legal 2 Flashcards
as a Sheriff, what are your authorities? Where do get those authorities?
- S. 494 CC, S. 495 CC, PO appointment, POPA, Crown Property Regulations Act; Gaming, Liquor, and Cannabis Act
- Section 495 and PO appointment:
S. 495 CC: Arrest without Warrant by PO
A peace officer can arrest a person without a warrant if:
The person has committed or is believed to have committed (or is about to commit) an indictable offence.
The person is found committing a criminal offence.
There are reasonable grounds to believe a warrant is in force for the person’s arrest within the officer’s jurisdiction.
PO Appointment: ensure acting within what is on your appt. (eg., used to not have 495, but now do. Also, ensuring you’re carrying gear you’re authorized to use like pistol or taser, etc.)
Differentiate between i) finds committing, ii) reasonable probable grounds , and iii) reasonable suspicion
i) finds committing
- highest grounds threshold
- first hand observation/knowledge (caught red handed)
- definitely the case
- may trigger arrest
ii) reasonable probable grounds (aka reasonable grounds to believe)
- somewhat higher threshold
- ‘probably’ the case –> must be articulated based on strength and reliability of info obtained or observations
- grounds that would lead an ordinary, prudent, and cautious person to have a strong and honest belief about situation at issue
- this grounds engages PO arrest authority in cases where they did not themselves witness the alleged offence
- may trigger arrest, may require initial investigation
(eg., when another Sheriff and I detained someone b/c we were told they may have outstanding warrants from an RCMP member, but we had to wait for a call to confirm. For threshold of reasonable belief, belief in the existence of a warrant is enough to trigger the arrest authority.)
iii) reasonable suspicion (aka reasonable grounds to suspect)
- lowest grounds threshold
- ‘possibly’ the case
- does not require existence of objectively ascertainable facts, but must be more than a hunch
- requires some articulation
- may trigger investigative detention, but will not support arrest or charge
keywords being: definitely, probably, and possibly
what statutes are you authorized to act under?
Criminal code, crown property regulations act, and all provincial offenses under POPA (Provincial Offenses Procedural Act)
common ones used at the legislature are: trespass to premises, breach of the peace, AGLC Act
what is a form 21
Warrant of committal on conviction (pay or stay)
what is a form 8
Warrant for committal
explain a form 10
Undertaking
- A release document that includes conditions and for a promise to pay ( bail)
- A failure to comply with the conditions can result in breach charges being laid under
explain a form 7
A form 7 is a warrant for arrest, the warrant can either be:
1. Endorsed, meaning they are to be released on a promise to appear. So, signature by Justice of the Peace (JP) or Justice is present.
- Unendorsed, meaning they are to be kept to appear before a JP - Judicial In term Release Hearing (JIR Hearing) Show Cause Hearing.
explain an unendorsed warrant
Unendorsed, meaning they are to be kept to appear before a JP - Judicial In term Release Hearing (JIR Hearing) Show Cause Hearing.
explain an endorsed warrant
Endorsed, meaning they are to be released on a promise to appear. So, signature by Justice of the Peace (JP) or Justice is present.
(think of it as the signature endorses their release)
explain a form 9
Appearance notice
- This is a field release document ( not a charging document)
- It compels court attendance
what is lawful placement?
You are acting within your appointment.
You are on duty, and performing duties under your appointment.
You are within your jurisdiction.
What’s the objective reasonable test?
Were you lawfully placed?
Would a reasonable person agree?
Would the officer subjectively believe use of force was reasonable?
explain trespass to premises act. can you arrest for this? how?
A person is trespassing when they have had notice not to trespassing. Such notice can be issued verbally, in writing, and by signs visibly displayed
Arrest without warrant:
-a trespasser may be apprehended w/o warrant by any peace officer
May not be relevant but:
3(1) A trespasser, whether or not any damage is caused by the trespass, is guilty of an offence and liable
(a) in the case of an individual,
(i) for a first offence, to a fine not exceeding $10 000, or to imprisonment for a term not exceeding 6 months, or to both a fine and imprisonment, and
(ii) for a 2nd or subsequent offence in relation to the same premises, to a fine not exceeding $25 000, or to
imprisonment for a term not exceeding 6 months, or to both a fine and imprisonment
explain breach of the peace. can you arrest for this? how?
breach of the peace is defined as “an act done or threatened to be done which either actually harms a person, or in his presence, his property, or is likely to cause such harm being done.”
s. 30 CC Preventing Breach of the Peace:
-anyone witnessing a breach of the peace can intervene to prevent renewal or continuance and detain the person for a PO, using only necessary and reasonable force.
