POLICE POWERS
RELEASE BY PEACE OFFICER, OFFICER IN CHARGE OR THE COURTS
POLICE POWERSRELEASE BY PEACE OFFICER, OFFICER IN CHARGE OR THE COURTS
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FUNCTIONAL COMPETENCIES
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TABLE OF CONTENTS
Given typical arrest situations, state if the arrested person can be released, by whom, under what authority and the correct form(s) to use in each case.
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Canadian law provides for the arrest of individuals, when that action is deemed to be in the interest of society. But the same law also recognizes that arrest is an extreme measure, and not always the most efficient solution.
The Criminal Code provides for the release of arrested persons, even when the arrest is initially justified. If the legal criteria are met, it is incumbent on the peace officer or the officer in charge to release the accused.
To the other extreme, there are also offences for which only a Judge of the Superior Court of Criminal Jurisdiction has authority to release a person in custody.
This module will identify how to determine who has the authority to release, for which offences and the procedure to do so.
Before starting this subject however, it may be useful to review your arrest limitations, because the two subjects are closely related.
Having already studied the Modules on Arrest Without A Warrant and Arrest Limitations, you know that by virtue of Sub-section 495(2) you shall not arrest for:
(a) indictable offences listed in Section 553;
(b) dual procedure offences; or,
(c) Summary Conviction Offences,
unless
(a) "Public Interest" is not satisfied, with respect to;
i) The identity of the person;
ii) The need to secure or preserve evidence; or,
iii) The need to prevent the continuation or repetition of the offence or the commission of another offence; or,(b) The Peace Officer has reasonable grounds to believe that the person will not appear in Court.
If the arrest is made, for example, because the identity of the person is unknown, what do you do with the person when and if you are able to establish that identity?
The Criminal Code provides for the release of an accused under specified circumstances, provided certain criteria are met. Turn to Section 497 of your Criminal Code, and read through the entire section. Then summarize the key points in your own words.
Your summarization of Section 497 should
include these key points.
When you arrest a person, without a warrant, for:
(a) an offence found in Section 553;
(b) a dual procedure offence; or,
(c) a pure summary conviction offence,
that person should be released as soon as practicable, by either
(d)a summons served at a later time or,
(e)an Appearance Notice,unless
(f) you believe (on reasonable grounds) that it is necessary in the public interest, or,
(g) you believe, that the person will not show up in court.
What is striking about this section, is that it is almost a carbon-copy of Sub-section 495(2). The only difference so far is Paragraphs (d) & (e) which deal with the manner in which you may release.
The following scenario should clarify these points.
Mrs. Shaw complains that her husband and her son are fighting about her son going out for the evening. An assault occurred when the son attempted to leave with the car. From your conversation with all three parties, it is evident that the son intends on going out. Mr. Shaw insists his son will not go out and there is no doubt Mr. Shaw did commit the assault.
You decide to arrest Mr. Shaw under Paragraph 494(1)(a), to prevent the continuation of this offence (Sub-paragraph 495(2)(d)(iii)).
Shortly after you lodge Mr. Shaw in cells, his son shows up and tells you that he has changed his mind and would like to talk to his father. After apologies, it is obvious that both have cooled off and that the offence is not likely to be repeated.
Sub-section 497(1) gives you two options of releasing Mr. Shaw from custody. You can simply release him with the intention of compelling his appearance by Summons, or issue an Appearance Notice, then release him.
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Summary A peace officer who arrests without a warrant, shall release the person from custody as soon as practicable with the intention of compelling appearance by way of summons, or after issuing an appearance notice. |
There are exceptions to this however, and the first of these is described in Sub-section 497(2). It states that:
Sub-section (1) does not apply in respect of a person who has been arrested without warrant by a peace officer, for an offence described in Sub-section 503(3).
Turn to Sub-section 503(3) now and paraphrase its intent in your own words.
When you believe there is an outstanding "out-of-province" warrant, for an indictable offence (503(3)), you must first confirm that the warrant is still valid, then determine if the issuing jurisdiction wishes to have the person arrested and returned. If you arrest, the person must be taken as soon as possible before a Justice who has jurisdiction. For example:
Jimmy Tafia is in Buffalo, Sask., and when you stop him for going through a stop sign, you discover there is a warrant for his arrest in Ontario, for an offence under Section 343 (Robbery).
