Detention, Arrest, and Criminal Charges 2016-10-24T11:59:09+00:00

Detention, Arrest, and Criminal Charges

Many people wonder under what circumstances a person may be detained, arrested and charged under Canadian criminal law, and if they are arrested, what right do police have to detain them or hold them for bail. The information below provides a very general overview of detention, arrest, and criminal charges under Canadian criminal law.

Powers of Detention Short of Arrest

detention, arrest, and criminal charges in canada

Not every police detention is an arrest. In some circumstances police may detain a person if they have reasonable grounds to believe that a recent or ongoing criminal activity is taking place and that a person investigated is somehow involved as a suspect. If the person is not being placed under arrest, the detention ought to be brief and of minimal intrusion on the privacy of the person. What this means in practice can be very unpredictable, particularly in situations where events are unfolding and police are trying to appreciate the situation at hand.

Regardless of whether someone is detained for an “investigative detention” or under arrest, they ought to be provided rights to counsel and an ability to contact counsel if the situation reasonably allows one an opportunity to do so. These rights are found under section 9 and 10(a) and (b) of the Charter of Rights and Freedoms. The same rights apply, with greater protection, for situations where a person is formally arrested as set out below. If those rights are violated, a person may apply to a criminal court for a remedy under section 24(2) of the Charter.

Powers of Arrest Under Canadian Criminal Law

criminal chargesA person may be arrested with or without a warrant. For warrantless arrests to be legal, the person making the arrest must find a person committing a criminal offence, or they must believe on reasonable grounds that the person has committed a criminal offence and they are escaping from a fresh pursuit of those legally entitled to arrest the suspect. (section 494 of the Criminal Code of Canada 

[C.C.C.]). These arrest powers apply to all persons and is often referred to as a “citizen’s arrest”. In making any such arrest, the citizen is required by law to deliver that arrestee “forthwith” to a police officer.

Powers of arrest for police officers are more broad than those applying to citizens and found under s.495(1) C.C.C. Police may arrest any person who has committed an indictable (more serious) criminal offence, or anyone that police believe is about to commit an indictable offence. They may also arrest any person committing any type of criminal offence if they find them committing it, as well as any person for whom a warrant is outstanding (like a bench warrant, or Canada-wide warrant). There are of course limitations to arrest powers. Those limitation are set out in greater detail in s. 495(2) C.C.C.

Generally speaking, with many complicated exceptions, a police officer will arrest a person if they believe on reasonable and probable grounds that person has committed a criminal offence. Contrary to popular belief for those unfamiliar with the criminal justice system, “reasonable and probable grounds” does not mean the police have to be sure that a person is guilty. Further, reasonable and probable grounds can be established from a vast possibilities of sources. Among other sources, their grounds may be premised upon hearsay, another interested party’s sole word, or circumstantial evidence that implies a person committed an offence. If a person is arrested without reasonable and probable grounds, that accused may ask the trial judge to provide a remedy pursuant to section 24(2) of the Charter of Rights and Freedoms.

Criminal Charges and Issuing Process

When police decide to criminally charge a person, a peace officer must attend before a justice of the peace or judge and swear an “information” that sets out the particulars of the offence. As an example, a peace officer may state that “On or about the 22nd day of February 2013, John Doe did assault Frank Jones with a weapon, to wit, a hockey stick” and then swear under oath that they have reasonable grounds to believe such an offence took place. This document, called an “information”, becomes the formal document that will appear before the Court and follows the accused throughout the process until the charges are disposed of, the information is replaced, or an indictment is filed in more serious cases.

Again, the above explanations are grossly oversimplified processes of Canadian criminal procedure. To truly appreciate these processes in greater detail, and what remedies may be available to you if certain rules and laws are not followed, it is necessary to contact an experienced criminal lawyer who can analyze the particulars of the individual case. Contact one of our lawyers today at (416) 999-8389 to schedule an initial consultation.