So someone thinks you’ve committed a criminal offence…



Arrest Powers

Professor Ferguson

Arrest may take place with an arrest warrant or without a warrant.

Arrest without warrant turns on two main distinctions: (1) whether the person making the arrest is a police officer or a civilian and (2) what kind of offence is in play (i.e. how serious).

We will later go into a great deal of detail concerning the classification of various types of offences. For the time being, the following broad generalizations will suffice:

|Classification of the Offence |Nature of the Offence |

|Indictable offence |Most serious: There are a couple of “special kinds” of indictable offences: |

| |S. 469 offences |The most serious form of indictable offence |

| |S. 553 offences |The least serious form of indictable offence |

|“Hybrid” offence (can proceed summarily or by |Less serious |

|indictment) | |

|Summary Conviction Offence |Least serious |

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Release After Arrest

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The police [or any other person] can lay an information before a justice and where the justice concludes that a case is made out to compel the appearance of an accused to answer a charge, the justice can either (s. 507(1))

Warrant

“Warrantless”

Issue a summons to appear, [which must be personally served on the accused] or

Issue a warrant for arrest. [This occurs in cases where the justice has reasonable grounds to believe that it is necessary in the public interest to do so….

(s. 507(4))]

Citizen

s. 494

Police officer

s. 495

May arrest only where the citizen (s. 494(1))

1. finds the accused committing an indictable offence or

2. has reasonable ground to believe that the suspect has committed a criminal offence (any type) and is escaping from and freshly pursued by someone who has lawful authority to arrest the person, or

3. S. 494(2) – an owner or lawful possessor of property [or their authorized agent] may arrest a person whom they find committing any offence in regard to their property (a) at the time of the offence, or (b) within a reasonable time after the offence if not feasible to get a police officer to make the arrest.

Must deliver the suspect immediately to a peace officer. (s. 494(3))

May arrest: (s. 495(1))

(a) A person who has committed an indictable offence or who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence.

(b) A person the officer finds committing a criminal offence (any type).

(c) A person who the officer has reasonable grounds to believe is subject to an arrest or committal warrant.

However, the officer shall not arrest if it is a s. 553 offence, a hybrid offence, or a summary conviction offence and the officer believes on reasonable grounds that the public interest will be satisfied without arrest. (s. 495(2)) The criteria for this test are listed in s. 495(2)(d)(i-iii) and (e).

If the officer does not arrest, the officer will issue an appearance notice. (s. 496)

With a Warrant

Warrant-less arrest

If it is a very serious indictable offence (s. 469), only a superior court judge can release you (s. 522).

If it is a very serious indictable offence (s. 469), only a superior court judge can release you (s. 522).

For any other offence, if the judge has “endorsed the arrest warrant”, the officer in charge can then release the person subject to a number of possible conditions including promises to appear or entering into a recognizance.

(s. 499)

If the offence is (a) a less serious indictable (s. 553), (b) hybrid, or

(c) summary conviction offence…

If the offence is an indictable offence, other than a s. 469 or s. 553 offence.

Punishable by 5 years or less

Punishable by more than 5 years

The arresting officer shall release with the intention to obtain a summons or with an appearance notice unless the officer believes, on reasonable grounds, that it is necessary and in the public interest to detain: s. 497(1). The factors are listed in s. 497(1.1)(a) and (b).

If the arresting officer does not release...

The officer in charge or another peace officer shall release the person with the intention to obtain (1) a summons, or (2) upon a promise to appear or (3) upon the person entering into a recognizance, unless the officer believes, on reasonable grounds, that it is necessary and in the public interest to detain: s. 498(1).. The factors are listed in s. 498(1.1)(a) and (b). The officer may impose other conditions and undertakings, such as to abstain from communicating, to report to an officer, no weapons, etc.

(s. 503(2) and (2.1))

If the person has still not been released…

The police must bring the person before a justice in order for the justice to determine whether there is a continuing need to detain the accused. This must be done as soon as possible and within 24 hours if a justice is available and as soon as possible if a justice is not available within 24 hours. (s. 503(1)). Judicial interim release (bail) is governed by s. 515.

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