Chapter 7 Flashcards
3 options police have during an arrest
- issue an appearance notice
- arrest the suspect
- obtain warrant for arrest
What constitutes a legal arrest?
- offence has been committed
- reasonable grounds to believe suspect committed it (suspicion is not enough)
Appearance notice
- usually for small crimes (summary, hybrid, less serious indictable)
- includes info about charge, time & place of court appearance
- must be signed by accused
- officer must swear in an “information” with the court
“Information”
Document claiming that the officer has charged the accused with a crime
Arrest
- more serious indictable offences
- arrests help lay charges, preserve evidence, and prevent the accused from committing another offence
During an arrest, the officer must…
- identify themselves
- touch the accused
- tell accused they are under arrest
- inform accused of charges
- inform accused of their rights
- stop questioning accused once they say they want a lawyer/legal counsel (any statements volunteered to police may be used as evidence)
Arrest rights
- rights must be read when accused is in capacity to understand (ie. Sober) and in a language they can understand (through interpreters)
- right to a lawyer
- have right to access a phone and talk privately with attorney
Warrant for arrest
- if accused flees (or is deemed a flight risk), officer can ask judge to summon the accused
- requires accused to appear in court at specific time and place
- delivered by sheriff/deputy
Detention rights
- if you voluntarily submit to questioning, you’re not under detention
- detention occurs before arrest (should either be promptly arrested or promptly freed)
- may limit your freedom for a short time
- you can use reasonable force to resist illegal arrests
- you must be informed of rights & reason for detention
- officers can only search you for SAFETY (pat-down for weapons) and DRUGS/ALCOHOL (usually must obtain warrant unless in a vehicle)
Rights of police during an arrest
- have right to search accused to locate & secure evidence, removing items that could be used violently or for escape, and securing items not related to the crime
- have right to move accused to police station
- have right to do full search, including body cavity search if justified & with same sex officer
- may fingerprint & photograph accused for indictable offence
- may collect a dna sample with a warrant
If under arrest, you have the right to refuse…
- participation in suspect line-up
- participation in polygraph test
- submission of blood, urine, hair, or breath (except in impaired driving offence)
Citizens Arrest
- arrest by someone other than police officer (usually salesperson/store detective in shoplifting cases)
- suspect must immediately be turned over to peace officer
When can a peace officer arrest you?
- indictable offence: always
- summary offence: only if they witness the crime being committed
When can a citizen arrest you?
- indictable: can only arrest for crime they witness
- summary: can arrest for crime that occurred in the past & one they witness, but only if it was on their property
Police conduct
- 3 levels of police: federal, provincial, municipal
- can be charged or sued if they break rules of conduct
- each province has a board that reviews conduct complaints
- conduct outlined in criminal code
Police Log
- must keep written record of what they see and hear at a crime scene
- may be used to determine value of evidence presented in court
Searching the person
- police can search anyone who’s been arrested
- can search anything on your person, including purses and bags
- can take your belongings away once you’ve been arrested
- can search anyone with reasonable grounds of they are looking for drugs & alcohol
- citizens (ie mall cops) can’t search you
- school can search anything on its property (ie. Lockers)
Search warrants
- must be obtained to search a private place (boat, house, motor home, lockers, etc.)
- officer applies, judge will grant it if there’s reasonable grounds. Telewarrants can be obtained over phone or by fax
Using the warrant
- warrant will state time, date, location, and reason for search
- place can only be searched on time listed at location listed, and can only collect items listed (but can collect other illegal items if they’re in plain view)
- can hold items for 3 months (or longer for a trial)
Rules about searches with a search warrant
- police must ask to be admitted before they break in
- occupant may ask to see warrant
- address of location may not be published unless charges are laid
- courts must approve electronic surveillance equipment
Exceptions to search warrants
- can search non-residences and occupants in these places for drugs, alcohol, and weapons if they have a probable cause
- don’t have to give notice of entry in drug searches
- vehicle searches are legal
- searches of non-residential places are legal without warrant if looking for weapons
Bail Hearing
- for indictable crimes with a penalty greater than 5 years
- must happen within 24 hours
Bail
- Money or a promise to appear (not usually based on monetary factor anymore)
- bail is only denied if crown proved flight risk or threat to society
Surety
Person who makes bail payment/promise for the accused to appear
What happens when bail is denied or a bail hearing doesn’t happen?
- show cause hearing can take place
- habeus corpus may be requested
Release is difficult in what cases?
- charged with indictable offence while released for another
- charged with indictable offence, not a Canadian citizen
- charged with failing to appear or breach of release
- charged with importing, possession for trafficking, or trafficking narcotics
Reverse onus in terms of bail
- applies to serious crimes (murder)
- accused must prove that they won’t be a threat or flight issue
Release procedures
- accused must sign an undertaking & a recognizance
Recognizance
- promise to appear in court
- recognizes your charge
Habeas corpus
- right to a fair trial
- protects you from arbitrary detention
Preliminary hearing
- Determines whether there’s enough evidence for trial
- crown presents case & Defense cross-examines IT
Pros and cons of plea bargaining
- pros: lighter sentence, quicker trial
- cons: takes away right to fair trial
Disclosure
Prior to trial, crown & Defense meet and reveal all evidence
Adjournment
Court postpones trial to allow accused to find a lawyer
Plea hearing
- accused pleads guilty/not guilty
- not guilty: trial date set
- guilty: sentenced immediately or remanded
Plea bargaining
Accused pleads guilty for lower sentence
Steps to get to trial
- investigation
- charge
- disclosure
- arraignment/plea
- preliminary hearing
- plea negotiations
- trial begins
Undertaking
States conditions of release
