E. Rights Arising on Arrest

Author:Steve Coughlan
Profession:Professor of Law. Dalhousie University

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The word "rights" in this context is used broadly to include not only those rights guaranteed by the Charter on arrest, but also statutory provisions that apply once an arrest has occurred and that offer protection to an accused.

1) Statutory Protections

As noted above, the Code provisions that deal with compelling appearance try to balance state concerns with respect for the accused’s liberty interest. The Criminal Code sets out several obligations on the part of police following an arrest. Generally speaking, these provisions are reflections of the principles of restraint and attempt to limit the use of coercive police powers to the extent possible. An example, though minor, is section 503(4), which requires an officer who has arrested a person to prevent the commission of an offence to release the accused unconditionally once that justification no longer exists.

Several of these provisions mirror section 495(2), discussed above, and its approach of creating an arrest power, but providing guidelines around when not to use it. As discussed in Chapter 6, section 497 calls upon an officer who has arrested a person for one of the offences listed in sections 495(2)(a), (b), or (c) to release that person on an appearance notice or summons unless grounds similar to those in section 495(2)(d) and (e) apply. Section 498 imposes a similar duty, with similar limitations on the officer in charge of the place where an arrested person is placed in custody.

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When neither the arresting officer, nor officer in charge release the accused, section 503 comes into play. That section requires that an arrested person be taken in front of a justice of the peace to consider the issue of release.77In most circumstances this must occur without unreasonable delay and, in any event, within twenty-four hours. The Court has been clear that this provision does not mean the police have twenty-four hours to take an accused before a justice ("without unreasonable delay" is the important criterion and twenty-four hours is simply the outside limit on reasonableness).78Whether some period shorter than twenty-four hours was a reasonable time depends on the facts of the case. In Storrey, where a lineup was arranged involving witnesses who had to be brought in from outside the jurisdiction and may have resulted in the accused being released without charges, an eighteen-hour delay was reasonable. That does not mean, however, that the police can always defer taking the accused in front of a justice because they are pursuing an investigation. A release within twenty-four hours might still have been unreasonably delayed.79

It is worth noting that the justice of the peace may decide that the accused should not be released. Similarly, the Crown may apply to the justice for a three-day adjournment of the release hearing, during which time the accused will continue to be detained.80Neither of these possibilities, however, relieve the police of their obligation to take the accused to a justice.81Failure to comply with this obligation may constitute an arbitrary detention under section 9 of the Charter, but on current caselaw will not necessarily. Generally speaking, whether the detention is seen as arbitrary and in violation of section 503 will depend on whether there is an explanation, and if so what it is, for the delay.82

Unreasonable delay of less than twenty-four hours for which there is no explanation is likely to be found both illegal and arbitrary. Rather oddly, however, given the approach that has been taken to section 9, it seems that a delay of more than twenty-four hours for which some explanation could be offered may be found illegal but not arbitrary.83

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The twenty-four hour outside limit only applies where a justice is available in that time, otherwise the only requirement is that there be no unreasonable delay.84However, lack of availability cannot be argued on a simple administrative basis, such as that the courts do not sit on weekends. The provision is only intended to apply in remote areas and similar situations.85Even in such cases, the provisions of section 515(2.3) that allow an accused to appear in front of a justice by telephone or other telecommunications device would need to be taken into account.

Other specific rights arise with respect to young persons who are arrested. Section 25 of the YCJA86gives a young person the right to counsel on arrest, which of course is already guaranteed by section 10(b) of the Charter (see the discussion below). In addition, the YCJA requires that notice of the arrest be given to a parent of the young person. Further, specific statutory rules about interrogations of a young person after arrest provide that any statement is not admissible where the young person was not given the chance to contact counsel and a parent, or was not given the opportunity to have either or both present.87

2) Charter Rights Arising on Arrest

Section 10 of the Charter creates specific guarantees arising on arrest. Indeed, those rights arise on either arrest or detention, and so are relevant in that latter context as well. As a result, a person who is subject to an investigative detention is also entitled to the rights in section 10.88

Unlike section 8, which has had significant impact on the rules regarding searches and how they are to be conducted, the impact of section 10 has largely been to add additional requirements to the information to be given to an accused at the time of an arrest. There has also been an impact on the procedures followed afterward to facilitate actual contact by the accused with counsel. Most of this caselaw developed fairly early under the Charter, and section 10 now has a relatively settled jurisprudence.89

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Section 10(a) provides that an accused is to be informed promptly of the reasons for the arrest or detention. The Court held in Evans that this right "is founded most fundamentally on the notion that one is not obliged to submit to an arrest if one does not know the reasons for it."90This section has provided less protection than it might, however. The test focuses on what the accused can be reasonably supposed to have understood, rather than on any precise words used.91In itself, that need not be objectionable, but it has been applied in a way with the potential to weaken the right. In Latimer, for example, the police decided not to arrest the accused and told him that he was being "detained for investigation" instead. That is, the police consciously purported to take the accused into custody on a basis that was not legally available (since no such power to detain for investigation existed) and offered that false explanation to the accused. The Court nonetheless relied on Evans to find that the accused knew he was in an extremely grave situation with regard to his daughter’s death, and therefore there was no section 10(a) violation.92Similarly, in Smith 1991 the practical impact of section 10(a) was reduced. In that case the accused was told that he was under arrest in connection with a shooting incident, but he was not told that the victim had died. The Crown conceded that section 10(a) had been violated, but relied on the accused’s subsequent waiver of the right to counsel. The Court agreed, holding that, even if the accused was not aware of the specific charge, he had sufficient information to know the extent of his jeopardy, and therefore his waiver of counsel was valid despite the section 10(a) violation.93Although allowing an accused to decide whether to submit to an arrest is described as the primary reason for section 10(a), from the start it has been acknowledged that a secondary reason is linked to the right to counsel in section 10(b): "[a]n individual can only exercise his section 10(b) right in a meaningful way if he knows the extent of his jeopardy."94This aspect of section 10(a) has received attention in cases where an accused is originally arrested for one reason but the reason for her continued detention then changes. The Court has held that it

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can be necessary to re-advise the accused so that he can consider again whether to seek legal advice.95It is to section 10(b) that we now turn.

Section 10(b) guarantees the right "to retain and instruct counsel without delay and to be informed of that right." The Court has noted that this protection is provided because the effective assistance of counsel is seen as crucial in our society, and, indeed, the right to it is a principle of fundamental justice.96The purpose of the right, the Court has said, is to provide an accused with an opportunity to be informed of her rights and obligations and to obtain advice on exercising those rights and fulfilling those obligations. In particular, upon the arrest the accused has been deprived of liberty and may need legal assistance in regaining it. Equally, or more importantly, the accused is at risk of self-incrimination and is in need of legal advice, particularly advice about the right to silence and how to exercise it.97In fact, in practice section 10(b) is effectively restricted to that purpose. That is, it was argued that a guaranteed right "to retain and instruct counsel" ought to include more than an initial consultation with counsel before being interrogated-it ought also to guarantee the assistance of counsel during the interrogation. The Court, however, concluded that this was not so. Rather, "an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b)."98In some circumstances an accused might become entitled to a further opportunity to contact counsel mid-interrogation, but that is the extent of the right (see the discussion below in Section 2(b), Implementational Duties).

Note that, like all Charter rights...

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