POWERS OF ARREST AND LIMITATIONS (WITHOUT WARRANT) - BY A PEACE OFFICER
POWERS OF ARREST AND LIMITATIONS (WITHOUT WARRANT) - BY A PEACE OFFICER
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FUNCTIONAL COMPETENCIES
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TABLE OF CONTENTS
Given hypothetical situations of criminal offenses, identify the offence that has been committed and identify whether or not a peace officer has the power to arrest without a warrant.
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The Criminal Code authorizes, under strict guidelines, a peace officer to arrest and detain an individual without a warrant. This arrest, however, must meet the stringent criteria provided by law in order to be legal.
The Criminal Code also places some limitations on these basic arrest powers and describes circumstances under which a Peace Officer shall not arrest. It is important that you thoroughly understand these limitations, because to violate them, would leave the RCMP and yourself vulnerable to criticism and legal liability.
This module will emphasize these authorities and guidelines, which are the basis of your police powers. Knowing the authorities granted by law, and the limitations imposed, is a critical part of your service to the community.
First of all, what is your definition of:
Complete your answer, then check Appendix "A", which provides useful definitions for these and other common terms.
Review Appendix "A" NOW!
ARREST AND DETENTION: DEFINED
An arrest consists of the actual seizure or touching of a person's body with a view to his detention. The mere pronouncing of the words is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting person.
R. v. Whitfield (1970) SCR 46, 1 CCC 129.
Start by reading the Sub-Section 495(1)(a) C.C. Paraphrase the contents in your own words.
Sub-Section 495(1) C.C. states:
A Peace Officer may arrest without a warrant:
a) A person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an Indictable Offence;
The term indictable offence also covers those offences in which there is an option to proceed either by Indictment or by way of Summary Conviction (Dual Procedure). You may refer to Para. 34(1)(a) of the Interpretation Act for the full wording.
Reasonable grounds has been defined as an "honest belief of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinary prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed". Hicks vs. Faulkner, 1878, Q.B.D.
The following examples will explain what is meant by 495(1)(a) C.C.
Example # 1: Let's look at the offence of assault. As you arrive on the scene of a complaint of an individual getting assaulted, you observe one male kicking an individual on the ground. When he sees you arrive, he stops. As stated in 495(1)(a) C.C. a person has committed an indictable offence.
Example # 2: This time you again respond to a complaint of assault but once you arrive on the scene you observe a male and a female arguing. The female has a black eye and a swollen lip and the male has no injuries. The female and several witnesses tell you that the male hit the female several times with his fist.
As stated in 495(1)(a), you have reasonable grounds to believe a person has committed an indictable offence.
Example # 3: This time you respond to a disturbance. As you arrive on the scene you observe two males arguing loudly. One of the males is getting in a fighting stance and indicates several times he is going to beat up the other male.
As stated in 495(1)(a) you have reasonable grounds to believe a person is about to commit an indictable offence.
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Summary A peace officer may arrest without warrant, anyone who has committed, or who he has reasonable ground to believe has committed, or is about to commit an indictable offence. |
Let's move right into Sub-Section 495(1)(b) C.C.
ARREST FOR COMMITTING A CRIMINAL OFFENCE
"A Peace Officer may arrest without warrant a person whom he finds committing a criminal offence; or_____."
This paragraph is significantly different from paragraph (a) in two ways.
First, this Sub-Section states a "criminal offence" and not an indictable offence. In other words, a violation of any federal statute which includes all indictable, dual procedure and summary conviction offences.
Second, this sub-section is very specific that the peace officer must actually see the criminal offence being committed. If they do, they may arrest without a warrant.
This leaves you with the fact that you will not have powers to arrest if you don't see a summary conviction offence take place. On all other offences, dual procedure offences or indictable, if you have reasonable grounds to suspect the person has committed, is about to commit or you find committing, you can arrest.
It is therefore important for you to memorize the more common summary conviction offences. The next question will help you better understand this subsection.
EXERCISE # 1
You attend to a complaint of "Causing a Disturbance" (Section 175 C.C.), and you find suspects "A" and "B" fighting. The owner of the premises wants them arrested, removed and charged.
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Summary A peace officer may arrest without a warrant, a person found committing a criminal offence (any federal statute). |
ARREST FOR AN OUTSTANDING WARRANT (NOT HELD BY THE POLICE OFFICER ARRESTING)
Finally, let's look at Paragraph 495(1)(c). Paraphrase the intent of this paragraph in your own words.
The key words in this entire Paragraph (c) are:
"Is in force" simply means that the warrant is still outstanding and that there is a Court order to arrest the person named therein.
"Territorial jurisdiction" or territorial division means "any province, county, union of counties, township, city, town, parish or the judicial division or place to which the context (in this case a warrant to arrest) applies. (See Sec. 2 C.C. and Appendix "A").
