Arrest, Police Questioning, and Pre-trial Detention

• Author: Nicholas Bala
• Profession: Professor of Law Queen's University
• Pages: 184-271

184

A. COMMENCING THE YOUTH

JUSTICE PROCESS

Police may become involved in responding to the suspected criminal

behaviour of a young person in several ways. They may directly

observe the occurrence of what they believe to be an offence, for exam-

ple, if they observe an assault happening on the street or if they stop

the driver of a car who appears to be impaired. More often, police

become involved after an alleged offence has occurred in response to a

report from a member of the community, such as the victim, a witness,

or some other person who knows about the offence. The police will

respond to a report of an alleged crime initially by providing immedi-

ate assistance to anyone who has been injured and by beginning an

investigation. The nature and sophistication of the investigation will

depend on the seriousness of the offence.

In less serious cases, especially those involving first offenders, the

police may decide to respond to a case outside the formal youth justice

court process, perhaps by informally discussing the situation with the

youth who is believed to have committed the offence. The officer may

issue a warning against the commission of further offences or may refer

the youth to be dealt with informally by a community-based program.

The police discretion not to formally charge and arrest is an important

aspect of the justice system, in particular when young people are

ARREST, POLICE

QUESTIONING, AND

PRE-TRIAL DETENTION

chapter 4

concerned. The importance of the police discretion not to charge is

underlined in sections 3 and 4 of the Youth Criminal Justice Act,1which

emphasize that police are empowered to employ extrajudicial measures,

for example, by cautioning youths or by referring them to a program of

extrajudical sanctions. (Diversion from the formal youth justice court

process through various forms of extrajudicial measures is discussed in

more detail in Chapter 5.) Generally, adolescents tend to be less cau-

tious criminals than adults, and the crimes they commit are usually less

difficult for police to solve than those perpetrated by adults. Compared

to adults, adolescent offenders are less likely to take steps to hide their

identity, and they are more likely to inform friends of their involvement

in a crime. Police investigations of crimes often focus on interviewing

the victim and witnesses, although some cases involve sophisticated

forensic investigative techniques, including fingerprinting, DNA analy-

sis,2and such electronic surveillance techniques as wiretapping.

If police have reasonable grounds to believe that a young person

has committed a criminal offence for which judicial sanction is an

appropriate response, they are in a position to commence a criminal

proceeding. This may be done by arresting the suspect or by issuing a

document to that person requiring his appearance in court. A youth

who is arrested or suspected of committing an offence will usually be

interviewed by police. Since many offences committed by adolescents

occur in groups, and it is relatively easy to establish that they were in

some way involved in the offence, often the greatest challenge for the

police is to determine the nature of the involvement and the degree of

Arrest, Police Questioning, and Pre-trial Detention 185

1Youth Criminal Justice Act, S.C. 2002, c. 1 (royal assent February 19, 2002, to

come into force April 1, 2003), often referred to in this book as the YCJA.

2 DNA analysis refers to the comparison of human tissue, such as blood, semen,

or hair samples, left at a crime scene, with the tissue of a suspected offender.

The term DNA, short for deoxyribonucleic acid, refers to the substance that

forms the basis of human cells and is distinctive for almost every person; identi-

cal twins share the same DNA. Under ss. 487.05 to 487.09 of the Criminal Code,

R.S.C. 1985, c. C-46, the police can obtain a warrant from a provincial court

judge to take tissue samples from a person suspected of committing certain list-

ed, serious offences. The taking of a DNA sample requires the taking from a sus-

pect of a small amount of blood, hair, or saliva (i.e, through a buccal swab from

the mouth, a quick, painless, non-invasive procedure). Under s. 487.07(4)–(5),

if police are executing a DNA warrant on a young person, they must afford the

youth special protections for legal rights similar to those which apply when a

statement is being taken from a youth. The young person must be afforded the

right to consult with a parent and lawyer before the sample is taken, and to have

that person present while the sample is taken. The youth may waive this right in

a written, audio- or videotaped waiver.

responsibility of each participant in the crime; in this type of investiga-

tion, police interviews with the suspects may be critical to establishing

exactly what occurred.

The arrest, questioning, and any detention of a suspected youth

offender are governed by the Canadian Charter of Rights and Freedoms,3

the Criminal Code, and the Youth Criminal Justice Act. At this initial stage

of the court process, the YCJA provides that young persons have special

rights that are intended to afford them special protection and to involve

their parents in the justice process. This chapter focuses on the legal

issues that arise at the beginning of the youth justice process as a case

moves through a police investigation to arrest and possible pre-trial

detention. The discussion in this chapter pays particular attention to the

special rights of youths under the YCJA.4There are frequent references

in this chapter to judgments decided under the Young Offenders Act;5

although the Youth Criminal Justice Act makes some important changes

to the law governing police questioning and pre-trial detention, signifi-

cant portions of that Act are virtually identical to provisions in the

Young Offenders Act and much of the case law under it remains relevant.

B. Search and Arrest Powers

and the

Charter

In addition to those rights guaranteed to all those who are arrested

under the Criminal Code and the Charter, the YCJA affords special

rights and protections to young persons who are arrested. Some of these

provisions are premised on the recognition that adolescents generally

186 Youth Criminal Justice law

3Canadian Charter of Rights and Freedoms, enacted as Part I of the Constitution

Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11 (subse-

quently referred to as the Charter).

4 The general law applicable to the arrest, questioning, and detention of accused

persons, both adults and youths, is complex and will only be summarized here.

For a more detailed consideration, see, for example, R. Delisle and D. Stuart,

Learning Canadian Criminal Procedure, 6th ed. (Toronto: Carswell, 2000) c. 2;

D. Stuart, Charter Justice in Canadian Criminal Law, 3d ed. (Toronto: Carswell,

2001) and T. Quigley, Procedure in Canadian Criminal Law (Toronto: Carswell,

1997) cc. 4–11.

5Young Offenders Act, R.S.C 1985, c. Y-1,enacted as S.C. 1980–81–82–83, c. 110.

The Act was also amended in 1985 through An Act to amend the Young Offenders

Act, the Criminal Code, the Penitentiary Act, and the Prisons and Reformatories Act,

R.S.C. 1985 (2d Supp.), c. 24, in force September 1, 1986 and November 1,

1986, and in 1995 through An Act to amend the Young Offenders Act and the

Criminal Code, S.C. 1995, c. 19.