B. Arrest with a Warrant

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University
Pages:188-190
 
FREE EXCERPT

Page 188

As discussed in Chapter 6, a warrant can only be issued after an information that sets out the reasonable grounds to believe that a person has committed an offence is laid before a justice. Section 504 creates this rule for indictable offences, and section 795 adopts the procedures of Part XVI for summary conviction offences. A personal appearance by the peace officer is not essential, and it is possible to lay an information electronically.12Where, having heard the allegations of the informant and the evidence under oath of any witnesses, a justice who is satisfied that a case for doing so is made out can issue either a summons or warrant requiring the accused to attend before a justice to answer the charge. A summons, rather than a warrant, must be issued unless the evidence discloses reasonable grounds to believe that it is "necessary in the public interest" to issue a warrant.13

This "necessary in the public interest" criterion was also formerly used in section 515 of the Code in considering bail for an accused pending trial. In Morales, it was struck down as unconstitutionally vague and therefore a violation of section 11(e) of the Charter.14That subsection has since been replaced by a new provision that specifies criteria to be used in deciding whether an accused’s detention is necessary to maintain confidence in the administration of justice. The new provision was upheld by the Court in a five to four decision that has attracted some criticism.15In the context of section 507(4), the public interest criterion has received relatively little attention but has been found to comply with the Charter.16

Page 189

This relative lack of attention to the section may largely be due to the fact that, unlike a bail hearing, the application for an arrest warrant is made on an ex parte basis. The issue has occasionally arisen in complaints of a violation of the right to a trial within a reasonable time, and there is some lower court authority suggesting that if the police are going to claim that a warrant, rather than a summons, is necessary then they have an obligation to make reasonable efforts to effect the arrest.17Authorities conflict on whether issuing a warrant with respect to a person already in custody in order to preserve jurisdiction is in the public interest.18For the most part, however, little attention has been paid to the issue.

Warrants are directed only to peace officers, though that term has a relatively broad definition, including of course police officers, but also in some cases correctional officers, customs officers, fisheries officers, mayors, pilots in command of an aircraft, and others.19The peace officers to whom a warrant is directed must be within the territorial jurisdiction of the person who issues it.20In practical terms, however, there are few real...

To continue reading

FREE SIGN UP