Canadian Criminal Procedure and Practice/Arrest and Detention/Arrest Procedure
IntroductionAt the time of arrest, an officer must typically inform the accused of the following and confirm that they understand:
- inform of reason for arrest
- Charter of Rights
- right to speak to a lawyer
- access to legal aid
- secondary police cautions
Right to be Informed of ChargesSection 10(a) of the Charter entitles all people "the right on arrest or detention ... to be informed promptly of the reasons therefor". It is generally expected that the arresting officer, upon making the arrest, will inform the person of the reason for the arrest. However, where the reason is obvious and the person is well aware of the reason, it is not necessary.
Right to CounselScript
The arresting officer must inform the accused of the charges and their right to counsel. Typically, the officer will read from a script such as:
I am arresting you for [name of offence(s)].
You have the right to retain and instruct a lawyer without delay. You also have the right to free and immediate legal advice from duty counsel by making free telephone calls to [toll-free phone number(s)] during business hours and [toll-free phone number(s)] during non-business hours.
Do you understand?
Do you wish to call a lawyer?
You also have the right to apply for legal assistance through the provincial legal aid program.
Do you understand?
- Canadian Criminal Procedure and Practice/Arrest and Detention/Right to Counsel
Right to SilenceThe right to silence is set out in s. 11(c) of the Charter, which states that a "person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence". This right is protected by the right to "life, liberty and security of the person" under s. 7 of the Charter.
The purpose of s. 11(c) is “to protect the individual against the affront to dignity and privacy inherent in a practice which enables the prosecution to force the person charged to supply the evidence out of his or her own mouth.”
The right to silence does not extend to a right to conceal one's identity. A Peace Officer has a right to inquire into the identity, including name, date of birth, and place of residence of a person who is under investigation. However, there is no common law power of a Peace Officer to determine identity. It must be derived from legislation.
Upon arrest the peace officer must inform the accused of their right to silence protected under section 7 and section 11(c) of the Charter.
The script read to the accused will go something like the following:
I wish to give you the following warning: You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence.
Do you understand?
Where there had been previous communication between the police and accused prior to the reading of the first police warning, the police will usually provide what is called a "secondary caution" or "warning" that informs the accused that nothing said by the police prior to the first warning should influence the accused in the decision to make a statement.
The script read is similar to the following:
SECONDARY POLICE WARNING:
I wish to give you the following warning: You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time.
Whatever you felt influenced or compelled to say earlier, you are now not obliged to repeat, nor are you obliged to say anything further, but whatever you do say may be given as evidence.
Do you understand?
Terms of CustodyWhen a police officer arrests an individual without a warrant, they have the discretion to hold the person for up to 24 hours until charges are laid and they must be prepared to show cause as to why the person should be kept in custody before a Judge of the Court or Justice of the Peace. The Justice will assess whether there is reason to detain the individual or else release them on any conditions.
The 24 hour time limitation can be extended where a judge or justice of the peace is not available within the time limit such as during weekends or holidays.
Where the decision to detain is not made out, such as under s. 498, it may be grounds for a stay of proceedings.
This is governed by section 83.3 of the Criminal Code:
Duty of peace officer
83.3 (5) If a peace officer arrests a person without warrant in the circumstance described in subparagraph (4)(a)(i), the peace officer shall, within the time prescribed by paragraph (6)(a) or (b),
(a) lay an information in accordance with subsection (2); or
(b) release the person.
(6) A person detained in custody shall be taken before a provincial court judge in accordance with the following rules:
(a) if a provincial court judge is available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge without unreasonable delay and in any event within that period, and
(b) if a provincial court judge is not available within a period of twenty-four hours after the person has been arrested, the person shall be taken before a provincial court judge as soon as possible,
- Koechlin v. Waugh (1956) Ont.CA
- R v Hebert  2 SCR 151 at 47
- R. v. Amway Corp., 1989 CanLII 107 (SCC),  1 S.C.R. 21, at para. 35, per Sopinka J.
- R. v. Autio (M.) (1994), 159 A.R. 167 (ProvCt)
- R. v. Gagné  1 S.C.R. 1584 
- . v. Lewis, 2001 BCPC 426 ; R. v. McKelvey, 2008 ABQB 466