Investigation and Arrest Law 12

Part 1 The Arrest Due Process

Introduction Procedures for dealing with suspects are codified in the Criminal Code which has been developed through case law and enshrined in the Charter of Rights and Freedoms

i) Laying a charge 1) Arrest Formally charged with a criminal offence, taken to the station to be booked Or 2) Appearance Notice Ordered to appear at court on a specific date to answer to a charge

How long to lay a charge? Indictable offences no statute of limitations for as long as the accused lives Summary conviction offences 6 months

Arrest 1. Must determine that an offense has been committed 2. Must have reasonable grounds to believe that the suspect committed the offense 3 Choices 2.Arrest the suspect 1. Issue an Appearance Notice 3.Obtain a warrant for arrest

1. Appearance Notice Summary, hybrid and less serious indictable offences Names the offense the accused has been charged with Time and place of court appearance Accused must sign the document and receive a copy Officer will swear and information before a judge or justice of the peace States that the officer believes on reasonable grounds that the person named in the appearance notice committed the offence

ii) First Appearance Arraignment Charge formally read in front of a Justice of the Peace Accused is advised to obtain counsel Crown might request a show cause hearing Either released on own recognizance or remanded in custody

Arraignment outcomes Case Remanded This means the case is put off until a later date if hybrid - charge is classified crown elects - either summary conviction or indictable Crown drops charges if not enough evidence (case ends at this point)

Arrest 1. Must determine that an offense has been committed 2. Must have reasonable grounds to believe that the suspect committed the offense 3 Choices 2.Arrest the suspect 1. Issue an Appearance Notice 3.Obtain a warrant for arrest

2. Arresting the Suspect More serious indictable offences Suspect is arrested and taken into custody Arresting officer must Identify themselves Advise the accused that he or she is under arrest Inform the accused of the right to a lawyer (section 10(b) of the Charter) Inform the accused of the charges (section 10(a) of the Charter “everyone has the right on arrest or detention to be informed promptly of the reasons therefore.” Purpose of arrest 1. Lay charges 2. Preserve evidence 3. Prevent the accused form committing further offences

Arresting without a warrant Section 495 of Criminal Code - Any officer can arrest without a warrant if there is 1. reasonable grounds to suspect a person has either committed an indictable offence or is about to commit one 2. They find a person in the act of committing criminal offense 3. They find a person whom they believe is named on an arrest warrant Section 495 applies to all “peace officers” (mayors, prison guards, customs officers, aircraft pilots, and fisheries officers

Citizen’s arrest Shoplifting most common Suspect is arrested by a store detective or salesperson Immediately after a citizen’s arrest the suspect must be turned over to a peace officer Conditions for Citizen’s arrest – Section 494 CC

The Arrest 1.Notice on arrest: I am arresting ________ for ________(reason for the arrest) 2.Right to council: It is my duty to inform you that you have the right to retain and instruct legal counsel without delay……Do you understand? 3.Caution to the charged person: You (are charged, will be 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 evidence….

Resisting arrest Police can use as much force as is necessary to prevent an escape Police are criminal liable for the use of unnecessary force Maybe be necessary to use force causing bodily harm or death if it protects others from death of bodily harm 1994 – Parliament passed a law giving police the power to use deadly force – in the following situations: 1. The behaviour of a suspect might cause serious harm or death to others 2. The suspect flees to escape arrest 3. There is no alternative means to prevent escape

Advanced Taser Thomas A. Swift’s Electric Rifle CBC archives – Robert Dziekanski

Arrest 1. Must determine that an offense has been committed 2. Must have reasonable grounds to believe that the suspect committed the offense 3 Choices 2.Arrest the suspect 1. Issue an Appearance Notice 3.Obtain a warrant for arrest

3. Obtaining a warrant for an arrest Police ask judge to issue a summons (legal document issued for an indictable offence, ordering an accused to appear in court) When police believe suspect will appear in court voluntarily Delivered by a sheriff or deputy Suspect directed to police station for finger printing Failure to appear results in the issuing of a bench warrant (arrest warrant issued directly by a judge)

