Chapter 5

The PoliceInvestigation,
90
Arrest, and Bringing the
Accused to Trial
 The Police
Police officers maintain law and order and
potentially risk their lives in order to do so.
As a result, police officers have special legal
powers to search, detain, and arrest suspected
criminals.
They may also use90force in apprehending
suspects, but the use of force must be
reasonable.
Police have specific duties and can be held
accountable for their conduct.
 Duties of Police Officers
There are several duties that police officers are
responsible for, but the following are considered
core services:
Crime prevention
Law enforcement
Assistance to victims
90 of crime
Maintenance of public order
Emergency response
Investigation of crime
 Police Conduct
The behaviour or conduct of police officers is
overseen in four main ways:
1. Legislatively (e.g. the Police Services Act)
2. Judicially (courts, common law precedents)
3. Administratively (e.g. civilian commissions,
police services90boards)
4. Constitutionally (Charter of Rights, sections
710)
 Police Services Principles
1. Need to ensure safety and security of people
and their property
2. Importance of safeguarding fundamental rights
guaranteed by the Charter of Rights and other
human rights laws
3. Need for cooperation
90 between police and
communities
4. Respecting victims of crime and their needs
5. Being sensitive about the diverse and
multicultural nature of society
6. Ensuring that police represent communities
they serve
 The Arrest Power
If police have reasonable and probable
grounds to suspect someone of a crime, they
may arrest that person.

Depending on the circumstances, police have

three basic options
90 on how to arrest someone:
1. Issue an appearance notice
2. Arrest the suspect
3. Obtain an arrest warrant
 Appearance Notice
Appearance Notice: a legal document stating the
criminal charge and court date; usually used
for summary conviction offences.

If a police officer believes the accused is not

dangerous and will90appear in court on a specific
date, he or she will issue an appearance notice
to the accused and swear an information in
court.

Information: a complaint that a crime has been

committed; the starting document for a less
serious offence.
 Arrest Procedure
For serious indictable offences, the police may
arrest a suspect and take him or her into
custody.
The following steps must be taken by a police
officer in order for an arrest to be lawful:
1. Identify himself/herself
90 as a police officer
2. Inform the accused of the charge(s)
3. Cautions: right to counsel; right to remain silent
4. Physically touch the accused to signify custody
(usually means putting the suspect in handcuffs)
If the accused resists arrest, the police may
use "as much force as necessary.
 Arrest Warrants
If police have trouble locating a suspect for
arrest, they may get a court to issue a
summons, which orders someone to appear in
criminal court.
In situations where police believe a suspect may
be dangerous or uncooperative,
90 they may
persuade a judge to issue a warrant for his or
her arrest; a warrant names the accused, lists
the offence(s), and orders the arrest.
 Citizen's Arrest
In certain situations, ordinary citizens are
permitted by law to arrest others. This is
known as citizen's arrest.

Citizens may arrest someone if

1. They are defending
90 themselves, their dwelling,
and/or their property.
2. They witness an indictable offence while it is in the
process of being committed.
3. They are assisting a police officer.
 Search Laws
It is often necessary for suspects and accused
persons to be searched by police.
Searches are conducted when officers are
looking for weapons or evidence that may be
used in court against the accused.
Section 8 of the Charter
90 of Rights and
Freedoms protects Canadians from being
subject to unreasonable search or seizure.
As a result, there are several practices and
procedures that police must be aware of when
conducting searches.
 When Can a Cop Search?
Police officers can search a suspect if
the person is being placed under arrest
they have reason to believe the person may have
drugs, alcohol, and/or weapons on them
they have a search warrant
***When police search someone's home, they MUST
90
have a search warrant.

