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Arrest & Detention

Law
by

Brittany Cohen

on 22 November 2012

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Transcript of Arrest & Detention

Criminal Procedures -
Arrest & Detention By: Kristina Axenova &
Brittany Cohen What Is An Arrest? Conduct of The Police During a Police Arrest: Wrongful Arrest: Individual's Rights Upon Arrest What An Officer Must Say: A person clearly understands that they are NOT free to leave the custody of a police officer.
To seize a person by legal authority or warrant; take into custody.
Example: The police arrested the intruder. Police have the right to search someone being arrested for their own personal safety (check for weapons, other evidence of the alleged offense etc.)
Police can't arrest someone only on suspicion, or to just help with an investigation - they must have reasonable grounds.
Police do have the right to ask questions, and even to ask the individual to voluntarily accompany them to the police station. I am arresting you for [name of offence(s)].

You have the right to retain and instruct a lawyer without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number(s)] during business hours and [toll-free phone number(s)] during non-business hours.

Do you understand?
[Response]

Do you wish to call a lawyer?
[Response]

You also have the right to apply for legal assistance through the provincial legal aid program.
Do you understand?
[Response] Section 10(a) of the Charter entitles all people "the right on arrest or detention ... to be informed promptly of the reasons therefore". It is required that the arresting officer, upon making the arrest, will inform the person of the reason for the arrest. Arrest Without A Warrant: What Is An Arrest Warrant? A warrant issued by a judge or justice of peace, which authorizes the arrest and detention of an individual, or the search and seizure of one's property. What Is A Bench Warrant? A type of arrest warrant which is issued by a judge or court, most typically when someone fails to comply with a court order or requirement. Citizens Arrest: When Can Citizen's Arrest Be Made Crime must be witnessed as it is happening.
Must be able to demonstrate reasonable belief that the person has committed a crime How Is Citizen's Arrest Made? Inform the potential criminal that they are being put under citizen's arrest.
Explain to the potential criminal why the arrest is being made.
Attempt to make the arrest with as minimal force as reasonably possible.
Using excessive force can result in charges against you.
When detaining the suspect, do not attempt to handcuff or tie him/her to anything.
Call the police.
Explain in full detail what was witnessed to the police and inform them of the reasoning for detaining the suspect. Right To Be Informed of Charges Right To Counsel The officer must inform the accused of their right to counsel in addition to their right to legal aid. Section 10(b) of the Charter states that all people are entitled "to retain and instruct counsel without delay and to be informed of that right." Right To Silence Section 11(c) of the Charter states that all persons are "not to be compelled to be a witness in proceedings against that person in respect of the offence".
You do not have to answer any questions imposed by the police officer.
However, right to silence does not extend to a right to conceal one's identity, including name, date of birth, and place of residence of a person who is under investigation. Example Of Unlawful Arrest & Detention: Arrest With A Warrant: Obtained in form of search, arrest, search and seizure, or body warrants.
When there is reasonable grounds for suspicion.
Police must act only on the conditions outlined by the warrant. Citizens Arrest: Detention Holding a person in custody when it is not prescribed by the provisions of the Criminal Code would be a violation of S.9 of the Charter.
You may refuse to answer questions.
You do NOT have the right to leave.
If you attempt to leave you may be subject to arrest.
The officer must use reasonable amount of time to confirm his suspicions until detention elevates to the level of "probable cause" for arrest.

