A. Introduction

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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This chapter deals with powers of arrest, most, but not all, of which are exercised by police. There is some overlap between this chapter and others. Obviously, arrest is one of the methods of compelling a person’s appearance in court, and so the procedures here must be seen in light of the discussion in Chapter 6. In addition, the Charter guarantees particular rights on arrest or detention. Detention was previously discussed in Chapter 5, but section 10(b) issues were not discussed there at any length. Accordingly, the discussion of those rights here is also relevant to that earlier chapter.

This section deals with powers of arrest, both those given to police officers and those available more broadly. Arrest powers are most important in the context of apprehending a person believed to have committed a crime, and so the major focus of this chapter will be the arrest powers found in Part XVI of the Code, "Compelling Appearance." However, other arrest powers for various purposes are also found in the Code and will be outlined briefly.

Arrest is only one of the methods that can compel the appearance of an accused before a court. Part XVI also contains provisions that allow an accused to be brought to court by two other methods, a summons

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or an appearance notice. Those techniques were discussed at greater length in Chapter 6, but it is useful to review them here.

Similar to powers of search and seizure, Part XVI of the Code is aimed at balancing legitimate state interests in prosecuting crime against individual freedom. On the one hand, it is sometimes necessary to require a person to answer to a criminal charge, and therefore to appear in court to do so. On the other hand, our Western democratic principles hold that the state should not interfere with the liberty of individuals without good reason and no more than is necessary. In large part, therefore, while Part XVI of the Code creates coercive powers given to the police, it attempts to reflect the principle of restraint while doing so. It is an attempt to find the right balance between crime control and due process interests.1Accordingly, in principle a police officer should not be able to uni-laterally compel the appearance 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 instance it is.2That confirmation can occur either before the officer deals directly with the...

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