Topic 13: Arrest and Detention Arrest and Detention
Arresting or detaining a suspect are two of the most critical actions that a police investigator can take in the process of any investigation. Each is a distinct course of action and offers the investigator strategic advantages to control the investigative environment by:
• Bringing suspected persons under control in secure custody;
• Stopping an offence in progress or preventing an offence about to be committed;
• Enabling the search for items that may cause danger to the police investigator or others;
• Enabling the search for evidence of the offence;
• Establishing the identity of suspected persons; and
• Compelling accused persons to attend court to face charges.
The concept of arrest for police investigators relates to the process of taking a person into custody upon reaching reasonable grounds to believe that an offence has been committed by the person being arrested. There are many statutes, both federal and provincial, that provide the police with powers of arrest. However, the Criminal Code of Canada provides direction for all police investigators in Canada. Section 495 of the Criminal Code of Canada states:
Arrest without warrant by peace officer Section 495
(1) A peace officer may arrest without warrant
(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;
(b) a person whom he finds committing a criminal offence; or
(c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found.
Limitation
(2) A peace officer shall not arrest a person without warrant for (a) an indictable offence mentioned in section 553,
(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or
(c) an offence punishable on summary conviction, in any case where
(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to
(i) establish the identity of the person,
(ii) secure or preserve evidence of or relating to the offence, or
(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and
(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law (Criminal Code, 1985, s 495(1, 2)).
As a specific power to take action, arrest provides police investigators with a means to intervene in criminal situations and stop persons in the process of dangerous or unlawful acts by taking them into custody. With any arrest, there is an obligation to bring the arrested person before the court for release or otherwise to release the person but compel them to court by other means, such as a summons or promise to appear.
As a lesser power, the police action of detaining a suspect has evolved in common law to allow police to take a person into custody for a shorter time. This detention can be used where reasonable grounds to believe the person has committed an offence have not yet been established, but there is some evidence or circumstances that point to the person as a suspect in the offence being investigated.
For police investigators, the actions of arrest and detention need to be considered as strategic functions of the investigative process. Making an arrest or detaining the suspect are not final outcomes, but merely strategic steps in the process of identifying the offender and gathering sufficient evidence to proceed with a charge. The powers and authorities that exist for police investigators to detain a subject or make an arrest are complex. Detaining a suspect or making an arrest may damage the investigation and threaten the admissibility of evidence flowing from detention or arrest if it is not done on the basis of real facts and circumstances that the officer can adequately articulate to the court.
There is extensive case law that speaks to the issues surrounding both the detention and arrest of a suspect. Case law makes a significant distinction that an investigator needs to consider if they are about to detain or arrest a subject. In the simplest of terms that distinction is:
• To arrest a suspect, a police investigator needs to have reasonable grounds to believe that a person has committed the offence and in contrast,
• To detain a suspect, a police investigator only requires a reasonable suspicion that a suspect is somehow implicated in the offence under investigation.
The distinction between forming reasonable grounds to believe a person has committed the offence and having a reasonable suspicion that a person is somehow implicated in the offence under investigation is a matter of evaluating the evidence available at the time detention or arrest are being considered.
To form reasonable grounds to believe a suspect has committed the offence, the investigator must have evidence
that points directly to that suspect. This kind of evidence could be a witness identifying the suspect as committing the offence or strong circumstantial evidence such as fingerprints or DNA connecting the suspect to the scene or the victim. These types of evidence could provide the necessary reasonable grounds to believe the suspect committed the offence. In contrast, reasonable suspicion that a person is implicated in the offence under investigation requires significantly less concrete evidence. An investigator finding circumstantial evidence that points to a person as being implicated can be sufficient to make the detention. In articulating case law, judges have elaborated on the police common law powers to utilize detention as part of an investigation.
