Arrest is the term given to the process of depriving a person of her liberty. Private citizens, as well as police, have powers of arrest. An arrest can be made with or without a warrant depending on the circumstances and the offence. A warrant is an order issued by a court official (judge or justice) authorizing the arrest of the person named on it. A person who commits, or is suspected of committing, an offence will not necessarily be arrested. The police may let him or her off with a warning or issue an appearance notice or summons for the accused to appear in court at a specified date and time. The police do not make an arrest in every case.
Police Powers of Arrest
In cases of indictable offences, the Criminal Code provides that a police officer can usually arrest without a warrant; a person who has committed an indictable offence, or who the officer believes has committed or is about to commit an indictable offence. An officer can arrest a person he or she witnesses committing a criminal offence, whether it is a summary or indictable offence. In addition, an officer can arrest a person for whom he or she believes, on reasonable and probable grounds, that there is a warrant in force within the territorial jurisdiction in which the person is found.
Once again, the distinction between summary and indictable offences becomes important and governs the powers of arrest. A police officer cannot arrest a person on the basis of a belief that the person has committed a summary offence unless the officer has reasonable and probable grounds to believe that a warrant is available. In the case of summary offences, the officer must actually witness the accused committing the offence before there can be an arrest without a warrant or at least without a warrant being in existence.
Arrest by a Citizen
There are also powers of citizen arrest in the Criminal Code. A citizen may arrest any person who is committing an indictable offence or any person who, on reasonable and probable grounds, the citizen believes has committed a criminal offence—whether it is summary or indictable—and is escaping from and is freshly pursued by persons who have lawful authority to arrest that person. In addition, a citizen who is the owner or lawful possessor of property or a person who is authorized by the owner or lawful possessor of property, may arrest without warrant any person found committing a criminal offence on or in relation to that property. A citizen who makes an arrest must deliver the arrested person to a police officer immediately.
Additional Powers of Arrest
A police officer or a civilian is also justified in using force to prevent the commission of an offence or to prevent anything being done that a person on reasonable and probable grounds believes would, if it were done, be an offence. This power is restricted to offences for which, if committed, an arrest without warrant would be justified and to offences that would be likely to cause immediate and serious injury to a person or the property of a person. No more force than is reasonably necessary can be used for the purpose of preventing the commission of an offence.
Arrest of Suspects
In law, there is no power to arrest persons merely on suspicion that they have committed a criminal offence, or for the purpose of further investigating a suspicion that they have committed a criminal offence. Where police arrest a person on mere suspicion that she has committed a criminal offence and where that suspicion does not amount in law to reasonable and probable grounds for believing an offence has been committed, a wrongful arrest will have occurred and the police may be liable for damages in civil law.
Section 9 of the Charter of Rights and Freedoms specifically provides that everyone has the right not to be arbitrarily detained or imprisoned. Evidence obtained as a result of an unlawful arrest may not be allowed in court if it violates the provisions of section 9 or the right to be secure against unreasonable search and seizure in section 8 of the Charter. A trial judge can exclude evidence under section 24(2) of the Charter where she finds the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed in the Charter and where it is established that the admission of the evidence would bring the “administration of justice into disrepute.” That is, it would display a lack of integrity within the justice system. Police officers can ask a suspect to voluntarily submit to questioning and even to accompany them to the police station for that purpose. A person who voluntarily goes to the police detachment for questioning cannot later claim damages for false arrest, in the absence of evidence of coercion or threat of coercion by the officers. In the case of voluntary submission without coercion or threat, there would not be a violation of the right not to be arbitrarily detained or imprisoned.
What Is Lawful Arrest?
To make a lawful arrest, a police officer should identify herself or himself, tell the suspect that she is being arrested, inform the suspect of the reason for the arrest or show the suspect the warrant if there is one, and, depending on the circumstances, the police may or may not place handcuffs on the arrested person. Additionally, the police are required by section 10(b) of the Charter to inform the arrested person that they have the right to contact a lawyer without delay and that free lawyers are available to give advice to the arrested person. If the arrested person wants to speak with a free lawyer, or any other lawyer, the police are required to give the person access to a telephone and the 1-800 number they can call for free legal advice.
The police are also required to caution all arrested persons that they do not have to speak to the police or provide the police with any information, they must also tell arrested persons that anything they do say to the police, if they choose to speak to them, could be used against them later at their trial. This means that the Crown Attorney may call police witnesses at her trial who will tell the trial judge about any interviews they conducted with the arrested person and any video or audiotapes made of the interviews may be played for the trial judge to watch or listen to. The content of these interviews may provide evidence that could lead the judge (or jury) to find her guilty at her trial. Additionally, if the arrested person provides any other information to the police upon her arrest that leads to any evidence being found, this evidence could be entered into her trial by Crown and may be used by the judge (or jury) to find her guilty.
In Canada, arrested persons do not have the right to have a lawyer present when they are interviewed by the police. However, because any evidence provided by an arrested person in an interview with police can only be used against them at their trial, most lawyers will advise arrested people to only provide the police with their name and their date of birth. Most lawyers will advise arrested persons to politely refuse to answer any other questions posed by the police (including questions about where they live, where they work, the members of their family, etc.).
Arrested persons can simply tell the police “My name is: and my date of birth is: and, on the advice of my lawyer, I will not be providing you with any other information or answering any other questions.” This does not mean that the police will stop asking questions of the arrested person and they may attempt to persuade the arrested person to speak, saying that this is their chance to tell their side of the story and that the police simply want to get to the bottom of what happened. However, the arrested person must continue to be polite but firm, either remaining completely silent or simply telling the police they have no comment. Some arrested people find it helpful to simply place their head down and ignore the police if they continue to ask questions.
There is no obligation on an arrested person to answer the police’s questions (except for providing their legal name and date of birth). Refusing to answer any other questions by the police cannot ever be held against an arrested person in Court or anywhere else. In Canada, everyone has the right to remain silent if they are arrested for a criminal offence. It is important to remember that any statements made by an arrested person in an interview can only be used at trial by the Crown Attorney to try and convict the arrested person. Due to the rules of evidence in Canada, an arrested person’s lawyer can never use their client’s statement at trial to try and help acquit the arrested person. Therefore, it is better for an arrested person to exercise their right to silence with the police—their time to tell their side of the story will be in their lawyer’s office, not in a police station.