3. Obtaining a warrant for an arrest continued When police have reasonable grounds to believe the accused of a serious indictable offense will not appear in court willingly Obtain an arrest warrant Provide a sworn information (statement given under oath, informing the Court of the details of the arrest) Judge / Justice of the Peace decide if it is in the public interest to issue a warrant for the person’s arrest Arrest Warrant a written court order, directing the arrest of the suspect Includes name of accused, the offence charged with, reason for the warrant

Part 2 Citizen’s / Police Rights

Citizen’s Rights Sections 7-11 of Charter (arrest and detention) Open to interpretation Assumptions drawn during questioning Rights on Being Detained: Detained when stopped and questioned by an officer Right not to answer questions unless in specific situations Detention should lead quickly to arrest – otherwise the person should be set free Citizens illegally detained can sue police for false arrest or detention

Agenda Searches Interrogation Techniques After the Arrest (Continued on your handout) Russell Williams Case Criminal Court Structure Textbook Questions Upon Arrest

Week Agenda Wednesday: Violent Crimes (Assault) Thursday Comp Check: Charts Structure of the Court Participants in a Courtroom Stages in a Criminal Trial By Jury Friday: Structured Study Time for Chapter 9 Quiz Monday: Chapter 9 Quiz

Citizen’s Rights Rights on Being Arrested: To be informed of the reason for the arrest To a lawyer without delay, availability of a duty counsel Legal aid Must truly understand your rights when read to you Sober up translators

Searches Why are people who are arrested searched? Why are the possessions of people who are arrested taken away? When is it appropriate to perform a strip or frisk search of a suspect?

Police Rights Search the accused upon arrest Take away the possessions of the accused Take the accused to the police station Perform a more detailed search Section of Criminal Code Allows police, with a warrant to get DNA samples

Searches A careful balance between the individual’s right to privacy with the state’s need to conduct a thorough investigation Search rules established in both statute and common law Most cases require a warrant (some exceptions) Chapter 4, S.8 of the Charter protect people in Canada from unreasonable search and seizure Strip-search and skin-frisk Performed by officers of the same sex Performed at the police station With sufficient reason

Searches Continued Obtaining a Search Warrant Officer swears before a judge, who issues the warrant if testimony is accepted To ensure section 8 of the Charter “secure against unreasonable search or seizure” Using a Search Warrant Only on the day of indicated Only specific items identified Need a warrant to use electronic surveillance equipment – exception (suspected terrorists)

Questioning the Accused Police are required to question suspects Police cannot force a suspect to answer a questions Section 7 “detained person has the right to remain silent… Police must give suspect a chance to “make a free and meaningful choice about whether to speak or remain silent” Police must promptly inform arrested person of the reason for their arrest and their right to counsel

Interrogation Techniques Interview suspects to obtain the truth (ideally through a trusting relationship with the suspect) Begin with open-ended, non-threatening questions – designed to encourage the suspect to speak Conclude with closed questions – designed to get specific information 4 Stage approach to interrogation 1. Describe the entire incident 2. Describe the period before the incident took place 3. Describe the details of the offence 4. The period following the offence

AFTER THE ARREST…

Pre – Trial Release Bail: Bail is written permission from a court, allowing a person charged with a criminal offence to be out of jail while they wait for their trial, or some other result in their case (such as a guilty plea or a withdrawal of their charges). Considerations: whether the accused has a criminal record how serious the charges are if the accused is already facing other charges at the time of their arrest whether there are reasons to believe the accused won’t show up for their court date.

Pre- Trial Release Surety: is someone who agrees to take responsibility for a person accused of a crime.