section 31 CC Arresting for Breach of Peace
1) every PO who witnesses breach of the peace and those who assist are justified in arresting any person whom he finds committing the breach or, who on reasonable grounds is about to join or renew the breach of peace
2) every PO is justified in receiving into custody any person who is given into his charge as having been a party to a breach of peace by one who has witnessed or the PO believes on reasonable grounds has witnessed the breach
identify the sources of Sheriff’s authority in Alberta and conclude when and how to act according to that authority:
- Peace Officer Act and Regulations
- Criminal Code
-Policies and Procedures - Provincial legislation
- Common law/case law
when acting, must be lawfully placed:
- acting within PO appointment, in jurisdiction, on shift/on duty
act professionally, be aware of what your authorities are: be aware of legislation that COMPELS you to act
articulate when you have authority to act vs duty to act
authority to act:
-would be actions that are permissible via legal guidelines [eg., using force if necessary is covered under s. 25 (1) (b) CC]
duty to act:
-typically arises by virtue of either statute or common law; duty to act is when you ought to act/have obligation to act
-not acting when having duty to act could result in criminal negligence
-legality of duty to act is outlined in criminal negligence (s. 219 CC) and party to an offence (s. 21 (1) CC)
what is the reasonable person principle?
judges whether or not the act of omissions of a person would be reasonable when compared to that of a reasonable or prudent person in the same circumstances
explain the difference between arrest and detention
- arrest involves removing a person’s physical ability to leave a situation
detention:
- occurs when a state agent acting under lawful authority, through physical or psychological restraint takes away an individual’s choice to walk away
investigative detention:
- aims to allow PO to develop their grounds from reasonable suspicion to reasonable belief
note: detention is a separate and distinct concept from arrest, only for investigative purposes
what 3 sections can we use for arrest without warrant?
-PO appointment: on duty
- S. 495 CC: on duty
- Provincial statutes: on duty
- S. 494 CC: for everyone, finds committing + indictable offence (commonly referred to as civilians arrest)
- S. 30 CC: for everyone (preventing breach of peace; not an actual charge, more of a catch and release)
describe authorities under s. 494 CC
- available to any person
- may only act on finds committing
- advisable to contact POJ and be a good witness
- arrested person must be delivered to POJ
describe authorities under s. 495 CC
- provides PO arrest authority that meets both ‘finds committing’ and ‘reasonable belief’ thresholds relating to all indictable and hybrid offences
-also, authority to arrest persons to prevent future commission of an offence
describe authorities under Crown Property Regulations Act
s. 4: Conduct on Crown Property
- No driving or parking in non-vehicular areas
- No blocking entrances or exits
- No causing damage
- No disorderly gatherings
- No obstructing, harassing, or molesting others
s. 5: Signs, Devices, and Structures
- No placing signs, devices, or structures on Crown property without Minister’s approval
s. 6: Overnight Occupancy
- No camping, sleeping, or residing on Crown property overnight without Minister’s approval
s. 7: Animal Control
- Animals must be caged or on a leash (max. 2 meters)
- No animals in swimming areas or areas with posted prohibitions
s. 8: Removal by Minister of Infrastructure
- Minister may remove:
- Persons breaking the law
- Vehicles violating regulations
- Unauthorized signs or structures
- Animals subject to removal orders
describe authorities under Alberta Gaming, Liquor, and Cannabis Act (sections 107 and 115 are most important to know)
s. 87 (1) (c): no minor may possess or consume liquor
s. 89 (1): no consumption of liquor in public places (unless stated otherwise in act or by other laws)
s. 90.26 (c) no minor may possess or attempt to possess cannabis
Warrantless search and seizure:
s. 107 (1) A peace officer may search a vehicle without a warrant if:
a) There are reasonable grounds to believe liquor or cannabis is unlawfully in or near the vehicle, is being kept unlawfully, or kept for unlawful purposes
b) Delaying to get a warrant could result in the loss of evidence
may w/o warrant, and if necessary, use reasonable force search for that liquor or cannabis in/near vehicle or on person found in/near vehicle
2) If unlawful liquor or cannabis is found, the officer may:
a) Seize the items and their container.
b) If an offence is suspected on reasonable and probable grounds under s. 81 or 90. 23 (both prohibited sales) may seize the vehicle.
3) If a vehicle is seized, the officer must, within reasonable time:
a) Provide an affidavit to a justice, or
b) Return the vehicle to its owner.
Taking intoxicated persons into custody
s. 115 (1) No person may be intoxicated in a public place
2) If believed on reasonable and probable grounds, a PO may take an intoxicated person into custody instead of charging them, if there’s reasonable cause.
3) A person in custody can be released if:
a) They have recovered enough to not be a danger to themselves or others.
b) Someone capable agrees to take care of them.
4) Maximum custody: 24 hours.
5) No liability for actions taken in good faith by officers.
what are the Criminal Code of Canada sections that apply to an officer’s legal use of force?
s. 25 CC:
-applies to everyone
- authority to use as much force as necessary to stop the undesired behavior, if you have reasonable grounds to do so
s. 26 CC:
-holds you accountable for your actions (force has to be proportionate to situation)
- must be able to explain what you saw and why you acted
s. 27 CC:
- authority to use force to prevent commission of an offense
- must be able to explain what you saw and why you acted