be detained unless they officially arrest them.

11. 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.

12. 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.

13. 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.

14. 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.

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

16. 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. • Given when a police officer swears an INFORMATION before a judge or justice – basically swears that a crime has been committed. • 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”.

17. 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.

18. 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 • A warrant provides the name of the accused, the offence the person is charged with, and orders the arrest • 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.

19. 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.

20. Citizen's Arrest • In certain situations, ordinary citizens are permitted by law to arrest others. This is known as citizen's arrest. • Citizens may arrest someone if… • They are defending themselves, their dwelling, and/or their property. • They witness an indictable offence while it is in the process of being committed. • They are assisting a police officer.

21. What happens when someone resists arrest? • The police have the legal authority to use "as much force as is necessary" to resist an escaping offender. • Serious or deadly force can be used if • The behaviour of the suspect might cause serious harm or death to others; • The suspect flees to escape; • There are no alternatives to prevent the escape.

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. 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.

25. Release & Bail • After someone is arrested, he or she may be released pending trial. • Bail: $$$ or property that is guaranteed to the court if the accused fails to appear in court at a later date. • Surety: a person who posts bail and accepts responsibility for an accused person. • Other than money, bail conditions often include curfews and travel restrictions. • Reverse Onus: when the burden of proof is placed on the accused to justify why they should be granted bail.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. Awaiting Trial • From the time an accused person is charged to the beginning of his or her trial, several motions and procedures take place: • Disclosure • Collection of evidence • Court appearances • Preliminary hearing • Resolution discussions

32. Disclosure • Prior to trial, the Crown must disclose, or reveal, all of their evidence to the defence. • The accused must understand the evidence that may be used against him or her so he or she can build a defence and be granted a fair trial. • The only thing that the defence must present to the Crown is an alibi defence, if they intend to use one. • After disclosure has been received, a preliminary hearing is held.

33. Collecting Evidence • Before a trial occurs, the Crown and defence have the right to examine all evidence collected by the police. • Evidence includes anything that may be used against the accused in court, including weapons, clothing, blood, and fingerprints. • In recent years, DNA has revolutionized the use of forensic sciences in law enforcement. • Evidence is often found at the scene of the crime and during autopsies (determining a victim's cause of death).

34. Court Appearances • When the accused appears in court, they may enter a plea of “guilty” or “not guilty.” If they plead “guilty,” they are deferred for sentencing; if they plead “not guilty,” there may be a trial. • An adjournment occurs when the Crown or defence asks for a delay or postponement in proceedings. • Provincial courts hear summary conviction offences and serious indictable offences. • Provincial superior courts hear the most serious indictable offences (e.g. murder).

35. Preliminary Hearing • This hearing is used to determine whether there is enough evidence to proceed to trial. • During this hearing, a judge hears a description of Crown evidence and some Crown witness testimony. • If there is not enough evidence to justify a trial, all charges against the accused are dropped. • The Crown must establish a prima facie case— justification for a trial.

36. Resolution Discussions • These discussions occur between the Crown and defence before a trial begins in an attempt to resolve the case without going to trial. • This often involves an accused person pleading guilty to a lesser charge or agreeing to a lighter sentence than he or she might receive if convicted in a court of law. • A plea negotiation, also commonly known as a plea bargain, occurs when the Crown “makes a deal” with the accused—a guilty plea and/or additional information in exchange for a lighter penalty.

37. Investigate some more... • Read R. v. Clayton on p. 156 and complete questions 1 – 4. • Read pages 160 – 163. • Complete the You be the Judge Assignment on page 161 • 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.