Arrest, Search, and Questioning by Police, and Pretrial Detention

AuthorNicholas Bala, Sanjeev Anand
Pages219-339
219
CHA PTER 4
ARREST, SEARCH, AND
QUESTIONING
BY POLICE, AND
PRETRIAL DETENTION
A. THE CRITICAL NATUR E OF THE PRETRI AL
PROCESS
Chapters 4, 5, and 6 address the critical issues that ari se before a youth
who is involved in the justice system enters a plea and ha s a trial. This
stage in the process can h ave a profound impact on the young person
and may effectively determine the outcome at later stages.
Chapter 4 deals with t he initial contact of a youth with the po-
lice and the justice system, including i ssues related to police powers
of arrest, search, a nd questioning, and possible pretrial detention of
the youth. This can be the most traumatic part of the youth justice ex-
perience for a young person, who may suddenly move from his or her
everyday life to questioning by st range adults, placement in a jail cell,
and a stay in a detention facility. At this stage in the process, a youth is
most likely to be dealt with by police and judicial off‌icers who do not
specialize i n youth matters, and there is perhaps the gre atest potential
for exploitation and abuse. While the YCJA has resulted in substantial
declines in the use of youth court s and custody, pretrial detention rates
have not declined since the Act came into effect in 2003, and have
actually increa sed.1 As will be discussed in this ch apter, Parliament
enacted the 2012 amendments to the YCJA governin g pretrial deten-
1 Youth Criminal Justice Act, S.C. 2002, c. 1 (royal a ssent 19 February 2002, in
force 1 April 2003) [YCJA], as amended by S.C. 2012, c. 1. Pretrial rema nd rates
YOUTH CRIM INAL JUSTICE LAW220
tion.2 These amendments provide greater clarity for detention deci-
sions and facilitate detention of youths who have committed serious or
repeat offences, but the new provisions also continue to have signif‌i-
cantly narrower grounds of detention for youths than for adults.
Chapter 5 considers issues related to the diversion of cases by
police or Crown prosecutors from the formal youth justice system
through use of extrajudicial measures. Diversion may result in a more
expeditious resolution of a case by means that may engage the youth,
community members, and even victims, with no youth court record.
Since the YCJA came into effect, over ha lf of all youth cases are resolved
outside the court system, generally the les s serious cases, esp ecially
those involving f‌irst-time offenders.
Chapter 6 deals with t he role of lawyers in the youth justice pro-
cess, with a par ticular focus on the provisions of the YCJA that allow
for counsel to be appointed. A critical par t of the journey through the
youth justice system often involves obtaining legal representation and
the advice of a lawyer, though it often takes weeks or even months to
arrange. During this time the youth must live with considerable uncer-
tainty about what will happen.
B. 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 d irectly ob-
serve the occurrence of what they believe to be an offence, for example,
if they see an ass ault happening on the street or if they stop the driver
of a car who appears to be impaired. More often, police become in-
volved after an alleged offence has occurred, in response to a report
from a member of the community, such as the victim, a wit ness, or
some other person who knows about the offence. The police will re-
spond to a report of an alleged crime init ially by providing immediate
assistance to anyone injured and by beg inning an investigation. The
nature and sophistication of the investigation will depend on the ser-
iousness of t he offence.
In less serious cases, especially t hose involving f‌irst offenders, the
police may decide to respond to a case outside the form al youth justice
are discu ssed in this chapter: s ee Statistics Can ada, Youth Custody and Commu-
nity Services in Can ada 2008/2009 (2010), Jur ista t 30:1.
2 S.C. 2012, c. 1, in force 23 October 2012.
Arrest, S earch, and Questioning b y Police, and Pretr ial Detention 221
court process, perhaps by inform ally discussi ng the situation with the
youth who is believed to have committed the offence. The off‌icer may
issue a warni ng against the commission of further offences or may refer
the youth to a community-based program.
The police discretion not to formally charge and ar rest is an im-
portant aspect of the just ice system, particularly when young people
are concerned. The importance of the police discretion not to charge
is underlined in sections 3 and 4 of the YCJA, which emphasize that
police are empowered to employ extrajudicial measures, for example,
by cautioning youths or by referring them to a program of extrajudi-
cial sanctions. Diversion from the form al youth justice court process
through various forms of ext rajudicial measures is d iscussed in more
detail in Chapter 5.
The crimes young people commit are usually les s diff‌icult for police
to investigate than those perpetrated by adults. Adolescents tend to be
less careful cr iminals than adults. Compared to adults, adolescent of-
fenders are less likely to take ef fective steps to hide their identity, and
they are more likely to inform fr iends of their involvement in a crime.
Police investigations of crimes often focus on inter viewing the victi m,
witnesses, and possible informants or co-per petrators, although some
cases involve sophist icated forensic inve stigative techniques, includi ng
f‌ingerpr inting, DNA analysis,3 and such electronic surveillance tech-
niques as w iretapping.
If police have reasonable grounds to bel ieve that a young person has
committed a crimin al offence for which judicial sanction is an appropri-
ate response, they may commence a criminal proceeding. This may be
done by arresting the su spect or by issuing a document to that per son
requiring his or her appearance in court on a specif‌ied date. Police may
3 DNA analysi s refers to the comparison of hum an tissue, such as blood, se men, or
hair sample s, left at a crime scene, with t he tissue of a suspected of fender. The
term “DNA,” short for deoxyrib onucleic acid, refers to the substa nce that forms
the basis of hum an cells and is dist inctive for almost every per son (except that
identical tw ins share the same DNA). Under s. 487.05(1) of the Criminal Code,
R.S.C. 1985, c. C-46, the police c an obtain a warrant f rom a provincial court judge
to take tis sue samples from a person sus pected of committing cer tain listed, seri-
ous offences. DNA sample s are derived by taki ng a small amount of blood, hair, or
saliva (through a bucca l swab from the mouth — a quick, pai nless, non-invasive
procedure). Under ss. 487.07(4)–(5), if police are execut ing a DNA warrant on a
young person, the y must afford the youth special prote ctions for legal rights sim i-
lar to those t hat apply when a statement is being t aken from a youth. The young
person must be af forded the right to consult wit h a parent and lawyer before t he
sample is take n, and to have that person pre sent while the sample is ta ken. The
youth may waive th is right in a written, aud io-, or videotaped waiver.

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