Arrest

• Author: Steve Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 223-253

223

CHA PTER 7

ARREST

This chapter deals w ith powers of arrest, most, but not all, of which are

exercised by police. There is some overlap between thi s chapter and

others. Obviously, arrest is one of the methods of compelling a person’s

appearance in court, and so t he procedures here must be seen in light of

the discuss ion in Chapter 6. In addition, the Charter guarantees particular

rights on arrest or detention. Detention was discussed in Chapter 5, but

section 10(b) issues were not discussed there at any length. Accordi ngly,

the discussion of those rights here is also relevant to that earlier chapter.

A. INTRODUC TION

This section deals w ith powers of arrest, both those g iven to police

off‌icers and those available more broadly. Arrest powers are most im-

portant in the context of apprehending a pers on believed to have com-

mitted a crime, and so the m ajor focus of this chapter will be the arrest

powers found in Part XVI of the Cod e, “Compelling Appearance.” How-

ever, other arrest powers for various purpose s are also found in the

Code and will be outlined brief‌ly.

Arrest is only one of the methods t hat can compel the appearance of

an accused before a court. Part XV I also contains provisions that allow

an accused to be brought to court by two other methods: a summons

or an appearance notice. Those techniques were di scussed at greater

length in Chapter 6, but it is useful to rev iew them here.

CRIMIN AL PROCEDURE224

Similar to powers of search and seizure, Part XV I of the Code is

aimed at balancing legit imate state interests in prosecuting crime

against individual freedom. On the one hand, it is sometimes neces-

sary to require a pe rson to answer to a criminal cha rge and therefore to

appear in court to do so. On the other hand, our Western democr atic

principles hold that the state should not interfere with the liberty of

individuals w ithout good reason and no more than is necessa ry. In

large part, therefore, while Part X VI of the Code creates coercive pow-

ers given to the police, it endeavours to ref‌lect the principle of restra int

while doing so. It is an attempt to f‌ind the right balance between crime

control and due process interests.1

Accordingly, in principle, a police off‌icer should not be able to uni-

laterally compel the appeara nce of an accused in court. That decision

should, at some stage, be conf‌irmed by a judicial off‌icer, typically a

justice of the peace, and in all but one inst ance it is.2 That conf‌irmat ion

can occur either before the off‌icer deals directly with the accus ed per-

son or afterward, but it must occur. Similarly, there are different levels

of compulsion that can be directed towards the accused. The accused

may receive a request3 in writing to appear in court on a particular day

and is trusted to do so, or could, in contrast, physically be taken into

control by the police off‌icer and given no choice but compliance.

These two variables — judicial conf‌irm ation before or after, and a

request in writi ng versus physical control — create four possibilities,

which conform to the four methods of compelling an accused’s appear-

ance created by Part XVI. At the least intrusive level, a police off‌icer

can show a justice that there are reasonable grounds to believe that a

person has committed an offence and consequently obtain a summons

requiring the accused to appear in court on a specif‌ied date.4 Alter na-

tively, the off‌icer can f‌irst encounter a person on the street committing

an offence and then require that per son to appear in court by means

of an appearance notice. This appearance notice must subsequently be

conf‌irmed by a justice.5

This chapter, however, deals with the more intrusive methods in-

volved in taking physical control of the person, either after judicial

1 See Herbert L Packe r, The Limits of the Criminal Sanctio n (Stanford: Stan ford

University Pre ss, 1968) at 154–72 for a fuller discuss ion of these concepts.

2 The surpris ing exception is arrest w ithout a warrant: see the d iscussion in

Chapter 6, Section C(1).

3 The word “request” is used h ere for convenience sake, although, of course, an

accused who does n ot appear will be arre sted: see s 512(2).

4 Section 507(1)(b). See s 50 9 for the contents of a summons.

5 Sections 501, 505, and 508(1)(b).