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Arrests (Learning About Law, Buckingham, pp-164-169)
When an offence has been committed, the investigation of the offence and the charge that is made against an accused person must be conducted according to specific procedures. These procedures have been developed over time to protect the interests of society from people who commit criminal acts. They also protect the rights of individuals accused of crimes to be treated fairy and impartially.
ARREST PROCEDURES
When most people think of an arrest, they may picture a police officer handcuffing a person and reading the person his or her rights. However, every citizen in Canada has the right to make a lawful arrest in some circumstances. Police and border guards, who are trained and employed by government bodies to keep the peace, have been given more power under the law than the typical citizen to investigate crimes and arrest people. The rules regarding arrests in Canada, which we will examine in this section, are listed in the Criminal Code. These rules are frequently tested in court using sections of the Charter of Rights and Freedoms. Police officers must continually ensure that the rights of citizens have been preserved when making arrests. If there is doubt about some aspect of an arrest, a judge may decide that the arrest was improperly conducted and release the accused person. It is difficult for any legal system to maintain a consistent balance between the rights of the accused person to be treated fairly and impartially and the right of society to be protected against the effects of crime. One person may feel that a good decision was reached in a particular case, while another person nay find the ruling blatantly unfair. A key task of law is to find this balance, even though opinions vary from person to person.
ARREST WITH A WARRANT
What happens when a serious crime occurs and the person suspected of committing the crime is not immediately caught by the police? In this situation, the officer investigating the incident may decide to lay an information before a judge or a justice of the peace to obtain a warrant for the accused person's arrest. An information is a sworn statement describing how and when the accused broke the law. If the charge is serious and it is in the public’s interest to have the person taken into custody, a judge or a justice of the peace may issue a warrant for this person's arrest. An arrest warrant names the accused, the offence that was committed, and the date the offence occurred. It orders the police to take the accused into custody so that she or he can be charged with the offence. A person is lawfully under arrest when she or he is touched by a police officer, informed that she or he is under arrest, informed of the officer's identity, or informed of the reason for arrest. These four steps do not all have to exist for an arrest to be lawful. If a person is informed that she or he is being taken into custody for an offence and this person goes willingly with the police officer, the arrest is considered lawful.
ARREST WITHOUT A WARRANT
Peace officers are given the authority to make arrests without a warrant in section 495 of the Criminal Code. The term "peace officer" refers to several groups, such as police officers, border guards, and prison guards. Section 495 reads, in part,
- (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or
committal... is in force within the territorial jurisdiction in which the person is found.
From this section, we learn that there are three basic situations in which a peace officer may make a lawful arrest without having a warrant. In the first situation, an officer can arrest a person who is about to commit, is committing, or has committed a serious offence. In the second situation, an officer can arrest a person whom he or she finds committing a criminal offence. This applies to both summary conviction and indictable offences but is limited to those criminal activities that the officer actually observes. In the third situation, an officer can arrest someone whom he or she has reasonable grounds to believe is named on an arrest warrant. The arrest warrant does not need to be in the officer’s possession unless there was a clear opportunity to acquire it before making the arrest.
Appearance Notices
In most cases involving less serious offences, the person accused of the offence is not arrested. Instead, the police officer issues an appearance notice. The purpose of this document is to name the offence of which the person is accused along with the date the crime occurred. In addition, the time and place at which the accused must appear in court is cited on the notice. The accused is given the document to sign and then is issued a copy.
If the accused refuses to sign the document or if she or he creates a disturbance rather than accepting the document, the police officer may place her or him under arrest. This means the accused is taken into police custody and kept in a secure facility until the arraignment hearing. The purpose of an arraignment hearing is to formally read the charges to the accused and require that she or he enter a plea of guilty or not guilty.
The advantage of the appearance notice is that it informs the accused about the legal action
without the problems associated with arrest. For example, there is no need for the accused to miss
work or be away from family members. As well, the public does not pay for the imprisonment of the
accused person while she or he awaits trial.