You confirm that the warrant is still valid, and they want Tafia arrested to stand trial. You arrest Jimmy Tafia and take him back to your detachment.
Sub-sections 497(2) and 503(3) tell you that you cannot release him. You must take him before a Justice and the Justice will determine the next step to be taken.
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Summary A peace officer who arrests without a warrant for an offence described in Sub-section 503(3) shall not release the person from custody. |
Complete the following Self-Check to verify your understanding of what has been discussed to this point.
If you are on track continue with the next segment of the module. If not, review the appropriate material, consult with your supervisor or with one of your colleagues.
RELEASE BY THE OFFICER IN CHARGE (O i/c)
First of all, who is the Officer in Charge? (The answer is in Section 493 of your Criminal Code.)
Within the RCMP, Officer in Charge means the detachment Commander or, as designated, the Member in Charge of the shift.
It is very possible that you may be both persons at the same time, particularly at small detachments where you are the only one working that shift.
One important fact that you must know right from the start is that, the Officer in Charge becomes responsible for the arrested person, when the person has not been released by the arresting Peace Officer, and has not been taken before a Justice.
Section 498 of the Criminal Code describes the role of the Officer in Charge. Read that section now, and as you do so, compare it with Section 497.
After comparing these two sections, you probably realize they are basically identical. Section 498 does provide some additional responsibilities and authorities to the Officer in Charge, which are discussed below.
Sub-section 498(1), includes arrest by anyone as well as arrest by a Peace Officer, as indicated by the reference to Sub-section 494(3).
Answer the following questions to define and discuss the other differences between Sections 497 and 498.
These four features, differentiate the responsibilities and authorities of an O i/c under section 498. Here's why.
The O i/c is also responsible for releasing a person arrested by anyone (Section. 494(3)), and for releasing a person arrested for an offence punishable by imprisonment for five years or less (which is the answer to question #1).
More significant differences are in the method of release.
A Peace Officer has two methods of release:
The Officer in Charge, on the other hand, has more options:
For the purpose of release, the role of the O i/c is restricted in one sense and expanded in another. These differences are captured in the following points:
- Without deposit if the person is not ordinarily a resident of the province in which the person is in custody; or,
- With deposit if the person does not ordinarily reside within two hundred kilometres of the place in which he is in custody.
Turn now to Sub-section 498(2) of your Criminal Code.
This Sub-section is exactly the same as Sub-section 497(2) and the O i/c is required to follow the same procedure identified earlier in this module for the Peace Officer.
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Summary An officer in charge who receives a person who has been arrested without a warrant for an offence described in Sub-section 503(3) - shall not release the person from custody. |
The following Self-Check will help you assess your grasp of release of arrested persons by the Officer in Charge.
Verify your responses against those provided before proceeding to the next portion of this module.
Continuing on with the discussion of Release by the Officer in Charge, there are still a few details to tidy up. These are important, because it is possible you could be both the arresting officer and the Officer in Charge.
Turn to Sub-section 503(4) of your Criminal Code, and paraphrase its intent in your own words.
You will recall that under Section 495, a Peace Officer may arrest without warrant, a person who is "about to commit" an Indictable Offence.
Sub-section 503(4) addresses the issues of, "about to commit" and "prevent an offence". Note as well, that this Sub-section is addressed to a Peace Officer or an Officer in Charge.
The final two questions that need to be resolved are:
Paragraphs 497(1)(f) and (g), and 498(1)(i) and (j), answer the first question for the Peace Officer and Officer in Charge respectively. In conjunction with Sub-section 503(1), these provisions authorize you to detain the arrested person, to be taken before a Justice. Take a moment and review those references now.
Note the stipulation: "within 24 hours and as soon a possible."
It is within your authority not to release the person but, as soon as possible, you must take him before a justice. At that point, the Justice will determine the next course of action.
What happens when you arrest with a warrant?
Two Sections of the Criminal Code apply here. The first is Sub-section 503(1) which we just reviewed. The first line of this Section includes: "A Peace Officer who arrests with or without warrant ..... "
The second reference is Section 499 C.C. The first line starts with: "Where a person who has been arrested with a warrant by a Peace Officer .... the Officer in Charge may, if the warrant has been endorsed by a justice under Sub-section 507(6), release the person".... under the conditions established in Paragraphs (a), (b) and (c). These Paragraphs, incidentally are identical to those conditions described in Sub-section 498(1)
Combined, these Sections (503(1), 499(1) and 507(6)), provide for the release or the detention of the person for the purpose of taking him before a Justice, depending on whether or not the warrant has been endorsed.