EXERCISE #2
While on patrol in Blue River, British Columbia, you stop a speeding vehicle with two male occupants. Through radio communication you receive confirmation that warrants are held for suspects "A" and "B" at Nanaimo, B.C. These warrants are for assault (Sec. 266 C.C.), and are returnable in the Province of British Columbia.
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Summary A peace officer may arrest a person for whom there is an outstanding warrant if the warrant is in force in the territorial jurisdiction in which the person is found. If the offence on the warrant is an indictable or dual procedure offence and the warrant is outside your jurisdiction, your authority to arrest comes from 495(1)(a)C.C. If the offence on the warrant is summary conviction and the warrant is outside your jurisdiction, you have no powers to arrest. |
SECTION 495(2) - LIMITATIONS ON POWERS OF ARREST
Sub-section 495(1) constitutes your basic powers of arrest, but it is not the whole picture, because Sub-Section 495(2) places some limitations on these powers.
Turn to that Sub-section now, 495(2), which describes situations under which a Peace Officer shall not arrest a person without a warrant.
Let's look at 495(a)(b) and (c).
Read Paragraphs (a), (b) and (c); they are straight forward. They simply indicate that you shall not arrest for indictable offences listed in 553 C.C. , "Dual procedure" offences or "Summary Conviction" offences in any case where public interest and court attendance is satisfied.
PUBLIC INTEREST AND COURTS
Lets now look at the conditions that must be applied. These conditions are the real keys to the limitations, because they refer to the "public interest" and to "court appearance".
The first condition - Paragraph (d):
Provided you believe on reasonable grounds that the "public interest", having regard to all the circumstances including the need to:
(i) Establish the identity of the person (If you don't know who the person is, and he cannot produce identification to your satisfaction, you may chose, in the public interest, to arrest this individual.)
(ii) secure or preserve evidence of or relating to the offence, or (If you need to secure or preserve evidence of the offence and it is possible that the accused will destroy or remove that evidence if not arrested, then you may arrest in the public interest.)
(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, (Preventing the continuation or repetition of the offence is in the public interest, and you may arrest.)
By law, there is no specific definition of "public interest." A Peace Officer must consider all the circumstances including the three mentioned in paragraph 495(2)(d). Review Section 515(10) C.C. which outlines in detail all the circumstances that would be taken into consideration by a Justice before detaining an accused. It becomes obvious that for all serious offences involving violence, public interest would rarely be satisfied.
and
The second condition - Paragraph (e):
Provided you have no reasonable grounds to believe that the person will fail to appear in court if not arrested.
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Summary - Basic Powers of Arrest & Limitations Section 495(1)C.C. "A Peace Officer may arrest without a warrant":
Sub-section 495(2) C.C. A peace officer shall not arrest without warrant for;
Provided the public interest and court appearance are satisfied. |
LEGAL LIABILITY
Considering the arrest limitations prescribed in the Criminal Code, the question arises, "What protection does the law afford should you overstep these limits"?
The primary protection lies in Sections 25 to 28 and in Section 495(3) C.C. This topic is the subject of the module, "Force in Police Interventions".
To emphasize the point though, should you, for some reason, decide to arrest in spite of not having the authority to do so, you could be in violation of Section 9 of the Canadian Charter of Rights and Freedoms. If you are in violation, you would no longer have the protection provided by the Criminal Code and could be subject to civil or criminal liability.
The following Exercise will help you review this IIM. Use appendix "B" as a guide to help you answer the following questions.
REVIEW QUESTION 1A
After an evening of drinking at the local pub, Rob and Sarah go with John, an acquaintance, to the A&W for something to eat. While there, they are laughing, talking and generally just fooling around.
When Rob goes to the washroom, John quietly moves over next to Sarah and suggests that they dump Rob and go out for some "fun".
When Rob returns to the booth, he asks John, "What are you doing sitting there?", and Sarah tells him about the proposal. Rob goes into a rage and starts yelling and swearing. John starts swearing back at Rob and things quickly get out of control. Rob punches John in the nose and Mrs. Smith, in the next booth, calls the manager to complain.
The manager then calls you to report the disturbance and asks for assistance.
On your arrival, John is sitting on the curb outside, stopping a nose bleed, and Rob and Sarah are still inside. The incident is confirmed by the manager who also gives you the names of two other patrons. John, Rob & Sarah all produce identification. John and Sarah ask if they can leave.
1. Considering Section 175(1)(a)(i), has an offence been committed by:
- Rob:
- John:
- Sarah:
2. Do you have the power to arrest:
- Rob:
- John:
- Sarah:
3. Has the "Public Interest" been satisfied in respect to:
- Rob:
- John:
- Sarah:
4. Is there any indication by anyone of "non-appearance" in court?
REVIEW QUESTION 1B
Before we leave this scenario though, remember that Rob punched John in the nose.
