Author:Steve Coughlan - Glen Luther
Profession:Professor, Schulich School of Law, Dalhousie University - Associate Professor, College of Law, Saskatchewan

Page 1

The central goal of a proper criminal justice system must be to maintain a balance between the individual interest of private citizens to carry on their lives free from state interference, and the communal interest in maintaining a safe society. One of the most visible ways in which those two goals come into conflict with each other is when agents of the state physically take control of private citizens: that is, when they exercise their powers to detain or to arrest.

Powers to detain and arrest arise at a number of points in the criminal justice system, and indeed outside it. Travellers arriving in the country are detained at customs. Motorists can be detained for a variety of purposes, ranging from checking the mechanical fitness of the vehicle to determining the blood-alcohol level of the driver. Someone accused of an offence might be detained pending trial or to be assessed to determine fitness to stand trial, or he might be detained afterward, whether pursuant to a sentence, following a finding of not being criminally responsible, or for having been found to be a dangerous offender. Statutory schemes authorize detention for immigration, deportation, or security-related reasons. The police might arrest a person in order to charge her with an offence, might arrest her at a later stage if a surety for the accused’s bail withdraws, or might arrest her on a bench warrant if she fails to appear for trial. An absconding witness is subject to being arrested.

This book does not attempt to deal with all situations in which detention and arrest occurs. Its focus is on "street-level" encounters, detentions and arrests that occur in the course of investigating crime and

Page 2

laying charges. Our focus is on the initial interaction between agents of the state or others authorized to detain and arrest and the private citizens whose liberty is interfered with. It is at that point that the balance between societal safety and individual liberty is most keenly in play.

This book is also not focused on the issue of remedies for non-compliance with the law. Particularly in the detention context, the questions of what powers exist and whether there has been a violation of the Charter of Rights and Freedoms1are quite closely linked: many, though by no means all, powers of detention arise out of discussions of whether the police were violating an accused’s rights when they stopped him. Nonetheless, our concern is with the powers of detention and arrest themselves, including, of course, those Charter rights that arise in these circumstances. The more well-defined and understood these powers are, the less likely it is that there will be Charter violations, and the easier it will be to conduct the section 24 analysis. Whether an improperly arrested or detained accused might...

To continue reading