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The Police—Investigation, Arrest, and Bringing the Accused to Trial

Chapter 5

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The Police

• Police officers maintain law and order and potentially risk their lives in order to do so.

• As a result, police officers have special legal powers to search, detain, and arrest suspected criminals.

• They may also use force in apprehending suspects, but the use of force must be reasonable.

• Police have specific duties and can be held accountable for their conduct.

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Duties of Police Officers

• There are several duties that police officers are responsible for, but the following are considered core services:– Crime prevention– Law enforcement– Assistance to victims of crime– Maintenance of public order– Emergency response– Investigation of crime

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Police Conduct

• The behaviour or conduct of police officers is overseen in four main ways:

1. Legislatively (e.g. the Police Services Act)

2. Judicially (courts, common law precedents)

3. Administratively (e.g. civilian commissions, police services boards)

4. Constitutionally (Charter of Rights, sections 7–10)

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Police Services – Principles

1. Need to ensure safety and security of people and their property

2. Importance of safeguarding fundamental rights guaranteed by the Charter of Rights and other human rights laws

3. Need for cooperation between police and communities

4. Respecting victims of crime and their needs

5. Being sensitive about the diverse and multicultural nature of society

6. Ensuring that police represent communities they serve

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The Arrest Power

• If police have reasonable and probable grounds to suspect someone of a crime, they may arrest that person.

• Depending on the circumstances, police have three basic options on how to arrest someone:

1. Issue an appearance notice

2. Arrest the suspect

3. Obtain an arrest warrant

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Appearance NoticeAppearance Notice: a legal document stating the criminal charge and court date; usually used for summary conviction offences.

• If a police officer believes the accused is not dangerous and will appear in court on a specific date, he or she will issue an appearance notice to the accused and swear an information in court.

Information: a complaint that a crime has been committed; the starting document for a less serious offence.

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Arrest Procedure

• For serious indictable offences, the police may arrest a suspect and take him or her into custody.

• The following steps must be taken by a police officer in order for an arrest to be lawful:

1. Identify himself/herself as a police officer

2. Inform the accused of the charge(s)

3. Cautions: right to counsel; right to remain silent

4. Physically touch the accused to signify custody (usually means putting the suspect in handcuffs)

• If the accused resists arrest, the police may use "as much force as necessary.”

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Arrest Warrants

• If police have trouble locating a suspect for arrest, they may get a court to issue a summons, which orders someone to appear in criminal court.

• In situations where police believe a suspect may be dangerous or uncooperative, they may persuade a judge to issue a warrant for his or her arrest; a warrant names the accused, lists the offence(s), and orders the arrest.

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Citizen's Arrest

• In certain situations, ordinary citizens are permitted by law to arrest others. This is known as citizen's arrest.

• Citizens may arrest someone if…1. They are defending themselves, their dwelling,

and/or their property.

2. They witness an indictable offence while it is in the process of being committed.

3. They are assisting a police officer.

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Search Laws

• It is often necessary for suspects and accused persons to be searched by police.

• Searches are conducted when officers are looking for weapons or evidence that may be used in court against the accused.

• Section 8 of the Charter of Rights and Freedoms protects Canadians from being subject to “unreasonable search or seizure.”

• As a result, there are several practices and procedures that police must be aware of when conducting searches.

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When Can a Cop Search?

• Police officers can search a suspect if…– the person is being placed under arrest– they have reason to believe the person may have

drugs, alcohol, and/or weapons on them– they have a search warrant

***When police search someone's home, they MUST have a search warrant.

• A search warrant is a court order that authorizes police to search a specific place during a specified time.

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Search Laws & Rules

• When executing a search warrant, police may demand to enter a property and may force their way in if no one is home.

• The person whose home is being searched should be given a copy of the warrant.

• If the warrant has not been filled out correctly, the entire search may be invalid.

• Telewarrants can be obtained by telephone, fax, or e-mail if police require a search warrant quickly and do not have time to appear before a judge in person.