1. Has Rob committed a second offence? If yes, identify the Section and the type of offence.
2. If you determined an offence was committed, do you have basic powers of arrest for Rob?
3. Has the "Public Interest" been satisfied in respect to:
- Rob:
- John:
- Sarah:
4. Is there any indication by anyone of "non-appearance" in court?
If you have any questions concerning the answers to Exercise #1, refer back to that part of the module, consult with your Supervisor or discuss the issue with a colleague.
REVIEW QUESTION # 2
As you are driving down Sleigh St. in Buffalo, Sask., you notice a vehicle ahead of you which has a broken taillight. You stop the vehicle.
Mr. Bryan Adams, who lives and works in town, is the vehicle operator and his wife is the passenger. When you ask Mr. Adams to produce his documents, he produces identification and registration but cannot produce a driver's license. A further check through CPIC indicates that Mr. Adams is disqualified from driving as the result of a Criminal Code suspension.
After discussion with both Mr. & Mrs. Adams, Mr. Adams asks if it would be alright for his wife to drive the rest of the way home.
REVIEW QUESTION # 3
A complaint is received from Mrs. Shaw. Apparently her husband and her son got into an argument about her son going out for the evening. The situation escalated when the son attempted to leave with the car and as a result, Mr. Shaw assaulted their son.
When you arrive at the residence there are indications that the son has been assaulted. His shirt is ripped and there are slight marks on his neck where the shirt bruised the skin. There is no evidence of injury, ie: cuts or broken nose etc.
From your conversation with all three parties, it is also evident that neither the son or his father has relented and you are concerned that the assault may continue after you leave.
1. What offence has been committed and what type of offence is it? Quote the Offence Section and Penalty Section.
2. Do you have the power to arrest Mr. Shaw? What authority?
3. Do arrest limitations apply?
After negotiating a settlement between Mr. Shaw and his son, Mr. Shaw advises that his son can go out and he (Mr. Shaw) will go to his brother's house for the night.
4. Do you have the authority to arrest Mr. Shaw? Explain your answer.
REVIEW QUESTION # 4
Les Ibsen owns a cattle ranch at Grandview, Alberta. He has recently noticed that several of his calves are missing and he suspects Larry Stafford of stealing them. He has complained to you about this.
You receive a complaint from Stafford that Ibsen has been over to the Stafford farm and that during an argument, Ibsen got a rifle from his truck and pointed it at him (Stafford). Stafford would like to have Ibsen charged.
Before you go to the Ibsen farm, you decide you need to refresh.(Look up Section 86(1) C.C.)
1. What offence has been committed?
2. What "type" of offence is this?
3. Do you have basic power of arrest? Explain your answer.
4. Do you have limitations?
REVIEW QUESTION # 5
As you are patrolling the alley behind Main St., Ituna, Sask., you hear glass breaking. After parking the car, you proceed on foot to the back of Barney's Hardware store. Just as you arrive, Jack Knox is walking down the alley towards you with a Mikita skill saw in his hand. Upon examination you see that the skill saw still has a Barney's Hardware price tag on it.
1. What offence, if any, has been committed and what is the Section number?
2. What "type" of offence is this?
3. Do you have basic power of arrest? Explain your answer.
4. Is there limitations to your powers of arrest?
REVIEW QUESTION # 6
You receive a call from telecom advising you that the Fred's hardware store has just been broken into and a large number of power tools were stolen. A red Ford truck was seen driving away from the crime scene. As you approach the scene you observe a red Ford truck driving rapidly in the opposite direction. You turn around and pull the vehicle over and observe a large number of new power tools in the back of the truck.
1. What offence, if any, has been committed and what is the Section number?
2. What "type" of offence is this?
3. Do you have basic power of arrest for the driver? Explain your answer.
4. Is there limitations to your powers of arrest?
REVIEW QUESTION # 7
While you are working radar outside Pelly, Sask., you stop a vehicle and find out that there is an outstanding warrant for the driver. The warrant is for break and enter (Sec. 348(1)(a) C.C.), and was issued by the Appeal Court of Alberta under the provisions of Section 703(1) C.C.
1. Do you have the power to arrest the driver? Quote the section.
APPENDIX "A" - DEFINITIONS
| Term | Definition |
| Arrest | Consists of the actual seizure or touching of a person's body with a view of his detention. |
| Criminal offence | A violation of any federal statute. |
| Detain | To hold back or restrain. |
| Detention | The restraint or deprivation of liberty with or without physical restraint. |
| Finds committing | Actually seeing an offence being committed. |
| Reasonable grounds | An honest belief that under a given set of circumstances, (assuming that they are true), would reasonably lead any ordinary prudent and cautious man, to the conclusion that a criminal offence had been committed and that the person is probably guilty". "Mere suspicion" does not constitute "reasonable grounds". |
| Territorial jurisdiction | Or territorial division, means "any province, county, union of counties, township, city, town, parish or the judicial division or place to which the context, (in this case a Warrant to Arrest), applies". |
APPENDIX B
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4 February 1998
Revised: July 10, 2000
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