Sub-section 499(2) expands the release conditions available to the Officer in Charge. Read that Sub-section now and note the four additional undertakings mentioned and the Form to be used for this.
The person to be released can be required to undertake:
These extended undertakings must be recorded on Form 11.1
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Summary When a person is arrested with a warrant, or the "public interest" and/or "court appearance" are not satisfied, a peace officer or the officer in charge: may detain the person, and take him before a Justice as soon as possible. When an arrest has been effected on a warrant not endorsed, a peace officer or officer in charge can detain the person but must deliver them to a justice or judge as soon as practicable. |
PROMISE TO APPEAR, RECOGNIZANCE FORMS
By now, you know how to complete several different forms, such as an Information, Summons, Subpoena, etc. The same rules apply to completing a Promise to Appear or Recognizance.
You must ensure the following items are complete and accurate:
If you feel you would like to review the completion of a court document, refer to the module Summons.
Once a person has been served with any release document, failing to appear as required is an offence under the Criminal Code.
Read Sub-sections 145(4) and (5) and in your own words note the type of offence this is.
Everyone who is served with a summons (Sub-section 145(4)) or, named in an Appearance Notice, Promise to Appear, a Recognizance or an Undertaking (Sub-section 145(5)), and fails to attend, is "guilty...of a dual procedure offence".
Both sub-sections also make it an offence, to not appear for the purposes of the Identification of Criminals Act.
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Summary A person who fails to appear after being released on a summons, appearance notice, promise to appear, a recognizance, or undertaking, may be charged with failing to appear, a dual procedure offence. |
In addition to the Peace Officer and Officer In Charge, the court also has authority to release arrested persons.
Your responsibility as a Peace Officer or the Officer In Charge is to release an arrested person as soon as practicable, or take the arrested person before a Justice or Judge having jurisdiction. Once you appear before the Justice or Judge, release becomes a court matter.
Turn to Sub-sections 515(1) and (2) of your Criminal Code and paraphrase their intent in your own words.
The keys to these two Sub-sections are that, except for offences listed in Section 469, and those in Sub-section 515(6), the Justice shall release the person, unless the prosecutor shows cause as to why the detention of the person is justified.
In the case of offences listed in Sub-section 515(6), the onus is on the person to show why they should not be detained further.
There may be times when you do not want this individual released and it therefore becomes incumbent on the Crown to demonstrate that further detention is justified.
The Crown may apply to detain the person in custody and the Justice may adjourn the case for not more than three clear days, except with the consent of the person, in which case it may be longer.
Section 516 of the Criminal Code provides that authority.
The reason for this remand is to allow the Crown to prepare for a show cause hearing, the purpose of which is to justify the detention on either of two grounds.
Turn to Sub-section 515(10) of the Criminal Code and describe those two grounds in your own words.
If the Court determines that the person should be released from custody, the Justice or Judge may do so in one of two ways.
These are described in Sub-sections 515(1) and (2). Read these Sub-sections, and identify the two forms of release and the variations of each.
You may not know the number of the forms involved, but they are called:
The variations of these releases are:
It was indicated a bit earlier that a Justice shall release the person except for an offence listed in Section 469. Review those offences, then turn to Section 522 C.C.
Who has authority to release a person arrested for an offence listed in Section 469 C.C.?
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The next Self-check will help assess your understanding of release by the courts.
Verify your responses with those provided and if you are confident of your understanding of this module, review the Module Summary, then complete the Criterion Test. If you have any concerns or questions, review that portion of the module, or discuss the issue with your supervisor or a colleague.
Appendix "A", is the flow chart that was introduced in the module, Arrest Limitations. You now have all the information required to use this chart in it's entirety. You may use this chart if you wish, when completing the Criterion Test for this module.
CRITERION TEST - RELEASE BY PEACE OFFICER
The following are a series of arrest situations, for identified offences. For each one,
APPENDIX "E" - COURT COMPELLING AND RELEASE DOCUMENTS FLOW CHART
APPENDIX "B" - WARRANT FLOWCHART
© GRC-RCMP
ecdp1038.doc
August 1, 1997
Revised: July 31, 2000
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