What are your rights and remedies on arrest in Canada?
Arrest is a fundamental element of Canadian criminal law, involving the lawful apprehension and detention of individuals by law enforcement officers. It’s a pivotal tool for maintaining public order, preventing further harm, and ensuring that those suspected of criminal activity face legal proceedings. At its core, arrest is the lawful act of restricting an individual’s freedom by a law enforcement officer, usually accompanied by the communication of the reasons for the arrest.
This process is crucial for upholding the rule of law, ensuring justice is served, and maintaining societal harmony. Whether conducted with or without a warrant, arrest plays a critical role in the Canadian criminal justice system, balancing the interests of public safety and individual rights.
What are the types of arrests in Canada?
The process of arrest in Canada encompasses various approaches, each with its own set of legal provisions and implications. Understanding the distinctions between these types of arrests is essential for navigating the complexities of the Canadian legal system:
- Arrest with a warrant: These arrests involve the issuance of an arrest warrant, an authorized document issued by a judge. Warrants are based on reasonable grounds to believe that an offence has been committed and that the individual to be arrested is involved. The involvement of a judicial authority ensures accountability and prevents arbitrary detentions, maintaining the delicate balance between individual rights and law enforcement duties.
- Arrest without a warrant: In urgent circumstances or when an offence is committed in an officer’s presence, peace officers can make a warrantless arrest. This type of arrest is permissible when there are reasonable grounds to believe that an offence has occurred, recognizing the need for swift action to prevent immediate harm or address situations where evidence could be lost if a warrant were required.
- Citizen’s arrest: This concept grants private individuals the authority to apprehend and detain individuals when they witness a criminal offence or have reasonable grounds to believe that an offence has been committed. This unique power, when wielded responsibly, serves as an extension of law enforcement in specific situations, emphasizing the shared responsibility of maintaining societal order.
What constitutes a valid arrest in Canada?
The concept of “reasonable grounds” is central in Canadian criminal jurisprudence for maintaining the balance between individual rights and state authority. The landmark decision in R v Storrey emphasized that for an arrest to be legitimate, law enforcement officials must have grounds that are both objectively justifiable and subjectively believed by the arresting officer. A situation arises when an individual disrupts or is about to disrupt public peace.
For an arrest to be deemed valid within the Canadian legal framework, certain fundamental criteria must be met:
- Direct observation of offence: A peace officer personally witnesses an individual committing a criminal offence, providing immediate and tangible grounds for arrest.
- Anticipation of an impending or committed crime: Law enforcement possesses reasonable grounds to anticipate that an individual is on the verge of committing a crime or has already committed one, justifying the need for apprehension to prevent further harm or ensure their presence in legal proceedings.
- Refusal to disclose identity: If an individual declines to disclose their identity following a violation of the law, a peace officer may lawfully arrest them based on these reasonable grounds, preventing evasion of accountability.
- Issuance of a warrant: A validly issued arrest warrant, backed by credible evidence and authorized by a judicial entity, forms a solid foundation for an individual’s arrest.
- Breach of peace: An arrest may be deemed valid when an individual’s actions lead to a breach of peace, endangering public safety or the stability of the social environment.
- Suspected public intoxication: The reasonable belief that an individual’s public intoxication poses a risk to themselves or others can constitute valid grounds for arrest.
- Terrorism suspicions: When a peace officer holds reasonable grounds to suspect an individual’s involvement in terrorism or an imminent terrorist offence, a valid arrest may be executed to avert potential harm.
Upholding these guidelines ensures that both public safety and individual rights are maintained, emphasizing the importance of reasonability in arrests.
What are the remedies for an unlawful arrest in Canada?
Instances of unlawful arrest can occur when officers exceed their lawful authority or lack proper grounds for apprehension. When bringing an action under section 9 of the Canadian Charter of Rights and Freedoms, the burden of proof lies on the accused to prove that they were imprisoned or detained arbitrarily. The Supreme Court of Canada through its landmark judgement has developed an analytical framework to differentiate an unlawful arrest on the basis of questions such as whether the accused was detained or imprisoned and whether such detention or imprisonment was arbitrary.
In such cases, individuals have the right to challenge the legality of their arrest through legal means. Individuals arrested are entitled to remedies under section 24(1) of the Canadian Charter of Rights and Freedoms. They can have evidence excluded if it was obtained as a result of an unlawful arrest. Moreover, civil actions can be pursued against law enforcement agencies in cases of false arrest and imprisonment.
What are my rights on arrest in Canada?
Every individual arrested or detained has certain rights granted by the purview of section 10 of the Canadian Charter of Rights and Freedoms:
- Right to be informed about reasons for arrest: Law enforcement officers making the arrest are bound by section 10(a) of the Canadian Charter of Rights and Freedoms to immediately communicate or inform the person being arrested of the grounds or reasons for such arrest.
- Right to counsel: As per section 10(b) of the Canadian Charter of Rights and Freedoms, every detained or arrested individual has the right to consult with a lawyer and should be promptly informed about this right, ensuring they are aware of their legal avenues and protections.
- Habeas corpus: Under section 10(c) of the Canadian Charter of Rights and Freedoms, every individual arrested has the right to have the validity of the arrest in question determined through the writ of habeas corpus. This provision is the strongest pillar of protecting personal liberty, serving not just as an absolute right but as a constitutional remedy as well.
If you are anyone you know is facing an arrest, reach out to Shory Law at 403-216-1199. With a commitment to upholding justice, our criminal lawyers offer a free legal consultation to ensure that your rights, or those of your loved ones, are zealously defended.