In 2004 in the case of R v Mann, the Supreme Court of Canada stated that, in spite of the fact that there is no general power for investigative detention, police may detain a person if there are reasonable grounds to suspect, in all the circumstances, that the individual is connected to a crime and the detention of that person is reasonably necessary on an objective view of the circumstances. The circumstances to be considered should include the extent to which a suspect’s liberty is interfered with in order for the police officer to conduct the required duties, and the individual being detained for investigation, must be told in simple language about the reason for that detention. The detention must be as short as possible in duration, and detention does not impose any obligation to answer questions. In addition, if a police officer has reasonable grounds to believe his safety or the safety of others is at risk, the officer may conduct and pat-down search on the detained subject and this kind of search is not the same as a search subsequent to an actual arrest (R v Mann, 2004).
With these distinctions for arrest and detention in mind, consider the following scenario to illustrate some of the decision-making an investigator must consider.
Scenario Scenario
It is 3 AM on a Wednesday morning and you are a uniform patrol officer working the night-shift alone in your patrol car. Your unit and two other patrol units are dispatched to attend a break and enter alarm at a warehouse building located in an industrial area on the edge of the city. This industrial area is a complex with many warehouses and manufacturing facilities, and it borders a residential subdivision area. As you proceed to the scene of the alarm, you are advised on the radio that the two other units have already arrived at the warehouse. They are confirming that a break-in has taken place. They advise that the main entry glass doors of the warehouse have been smashed. The two other units are awaiting your arrival to commence a search for any suspects inside the warehouse. On the radio, you hear that the two other units have observed an unoccupied green Ford pickup truck parked on the street near the warehouse complex. Upon running the licence plate of the vehicle, it is determined that the vehicle is registered to a Larry Lurken. Criminal records check on Lurken reveal that he has a prior criminal record for several past offences of break enter and theft.
As you proceed to the industrial area, you approach the entry road through the residential subdivision.
The warehouse you are going to is only one block inside the industrial area from your entry point off the subdivision. As you approach the entrance, you see a young man standing partly hidden behind a tree on the boulevard that separates the subdivision from the industrial complex. The young man is dressed in dark blue jeans and a dark hoodie and, as you approach him, he starts to walk away.
This is a typical case where the strategy of investigative detention could be used. The facts and circumstances facing you as an investigator are:
• You have a young man dressed in dark clothing;
• He is standing partly hidden behind a tree;
• It is 3 AM;
• This location is on the border of an industrial complex, only one block away from the scene of a confirmed break-in; and
• He is starting to walk away.
These are sufficient grounds to suspect that this person may be involved in the criminal offence under investigation. In this case, the goal for you as the investigator would be to detain and determine the identity of this person. To properly observe the rights of this person, you would advise the young man as follows:
“I am conducting an investigation into a break-in at a nearby warehouse building and I am detaining you for my investigation of this break-in. You are not obliged to say anything and anything you do say can be used as evidence. You have the right to retain and instruct counsel without delay.”
After you provide this advice of detention and the appropriate charter and caution, this person is not obliged to answer any questions, other than to provide his identity. The fact that the detainee is not obligated to talk, does not mean you as an investigator are not permitted to ask questions. After all, there may be a reasonable explanation that this man can provide for being at this location at this time, and, as an objective investigator, you must always be prepared to hear these possibilities. He may tell you he lives in the house across the street from where he is standing, and when he heard the alarm going off at the warehouse, he came outside to see what was happening. If that was his claim, and you subsequently check his identification and confirm it to be true, your grounds to suspect he is involved in the offence become greatly diminished, likely to the point where he should be released from detention.
If, on the other hand, he only provides identification and refuses to answer questions about being at this location, your suspicion would remain. Your pat-down safety search of this suspect may reveal something incriminating, such as break-in tools or keys to a Ford truck, or perhaps even a walkie-talkie, which might indicate he is standing look-out for others who were doing the actual break-in. You may find shards of broken glass on his running shoes that may be like the glass from the broken front door of the warehouse, or you may run his name through the police databases to determine that he has a past record for breaking and entering, or perhaps is shown and being an associate of Larry Lurken, the owner of the vehicle parked near the break-in location. Any of these kinds of facts or associations would be sufficient to justify the continued investigative detention of this suspect. These facts could be the beginning of circumstantial evidence from which reasonable grounds to believe could be formed to make an arrest of this suspect.
