Textbook Notes (280,000)
CA (160,000)
Carleton (2,000)
LAWS (100)
Chapter 4

Reading 6- Chapter 4.doc


Department
Law
Course Code
LAWS 2301
Professor
Ronald Saunders
Chapter
4

This preview shows pages 1-2. to view the full 8 pages of the document.
Criminal Justice System
Chapter 4 pages 181-196
Criminal Law – Personnel, Participants, and Powers
General Introduction
In addition to looking at the roles they play in the production of criminal law at its
operational level, it is particularly important to address the issue of how
accountable are the agents of the state to the citizens they supposedly serve
What mechanisms exist or might be established in order to achieve an accountable
criminal law system at the level of its enforcement, the level that has the greatest
impact on those who come in contact with it
This issue arises particularly in regard to the roles played and powers exercised by
the police, the prosecution and the judiciary
The level of accountability is generally not high in regard to these agents, in spite
of the important roles they play
4.1 Police
Introduction
The matter of accountability is particularly important in the context of the police
as can be seen in a number of recent issues and events that have faced the various
police forces in this country
Today there are various types of forces at the federal, provincial and municipal
levels enforcing various types of laws enacted at each of these jurisdictional levels
Historical Development
Law enforcement is a task requiring incentives
If enforcement is left in private hands, which is by far the cheapest method, the
incentives can take four general forms:
First, victims can be legally empowered to prosecute alleged wrongdoers in
hope of receiving compensation
Second, citizens can be compelled by law to serve as volunteer police
Third, citizens may be rewarded on a bounty system for apprehending
offenders
Finally, citizens can be hired by others to enforce the law as part of general
private security services
From a low cost, unprofessional police system still largely motivated by personal
compensation
Western governments have moved towards a high cost, professional police system
where little if any funds flow into victim compensation
Arrest and Compelling the Appearance of the Accused
Historical Background
The deprivation of liberty has usually marked the beginning of a persons contact
with the criminal justice system

Only pages 1-2 are available for preview. Some parts have been intentionally blurred.

Traditionally, police could arrest, without a warrant, any person whom they had
reasonable and probable grounds to believe had committed a felony
Similarly, persons involved in a misdemeanour breaching the peace could be
arrested without a warrant
However, under common law, the police had no power to arrest without a warrant
for less serious statutory offences
Arrest powers were part of the common law, that is law created by court cases
Initially, the Code contained a long list of offences where a person could be
arrested and compelled to appear without a warrant
There were a large number of minor offences which required a summons or
warrant to be issued before a person could be compelled to appear in court
It was not until the 1950s that the Code was reformed to expand the power to
arrest without a warrant where a police officer has caught the person red-handed
The legal system can compel a person to appear in court in virtually all
meritorious cases
The Act of Arrest
Arrest is not defined in the Code; it has been interpreted by the courts
There are two ways that an arrest can be effected:
Actual physical seizure or touching of the person’s body with the idea of
detaining him or her (custodial arrest)
Use of words of arrest, so long as the person submits to the arrest and goes
with the person making the arrest (symbolic arrest)
By including symbolic arrest in the concept of what constitutes an arrest, courts
have recognized a policy to avoid unnecessary violence in the detention of
persons
If excessive force is used by either a citizen or officer when making an arrest, the
justification is lost and the person making the arrest may be subject to arrest or
related charges
Powers of Arrest – Private Citizens
Authority for Arrest without Warrant
Section 494 of the Code limits a private citizen’s power of arrest to three
situations:
A person found “committing an indictable offence”
A person who “on reasonable grounds”, the citizen “believes has
committed a criminal offence and is escaping from and freshly pursued
by persons who have lawful authority to arrest that person”
A person found committing a criminal offence in respect of property
where the person making the arrest is the property’s owner or
possessor or acting with their authorization
These arrest powers apply to anyone
Although they are generally referred to as citizens power of arrest, they are
equally applicable to police and other peace officers
The usual form that a citizens arrest takes involves private security guards
You're Reading a Preview

Unlock to view full version

Only pages 1-2 are available for preview. Some parts have been intentionally blurred.

Real citizens arrests are relatively few
People usually do not want to get involved in potentially dangerous situations
Few people know and understand the powers of arrest in a way that would make
them comfortable enough to intervene in situations where these powers arise
Understanding the extent of arrest powers of citizens is crucial to avoid being
sued for false arrest if one intervenes in a crime situation
Powers of Arrest – Peace Officers
Authority to Arrest without Warrant
The powers of arrest of peace officers are broader than those conferred upon
citizens
Peace officers can compel suspects to attend court through their traditional
powers of arrest without warrant or by use of an appearance notice
A peace officer’s powers of arrest without a warrant are determined in s. 494 of
the Code
An officer is empowered to make a warrantless arrest where:
A person has committed or, the officer believes on reasonable grounds, has
committed or is about to commit an indictable offence
A person found committing a criminal offence
An officer has reasonable grounds to believe that a warrant of arrest or
committal is outstanding in that jurisdiction
This arrest power overlaps with its private citizen complement arrest
Like the private citizen, an officer must have either personal knowledge the
offence was committed on reasonable grounds to believe he person has committed
an offence
The offence must be an indictable one not a summary conviction offence
Officers have a broader power than citizens because they can also arrest where a
person is about to commit an indictable offence
An officer can arrest any person found apparently committing a criminal offence
There are two additional aspects that confer this expanded power – “apparently”
and “criminal” offence
While a citizen has to be certain that an offence is occurring, an officer only has
to be satisfied that the offence seems to be in progress
Outstanding warrant
It may seem contradictory to allow an arrest without a warrant where there is a
valid outstanding warrant
Say a person named in a warrant has evaded the authorities and is located by
police officers
They know a warrant is outstanding but do not have time to obtain the warrant
itself without risking the escape of the accused
The officers can make the arrest based on their knowledge of the outstanding
warrant
If it can be shown that it was clearly feasible for an officer to obtain the warrant
prior to arrest, the failure to do so will make the arrest unlawful
You're Reading a Preview

Unlock to view full version