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Obtaining a Search Warrant

A proper search warrant must…

– Identify the premises to be searched– Identify the criminal offence(s)– Describe what the officer is looking for

specifically– Be signed by a judge or justice of the peace

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Being Detained

• Section 9 of the Charter of Rights and Freedoms states that everyone has the right “not to be arbitrarily detained or imprisoned.”

• A person should not be randomly stopped, arrested, or detained unless there is a good reason for doing so.

• If a person is detained, the detention should either lead to an arrest within a short period of time, or the person should be allowed to leave.

• The police cannot force someone to be detained unless they officially arrest them.

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Being Arrested

• If a person is arrested, his or her request to contact a lawyer must be honoured by police.

• Duty counsel may be provided to an accused person should they have difficulty meeting with their own lawyer.

• Police may also provide the accused with a list of local defence lawyers.

• The accused may refuse to answer questions or provide statements until they consult with a lawyer, but may answer basic questions:– name, address, occupation, date of birth

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Being Arrested contd…

• Section 10 of the Charter of Rights and Freedoms states that when arrested or detained, everyone has the right to the following:– to be informed of the reasons– to retain and instruct counsel– to have the validity of the detention

determined by writ of habeas corpus• Habeas corpus is a Latin term which means

"produce the body"; in current legal terms it means to present a case on why the accused is being denied his or her freedom.

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Legal Aid

• If an accused person cannot afford their own lawyer, they may be eligible for legal aid, which is paid for by the government through taxes.

• Candidates include those on social assistance or welfare, or others who have very low income.

• To qualify for legal aid, an accused person must “prove” that they cannot afford a lawyer.

• A common criticism of the justice system is that only the very rich and very poor have easy access to lawyers.

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Release & Bail

• After someone is arrested, he or she may be released pending trial.

• Bail: $$$ or property that is guaranteed to the court if the accused fails to appear in court at a later date.

• Surety: a person who posts bail and accepts responsibility for an accused person.

• Other than money, bail conditions often include curfews and travel restrictions.

• Reverse Onus: when the burden of proof is placed on the accused to justify why they should be granted bail.

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Awaiting Trial

• From the time an accused person is charged to the beginning of his or her trial, several motions and procedures take place:

1. Disclosure

2. Collection of evidence

3. Court appearances

4. Preliminary hearing

5. Resolution discussions

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Disclosure

• Prior to trial, the Crown must disclose, or reveal, all of their evidence to the defence.

• The accused must understand the evidence that may be used against him or her so he or she can build a defence and be granted a fair trial.

• The only thing that the defence must present to the Crown is an alibi defence, if they intend to use one.

• After disclosure has been received, a preliminary hearing is held.

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Collecting Evidence

• Before a trial occurs, the Crown and defence have the right to examine all evidence collected by the police.

• Evidence includes anything that may be used against the accused in court, including weapons, clothing, blood, and fingerprints.

• In recent years, DNA has revolutionized the use of forensic sciences in law enforcement.

• Evidence is often found at the scene of the crime and during autopsies (determining a victim's cause of death).

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Court Appearances

• When the accused appears in court, they may enter a plea of “guilty” or “not guilty.” If they plead “guilty,” they are deferred for sentencing; if they plead “not guilty,” there may be a trial.

• An adjournment occurs when the Crown or defence asks for a delay or postponement in proceedings.

• Provincial courts hear summary conviction offences and serious indictable offences.

• Provincial superior courts hear the most serious indictable offences (e.g. murder).

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Preliminary Hearing

• This hearing is used to determine whether there is enough evidence to proceed to trial.

• During this hearing, a judge hears a description of Crown evidence and some Crown witness testimony.

• If there is not enough evidence to justify a trial, all charges against the accused are dropped.

• The Crown must establish a prima facie case— justification for a trial.

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Resolution Discussions

• These discussions occur between the Crown and defence before a trial begins in an attempt to resolve the case without going to trial.

• This often involves an accused person pleading guilty to a lesser charge or agreeing to a lighter sentence than he or she might receive if convicted in a court of law.

• A plea negotiation, also commonly known as a plea bargain, occurs when the Crown “makes a deal” with the accused—a guilty plea and/or additional information in exchange for a lighter penalty.