Summons
A summons begins with a police officer swearing an information before a justice of the peace. Justices of the peace have fewer legal powers than judges, and they can issue only some legal documents and preside over minor proceedings in court. If reasonable grounds are given to show that the accused has probably done the crime he or she is accused of, then the justice of the peace can issue a summons. A summons is a court order that states when and where an accused person must go to face the charge described in the information. This form of charging an accused person is generally used in less serious cases. If the accused person does not go to court on the required date, the judge can issue a bench warrant. This type of court document allows police to arrest the accused person and hold him or her in detention until trial.
Arrest by Citizens Although it is not typical, a citizen can lawfully make an arrest in some situations. The authority to make a citizens arrest is found in section 494 of the Criminal Code. This section also gives authority to security personnel, private guards, and private detectives to arrest individuals. Section 494 reads
close friend of the person whose goods are to be seized attempts to prevent the sheriff from entering that person’s home.
R. v. Foster 0982), 133 D.L.R. (3d) 582 (41ta. Ct, of Q.B.)
Constable Forsythe, an RCMP officer, pursued a car being driven in a dangerous manner while he was on patrol near Peace River, Alberta. When Kevin Foster, the driver, stopped the car, he jumped out of it and attempted to run away. While chasing Foster, the constable's face was badly cut. Then he caught Foster near a campground, identified himself, and advised Foster that he was under arrest. At this point, the officer's face was bleeding heavily. He turned to a nearby camper and requested help in getting the accused back to the police car. The camper told Kevin Foster to go with the officer. When the constable repeated his request, the camper said, "No way," and walked away. Both Kevin Foster and the camper were arrested. It was then discovered that the camper had not given the requested assistance because he was Kevin Foster's father. The father believed that telling Kevin to go with the officer was enough assistance. However, he admitted he was aware that Kevin had a violent temper and could be irrational when confronted with authority or when angry. Kevin Foster's father was charged and convicted of omitting to provide assistance to a peace officer without reasonable excuse. He appealed the decision to the Alberta Court of Queen's Bench, but his appeal was dismissed.
- Was it reasonable for Constable Forsythe to request assistance from a private citizen in arresting Kevin Foster? Explain.
- Should the courts have excused the lack of assistance from Kevin Foster's father on the basis that he was the father of the person being arrested? Why or why not?
- Do you believe that the verbal instruction the father gave to Kevin Foster was really assistance to the constable? Explain. What is the minimum amount of assistance that the constable should have been able to expect?
Focus
- When and how is an arrest warrant issued? What is its purpose?
- List and describe the three situations in which a peace officer can lawfully arrest someone without an arrest warrant.
- What is the difference between an appearance notice and an arrest warrant? List the advantages to the accused of being served with an appearance notice rather than being arrested.
- Describe the circumstances under which citizens can make lawful arrests.
- If a person making a citizen's arrest uses excessive force to detain a suspect, what action could the suspect take?
- Give two examples of how a person other than the suspect could be said to be obstructing justice during an arrest.
Apply
- List the four steps that constitute a lawful arrest in order of most important to least important. Note the purpose of each step. In your opinion, are all four steps necessary?
- Should citizens and police officers have the same right to make an arrest? Support your answer.
- Consider the following situations to determine the steps that would be necessary to make a lawful arrest. Use the four steps listed in this section of the text as a guideline, and describe the best method of varying them if the situation so requires.
a. In a chase following a serious offence, the suspect's car spins out of control. The suspect is unconscious when police arrive on the scene. b. Police called to the scene of a robbery at a convenience store observe a man leaving the store as they approach. He appears unconcerned and does not seem to notice their siren. Although one of the officers shouts for the man to stop, he does not comply and continues walking away. The officer gives chase and discovers that the man is deaf. The suspect is able to communicate only with sign language. c. In attempting to arrest a person suspected of trafficking in narcotics, a police officer becomes aware that the suspect does not speak English or French. The language being spoken by the Suspect is unfamiliar to the officer.
