Chapter 5: The Police — Investigation, Arrest, and Bringing the Accused to Trial
Introduction to Investigation, Arrest, and Trial
The criminal justice process involves the investigation of suspects, their arrest, and subsequent legal procedures leading to trial.
An arrest can occur in two primary ways: - Caught in the Act: When police catch a suspect at the moment a crime is committed, often referred to as being caught "in the heat of the moment." - Post-Investigation: When police gather evidence over a period of time and subsequently obtain a warrant to arrest the suspect.
Transition from Suspect to Accused: Once a person is charged with a crime, they are legally referred to as the accused rather than a suspect.
Role of Legal Rights: Sections 7 to 14 of the Charter of Rights and Freedoms ensure that the accused is protected from unfair treatment by police officers, judges, correctional officers, and the federal government throughout the justice system.
Legal Rights and the Canadian Charter of Rights and Freedoms
Section 7: Life, Liberty, and Security of the Person: - Guarantees the life, liberty, and personal security of all Canadians. - Demands that governments respect basic principles of justice when interfering with these rights. - Liberty protection: An accused must have prohibited behavior under the Criminal Code for freedom to be taken away; imprisoning someone who acted reasonably offends fundamental justice. - Security of the person: Protection from physical and psychological harm, including the use of excessive force, threats, or verbal abuse by investigators to obtain confessions.
Section 8: Unreasonable Search and Seizure: Protects the right to privacy, stating everyone has the right to be secure against unreasonable search or seizure of person or property.
Section 9: Arbitrary Detention: States that everyone has the right not to be arbitrarily detained or imprisoned without a good reason.
Section 10: Rights upon Arrest: Includes the right to be informed of the reasons for arrest, to retain and instruct counsel without delay, and to have the validity of detention determined by habeas corpus.
Arrest Procedures and Lawful Execution
Arrest Definition: Verbatim as "to detain a person legally and to charge him or her with a criminal offence."
Choice of Action for Police: When grounds exist to charge a suspect, police can: 1. Issue an appearance notice. 2. Arrest the suspect. 3. Obtain a warrant for arrest.
Appearance Notice: Verbatim as "a legal document stating the criminal charge and the court date." - Used for summary conviction offences and less serious indictable offences if the accused is not considered a threat. - Involves swearing an information (verbatim as "the starting document for a less serious offence") under oath before a judge or justice of the peace.
Arrest Warrant: Verbatim as "an order by a judge to arrest the accused for listed alleged offences." - Issued if police demonstrate the accused will not appear voluntarily.
Summons: Verbatim as "an order to appear in criminal court," delivered by a sheriff or deputy.
Steps in a Lawful Arrest: 1. Notice on Arrest: The officer must identify themselves (e.g., "I am Police Constable Lemieux"). 2. Advising of the Arrest: Informing the suspect they are under arrest and the specific offence charged. 3. Caution 1 (Right to Counsel): Duty to inform the accused of the right to retain and instruct counsel without delay, including free legal aid advice. 4. Caution 2 (Right to Silence): Informing the person they are not obligated to say anything, but anything said may be given as evidence. 5. Physical Touching: Signifying custody, often through the use of handcuffs.
Use of Force: - Police may use "as much force as is necessary" to prevent escape. - Excessive force can lead to criminal or civil assault charges against officers. - Deadly Force Situations: Permitted if the suspect might cause serious harm/death to others, the suspect flees arrest, and no alternative means exist to prevent escape.
Rights on Being Detained and Search Laws
Detain Definition: Verbatim as "to stop a person from leaving, or to confine someone."
Principles of Detention: - Detention should lead quickly to arrest or being free to go. - Residents have the right to refuse to answer questions if not under arrest; they may keep walking and say, "Sorry officer, I do not wish to answer any of your questions." - Exception: Automobiles. Police can stop drivers to check licensing, ownership, and insurance, or for mechanical checks. They can only search if evidence is in "plain view."
Search Definition: Verbatim as "the police procedure in which officers look for evidence that may be used in court."
