WDW325 Lecture 4

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Woodsworth College Courses
Jim Davies

JAN 31 , 2013 WDW325 Lecture 4 Arrest and Detention 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 • Charter limits to right to detain • Search incident to investigative detention Commencement of Criminal Process To initiate the criminal process 2 things must happen: 1. Lay an Information (file a charge); s. 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 that - Anyone can lay an information, but must be in a written document, under oath (go before the justice of the peace and swear that they have reason and probable grounds), must be able to tried in Ontario * once signed, that initiates court process (a) that the person has committed, anywhere, an indictable offence [read hybrid] that may be tried in the province in which the justice resides * all hybrid offences will be ran under indictable offence unless the crown has elected Compelling Appearance - 2. “compel”/order the accused to come to court (summons, arrest with or without warrant) • s. 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 [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. • s. 511(1) – A warrant issued under this Part shall (a) Name or describe the accused; (b) Set out the offence; and (c) Order the accused be forthwith (within 24 hours) arrested and brought before a judge Criminal Code Arrest Power  Police can also arrest someone before an Information is laid and without a warrant  At Common Law: There is a presumption of liberty  We all have the right to be left alone The police 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 (indictable and summary offences)  Power has now been incorporated into the Criminal Code JAN 31 , 2013  Section 494 -- Any one may arrest without warrant (a) A person whom he finds committing an indictable offence [hybrid offence] (b) A person who, on reasonable grounds, he believes (i) Has committed a criminal offence, and (ii) Is escaping from and freshly pursued by persons who have lawful authority to arrest that person Citizens Arrest and Self-Defence Act Amendment to s. 494(2): The owner or a person in lawful possession of property, or a person authorized by the owner or by a person in lawful possession of property, may arrest a person without a warrant if they find them committing a criminal offence (any offence) on or in relation to that property and (a) They make the arrest at that time; or (b) They make the arrest within a reasonable time after the offence is committed and they believe on reasonable grounds that it is not feasible in the circumstances for a peace officer to make the arrest. * You saw in front of you or within a reasonable time Criminal Code Arrest Powers 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 [including summary offences] (c) A person in respect of whom he has reasonable grounds to believe that a warrant of 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 - The ability to arrest a person on a reasonable ground that a person is committing or going to commit an off - With or with warrant with the presumption that it exists - Must be sworn before a JP, and have judicial agreements to make sure that the victim’s liberty is not restricted, therefore a warrant is necessary (to get permission upfront, to protect our liberty) - Limits the power of police to arrest anyone that want RECAP: Arrest OPTION 1: lay an information first → justice of the peace issues a warrant or a summons to compel attendance in court 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 * before either option: the police must have RPG on the basis for their power on s. 494/495 JAN 31 , 2013 Arrest What constitutes RPG? - Must have objectively verifiable evidence (hunch, suspicion, reasonable suspicion is not enough) - A police can still arrest some when they do not have all elements but must have suspicion or reason suspicion - Important to know what they knew at the time they acted on it - Always look at the point of the arrest  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  Police do not have to be right  Police must subjectively believe they have R+PG  RPG must be objectively reasonable  Don’t need evidence on each essential element (no prima facie case requirement)  Police can rely on tips and informants to form R+PG if credible and reliable - Did the officer, personally believe that there was reasonable and probable grounds - RPG is subjective and objective belief (must need both to be legitimate) - Arrest is a formal detention, physical contact - Detention Section 9 of the Charter states: Everyone has the right not to be arbitrarily detained Section 10 of the Charter states: Everyone has the right on arrest or detention (a) to be informed promptly of the reason therefore; (b) to retain and instruct counsel without delay and to be informed of that right What does it means to be “detained” and when the police can “detain” someone? R. v. Therens (1985, S.C.C.) Car accident – police made a demand for a breathalyzer test – accused went with the police to the station – not advised of right to counsel ISSUE: was Therens detained? Detention =  restraint on liberty other than arrest in which individual may reasonably require assistance of counsel and where access to counsel is impeded  some form of compulsory constraint physical constraint (into custody, or detention) demand or direction by the police with consequences for non-compliance (you will face legal consequence if you don’t do, for example breath sample) psychological compulsion (reasonably believe no choice but to comply) R. v. Bazinet (1986, Ont. C.A.) JAN 31 , 2013  Murder of Patricia Downey; Bazinet was her boyfriend; found with multiple stab wounds at her sister’s house; sister’s dog was missing; Bazinet was seen trying to sell sister’s dog  Police went to interview Bazinet – did not have R+PG  Police woke him up; Bazinet said “I’ll get dressed and go with you”; he put on clothes with “reddish brown” stains; questioned for 2 hours; he said “I did the homicide you were talking about”; then he was arrested ISSUE: was he detained as defined in Therens when admission made? IF YES – potential violation of s. 10(b) becaus
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