Arrest

• Author: Steve Coughlan
• Pages: 311-344

311

CHA PTER 7

ARREST

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

exclusively exercised by police. There is some overlap between thi s

chapter and others. Obviously, arrest is one of the methods of compel-

ling a person’s appearance in court, and so t he procedures here must

be seen in light of the disc ussion in Chapter 6. In addition, the Charter

guarantees pa rticular rights on arrest or detent ion. Detention was dis-

cussed in Chapter 5, but section 10 issues were not discussed there at

any length. Accordingly, the discussion of section 10 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 avail able more broadly. Arrest powers are most

important in the context of apprehending a per son believed to have

committed a crime, and so the major focus of this chapter will be t he

arrest powers found in Part XV I of the Code, “Compelling Appearance.”

However, other arrest powers for various purposes a re 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 PROCEDURE

312

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 even then no more than is neces-

sary. In large part, therefore, while Part X VI of the Code creates coer-

cive powers given to the police, it endeavours to reflect the principle

of restraint while doing so. This ha s long been the implicit governing

principle, and since 2019 the Code has explicitly stated that in mat-

ters relating to arrest and bail “a peace officer, justice or judge shall

give primar y consideration to the release of the accused at the e arliest

reasonable opportunity and on t he least onerous conditions that are

appropriate in t he circumstances.”1 This approach is an attempt to find

the right balance between crime control and due process interests.2

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.3 That confirm ation

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

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

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

may receive a request4 in writing to appe ar in court on a particular day

and be 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 writi ng versus physical control — create four possibil-

ities, which conform to the four methods of compelling an accu sed’s

1 Section 493.1, added by Bill C-75, An Act to amen d the Criminal Code, the Youth

Criminal Justice Act and o ther Acts and to make conseque ntial amendment s to other

Acts, Royal Assent Ju ne 21, 2 019 [Bill C-75].

2 See Herbert L Packe r, The Limits of the Criminal Sancti on (Stanford: Stan ford

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

3 The surprisi ng exception is arrest w ithout a warrant: see the di scussion in

Chapter 6, Section C(2).

4 The word “request” is use d here for the sake of contrast, but there a re legal con-

sequences for fai ling to appear or otherw ise comply with an appeara nce notice,

undertak ing, or summons, which can include a n arrest warrant be ing issued (s

512(2)) or being sent to a judicial re ferral hearing (ss 512.3 and 524). Judicial

referral hea rings were added to the Code in 2019 by Bill C-75, above note 1: see

the discu ssion in Chapter 6, Section C(1).

Arrest 313

appearance created by Part X VI.5 At the least intrusive level, a police

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

that a person has comm itted an offence and consequently obtain a

summons requiri ng the accused to appear in court on a specified date.6

Alternatively, the officer can first encounter a person on the street com-

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

means of an appearance notice. This appearance notice must subse-

quently be confirmed by a just ice.7 These mechanisms were the subject

of Chapter 6.

This chapter, however, deals with the more intrusive methods

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

authorization to do so has been i ssued or before (that is, arrest with or

without a warrant). It is worth noting, however, that Part XVI has a num-

ber of rules aimed at hav ing the state use the least intrusive, yet effective,

means possible. Where a peace officer seeks judicial authorization first,

for example, the justice is to issue a summons, unless it is shown to be

necessary i n the public interest to issue a warrant.8 If a peace officer has

arrested a person, w ith or without a warrant, various sections provide for

that person’s release at the earliest re asonable point.9 These limitations

reflect the principle of restraint in the use of police powers explicitly

stated in the Code.10 It will be seen that this principle is also reflected, in

various ways, in the ar rest powers themselves.

This section deals first with arrest w ith a warrant, arre st without a

warrant, and the various supporting provisions af fecting those powers.

It then briefly considers t he arrest powers outside of Part XVI. Finally,

the constitutional and other r ights that arise on ar rest are outlined.

These constitutional right s are also relevant to detentions.

As a final preliminary point, however, before looking at when the

power to arrest exists, it should be made clear exactly what constitutes

an arrest as a m atter of fact. An arrest consist s of either the actual seiz-

ure or touching of a person with a view to their detention, or words

of arrest accompanied by the person submitting to the arrest.11 The

word “arrest” need not be used, provided the accused c an be reasonably

5 For an explanat ion of these provisions in ch art form, see Steve Coughlan &

Alex Gorlewski, The An atomy of Criminal Procedure: A Visual Guide to the L aw,

[Anatomy of Criminal Procedure] (Toronto: Irwin Law, 2019), Chart 1.3(a), “Com-

pelling Appearance Matrix.”

6 Section 507(1)(b). See s 509 for the contents of a summons.

7 Sections 4 97, 505, and 50 8(1)(b).

8 Section 507(4).

9 Sections 498, 499, and 503(1.1).

10 Sec tion 4 93.1.

11 R v Whitfield, [1970] SCR 46.