Investigative Process 1• Investigation and

trial process• What is a legal

arrest?• What are the rights

of the police and the accused?

• The fine line between protection and freedom.

Investigation

RCMP, http://www.rcmp-grc.gc.ca/rpp/rpp-2008-eng.htm (11/01/10)

National- RCMP

InvestigationNational- CSIS

CSIS, http://www.csis-scrs.gc.ca/prrts/index-eng.asp (11/01/10)

InvestigationProvincial- OPP & Sûreté du Québec

InvestigationLocal- VPD, WPS, HRP

Arrest• Must go beyond suspicion

• Must establish• An offense has been committed• Establish reasonable grounds

• Action options• Appearance notice

• Summary conviction, hybrid, less serious indictables• Names offense, time/place/location of apperance• Accused must receive a copy and sign

• Warrant for arrest• If arrest is impossible at the scene• Summons issued to appear, delivered by representative of court

• Arrest

Arrest• Action options

• Arrest• Purpose: lay charges, preserve evidence, preventative• Can be done without warrant if sufficient evidence exists that an

offense has, is or will occur.• Musts:

• Identification by police officers• Advise of arrest• Inform of charges (

section 10 (a) of Canadian Charter of Rights and Freedoms)• Inform of rights (

section 10 (b) of Canadian Charter of Rights and Freedoms)• If resistance occurs:

• Mays• Use as much force as is necessary to prevent escape• Use deadly force if: harm/death to others, flees to escape

arrest, no alternative means of preventing escape

Criminal LiabilityExists

Miranda Rights in Canada?

"You are under arrest for _________ (charge), do you understand? You have the right to retain and instruct counsel without delay. We will provide you with a toll-free telephone lawyer referral service, if you do not have your own lawyer. Anything you say can be used in court as evidence. Do you understand? Would you like to speak to a lawyer?" (See: R. v. Hebert [1990] 2 S.C.R. 151)

“While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have counsel present during the course of an interrogation. Once a suspect has asserted their right to counsel, the police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have counsel present during the questioning. Also, in Canada even if the suspect emphatically asserts his decision to remain silent, the police may continue to interrogate him. “

Citizens’ RightsBeing Detained•I.e. being stopped for questioning•Should be a temporary ‘stage’- should lead to arrest or being let go•Illegal detention may be resisted with reasonable force

Being Arrested•Charter of Rights and Freedoms•Informed of reason for arrest•Informed of right of lawyer, including duty counsel/legal aid•60% gave statements and 70% give written statements before consultation with lawyer. Why?•Accused must be of sound mind and be able to understand the rights

Citizens’ Rights

Police RightsUpon arrest•Search to look for evidence (related)•Search to look for items for escape or harm•May take away possessions•Take to police station

Accused may refuse to•Be in a line up•Submit to polygraph test•Submit blood, urine or breath samples (except in impaired driving)•Submit DNA without a warrant

Search Laws and ProceduresSearch Warrants•Required legal documents that must be obtained before search of any property belonging to the accused.

•Obtaining• Police must swear to judge/JOP that offense committed and

reasonable grounds of evidence on the property• Counterbalance: Section 8 of Charter• Telewarrants

•Using• Date indicated between 6am and 9pm• Only in areas indicated• Seized items may be kept for 3 months, unless needed as evidence in

imminent trial

Search Laws and Procedures• Entry

• Use of Force

• Searching of Persons

• Electronic Surveillance

• Limits: bodily integrity and property

• Exceptions: Controlled Drugs and Substances Act, provincial liquor laws, anti-

terrorism, non-private residences

• Cases page 198, 199

Detention and Release Procedures

Detention occurs after arrest if:•Grounds for further offenses•Indictable offenses with penalties >5 years

• Brought in front of judge within 24 hours for bail hearing.• As of 1985, less emphasis on money being paid. Why?• If charge serious, reverse onus in effect.