Chapter 7: Pretrial Criminal Procedures
• Pretrial criminal procedures are important because most criminal cases are never formally
heard in the courts, but are resolved informally.
• This includes the actions of the police upon arrest until the case enters a courtroom for
• Arrest or Detention
• Section 10 of the Charter of Rights and Freedoms states:
Everyone has the right on arrest or detentions:
a. to be informed promptly for the reasons
b. to retain and instruct council without delay and to be informed of that right
c. to have the validity of the detention determined by way oh habeas corpus and to be
released if the detention is not lawful.
• Investigative Detention
• Police can detain, interrogate and search an individual even when there are less than
reasonable grounds to prove that an offence has been committed.
• An investigative detention is defined as a restrictive power dependent upon a reasonable
belief that the detained person is implicated in a prior criminal act.
• Section 9 of the charter states that everyone has the right to not be arbitrarily detained or
• Police are aloud to detain an individual due to safety concerns.
• These detentions allow investigators the time and opportunity to use other search powers
where the circumstances permit.
• A person can be seized and forced to appear by being arrested.
• They can also arrest an individual then release that person with an order to appear if they
are sure they will appear on the court date given.
• They may not even arrest the person but require that they appear at the designated court
• An arrest involves the police to restrain an individual, depriving a person of their liberty.
• When investigating a crime, the police often need to question a large number of people to
• When they have enough information to identify the alleged perpetrator, the police go to the
justice of the peace and lay an information against the person they have identified.
• The justice of the peace determines if the case has been properly made out and if there
are any issues concerning an arrest warrant authorizing the police to make an arrest or
issue a summons.
• A summons requires someone to appear in court at a certain date.
• Sometimes the police actually discover a person in the act of committing a crime, so they arrest the individual and then they go to the justice of the peace to lay an information.
• The police must believe that they have reasonable grounds to make an arrest and these
grounds have to be justifiable from an objective point of view.
• The laying of the information First
• If an information is laid first, the justice of the peace has to be satisfied that a case has
been made out against the accused.
• If it hasn’t been, then the police must go gather more evidence.
• A summons must be issued rather than an arrest warrant unless what the justice of the
peace hears provides reasonable grounds to believe that it is in the publics best interest to
issue the latter.
• If a summons is issued, it is “served” on the accused so that he or she will know what is
• If an arrest warrant is issued, it will be “executed” by the police.
• Arrest without a Warrant
• According to section 1 of the Criminal Code, it is possible for a police officer to arrest
someone without a warrant if they are found committing any criminal offence, who is about
to commit an indictable offence, there is an outstanding warrant.
• A police officers power to arrest without a warrant is restricted by s. 495 (2) of the Criminal
Code, which states that no arrest shall occur where the public interest is satisfied and no
reasonable grounds exist to believe that the accused will fail to appear in court.
• A police officer shouldn’t arrest an individual without a warrant for a summary conviction
offence, an indictable offence within the absolute jurisdiction of a provincial court judge or if
the offence is defined as a hybrid offence.
• From here, they can issue the suspect with an appearance notice, or they can release the
suspect with the intention of applying for a summons for the justice of the peace, or they
can release the suspect unconditionally.
• The Laying of the Information Second
• The Criminal Code s. 495 (2) states that police officers will not arrest someone where the
offence being committed is a summary offence, where the offence being committed is a
hybrid offence, where the police determine that the public interest will be served without an
arrest and where an indictable offence is within the absolute jurisdiction of a provincial
• Instead of arresting these individuals, the police may decide to issue an appearance
• The criminal process cannot begin until someone with the power of a judicial officer such
as a justice of the peace is satisfied that a case exists against the accused.
• Police officers can arrest those who have committed a serious indictable offence, who
have committed a lesser offence but the police have reason to believe that they wont
appear in court, and whose arrest with best serve the publics interest. • Arrest with a warrant
• For the police to arrest someone with a warrant, they must have reasonable grounds to
believe that the individual committed the crime and that the suspects appearance cant be
compelled by a summons.
• The police must get the warrant from the justice of the peace.
• They may also need these warrants to enter house holds.
• They may enter a household without a warrant if they are in “hot pursuit” of a suspect.
• Arrest can be made without a warrant if the police see the crime being committed, but if
they are going to detain the individual for a period of time, they must be brought before a
justice of the peace.