A search warrant is a court order that

authorizes police to search a specific place
during a specified time.
 Search Laws & Rules
When executing a search warrant, police may
demand to enter a property and may force their
way in if no one is home.
The person whose home is being searched
should be given a copy of the warrant.
If the warrant has 90 not been filled out correctly,
the entire search may be invalid.
Telewarrants can be obtained by telephone,
fax, or e-mail if police require a search warrant
quickly and do not have time to appear before a
judge in person.
 Obtaining a Search Warrant
A proper search warrant must

Identify the premises to be searched

Identify the criminal offence(s)
Describe what the officer is looking for
90
specifically
Be signed by a judge or justice of the peace
 Being Detained
Section 9 of the Charter of Rights and
Freedoms states that everyone has the right not
to be arbitrarily detained or imprisoned.
A person should not be randomly stopped,
arrested, or detained unless there is a good
reason for doing so. 90
If a person is detained, the detention should
either lead to an arrest within a short period of
time, or the person should be allowed to leave.
The police cannot force someone to be detained
unless they officially arrest them.
 Being Arrested
If a person is arrested, his or her request to
contact a lawyer must be honoured by police.
Duty counsel may be provided to an accused
person should they have difficulty meeting with
their own lawyer.
Police may also provide
90 the accused with a list
of local defence lawyers.
The accused may refuse to answer questions or
provide statements until they consult with a
lawyer, but may answer basic questions:
name, address, occupation, date of birth
 Being Arrested contd
Section 10 of the Charter of Rights and
Freedoms states that when arrested or detained,
everyone has the right to the following:
to be informed of the reasons
to retain and instruct counsel
to have the validity
90 of the detention
determined by writ of habeas corpus
Habeas corpus is a Latin term which means
"produce the body"; in current legal terms it
means to present a case on why the accused is
being denied his or her freedom.
 Legal Aid
If an accused person cannot afford their own
lawyer, they may be eligible for legal aid, which
is paid for by the government through taxes.
Candidates include those on social assistance or
welfare, or others who have very low income.
To qualify for legal90aid, an accused person must
prove that they cannot afford a lawyer.
A common criticism of the justice system is that
only the very rich and very poor have easy
access to lawyers.
 Release & Bail
After someone is arrested, he or she may be
released pending trial.
Bail: $$$ or property that is guaranteed to the
court if the accused fails to appear in court at a
later date.
Surety: a person who90 posts bail and accepts
responsibility for an accused person.
Other than money, bail conditions often include
curfews and travel restrictions.
Reverse Onus: when the burden of proof is
placed on the accused to justify why they should
be granted bail.
 Awaiting Trial
From the time an accused person is charged
to the beginning of his or her trial, several
motions and procedures take place:

1. Disclosure
2. Collection of evidence
90
3. Court appearances
4. Preliminary hearing
5. Resolution discussions
 Disclosure
Prior to trial, the Crown must disclose, or reveal,
all of their evidence to the defence.
The accused must understand the evidence that
may be used against him or her so he or she can
build a defence and be granted a fair trial.
The only thing that90the defence must present to
the Crown is an alibi defence, if they intend to
use one.
After disclosure has been received, a
preliminary hearing is held.
 Collecting Evidence
Before a trial occurs, the Crown and defence
have the right to examine all evidence collected
by the police.
Evidence includes anything that may be used
against the accused in court, including weapons,
clothing, blood, and
90fingerprints.
In recent years, DNA has revolutionized the use
of forensic sciences in law enforcement.
Evidence is often found at the scene of the crime
and during autopsies (determining a victim's
cause of death).
 Court Appearances
When the accused appears in court, they may
enter a plea of guilty or not guilty. If they
plead guilty, they are deferred for sentencing; if
they plead not guilty, there may be a trial.
An adjournment occurs when the Crown or
defence asks for a90 delay or postponement in
proceedings.
Provincial courts hear summary conviction
offences and serious indictable offences.
Provincial superior courts hear the most
serious indictable offences (e.g. murder).
 Preliminary Hearing
This hearing is used to determine whether there
is enough evidence to proceed to trial.
During this hearing, a judge hears a description
of Crown evidence and some Crown witness
testimony.
If there is not enough90 evidence to justify a trial,
all charges against the accused are dropped.
The Crown must establish a prima facie case
justification for a trial.
 Resolution Discussions
These discussions occur between the Crown
and defence before a trial begins in an attempt
to resolve the case without going to trial.
This often involves an accused person pleading
guilty to a lesser charge or agreeing to a lighter
sentence than he or 90 she might receive if
convicted in a court of law.
A plea negotiation, also commonly known as a
plea bargain, occurs when the Crown makes a
deal with the accuseda guilty plea and/or
additional information in exchange for a lighter
penalty.