Mechanism of an Arrest

• Author: Brian H. Greenspan, Vincenzo Rondinelli
• Profession: General Editors
• Pages: 135-168

135

Mechanism of

an Arrest

5

I. Introduction ............................................. 

II. Meaning of Arrest ........................................ 

A. Touching with a View to Arrest ......................... 

B. Words of Arrest ..................................... 

III. Peace Ocer ............................................. 

IV. Use of Force (Criminal Code, Sections , ) .................. 

A. Regular Force ....................................... 

B. Elevated Force ...................................... 

C. De-escalation ....................................... 

V. Manner of the Arrest ...................................... 

A. Duration of the Arrest ................................ 

B. Nature of the Arrest ................................. 

VI. Resisting Arrest .......................................... 

A. Arrest-Related Oences .............................. 

B. Resisting Unlawful Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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136Detention, Arrest, and the Right to Counsel

I. Introduction

While the vast majority of criminal law cases involve a person being arrested by law

enforcement, the power to arrest predates the rise of the modern police force. Cur-

rent arrest powers, which are governed by statute, can be traced back nearly a thou-

sand years to the age of Henry II. The powers descend from the duties imposed on

the citizenry to uphold the “King’s Peace.”1 Citizens would support the King and his

ocials in maintaining peace and order throughout the realm. One such duty, known

as “hue and cry,” required the citizens of each community to apprehend a person who

had committed a felony. Anyone who witnessed a felony would raise the alarm and

pursue the perpetrator, shouting “hue and cry” as they went. Others were then obli-

gated to join the pursuit and assist in apprehending the perpetrator. This civic obliga-

tion, which developed in medieval times and was itself influenced by even earlier legal

systems, underpins the arrest powers exercised by peace ocers today. Although a

“citizen’s arrest” power continues to exist, peace ocers now enjoy broader arrest

powers, under federal and provincial legislation, than a member of the general public.

An arrest can be made in two ways: without a warrant (see Chapter 6) or with a

warrant (see Chapter 7). This chapter will explore the principles that apply in either

case, including how a person makes an arrest, who can make an arrest, the parameters

on the duration and nature of an arrest, and the oences for resisting an arrest. The

following provides a brief checklist for ocers to follow when deciding whether and

how they will make an arrest:

• Does the ocer qualify as a “peace ocer” as defined in section 2 of the Crimi-

nal Code?2 Certain arrest powers are reserved for peace ocers. (Section III,

“Peace Ocer”)

• Does the peace ocer qualify as a “police ocer”? Some provincial legislation

limits an arrest power to police ocers. (Chapter 6, Section III.E, “Regulatory

Legislation”)

• In the case of a warrantless arrest, does the ocer have grounds for making

the arrest and is the arrest in the public interest? (Chapter 6, Section II, “The

General Criminal Arrest Power”)

• In the case of an arrest with a warrant, does the ocer have a copy of the war-

rant with them? (Chapter 7, Section IV.B, “Warrant Execution”)

• To initiate the arrest, will the ocer simply tell the person that they are under

arrest, along with the reasons for the arrest, and see if they submit? Or will the

ocer also seize the person physically? (Section II, “Meaning of Arrest”)

1 R v Lerke, 1986 ABCA 15 at para 21.

2 RSC 1985, c C-46.

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Chapter  Mechanism of an Arrest 137

• The ocer must limit any physical contact to reasonable force. The degree of

force that an ocer may use to initiate or maintain an arrest is constrained by

the principles of “proportionality, necessity, and reasonableness.” (Section IV,

“Use of Force”)

• For how long will the ocer keep the person under arrest, and in what manner

will the ocer keep the person under their control? (Section V, “Manner of

theArrest”)

– Can the person be released or is the ocer statutorily required to hold them

for court?

– If the person is not required to be held by statute, does the ocer nonethe-

less believe that the person must be held for court because the public interest

makes it necessary or because the person would fail to attend court?

– If the ocer decides to release the person, the person must be released as

soon as practicable.

– If the officer decides to hold the person for court, the person must be

brought to court within the statutory time limits.

II. Meaning of Arrest

The word “arrest” derives from the Old French word arester, better known in Mod-

ern French as arrêter, which means to prevent someone from going ahead or continu-

ing their movement.3 Little linguistic evolution was required to arrive at the legal

definition of an arrest that we use today. The English House of Lords described an

arrest as taking a person into custody “by action or words restraining him from mov-

ing anywhere beyond the arrester’s control,” which continues until the person is

either released or remanded into a custodial facility like a jail.4 The Supreme Court of

Canada endorsed this description of an arrest in R vAsante-Mensah.5

Describing an arrest as the police taking a person into custody can cause some

confusion because “custody” is also used to describe forms of imprisonment. For

example, an accused who adjourns their bail hearing is remanded into custody, and an

oender who is sentenced to jail receives a custodial sentence. Although “custody”

may conjure images of jail cells and prison blocks, the law considers a person to be

held in custody the moment that they are arrested regardless of whether the arrest

was carried out through mere words, a single touch, or total physical control.6 As a

result, a person who escapes an arrest can be charged with the oence of escaping

3 Carine Girac-Marinier et al, eds, Larousse dictionnaire de français, sub verbo “arrêter,” online:

<https://www.larousse.fr/dictionnaires/francais/arr%C3%AAter/ 5383>.

4

Holgate-Mohammed v Duke, [1984] AC 437 at 441. See also R v Pilei, 2021 ONCA 4 at para51.

5 2003 SCC 38 at para 33.

6 R v Whitfield, [1970] SCR 46 at 47-50, 1969 CanLII 4; R v Mansfield, 2022 ONSC 2733 at

para35.

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