Plea Bargaining Accused agrees to plead guilty to a less serious charge if the crown drops the more serious charge e.g. Murder to Manslaughter BenefitsCriticisms shorter trials saves money provides police with valuable information Certainty of accused at least being guilty of something Criminal gets off easy - public loses confidence, becomes cynical Victims are not consulted Police tend to overcharge

iii) Second Appearance 1) Enter Plea – guilty / not guilty 2) Elect court and type of trial No Choice: when Most Serious superior court jury trial Least Serious provincial court judge trial OR

Crimes for which the accused does have a choice of type of trial If maximum in the criminal code is 5 years or more 1) Superior court - judge and jury 2) Superior court - judge alone 3) Provincial court - judge Case will be dealt with sooner

Choose Judge or Jury Advantages of Jury Trial Advantages of Judge Alone Trial 1) Juries more easily manipulated than a judge by a good lawyer 2) Time delays Prepare case More time to reform witnesses become less reliable 3) Chance of 1 of 12 rather than all or nothing 1) Judges are more predictable not swayed by emotions not influenced as easily by lawyers 2) Many cases too technical for juries 3) Judges must give a reason for their verdict

1. Preliminary Hearing Provincial Court Determines if there is enough evidence for a trial to be held in a higher court Procedure (charge read → plea entered → witness examined, cross-examined, reexamined → lawyers sum up → → Judge rules)

Successful military career Pilot to PM and Queen, as well as other dignitaries. Commanded CFB Trenton, a hub for air transport operations in Canada and abroad and the country's largest and busiest military airbase.CFB TrentonCanada Convicted Murderer and Rapist Guilty of 88 charges ranging from break and enters to the murders of two women, one being a fellow officer in the Canadian military. Waived his right to a preliminary Trial

Preliminary Hearing continued Judge Rules Direct Indictment Crown applies for this. Skip the Preliminary Hearing and proceed directly to trial Note: Accused could waive right to a preliminary stay of proceedings or Committal for trial

Jury Selection Procedures people summoned from municipal voting lists Names randomly selected and called Lawyers say either challenge (not accepted) or content (accepted)

2. Jury Selection Regulations: 18 years old, Canadian citizen, never convicted of an indictable offence Can’t be : a lawyer, judge, police officer, prison guard, coroner, student at law, spouse of a lawyer or a police officer, medical doctor, veterinarian, firefighter, mp, mpp, senator, member of the armed forces, suffering from a mental disorder Exemptions : recent duty, over 70, physical disability interfering with capacity to act as a juror

Facts about juries responsible for verdict 12 members (Can function 10) Must be unanimous (otherwise dismissed as a hung jury) Sequestered - isolated - all juries when deliberating- some juries throughout the trial - in high publicity cases

Juror’s duty Jurors Oath 1) to base verdict solely on the evidence advised not to read papers or watch TV news 2) Will come to a verdict in good conscience

The Criminal Court Structure

Provincial Court Bottom of the hierarchy of Canadian courts Judges appointed by provincial gov’t Cases tried by judge alone – no jury Hears summary conviction offences and some indictable

Types: Summary offences: less serious crimes with lighter penalties e.g. public nudity, causing a disturbance Indictable offences: more serious crimes with higher penalties e.g. theft

Preliminary Hearings Determine whether there is sufficient evidence to put the accused on trial Protects accused from unnecessary trials Protects society from unnecessary expenses

Appeal An application to a higher court to review the decision made by a lower court Appeals are heard in the Superior Court of the province Appeal of Summary Conviction – one judge Appeal of Indictable Conviction – panel of three to five judges

Superior Courts Highest level of provincial courts Supreme Court of Nova Scotia Trial division and appeal division Jurisdiction in criminal and civil matters Trial by judge and judge/jury

Federal Court of Canada Trial and appeal division Trials for civil claims involving the federal government ie. Immigration matters Intellectual Property Federal Employment Disputes Enforceable throughout the provinces.

Supreme Court of Canada Highest court in Canada Only hears appeals (but they must grant permission) from provincial and federal courts Matters of concern for all Canadians Also hears constitutional questions from federal government 9 judges (from all regions of Canada, 3 must be from Quebec)

Other Courts Separate courts that deal with just federal matters e.g. tax court, military law, immigration Aboriginal courts act similarly to provincial superior courts - cannot make decisions that conflict with federal criminal law Aboriginal sentencing circles – purpose is restorative justice

Work In your textbook Read pages Questions 1-8 on Page 168