Sec. 9 of Charter reads: "Everyone has the right not to be arbitrarily detained or imprisoned". What Are My Rights Regarding Detention? Detention What Is Detention? Detention Occurs When:
A police officer addresses an individual and restrains his/her freedom to walk away, approaches and questions an individual, or stops an individual suspected of being personally involved in criminal activity.
Such a detention is not a formal arrest.
Physical restraint is not an essential element of detention.
Detention is a non-consensual temporary denial of liberty. A police officer must have "reasonable suspicion" that:
You are about to commit a crime.
You are in the act of committing a crime.
You have committed a crime.
Detentions are perhaps most commonly used for traffic stops, investigations by patrol officers on the scene, or officer safety reasons. If someone is committing an indictable offense.
If there is belief that someone is about to commit an indictable offense.
If someone is "fleeing from lawful pursuit" after committing a crime. Driving or attempting to drive while under the influence of alcohol or drugs.
Driving or attempting to drive on a suspended or revoked license.
Fleeing or attempting to evade police officers.
When the police reasonably believe you will disregard a traffic law. Traffic Violations: Citizens Arrest: Citizens Arrest Gone Wrong Citizens Arrest: Citizens Arrest: Warning When Making A Citizen's Arrest: You are exposing yourself to possible lawsuits or criminal charges if the wrong person is apprehended or if you violate a suspect's rights.
You could potentially be charged with: impersonating an officer of the law, false imprisonment, kidnapping, or wrongful arrest.
Do not attempt to apprehend a suspect with a weapon, instead attain a good description to give to the police.
Making arrests are hazardous to your health and the health of the offender when inexperienced. http://www.ctvnews.ca/canada/new-citizen-s-arrest-law-set-to-take-effect-1.856404 http://www.cbc.ca/news/canada/toronto/story/2011/01/22/toronto-harper-arrests-122.html Recent New Laws: Do you think any person should be able to make a citizen's arrest?
Do you think citizens arrests are smart/safe?
Should a citizen be able to use circumstantial evidence as a ground for citizen's arrest? A man punched his girlfriend in the stomach, the African American man held the first man under a citizens arrest until the police arrived. The police finally arrived and arrested the African American man for wrongful citizen's arrest instead of arresting the man who attacked the woman. Wrongful Arrests Include:
Arrest of the wrong person.
Arrest of a person without probable cause that the person committed a crime.
Arrest without the reading of suspect's rights.
Arrest with an arrest warrant that was obtained with false information given to the court by a police officer.
Arrest by incompetence.
Arrest for personal gain.
Arrest based on race. Results Of An Unlawful Arrest If a person is wrongfully arrested they can sue for a variety of different damages and wages lost during their period of incarceration:
Lost wages.
Damage to reputation.
Humiliation.
Physical harm incurred during or as a result of the wrongful arrest.
Illness incurred during or as a result of the wrongful arrest.
Wrongful death.
Punitive damages.
False imprisonment.
Excessive force.
Malicious prosecution. Suing Resisting Unlawful Arrest - Is It Legal? Some individuals who realize they are the target of false arrest will attempt to resist or flee orders of authority.
This is a legal act known as "resisting unlawful arrest".
Resisting an arrest which is otherwise found lawful may result in the following charges:
Resisting Arrest.
Flight to Avoid Prosecution.
Assault .
Justification is difficult to prove.
Simple "mistake of fact" would generally not warrant attempting to elude law enforcement.
Many courts generally will not condone violence used in resisting an unlawful arrest, or deadly force, unless it's proven the police began to use violence upon the defendant. Unlawful Arrest What problems can arise from unlawful arrest?
Why is it important to know your rights as a citizen when you're being arrested?
Should people have the right to resist arrest if they know it is wrongful? R. v. Wolver [2011] ABPC 308 R. v. Wolver Was the arrest of Wolver (the accused) lawful?
Was the amount of force Wolver used considered "reasonable" if the arrest was unlawful? Was the Force Reasonable? The Judgment
Wolver was found unlawfully arrested.
Therefore, lawfully entitled to use "kicking" as reasonable force to resist the unlawful arrest in the circumstances of her case. http://canlii.ca/t/fnm9g Kelsey Anne Wolver (the accused) was charged with assaulting a police officer, Cst. Margaret Morrison, during the execution of her duty.

On that date, Wolver and her fiancé were attending a hockey game at Rexall Place in Edmonton, Alberta. Late in the game, security guards were in the process of arresting Wolver's fiancé.
As Wolver made attempts to assist her fiance, security guards intervened, grabbing Wolver and arresting her. She was almost immediately turned over to two police officers. Shortly thereafter, in attempts to resist the arrest which Wolver perceived to be unlawful, she assaulted Cst. Morrison by kicking her in the upper leg.

Wolver argues that her actions were justified in law because the arrest was unlawful. Accused Is Found Not Guilty Principals of Justice Breached Example of A Lawful Detention A police officer sees you and does not recognize you from the area. He observes you for several minutes as you walk back and forth in front of a liquor store that is just about to close. You are wearing a red hat and the officer has taken two liquor store robbery reports this month about a person wearing a red hat entering the store just before closing time. You appear nervous, looking up and down the street. A police car drives by and you hide then reemerge when the car leaves. The officer determines that your actions are consistent enough with those of a robbery suspect that he believes he has reasonable suspicion to detain you and investigate whether you are about to rob this liquor store. Difference Between An Arrest And Detention: Arrest:
You are not free to leave.
You are being held to answer for a charge after it has been determined that probable cause exists to arrest you.