Reasonable and Probable Grounds: Verbatim as "facts that would cause an average person to believe beyond a mere suspicion." - Police must be objective and show a clear connection between the search and the criminal offence. - Searches cannot be based on random hunches or impulsive decisions.
Search Incident to Arrest: Police can search without a warrant after arrest for: - Ensuring the safety of police and public. - Preventing destruction of evidence. - Discovering evidence related to the offence.
Search Warrants and Exceptions
Search Warrant: Verbatim as "a court order authorizing police to search a specific place at a specified time."
Obtaining a Warrant: Officers must swear an information before a justice of the peace. If an informant is used, the officer must outline why they are reliable.
Executing a Warrant: - Can only be used on the specific date and for specified areas/items. - Illegal items found during a legal search (e.g., drugs found while searching for stolen cash) can be seized. - Items can be kept for up to 3 months or longer if needed for trial.
Telewarrant: Verbatim as "a court order issued by phone, fax, or e-mail to search a place or arrest a person." - Originally for remote areas, now used in urban areas for speed.
Exceptions to Warrant Requirements: - Controlled Drugs and Substances Act: Police may search any non-private residence place without a warrant if grounds exist. - Illegal Weapons: May search for weapons in non-private places (e.g., a car) without a warrant given grounds. - Emergency/Surprise: Warrantless entry permitted if no time to obtain one.
Electronic Surveillance: Requires a warrant for intercepting private conversations via videotape, tracking devices, or recorders.
Release and Bail Procedures
Custody Definition: Verbatim as "in criminal law, actual imprisonment or physical detention."
Bail Hearing: Verbatim as "a hearing to decide whether an accused can be released from jail before trial and with what conditions." - Must occur within 24 hours of arrest. - Bail: Money or property guaranteed to the court. - Surety: The person who posts bail and risks losing property if the accused skips bail.
Reverse Onus: Verbatim as "when the burden of proof is placed on the defence rather than the Crown." - Applies to serious charges like murder or if the accused is charged while already on bail. - The accused must prove they are not a threat and will appear in court.
Judicial Release Documents: - Undertaking: Verbatim as "a document in which the accused agrees to appear in court as required." - Recognizance: Verbatim as "a signed guarantee by the accused to appear in court as required and to abide by the terms."
Biometrics: Verbatim as "a science that establishes individuals’ identity by measuring their physical features." - Used to mathematically map features (nose, eyes, hairline). - Includes fingerprinting and photography for indictable offences.
Habeas Corpus: A writ requiring a prisoner be brought to court to determine the legality of confinement. Guarantees rights if someone is denied a bail hearing.
Anti-Terrorism Act: Suspects can be held without a warrant but must see a judge within 24 hours; can be held up to 72 hours; can accept 12 months of supervision to avoid a year in prison.
Awaiting Trial: Legal Preparation and Evidence
Consulting Counsel: The accused should reveal everything to their lawyer. If the accused admits guilt to the lawyer, the lawyer cannot tell the court they are innocent but must challenge the Crown’s case.
Evidence Definition: Verbatim as "anything that is used to determine the truth in a court of law."
Disclosure: Verbatim as "all evidence against the accused that the Crown must reveal to the defence early in the proceedings." - Essential for a fair trial. - Defence must only disclose an alibi defence.
Forensic Science: Verbatim as "the application of scientific techniques to criminal investigations." - Items include: weapons, DNA, fingerprints, hair, clothing fibers, handwriting, or blood samples. - Autopsy: Examination by a coroner to determine cause of death.
DNA Matching: Uses unique deoxyribonucleic acid profiles. - RCMP National DNA Data Bank (Ottawa): Created by the DNA Identification Act of 2000. Stores genetic profiles of those convicted of serious crimes. - Uses: Linking crimes without suspects, identifying/eliminating suspects, and identifying serial offenders.
The Adjudication Process: Courts, Pleas, and Negotiations
Court Appearance: The judge set a trial date and determines the court level based on the offence.
Adjournment: Verbatim as "a postponement of court business."
