Arrest
| Author | Stephen Coughlan |
| Profession | Professor of Law. Dalhousie University |
| Pages | 168-196 |
CHA PTER 7
ARR EST
This chapter deals with powers of arrest, most, but not all, of which are
exercised by police. There is some overlap between this chapter and
others. Obviously, arrest is one of the methods of compelling a person’s
appearance in court, and so the procedures here must be seen in light of
the discussion in Chapter 6. In addition, the Charter guarantees particu-
lar r ights on arrest or detention. Detention was previously discussed in
Ch apte r 5, b ut se cti on 10( b) i ssue s we re no t ra ise d th ere . Acc ord ingl y, th e
discussion of those r ights here is also relevant to t hat earlier chapter.
A. INTRODUCTION
This section deals with powers of ar rest, both those given to police of-
ficers and those available more broadly. Arrest powers are most import-
ant in the context of apprehending a person believed to have committed
a crime, and so the major focus of this chapter will be the arrest powers
found in Part XV I of the Code, “Compelling Appearance.” However,
other arrest powers for various purposes are also found in the Code and
will be outlined br iefly.
Arrest is only one of the methods that can compel the appearance of
an accused before a court. Part XVI 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 discus sed at greater
length in Chapter 6, but it is useful to rev iew them here.
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Arrest 169
Similar to powers of search and seizure, Part XVI of the Code is
aimed at balancing legitimate st ate interests in prosecuting crime
against individual freedom. On the one hand, it is someti mes neces-
sary to require a person to a nswer to a criminal charge, and therefore
to appear in court to do so. On the other hand, our Western democratic
principles hold t hat the state should not interfere with the libert y of
individuals without good reason and no more than i s necessary. In
large part, therefore, while Part XVI of the Code creates coercive pow-
ers given to the police, it attempts to reflect the pr inciple of restraint
while doing so. It is an attempt to find the right balance between crime
control and due process interests.1
Accordingly, in pr inciple a police officer cannot unilaterally com-
pel the appearance of an accused in court. That decision must, at some
stage, be confirmed by a judicial officer, typically a justice of the peace.
That confirmation can occur either before the officer deals directly with
the accused person or after ward, but it must occur. Similarly, there are
different levels of compulsion that can be directed toward t he accused.
The accused m ay receive a request2 in writing to appear in court on
a part icular day and is trusted to do so, or could, i n contrast, physic-
ally be taken into control by the police officer and given no choice but
compliance.
These two vari ables — judicial confi rmation before or after, and a
request in writing versus physical control — create four possibilities,
which conform to the four methods of compelling an accused’s appear-
ance cre ated 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.3 Alterna-
tively, the officer can first encounter a person on the street committing
an offence and then requi re th at person to appear in cour t by means
of an appearance notice. Thi s appearance notice must subsequently be
confirmed by a justice.4
This chapter, however, dea ls with the more intru sive methods in-
volved in taking physical control of the person, either after judicial
authorization to do so has been issued or before (that is, arrest with
or without a warrant). It is worth noting, however, that Part XVI has
1 See Herbert L . Packer, The Limits of the Criminal Sanction (Stanford: Sta nford
University Pre ss, 1968) at 154–72 for a fuller discus sion of these concepts.
2 The word “requested” is us ed here for convenience sake, though of course a n
accused who doe s not appear will be arre sted: see s. 512(2).
3 Section 507(1)(b). See s. 509 for the contents of a sum mons.
4 Sections 501, 505, and 508(1)(b).
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