If the warehouse is searched and Larry Lurken is found inside, Lurken has the matching walkie-talkie to your detained suspect, and it is then discovered that the Ford key in the detainee’s pocket is the key to Lurken’s parked Ford truck, sufficient circumstantial evidence would then exist to form reasonable grounds to believe your detained suspect was a party to this offence of breaking and entering.
If, upon arriving in the area and seeing this suspicious looking young man, you had immediately made an arrest, that arrest would not have been a lawful arrest because it would not have been supported by evidence that could pass the test of forming reasonable grounds for belief. Evidence located later, such as the walkie-talkie and vehicle keys found as part of that arrest, could be excluded by the court because they were not seized as part of a lawful search incidental to lawful arrest. In the foregoing case, detention was justified by the suspicious circumstances and the subsequent discovery of other incrimination evidence after that lawful detention could lead to an arrest on reasonable grounds that could be properly articulated to the court.
As previously mentioned, the process of detention and arrest are authorized actions that an investigator may take to progress through an investigation. These actions are part of the investigative process and they must be taken after careful consideration of evidence that justifies either having a reasonable suspicion to
detain or forming reasonable grounds for belief to make an arrest. It is important for an investigator to undertake careful consideration of the available information and evidence before either of these actions are taken. Any arrest or detention of a suspect should be made with awareness that the evidence considered to support the decision for action will need to be articulated later in court.
Summary Summary
In this chapter, we have outlined and discussed many of the legal rules that must be considered by an investigator to guide their investigative process. In common for each of these legal definitions, concepts, principles, doctrines, and protocols is the need for each to be incorporated into the investigator’s thinking process. The investigator needs to consider the circumstances being encountered and apply the law as it exists specifically to those events.
These legal definitions, concepts, principles, doctrines, and protocols form the basis of the knowledge that an investigator needs to incorporate into his or her mental map to successfully navigate the investigative process. An understanding of these issues and their appropriate application will demonstrate for the court that the investigator is aware of their duty to act, their authorities to act, and it will enable the investigator to properly articulate a justification of their action.
Study QuestionsStudy Questions
1. What exactly do we mean when we refer to “fundamental justice” for people who are charged with a criminal offence in Canada?
2. What protection regarding life, liberty and security is provided by Sec 7 of the Canadian Charter of Rights and Freedoms?
3. What protection regarding search and seizure is provided by Sec 8 of the Canadian Charter of Rights and Freedoms?
4. What protection regarding detention or imprisonment is provided by Sec 9 of the Canadian Charter of Rights and Freedoms?
5. What protection on arrest or detention is provided by Sec 10 of the Canadian Charter of Rights and Freedoms?
6. What protection to witnesses is provided by Section 13 of the Canadian Charter of Rights and Freedoms?
7. What language protections are provided by Section 14 of the Canadian Charter of Rights and Freedoms?
8. What is the difference between “proof within a balance of probabilities” and “proof
beyond a reasonable doubt”?
9. What is the general test for “reasonable grounds to believe”?
10. When must an investigator remain diligent in collecting and preserving evidence, even though they believe they will not be proceeding with a criminal charge?
11. What is the role of the investigator in court when presenting evidence?
12. Why does the police investigator have to be attentive to common law?
13. Can a police investigator decide whether or not an accused should be afforded the defence of necessity?
14. What common law doctrine can be applied when an accused is found in recent possession of stolen property?
15. What evidence must a police investigator gather to demonstrate that an accused was willfully blind?
16. What does the term “Mens Rea” mean and why is it important?
17. What is a prima facie case?
18. What is a criminal information?
19. Is a police investigator protected from criminal or civil liability if they make an error or cause injury to a person?
20. In applying his/her discretion to not lay a charge where there is reason to believe a person has committed an indictable offence, what must a police investigator remember?
21. When can a police investigator arrest without a warrant?
22. When can a police investigator detain a person?