Levels of Court: - Provincial Court: Summary and minor indictable offences (theft < $5000), more serious indictable (judge alone). - Provincial Superior Court: Most serious offences (treason, murder, piracy per Section 469 of the Criminal Code; judge and jury).
The Plea: Accused pleads guilty or not guilty. About 90% of Canadians plead guilty.
Preliminary Hearing: Verbatim as "a court hearing to determine if there is enough evidence to proceed to trial." - For serious offences, Crown presents evidence/witnesses to show a reasonable case exists. If not, charges are dropped.
Resolution Discussion: Verbatim as "a pretrial meeting between the defence and Crown to try to resolve the case without a trial."
Plea Negotiation: Verbatim as "a deal between the Crown and the defence for a guilty plea to a lesser charge and/or penalty." - Saves taxpayers' money and time. Lessens suffering for victims (no testimony needed). - Controversial Example: Karla Homolka’s "deal with the devil" (12-year sentence) for evidence against Paul Bernardo.
Police Duties, Oversight, and Principles
Core Police Services: Crime prevention, law enforcement, victim assistance, maintenance of public order, emergency response, and investigation.
Levels of Policing: - Federal: Royal Canadian Mounted Police (RCMP). - Provincial: Ontario Provincial Police (OPP) and Sûreté du Québec (SQ). (RCMP serves this role in other provinces). - Municipal: City police (e.g., Vancouver Police Department).
Oversight and Conduct: - Legislative: Statutes like the Police Services Act. - Judicial: Common law precedents. - Administrative: Commissions like the Ontario Civilian Commission on Police Services. - Constitutional: Sections 7 to 10 of the Charter.
Principles of Canadian Police Services: 1. Ensuring safety/security of persons and property. 2. Safeguarding Charter and human rights. 3. Cooperation with communities. 4. Respecting victims. 5. Sensitivity to pluralistic and multicultural society. 6. Representative police forces.
Oversight Recommendations (LeSage): - Police should be accountable to civilian authority. - Complaints system must be fair, effective, and transparent. - System must have public confidence and police respect.
Questions & Discussion
R. v. Asante-Mensah (2003): Taxi driver "scooped" fares at Pearson International, arrested by airport inspector for trespassing. SCC ruled the arrest by a non-police officer was valid, legalizing the inspector's capture andTOUCHING of the suspect until police arrived.
R. v. Harrison (2008): Police stopped a car for no legal reason (missing front plate in Alberta is not an offence in Ontario). Found 35 kg () of cocaine valued between $2.5 and $5 million (). The majority of the Ontario Court of Appeal allowed the evidence to stay in court despite Charter violations to keep drugs off the street. Justice Cronk dissented, warning of bring justice into disrepute.
R. v. Clayton (2007): Roadblock following a 911 call about 10 men with guns. Prohibited handguns were found. SCC restored convictions, prioritizing public safety over the breach of rights.
R. v. Shankar (2007): Car stopped for no tail lights; driver gave fake name ("Sing" instead of "Singh") and wrong address. Wearing two bulletproof vests; police found loaded handguns in the trunk and glove box. Evidence was admitted because of the danger of the firearms.
R. v. Singh (2007): Interrogation case. Singh invoked right to silence 18 times, but police continued questioning. SCC 5–4 split upheld the conviction, stating police can still question someone who wishes to remain silent.
R. v. Hall (2002): Brutal murder with 37 wounds. Bail denied solely to maintain public confidence in justice. SCC upheld this despite the presumption of innocence.
R. v. Feeney (1997): Police entered Feeney's home without a warrant. Evidence (bloody shirt) was inadmissible, but fingerprint matches from a previous Calgary B&E allowed a reconviction. This case created the requirement for a "Feeney Warrant" to enter residences.
Discussion - Citizen Arrest: Should citizens be allowed to arrest? Under Section 494, citizens, store detectives, and security guards have this authority if they witness a crime.
Discussion - Balance: Balancing efficiency and effectiveness against a possible "police state" where individual rights are limited. Is the current balance achieved when gambling casinos use biometric technology?