What is an investigative detention?
Many people are unaware that the police have the power to detain you, even if you are not under arrest. Police may choose to detain you if they have reasonable grounds to believe that a criminal act has taken place, and they have reason to believe you are a suspect worth questioning as part of their investigation of the matter. This kind of detention is commonly known as an “investigative detention” and the police may describe it this way when they are speaking with you. Detention is only supposed to last a short time, but the police have discretion, which means the length of your detention can be unpredictable. Unless the police gather enough evidence to arrest you, you should be released without condition.
From a Charter rights perspective, little changes if you have been detained instead of being arrested. Upon detention, you are still entitled to the rights provided to you by sections 9, 10 (a) and 10(b) of the Charter, which stipulate that you must be informed of the reasons for your detention. You should also be informed of your right to talk to a lawyer, and you should be granted an opportunity to contact your lawyer in private. If you have been detained, and you do not wish to answer the police officer’s questions, you should insist on speaking to a lawyer. Doing so will ensure that you do not volunteer any potentially incriminating information to the police.
When are the police able to arrest you and what are your rights upon Arrest?
The powers of arrest held by police are outlined in s. 495 of the Criminal Code. The most common form of arrest in Canada is a warrantless arrest based on reasonable and probable grounds. In general terms, a police officer will arrest you if they have reasonable and probable grounds to believe that you committed a criminal offence. The standard of “reasonable and probable grounds” is not as demanding as many people might believe. The standard does not require the arresting officer to be certain of your guilt, and evidentiary rules that apply in court do not apply when grounds of arrest are formed. The arresting officer’s “reasonable and probable grounds” may be based purely on a combination of an accusation and circumstantial evidence. It may be based on hearsay evidence, the statements of only one eyewitness, or an indefinite number of other possible sources of evidence.
Another type of arrest is an arrest with a warrant. These most often occur when the police are uncertain of the whereabouts of the person they wish to charge with a crime. In this circumstance, a representative of the police will present the grounds of arrest to a Justice of the Peace, who will decide whether they possess sufficient evidence to proceed with the arrest. If the Justice of the Peace consents, a warrant is produced, and the police may begin to make efforts to locate the person they wish to charge. If you receive information that there has been a warrant granted for your arrest, you should contact a lawyer immediately.
Whether you have been arrested with or without a warrant, your rights upon arrest are the same. The Charter of Rights and Freedoms provides you the right to remain silent, the right to be told why you have been arrested, and the right to speak to a lawyer in private as quickly as possible. Note the requirement that your opportunity to speak to a lawyer should be private, and should not occur in the presence of a police officer.
Should you exercise your right to remain silent if you have been Arrested?
The right to remain silent is a subject that criminal lawyers receive a lot of questions about. The choice to exercise it or not will often have a significant effect on the development of your case. The right is held by you, meaning a criminal defence lawyer can only advise you on whether you should make a statement or not. The final decision is yours.
In almost every circumstance, a competent defence lawyer will advise you to exercise your right to remain silent and deprive the Crown’s case the benefit of additional information. When you have been arrested, investigators will attempt to obtain more information from you about the events that led them to arrest you. The police officers who engage in this type of interrogation are professionals who specialize in obtaining information from a person who is not interested in providing it. They have a collection of methods that have often been honed over many years. They are persuasive and they are persistent. Even the most savvy and experienced people have found themselves making a statement against their interests following their arrest.
It is important to remember that the police officer interrogating you is investigating the allegations against you. They are not your friend, or a person looking to give you a break. They are trying to persuade you to open-up and give them information that will make their job easier. In almost every circumstance, it will be preferable to have an experienced criminal lawyer do all the talking with police on your behalf.
After I have been arrested, what determines whether I will be released?
The answer to this question depends on several factors, including the severity of the charges you are facing, whether you have a criminal record, and the conventions of the jurisdiction you have been charged in.
When you have been criminally charged, the police retain the discretion to determine how you will be released. For offences that are less severe, the forms of release available include an appearance notice, a promise to appear, or an undertaking given to a Peace Officer. For more serious criminal charges, or in circumstances where the police decide it is not in the public interest to release you from custody, an interim judicial release will need to be acquired at a bail hearing.
An appearance notice is a document that includes information on when you must appear in court or when you must attend the police station to be finger printed (if you have been charged with an indictable or hybrid offence). The police will not release you with an appearance notice if you have been charged with a serious crime, or if they fear you will pose a danger to the safety of victims or witnesses, continue to commit crime, or destroy evidence. Often, an appearance notice can be delivered at the scene of a crime, and the recipient never enters a police station.
A promise to appear contains similar information to an appearance notice, except it is delivered after an accused has been processed at the police station and formally charged.
An undertaking to a police officer will be provided with a promise to appear, and can include information on the conditions attached to your release. The conditions may restrict you from attending certain locations, contacting particular people, or engaging in specified acts. The conditions may also demand that you deposit your passport, or require you to promise to pay a specified amount of money if you do not obey the terms contained in your undertaking. If you breach the terms of your release, you may be prosecuted for failing to comply with the terms of your release, under section 145 of the Criminal Code.
If you have been charged with a serious criminal offence, or the police are concerned that your release is not in the public interest, you will have to attend a bail hearing. For more information on this method of release, please see our page on bail hearings.
If you have been charged with an offence, please contact DUVADIE Law at (613) 422-1155 or Toll-Free 1 (855) 422-1155 as soon as possible so that we can begin working on your behalf.
Page last updated Nov 4, 2019 @ 09:47
