In Canada, the police are empowered to detained and arrest under the Criminal Code of Canada and the common law. The police may arrest a person when issued a warrant by a Justice of the Peace or Judge. In these instances, the grounds for arrest are judicially reviewed to determine if they are reasonable. If the court finds the officer has reasonable grounds, a warrant for arrest will be issued.
In certain instances the police are empowered to arrest a person without a warrant. Police power to arrest without a warrant are contained in section 495(1) of the Criminal Code:
Arrest without warrant by peace officer
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.
For an officers to have grounds for arrest under the Criminal Code, he must be satisfied on reasonable grounds to believe the person was committing a criminal offence or, had or was about to commit an indictable offence. In order to effect a lawful arrest, the officer must have both objective and subjective grounds.
The reasonable grounds must be both objective and subjective reasonable. Reasonable grounds is the point where credibly-based probability replaces suspicion.
The Alberta Court of Appeal explained in R v Phung, 2013 ABCA 63 that an arrest is objectively reasonable when a reasonable person would find reasonable and probable grounds for arrest having placed himself in in the shoes of the police officer and having taken into account the officer’s training and experience.
The validity of an arrest depends on the circumstances which were apparent to the police officer at the time the arrest was made, and not what came to be known later. The formation of reasonable grounds does not require a prima facie case.
Once arrest, the officer must inform the accused the reason for arrest, their right to silence, their right to speak to a lawyer, and that they may call legal aid duty counsel for advice free of charge. In cases where the police have unlawfully arrested an accused or failed to provide the accused his right, the evidence may be thrown out in court. If you have been charged with a criminal offence, it is important to speak with a lawyer to ensure your rights have not been breached. Please feel free to contact me to discuss your legal matters.