• Section 503.1 of the Criminal Code states that when a justice is available within 24 hours
of an arrest, the accused must be taken in front of them in this time period.
• If the accused does not appear before a justice within a certain amount of time, the case
may be terminated on the grounds of “unreasonable delay”.
• To arrest someone legally, the police have to inform the individual of why they are under
arrest verbally. (Section 10 a)
• A police officer must inform an individual of his or her rights the moment that individual
becomes a suspect in the crime under investigation.
• If the suspect does not hear these rights, the evidence obtained from the suspect will be
inadmissible in court.
• The police must say:
I am arresting you for…
It is my duty to inform you that you have the right to retain and instruct council without
delay. Do you understand?
You are charged with… Do you wish to say anything in answer to the charge? You are not
obligated to say anything unless you wish to do so, but whatever you say may be given in
If you have spoken to any police officer or anyone with authority, or if any such person has
spoken to you in connection with this case, I want it clearly understood that I do not want to
influence you in making any statement.
• Custodial Interrogation
• According to section 7 of the charter, everyone has the right to life, liberty and security,
and the right not to be deprived of such things.
• Many suspects refuse to answer questions as they can be used in court, or if they do
speak, they may stop answering questions at any point until their defense council arrives.
• Suspects may waive this right if they are aware of what they are doing, and they are able
to contact a lawyer at any time during this.
• The purpose of interrogating a suspect is to obtain information.
• Custodial interrogations is an interrogation of a suspect of primary importance because it
may provide the police with incriminating evidence that can lead to a determination of guilt at the end of a court trial.
• They may also unearth stolen property, point to where accomplices might be, implicate
other suspects in the case.
• The main goal is to get a confession from the suspect.
• False confessions can lead to wrongful convictions and imprisonments.
• Police have a number of strategies in these interrogations.
• “Conditioning strategy” is an environment where the suspect is encouraged to think
positively of the interrogator and cooperate with the authorities, such as providing coffee
• “Deemphasizing strategy” rights are unimportant and to emphasize with the victim and
their family. Suspects rarely stop these type to ask their lawyer for advice.
• “Persuasion strategy” is when the interrogator informs the suspect that if they don’t tell
their side of the story at that time, that only the victims will be heard during the trial.
• Time is the invisible force operating during interrogations.
• Suspects get tired, and believe that denial isn’t getting them any where so they change
and offer something else.
• Voluntary false confessions protecting someone else, establishing an alibi for a more
serious crime, may be in fear of the person who is actually guilty.
• Coerced complaint false confessions result of an intense custodial interrogation. May
confess to escape uncomfortable situations or to receive a benefit.
• Coerced Internalized false confession might come to falsely recall involvement of a crime,
when they had nothing to do with it. These types of people are usually vulnerable or there
is a presentation of false evidence.
• No statement made by the accused is admissible in court unless it is first shown that it was
voluntary and made with a conscious operating mind.
• When the prosecution offers to place into evidence any statement made by the accused to
the police, a hearing known as the voir dire is held in the absence of the jury, in order to
see if these conditions have been met.
• The trial judge must decide if the statement was made voluntarily, and that there weren’t
any threats or promises made by the police.
• Jailhouse Interrogations
• Jailhouse informants were often criticized because of their reliability and the fact that they
are willing to say anything to benefit themselves.
• A jailhouse informant has be defined as an inmate usually awaiting trial or sentencing, who
claims to have heard another prisoner make an admission about his case.
• Jailhouse informants usually offer the authorities information for benefits such as a more
• 13 century “Approver Sentence” an individual charged with a capital offence could obtain
a pardon by formally accusing a person of another serious crime. If it was correct, then that
individual would be granted freedom, but if it was false, they would be put to death.
• Jailhouse informants are polished and convincing liars, all confessions of an accused will be given great weight by the jurors, jurors will give the same weight to “confessions” made
by jailhouse informants as they will to a police officer, jailhouse informants rush to testify,
especially in high profile cases, they always appear to have evidence that could have only
come from someone who committed the offence, and their ability to convince those who
• “Vetrovec Warning” is a warning given to jurors about the reliability of jailhouse informants
and their evidence.
• Right to Counsel
• According to section 9 of the charter, everyone has the right to not be arbitrarily detained
• Section 10 (b) of the charter states, everyone has the right on arrest or detention to retain
and instruct counsel without delay and be informed of that right.
• The right to legal advice is fundamental to ensure fairness in our crimina