Detention:
You are not free to leave.
You are not being charged with a crime.
Reasonable suspicion is required, not probable cause. Unlawful Detention: Single kick by the Accused to the upper leg of Cst. Morrison was not unreasonable or excessive resistance given all of the circumstances of this case.
Kick occurred in the early stages of the arrest.
Accused had just witnessed her fiancé being forcefully arrested without any apparent legal justification and knew that he had also been injured in the process.
The accused herself had been unlawfully arrested by the Rexall security guards.
Accused was handcuffed; only real means of resisting the unlawful arrest was to kick. R. v. Sivachova
Judge Malin found that resisting unlawful arrest by kicking was found to be reasonable force. Unreasonable Force Precedents What constitutes reasonable force in resisting an unlawful arrest is very fact specific.
Review of authorities is helpful in defining the parameters of what is reasonable.
Cases which have found the use of force by an accused not to be reasonable include:
R. v. Stenning, 1970 CanLII 12 (SCC), [1970] S.C.R. 631, where an accused struck an officer in the face, breaking his nose and injuring his eye.
R. v. Plamondon 1997 CanLII 3175 (BC CA), (1997), 121 C.C.C. (3d) 314 (BCCA), where an accused barrelled into an officer, punched her in the face, then came on top of her punching her in the face three or four more times.
R. v. Pelletier, [1999] O.J. No. 3738 (ONCA), where an accused drove a vehicle forward and then in reverse while the officer’s arm was caught in the door and then attempted to run the officer down after he had freed himself. Principles of Justice Breached When Charter rights are violated as individual is held for an overlong period of time in respect to circumstances of given situation.
Examples:
Teenager in unwarranted raids video.
Being held for questioning for 2 hours for running a stop sign. Arrest Without A Warrant: R. v. Macooh [1993] 2 S.C.R 802 Peace officer entered a private home in hot pursuit without a warrant to arrest the accused for a provincial offense. "The officer's entry into the dwelling house in hot pursuit of a person suspected of a breach of summary legislation contained in a provincial enactment, as opposed to an indictable offense, was unlawful." Trial Judge's Ruling The judgement was brought to The Court of Appeal... The Court of Appeal R. v. Macooh [1993] 2 S.C.R 802 Right of arrest on private property was not limited to indictable offences.
Arrest was therefore lawful.
Acquittals were set aside and offender's convictions were pursued.
Even without an arrest warrant, there is thus in a case of hot pursuit a right to enter residential premises to make an arrest both for provincial offences and for indictable offences, provided the circumstances justify an arrest without a warrant. Charter Rights of The Accused Rights under sec. 7 and 9 of the Canadian Charter of Rights and Freedoms have not been infringed.
Sec. 9, the police had reasonable grounds to stop and detain the accused, and the detention was therefore not arbitrary.
Sec. 7, outlining protection of accused's privacy rights, which was not infringed since accused took shelter in his house while in hot pursuit of police.
Power of arrest without a warrant overwrites privacy right protection; circumstances cannot prevent police from making an arrest. Principles of Justice R. v. Macooh [1993] 2 S.C.R 802 Fairness Reasonable grounds for suspicion and probable cause of established for unwarranted arrest.
Procedures did not violate accused's Charter rights. Restraint Dangers to society may be reasonably determined if letting an offender flee from hot pursuit. Accountability Procedures and observations deemed accused accountable for the offence. Protection Protection of society and accused is granted.
Police processes were regulated and concise, and protect individual's rights. Question: Should the appeal be granted? Fairness Citizen was not given adequate information upon arrest; no reasonable grounds, rights were not read; parents were not notified. Efficiency Untimely and unlawful detainment; held for over a half hour and harassed by officers; when no laws were broken. Restraint Individual's rights were infringed; right to film anyone in public place. R. v. Wolver Case Facts Fairness Clarity Accountability Participation Process was not solemn and deliberate; accused was physically grabbed and detained; following almost immediately handed over to two police officers. Interest in assisting husband's violent arrest was not protected; accused was unlawfully detained herself upon attempting to assist her spouse. Section 37 of the Criminal Code provides that:
(1) Everyone is justified in using force to defend himself or anyone under his protection from assault if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. Security guards cannot lawfully arrest and exercise the procedural power of a police arrest; accused was "arrested" upon being grabbed by the guards.
Security guards are not “peace officers” as defined in the Criminal Code, and therefore do not possess the powers of arrest of peace officers outlined in s. 495(1) of the Criminal Code.
Security personnel have only the same powers of arrest as any other private citizen.
Those powers are set out in s. 494(1) and (2) of the Code. Thank You ! By:
Brittany Cohen & Kristina Axenova The Judgment
Accused was found unlawfully arrested.
Therefore, entitled to use reasonable force to resist unlawful arrest. Accused Is Found Not Guilty
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