Arrest

• Author: Steve Coughlan
• Pages: 185-215

185

CHAPTER 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 this chapter and

others. Obviously, arrest is one of the methods of compelling a per-

son’s appearance in court, and so the procedures here must be seen in

light of the discussion in Ch apter 6. In addition, the Charter guarantees

particular rights on arrest or detention. Detention was previously dis-

cussed in Chapter 5, but section 10(b) issues were not discussed there

at any length. Accordingly, the discussion of those rights here is also

relevant to that earlier chapter.

A. INTRODUCTION

This section deals with powers of arrest, both those given to police

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

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

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

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

ever, other arrest powers for various purposes 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

CRIMINAL PROCEDURE

186

or an appearance notice. Those techniques were discussed at greater

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

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

aimed at balancing legitimate state interests in prosecuting crime

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

sary to require a person to answer to a criminal charge, 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 without good reason and no more than is necessary. In

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

ers given to the police, it attempts to ref‌lect the principle of restraint

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 appearance 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 conf‌i rmation

can occur either before the off‌icer deals directly with the accused per-

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

of compulsion that can be directed toward 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 conf‌irmation 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 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 Alterna-

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

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

of an appearance notice. This appearance notice must subsequently be

conf‌irmed by a justice.5

1 See Herbert L . Packer, The Limits of the Criminal Sanction (Stanfor d: Stanford

University Pre ss, 1968) at 154–72 for a fuller discus sion 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 “requested” is use d here for convenience sake, though, of course, a n

accused who doe s not 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).