C. Arrest
| Author | Steve Coughlan - Glen Luther |
| Profession | Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan |
| Pages | 200-240 |
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Several issues need to be discussed in looking at powers of arrest. First, we shall consider the meaning of the word "arrest" itself, which allows a determination of whether a particular person has or has not been ar-
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rested. Following that we shall consider the circumstances in which various persons are authorized to make arrests. This will entail discussion of "citizen’s arrest" and arrests by peace officers. In the latter case, there are powers of arrest both with and without warrants.
Powers of arrest for criminal law purposes are now set out statutorily, in section 494 for private citizens and in section 495 for peace officers. However, the concept of an arrest was initially a common law one. Partly because of this history, the meaning of the word "arrest" is actually drawn from the common law.
The definition of "arrest" in Canadian criminal law stems from the 1970 decision of the Supreme Court in Whitfield.202In that case, a police officer saw Whitfield, the accused, in a car and stopped at a stoplight. The officer knew that there was a warrant for Whitfield’s arrest and went over, telling the accused to remain. Whitfield in fact tried to drive away, though he was not immediately able to flee because of other traffic. At one point the officer managed to reach in through the open window of the accused’s car, grab Whitfield’s shirt, and say to him, "You are under arrest." Shortly thereafter the accused was able to accelerate and drive away, breaking free from the officer, who fell to the ground and suffered minor injuries. The accused was not, as one might have expected, charged with resisting arrest. It would seem unambiguously true that he was guilty of that offence, and in the eyes of the dissenting judges in the case that would have been the proper charge. In fact, though, he was charged with "escaping lawful custody." He could be guilty of that offence, of course, only if he was actually "in custody" when the officer was reaching through the open car window and gripping his shirt. That is the conclusion that the majority reached.
The majority concluded that there was no distinction to be drawn between being arrested and being in custody. In essence, they held, the two states were the same:
There is no room for what seems to be a new subdivision of "arrest" into "custodial" arrest and "symbolical" or "technical" arrest. An accused is either arrested or he is not arrested. If this accused was arrested, he escaped from lawful custody . . .203
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That, then, led to the question of exactly what constitutes an arrest. The Court held that an arrest could be accomplished in one of two ways:
[A]n arrest consists either of (i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncing of "words of arrest" to a person who submits to the arresting officer.204
Both of these definitions of arrest create some oddities in practice. The former fixes the point of arrest quite precisely - almost too precisely, in a sense, since it is capable of making the process of arrest appear to be a game of tag.205If the person arresting can touch the arrestee, the arrest is made, but if the arrestee can dodge successfully, he is not guilty of the offence of escaping lawful custody. This is essentially the fact pattern in Asante-Mensah, to be discussed in a moment.206In contrast, the latter basis for arrest is not always precise enough, because it might not be clear whether the words that preceded an arrestee’s submission constituted "words of arrest." "Words of arrest," in the second branch of the test, is not interpreted narrowly. As a result, it is not always easy to know whether someone has been arrested or instead has had their liberty restrained in some other way.
These two branches of the definition of arrest are worth discussing separately.
Asante-Mensah was primarily about the use of force, in particular in the context of arrest by private citizens. However, the facts neatly illustrate the use of the definition of arrest. The accused was a "scooper": that is, a taxi driver who picked up fares at the Toronto International Airport even though he was not licensed to do so. Security guards at the airport arrested him on a number of occasions, though he fled each time. Their power to arrest actually flowed from provincial legislation, but that did not matter in terms of deciding the factual question of whether the accused was arrested or not: the Court held that "arrest" is a term of art
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and that the definition from Whitfield therefore applied when the word was used in the provincial statute.207The case concerned three particular charges. In the first two, the accused had been tapped on the shoulder by a security guard before fleeing; he was convicted of escaping lawful custody in connection with both of those incidents. The third incident went as follows:
15 Later in the afternoon of July 25, 1991, another incident at the airport led to charges against the appellant of dangerous driving, use of a weapon in committing an assault, and escaping lawful custody. The charges arose in this way. A different inspector, aware of the appellant’s previous arrest the same day, saw the appellant’s taxi "trolling" past the arrivals level at Terminal 3. He stepped out in front of the appellant’s taxi with his hand raised, holding his badge, and ordered the appellant to stop. The appellant kept on coming and, to avoid personal injury, the inspector jumped onto the hood of the appellant’s car, from where he was dislodged as the appellant accelerated to get clear of the terminal. The inspector had made no physical contact to arrest the appellant. There was clearly no submission by the appellant to the inspector’s authority. The trial judge held that no arrest had occurred and, having a reasonable doubt on other aspects of the evidence, dismissed all charges in connection with this incident.
In the first two incidents, the accused had been under arrest from the moment he was first touched; in the third, in the absence of any touch or submission, he was not arrested at all.
Although an arrest begins instantaneously, as it were, the Court describes it as a continuing act, in the sense that the accused remains in the state of arrest from the moment of the touch (or submission) "until the person so restrained is either released from custody or, having been brought before a magistrate, is remanded in custody by the magistrate’s judicial act."208This definition, it should be observed, is the counterpart to the observation in Section B(4) above that once the accused is taken before a justice, she has "come into the judicial sphere and out of the hands of the investigating authorities."209In the particular context of Asante-Mensah, the continuing nature of an arrest helped the Court reach the conclusion that a private citizen arresting under provincial legislation was entitled to use force to effect
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the arrest.210The arrest was initiated by a touch, but the power to arrest was not exhausted once the touch was made: that is, the arrest was not over. Rather, the security guard was entitled to use necessary force to achieve the purpose of the arrest: to deliver the accused to a peace officer. To conclude otherwise, the Court held, would be to resurrect the "custodial arrest" and "technical arrest" distinction which had been rejected in Whitfield.
It should be said at the start that "words of arrest and submission" can, in many cases, be a perfectly sensible definition of arrest leading to no ambiguity, and justified on a policy basis. It is entirely correct that in many cases the police might say words to the effect of "you are under arrest - get in the car," following which the arrestee might act as requested. Similarly, arrests often occur while an accused is already in custody, in a police interview room, being questioned. It would be useless formalism to insist that in such cases there was some requirement for the police to touch the person as well as to pronounce the words of arrest. Indeed, to insist on some form of touching would be inconsistent with the principle of restraint in compelling appearance discussed above. The policy argument in Whitfield - that police are entitled to use force to effect an arrest but that the law should not encourage its use - has some validity.211Similarly, as the Court has noted, the legal authority to use force if necessary often makes it in fact unnecessary to do so, because it leads an accused to choose to submit.212It is also preferable from the perspective of the accused, in many cases, since the fact of being arrested triggers the various rights in section 10 of the Charter: an accused who submits in the face of clear words of arrest is more clearly immediately entitled to those rights.
The potential difficulty arises because of the point noted above: that "words of arrest" are not restricted to the words "you are under arrest." Rather, any words that convey to the accused the meaning that he is under arrest will be sufficient. Specifically, police need not use the word "arrest" itself. The important issue is:
the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used . . . .
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The question is . . . what the accused was told, viewed reasonably in all the circumstances of the case.213Again, this is not necessarily problematic in every case. "Don’t go anywhere, I’ve got you, you can’t leave, I am charging you with theft," or something similar, would seem to...
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