In Canada, the police have the authority to detain and arrest individuals under the Criminal Code of Canada and common law. While a warrant issued by a Justice of the Peace or Judge is typically required for an arrest, there are certain situations where the police can make an arrest without a warrant. These circumstances are outlined in section 495(1) of the Criminal Code.
According to the Criminal Code, a peace officer may arrest without a warrant in the following situations:
(a) When a person has committed an indictable offence or the officer believes, on reasonable grounds, that the person has committed or is about to commit an indictable offence;
(b) When a person is found committing a criminal offence; or
(c) When a person is believed to have a warrant of arrest or committal in force within the territorial jurisdiction where the person is found.
For an arrest to be lawful, the officer must have both objective and subjective grounds. This means that the reasonable grounds for arrest must be both objectively reasonable and based on the subjective belief of the officer.
The reasonable grounds must be both objective and subjective reasonable. Reasonable grounds is the point where credibly-based probability replaces suspicion.
The concept of “reasonable grounds” is defined as the point where a credibly-based probability replaces mere suspicion. In a 2013 decision, R v Phung, the Alberta Court of Appeal clarified that an arrest is objectively reasonable when a reasonable person, considering the circumstances and taking into account the officer’s training and experience, would find reasonable and probable grounds for arrest if they were in the officer’s shoes.
It’s important to note that the validity of an arrest is determined based on the circumstances that were apparent to the police officer at the time of the arrest, not what came to be known later. The formation of reasonable grounds does not require a prima facie case, meaning the officer does not have to prove the guilt of the accused beyond a reasonable doubt.
Once an arrest has been made, the officer must inform the accused of the reason for the arrest, their right to remain silent, their right to speak to a lawyer, and their right to contact legal aid duty counsel for free advice. Failure to provide these rights or unlawfully arresting an accused can result in the evidence being thrown out in court.
If you have been charged with a criminal offence, it’s crucial to seek legal advice to ensure your rights have not been breached. Don’t hesitate to contact me to discuss your legal matters and protect your rights.