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WDW101Y1 (300)
Lecture

February 3 Lecture

5 Pages
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Department
Woodsworth College Courses
Course Code
WDW101Y1
Professor
William Watson

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WDW325 February 3, 2011 Arrest and Detention Lecture
4
Issues: What is the difference? What are the similarities? Why is there a difference?
Outline:
-common law police powers of arrest
-arrest powers in the Criminal Code
-common law power to detain
-Post Charter power to detain
-Search incident to investigate detention
Commencement of Criminal Process
To initiate the criminal process, must:
1)Lay an Information (filing of charge); AND
2)Compel accused to appear in Court
-can happen in any order
-arrest is one way to start the criminal process but is not the only way; physically take accused to
court/detention
Arrest
What must the police do to arrest someone
i) Must say the words you are under arrest
ii) Must physically touch an individual
But what constitutes a lawful arrest?
-just because you are arrested doesnt mean a charge has been laid
At Common Law:
-presumption of liberty
-must have legal justification to interfere with liberty
-police can arrest IF the officer has reasonable grounds to believe the person has or is about to commit a
felony
Power has now been incorporated into the Criminal Code
Criminal Code Arrest Powers
Section 504 Any one who, on reasonable grounds, believes that a person has committed an indictable
offence may lay an information in writing and under oath before a justice, and the justice shall receive the
information, where it is alleged
a) that the person committed, anywhere, an indictable offence (read /hybrid every hybrid offence is
indictable at first) that may be tried in the province in which the justice resides, and that the person
i) is or is believed to be, or
ii) resides or is believed to reside, within the territorial jurisdiction of the justice; or
Section 507(7) Where the justice considers that a case is made out for compelling an accused to attend
before him to answer to a charge of an offence, he shall issue a summons to the accused unless the
allegations of the informant (usually a police officer) disclose reasonable grounds to believe that it is
necessary in the public interest to issue a warrant for the arrest of the accused
Section 511(1) A warrant issued under this Part shall
a) name or describe the accused;
b) set out the offence in respect of which the accused is charged; and
c) order the accused be forthwith arrested and brought before a judge
if an arrest warrant is issued, police are required after taking them custody to bring them within 24
hours to court to determine issue of bail
Section 494 Any one may arrest without warrant
a) a person whom he finds committing an indictable offence (read hybrid offence)
b) a person who, on reasonable grounds, he believes
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i) has committed a criminal offence, and
ii) is escaping from and freshly pursued by persons who have lawful authority to arrest that person
-police must deliver to the court forthwith if arresting without a warrant; if a citizen makes an arrest,
they have an obligation to deliver that person to the police
Section 495(1) - A peace officer may arrest without a warrant
a) a person 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
c) a person in respect of whom he has reasonable grounds to believe that a warrant or arrest or committal
is in force
Section 495(2) police SHALL not arrest without a warrant unless necessary to a) establish identity; b)
preserve evidence or c) prevent recurrence of offence
Arrest
Option 1: lay an information first justice of the peace issues a warrant or a summons
Option 2: arrest first (without a warrant) under s.494 if caught in the act or under s.495 lay an
information setting out the offence
EITHER WAY, officer needs R+PG to believe an offence has occurred or is going to occur
What if the police is wrong in terms of RPG?
R. v. Biron (1975 SCC) police raid on a bar in Montreal, refused to cooperate, arrested by police for
causing disturbance, protested arrest, scuffle with police and charged with resisting arrest
At the time, s.450(1) a peace officer may arrest without a warrant b) a person whom he finds committing
a criminal offence
-he was acquitted of causing a disturbance, claimed to need acquittal of resisting arrest
-officers are allowed to be wrong so long as at the time that they affect the arrest, they have reasonable
grounds to believe the arrest should proceed
ISSUES: was Biron committing a criminal offence at the time he was charged? Was his arrest lawful? Was
he entitled to resist the arrest if unlawful?
-validity of arrest must be determined based on the circumstances apparent to the police at the time
-police have the power to arrest someone who is apparently committing an offence
-arrest in Biron was valid even though he was acquitted of causing a disturbance on appeal
Reasonable and Probably Grounds
R. v. Evans (1991, Ont. Prov. Ct)
Arrest at a bar on a tip from individual who had provided reliable information in the past; Evans was the
only person meeting description (black male, in his twenties, with his hair in ‘jerry curls, wearing a black
leather jacket, a white sweater and blue jeans); Evans resisted police attempts to arrest him; charged with
assaulting officers
ISSUE: did the officer have R+PG
-the police must subjectively have R+PG (honestly believe they have)
-must be objectively reasonable as well in regards to the officers belief
-R+PG is not the same, police need not show a prima facie case (some evidence present that if believed,
could establish both the actus reus and the mens rea, can have less than both pieces of evidence)
-police are allowed to rely on information from informants so long as the information is credible and
reliable
RESULT: officer subjectively thought he had R+PG but it was not objectively reasonable based on the tip
arrest was unlawful - had RPG to believe that Evans was the person described in the tip, but not that
he had committed the offence
Special Rule
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WDW325 February 3, 2011 Arrest and Detention Lecture 4 Issues: What is the difference? What are the similarities? Why is there a difference? Outline: -common law police powers of arrest -arrest powers in the Criminal Code -common law power to detain -Post Charter power to detain -Search incident to investigate detention Commencement of Criminal Process To initiate the criminal process, must: 1) Lay an Information (filing of charge); AND 2) Compel accused to appear in Court -can happen in any order -arrest is one way to start the criminal process but is not the only way; physically take accused to courtdetention Arrest What must the police do to arrest someone i) Must say the words you are under arrest ii) Must physically touch an individual But what constitutes a lawful arrest? -just because you are arrested doesnt mean a charge has been laid At Common Law: -presumption of liberty -must have legal justification to interfere with liberty -police can arrest IF the officer has reasonable grounds to believe the person has or is about to commit a felony Power has now been incorporated into the Criminal Code Criminal Code Arrest Powers Section 504 Any one who, on reasonable grounds, believes that a person has committed an indictable offence may lay an information in writing and under oath before a justice, and the justice shall receive the information, where it is alleged a) that the person committed, anywhere, an indictable offence (read hybrid every hybrid offence is indictable at first) that may be tried in the province in which the justice resides, and that the person i) is or is believed to be, or ii) resides or is believed to reside, within the territorial jurisdiction of the justice; or Section 507(7) Where the justice considers that a case is made out for compelling an accused to attend before him to answer to a charge of an offence, he shall issue a summons to the accused unless the allegations of the informant (usually a police officer) disclose reasonable grounds to believe that it is necessary in the public interest to issue a warrant for the arrest of the accused Section 511(1) A warrant issued under this Part shall a) name or describe the accused; b) set out the offence in respect of which the accused is charged; and c) order the accused be forthwith arrested and brought before a judge if an arrest warrant is issued, police are required after taking them custody to bring them within 24 hours to court to determine issue of bail Section 494 Any one may arrest without warrant a) a person whom he finds committing an indictable offence (read hybrid offence) b) a person who, on reasonable grounds, he believes www.notesolution.com
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